Terms and Conditions of Services of Lex Mercatoria Fiduciary Ltd. (“Mercatoria”)

A copy of the current Terms and Conditions and Fee Schedule may be obtained by request. These Terms and Conditions and/or the Fee Schedule may be revised from time to time without the consent of the Client. We will notify the Client in writing of any changes which we consider to be material at least 2 weeks before such changes are implemented. We will notify the Client of any non-material changes as soon as reasonably practicable after their implementation. The Client shall be bound by any changes to the Terms and Conditions and/or the Fee Schedule upon the publication and or implementation of those changes.

1.0   Definitions and Interpretation

1.1   In these Terms and Conditions, the following words and phrases shall, save where the context requires otherwise, have the following meanings:

“Agreement” means any agreement in writing entered into between Mercatoria and the Client and/or the Managed Entity relating to the Services;

“Appointees” means all persons provided by Mercatoria to act as a director and or other officer, trustee, protector, manager, signatory or shareholder of any Managed Entity;

“Business Day” means a day on which Mercatoria is ordinarily open to carry on business;

“Client” means, as appropriate, any one or more of the principals and, in the case of an individual, includes that individual’s heirs, personal representative and assigns and, in the case of a body corporate, includes its successors and assigns;

“Employees” means the directors, officers, and employees (as appropriate) of Mercatoria;

“Fee Schedule” means the schedule of charges issued from time to time by Mercatoria in respect of Mercatoria’s standard charges for the Services;

“Managed Entity” means any body corporate, partnership, trust, foundation, association, fund or other person in respect of which Services are provided;

“Mercatoria” means, Lex Mercatoria Fiduciary Ltd. and any member of, or any associated company within, The Mercatoria Group (defined below) whether as subsidiary, holding company, joint venture company or franchisee of The Mercatoria Group or any of its subsidiaries or in any other capacity whatsoever and shall where the context admits include any employee servant agent director or representative of same which provides Services (as hereinafter defined) pursuant to this Agreement.

“The Mercatoria Group” means the multi-jurisdictional marketing insignia of an international group of companies offering company and trust formation and related services. Member companies are independent of one another and have no authority, with regard to any other group member, to represent, bind or act directly or indirectly as a statutory, managing or general agent, representative or attorney for any purpose whatsoever, nor to be based in any jurisdiction outside that in which they are incorporated.

“Services” means, as appropriate, all or any of the services carried out or performed for or on behalf of, or in connection with (whether before or after its establishment), any Managed Entity by Mercatoria or any Appointee or Employee (including, without limitation, the provision of trustees, directors and shareholders and the administration of such Managed Entity);

“Terms and conditions” means these terms and conditions as amended from time to time and as may be published on Mercatoria’s website (www.mercatoria.com) and shall be deemed to include such other conditions which Mercatoria may from time to time notify in writing to the Client and/or publish on its website;

1.2   In these Terms and Conditions unless the context otherwise requires, words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case.

1.3   References to “clauses” herein are to clauses of the Terms and Conditions.

2.0   Remuneration and Expenses

2.1   Mercatoria shall be entitled to

  1. remuneration in accordance with the most recently updated Fee Schedule and/or any additional or adjusted fees as agreed in the relevant sections of the Company or Trust Application form(s).
  2. in the absence of any Agreement between Mercatoria and the Client, remuneration in accordance with these published Terms & Conditions; and
  3. be reimbursed for all disbursements and expenses incurred by it in providing the Services.

2.2   Mercatoria may deduct any unpaid monies, including remuneration, owing to it in connection with the Services from the assets of the Managed Entity without the consent of the Client.

2.3   Where Mercatoria, a Client and or any Managed Entity enter into an Agreement relating to the Services which does not expressly replace the Terms and Conditions in their entirety or in any specified part:

  1. in the event of any conflict between the terms, or the relevant terms, of the Agreement and the Terms and Conditions, the terms of the Agreement shall prevail;
  2. the Client hereby guarantees the due payment of all fees, remuneration, disbursements and expenses payable by the Managed Entity under the Agreement (and agrees that Mercatoria may claim under this guarantee without first seeking recourse against the Managed Entity or any other person); and
  3. the Client shall ensure that the Managed Entity is kept in funds sufficient to allow it to meet in full all fees, remuneration, disbursements and expenses payable by the Managed Entity under the Agreement.

2.4   Bespoke solutions may be required

  1. Where Mercatoria acts as a trustee on any Managed Entity (a trust) holding financial and other certain assets (“Assets Under Management” or “AUM”), certain situations of risk, complexity and sensitivity, may require Mercatoria to formulate bespoke solutions for the Client(s). This occasion may necessitate a different approach to charging, where Mercatoria may elect to charge fees based on a percentage of AUM. In the absence of an Agreement, Mercatoria may charge fees based on a percentage of AUM between 1% – 7.0%. Our standard remuneration is 3.0% of AUM.
  2. Transfer In: When a Managed Entity is transferred to Mercatoria from other jurisdictions and/or service providers, and in the absence of an Agreement, these published Terms & Conditions will apply.

2.5   All monies payable to Mercatoria in connection with the Services shall be paid within 30 days of the issue of the relevant invoice and interest at the rate of 1% per month may be charged on all overdue amounts.

2.6   In the event of termination part way through a calendar year, that portion of any annual fee paid in advance by the Client that is unused, by virtue of the fact that it has not enjoyed services from Mercatoria for the entire year, shall be returned to the Client, less any other amounts that are due from the Client to Mercatoria on or following termination (including termination fees). The unused portion shall be calculated on a pro-rata basis to the nearest month, where termination part way through a calendar month is treated as though the engagement had continued to the end of that month.

3.0   Monies held by Mercatoria

3.1   Moneys held by Mercatoria on behalf of the Managed Entity and/or the Client shall be held in a designated account for the Managed Entity or the Client as the case may be.

3.2   Mercatoria shall use all reasonable endeavours to procure that amounts held in designated accounts are interest bearing at reasonably competitive rates of interest, unless otherwise agreed, and shall provide details of such rates from time to time on request provided that no interest shall be payable in respect of funds to be disbursed.

3.3   All interest earned on monies held in accordance with the above clause shall accrue for the sole benefit of the Managed Entity or the Client as the case may be and shall be credited to the relevant account.

4.0   Client’s Undertakings

4.1   The Client hereby undertakes that:

  1. all assets which are or will be introduced to the Managed Entity have been lawfully introduced and are not derived from or otherwise connected with any illegal activity;
  2. the Managed Entity will not be engaged or involved, directly or indirectly, with any unlawful activity or used for any unlawful purpose;
  3. the Managed Entity will not undertake any activities and/or allow any actions by others which will require a licence, consent or approval in any jurisdiction without first obtaining such licence, consent or approval or which will breach any conditions contained in any such licence, consent or approval;
  4. the Client shall procure that the Managed Entity complies with all filing requirements in any applicable jurisdiction and that all taxes and governmental dues payable by the Managed Entity are discharged;
  5. the Client shall provide such information and documentation as Mercatoria may, in its discretion, require in order to comply with all applicable laws and regulations (including ‘know your customer’ requirements) and to provide the Services;
  6. immediately upon becoming aware thereof, the Client shall notify Mercatoria of:
    1. any event which could be reasonably foreseen to have a material effect on the Managed Entity or its assets or activities (including, without limitation, any act evidencing the insolvency of the Client or commencing its liquidation, winding up or dissolution) or upon Mercatoria’s willingness to continue to provide the Services;
    2. any actual or threatened litigation in any jurisdiction or any actual or threatened investigation by any judicial or regulatory authority and any progress thereof, and to promptly provide such information as Mercatoria may, in its discretion, require in respect thereof;
    3. where the Services include the provision of Appointees, the Client shall not, without the prior consent of Mercatoria, take any action, enter into any agreement or contract, give any undertaking, make any representation or otherwise incur any liability on behalf of the Managed Entity;
    4. the Client shall notify Mercatoria before alienating, assigning, selling, pledging or otherwise disposing of or encumbering any part of the Client’s interest in the Managed Entity.

4.2   The Client represents and undertakes that he has taken appropriate tax and other advice with regard to the establishment of the Managed Entity and his proposed activities and for ensuring that the Managed Entity and his proposed activities comply with all applicable laws and regulations in all relevant jurisdictions. Mercatoria is not responsible for advising the Client, in the absence of express agreement to the contrary, on such matters.

5.0   Instructions

5.1   Mercatoria may act upon instructions (whether by letter, fax, email, telephone or otherwise) given by any person that it reasonably believes to be authorised to give such instructions on behalf of the Client and Mercatoria is not obliged to verify the identity of any person purporting to be so authorised.

5.2   Where Mercatoria does not believe that the person giving instructions is duly authorised or where Mercatoria is given instructions that it believes are unclear or contradictory, it may refuse to act upon such instructions until it receives evidence to its satisfaction as to the instructions or the person giving instructions and none of Mercatoria, the Appointees or the Employees shall incur any liability for such refusal to act.

5.3   None of Mercatoria, the Appointees or the Employees shall incur any liability

  1. for its failure to comply with any instructions which are not in writing or which are incomplete, ambiguous or contain errors; or
  2. for non-receipt of any instruction, written or otherwise; or
  3. for the lack of authority of any person purportedly giving instructions on behalf of the Client.

5.4   In the event that the Client, or any person duly authorised by the Client, provides oral instructions the Client, or the Client’s duly authorised representative, shall as soon as reasonably possible confirm such instructions in writing.

6.0   Specific Authority

6.1   If:

  1. any demand is made against the Managed Entity for payment of any sum due including, without limitation, any taxes, duties, fees or other
    governmental or state impositions and such payment has not, for whatever reason, been made; or
  2. Mercatoria has not been able to obtain instructions from the Client or any authorised person in circumstances where, in Mercatoria’s opinion,
    instructions are required in order to take action that it considers necessary; or
  3. Mercatoria has received instructions from the Client or any authorised person which, in Mercatoria’s opinion, are or may be illegal or contrary to the interests of the Client and/or the Managed Entity or which may lead to any of Mercatoria, any member of the Group, the Appointees or the Employees incurring personal civil and/or criminal liability, then Mercatoria may, as it deems necessary,
    1. either take such action on behalf of the Managed Entity as it thinks fit (including, without limitation to, seeking professional advice at the cost of the Managed Entity, appropriating the assets of the Managed Entity to satisfy any demands for payment, winding up the Managed Entity or transferring the assets of the Managed Entity to the Client); or
    2. take no action whatsoever.

6.2   Mercatoria will, as soon as reasonably practicable after taking any action under clause 6.1 and subject to any legal constraints imposed upon Mercatoria, give notice to the Client of such action having been taken.

6.3   None of Mercatoria, the Appointees or the Employees shall incur any liability for any action or inaction of Mercatoria pursuant to this clause.

7.0   Conflicts of Interest

7.1   Mercatoria provides a wide range of services to a large number of Clients and it is possible that a conflict of interest may arise as a result. If Mercatoria becomes aware or is notified of a possible conflict of interest relating to the Client and/or the Managed Entity, the Client shall be notified and, if possible, procedures will be implemented to ensure confidentiality and independence of advice.

7.2   Notwithstanding the generality of clause 7.1 if any legal advice is required Mercatoria Law may provide that advice, subject to its standard terms and conditions of business.

7.3   Notwithstanding the generality of clause 7.1 if advice is required in respect of the Managed Entity in respect of taxation, accountancy, banking, financial, compliance, and/or regulatory issues, Mercatoria and or Mercatoria Law may provide that advice or may instruct another professional services firm to provide that advice.

7.4   Mercatoria shall be entitled to retain any benefit, whether direct or indirect and including any fees or commissions, obtained

  1. on any purchase or sale of investments; or
  2. by reason of Mercatoria, the Appointees or the Employees acting (including, without limitation, as manager, administrator, trustee, protector, director, officer, shareholder or adviser) for or in connection with any company, partnership, investment fund, scheme or other entity the
    shares, interests, notes or units of which are comprised in the assets of a Managed Entity; or
  3. under any banking, investment advisory or other arrangement entered into or on behalf of the Managed Entity; or
  4. in respect of the provision of any other services to or in connection with the Managed Entity.

8.0   Data Protection

8.1   In applying for the Services you have provided consent to Mercatoria to hold and process personal data, which may include sensitive personal data, for the purposes for which it has been collected. Mercatoria, as a data controller, is bound by the requirements of applicable data protection legislation and undertakes to ensure that any personal data gathered under the terms of the engagement will be processed in accordance with the requirements of that legislation.

8.2   Mercatoria is committed to protecting your privacy and recognises its responsibility to keep the information you provide to it confidential at all times, even when you are no longer a Client. You have provided personal information that is needed to process your application for the Services.

  1. Except where a specific disclosure of your personal information is made at your request or with your consent beyond the scope of your application and the Terms and Conditions, the information that you provide will only be:
    1. used for the purposes described in the application and the Terms and Conditions; and
    2. processed and used in accordance with applicable data protection legislation to which Mercatoria is bound to adhere as a registered data controller.
  2. Your personal data may, without limitation, be passed to the following:
    1. certain external service providers (such as banks) for designated purposes;
    2. any third party, regardless of jurisdiction of residence of that third party, including judicial, governmental and administrative bodies as well as private individuals and entities, because there is a legal requirement to do so or where to do so is necessary for the provision of the Services or where the failure to make any disclosure would, in the opinion of Mercatoria, be prejudicial to Mercatoria, the Appointees or the Employees. Any third party engaged by Mercatoria to process your information shall be subject to the same standards and duties regarding data protection that Mercatoria is subject to.

8.3   Personal data may include any information provided by someone acting on your behalf where that information is relevant to your relationship with Mercatoria.

8.4   If you wish to receive details of personal data held about you by us, you may write to request this – a fee may be charged for this service. We aim to keep your information up-to-date and undertake to correct any inaccuracies in our records of your personal data as soon as we have been notified of such.

8.5   Any of the information you provide may be used for identification purposes, debt collection, the prevention of money laundering, terrorist financing and financial crime, as well as the management of your relationship with Mercatoria.

8.6   The provisions of this clause shall remain in full force and effect notwithstanding termination of the Terms and Conditions.

9.0   Intellectual Property

9.1   All correspondence files and records (other than statutory corporate records) and all information and data held by Mercatoria on any computer system is the sole property of Mercatoria for its sole use and neither the Client nor the Managed Entity thereof shall have any right of access thereto or control thereover.

10.0   Exculpation and Indemnity

10.1   None of Mercatoria, the Appointees or the Employees shall be held liable for any failure or delay in the performance of its obligations in connection with the Services arising out of or in connection with circumstances beyond its reasonable control (including, without limitation, acts of god, civil or military disturbances, outbreaks of war, acts of terrorism, natural disaster, act of government or any other authority, accidents, labour disputes or any power, telecommunications or computer failure).

10.2   The Client undertakes at all times to hold Mercatoria, the Appointees or the Employees harmless and to indemnify them to the greatest extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise from the provision of the Services by Mercatoria, the Appointees or the Employees, other than liabilities arising from the fraud, wilful default or gross negligence of Mercatoria, the Appointees or the Employees.

10.3   The provisions of this clause are without prejudice to any other limitation of liability or indemnity given in favour of Mercatoria, the Appointees or the Employees and shall remain in full force and effect notwithstanding termination of the Terms and Conditions.

11.0   Termination

11.1   The Terms and Conditions shall be terminated and all and any obligation to provide the Services shall cease immediately upon Mercatoria giving notice in writing to the Client that

  1. the Client has breached any of the Terms and Conditions; or
  2. any Agreement has terminated for any reason whatsoever; or
  3. in Mercatoria’s opinion, the Client cannot meet its payment obligations hereunder or under any Agreement; or
  4. Mercatoria has become aware that the Client and/or the Managed Entity is or may become subject in any part of the world to investigation by any judicial or regulatory authority or that criminal proceedings have been instituted or are threatened against the Client or the Managed Entity.

11.2   Where Mercatoria and the Client subsequently enter into an Agreement which expressly replaces the Terms and Conditions in their entirety, the Terms and Conditions shall be terminated without prejudice to any accrued right or obligation of Mercatoria or the Client.

11.3   Upon or in contemplation of termination pursuant to this clause, each of Mercatoria, the Appointees and the Employees shall be entitled to make such retentions and receive such indemnities as it may require in respect of any actual or contingent liability, and may take such action as it deems necessary to limit such liability.

12.0   Joint and Several Liability

12.1   Where the Client is more than one person,

  1. each such person hereby appoints the other such person(s) to act as his agent to exercise full power and authority in connection with the Services on his behalf; and
  2. all obligations of the Client hereunder and otherwise in connection with the Services shall be joint and several.

13.0   Assignment

13.1   Mercatoria may, upon providing reasonable notice to the Client of its intention to do so, assign or transfer the whole or any part of its rights & benefits under the Terms and Conditions, subject to Saint Vincent and the Grenadines Financial Services Authority approval if required and where such rights and benefits arise from activities falling within Mercatoria’s license. Mercatoria may disclose information about the Client and the Managed Entity to any prospective assignee or transferee, provided that Mercatoria shall use its reasonable endeavours to procure that such prospective assignee or transferee is placed under an obligation of nondisclosure equivalent to that in clause 8.2.

13.2   The Client shall not assign or transfer all or any part of its rights, benefits and/or obligations.

14.0   Severability

14.1   If at any time one or more of the provisions of these Terms and Conditions becomes invalid, illegal or unenforceable in any respect, that provision shall be severed from the remainder and the validity, legality and enforceability of the remaining provisions of the Company or Trust Agreement shall not be affected or impaired in any way.

15.0   Notices

15.1   Any notice, which for the avoidance of doubt shall not include such notifications as are contemplated by clause 4 hereof, required to be given hereunder shall be in writing addressed to the party concerned at its address from time to time notified to the other for the purpose, failing which such notice shall be sent to the registered office or the last known usual address of such party.

15.2   For this purpose, any notice

  1. delivered personally shall be deemed to have been given at the time of such delivery;
  2. sent by ordinary post shall be deemed to have been given 72 hours after posting;
  3. sent by airmail shall be deemed to have been given seven days after posting; and
  4. sent by facsimile shall be deemed to have been given at the time of dispatch being confirmed by facsimile confirmation sheet.

15.3   Mercatoria reserves the right to notify the Client by email of its amended Terms and Conditions from time to time published on Mercatoria’s website (www.mercatoria.com).

15.4   Notwithstanding and except for clause 15.3 above, and for the avoidance of doubt, notices shall not be given by e-mail.

16.0   Complaints

16.1   In the event that the Client wishes to make any complaint against Mercatoria, the Client shall communicate the complaint in writing to the Appointees or Employees having direct responsibility for administering the affairs of the relevant Managed Entity. Any complaint received will be acknowledged and dealt with in accordance with Mercatoria’s standard complaints handling procedures.

17.0   Recording of Telephone Conversations

17.1   Mercatoria may, at its absolute discretion, record and monitor telephone conversations.

18.0   Governing Law and Jurisdiction

18.1   These Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Saint Vincent and the Grenadines.

18.2   Mercatoria and the Client irrevocably agree that the courts of Saint Vincent and the Grenadines shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions or its subject matter (including non-contractual disputes or claims).

Lex Mercatoria Fiduciary Ltd. is licensed with no. 52 RA 2024 as a Registered Agent, Registered Trustee and Financial Fiduciary under the Registered Agent and Trustee Licensing Act, Chapter 105, s. 5(3) of the Revised Laws of Saint Vincent and the Grenadines, 2009.