Standard BVI Terms and Conditions
These terms of business (Terms of Business) are produced for the benefit of and apply to clients of Hatstone Trust Company (BVI) Limited (Hatstone) in respect of services and advice we are asked to provide and/or arrange (Services) which Terms of Business supersede and replace all Terms of Business in relation to the Services previously in force. These Terms of Business and any related engagement letter explain the basis upon which we accept instructions and charge for Services.
We provide Services in respect of the applicable laws of the British Virgin Islands and such other jurisdictions as we may from time to time in writing agree. In these terms, we and us refer to Hatstone and you refers to the client or clients.
Our aim is to provide you with high quality, efficient and timely Services. We will act in what we perceive to be your best interests, keeping your affairs confidential and, in the event that any conflicts of interest may arise, point these out to you as soon as practical after we have become aware of any such conflict.
Where these Terms of Business conflict with the terms of any trust instrument, these Terms of Business shall prevail as between Hatstone and the client.
We shall provide Services on the following terms:
accordingly, you waive your rights to privilege in respect of any disclosure of information as set out above;
You undertake to provide us with clear, timely and accurate instructions. You also undertake to provide all documentation required to complete the Services in a timely manner and to safeguard any documents, which are likely to be required for disclosure or otherwise in support of the instructions you provide to us.
Acknowledgments, warranties and undertakings
You acknowledge, warrant and undertake that the decision to apply for the Services is or was your decision alone and that no person exercised undue pressure or undue influence on you to procure the services.
Prior to instructing us for the provision of Services, you took or will take appropriate tax, legal and any other relevant advice with regard to the establishment, conduct, benefit and use of the Services and did not or does not rely on Hatstone or any of their directors or employees, to give such advice.
You will notify Hatstone (and, subject to the terms of any applicable trust instruments, obtain the consent of Hatstone) before alienating, assigning, pledging, disposing of, creating a security interest in or charging all or any part of the interest (if any) which you have in any trusts or entities for which we render Services.
You are not, and were not at the time of procuring the Services, bankrupt (or the local equivalent) or insolvent. You are not and have not been concerned in the management of a company which has been subject to an insolvent liquidation or judicial inquiry. You did not procure our Services or settle assets for the purposes of defeating any known creditors or putting assets beyond their reach. You are not and were not a party to any legal claims (whether criminal or civil) in any jurisdiction. You have never been convicted of a criminal offence.
Your worldwide tax obligations are, and always have been, fulfilled and up- to-date. You represent and undertake that you have taken, and at all times will obtain at your own expense, appropriate tax, legal, financial and accounting advice in relation to the Services.
You will, at our request be obliged to disclose or to procure the disclosure to us of any and all information concerning the Services in question in order for us to undertake our due diligence obligations and you covenant that any and all such information will be provided without undue delay and will be full, complete and accurate. This obligation shall include providing us with any documentation and information we may request from time to time in order to undertake our due diligence obligations as required under any laws & regulations.
Liability and Indemnity
Subject to fraud or willful misconduct by us, you shall indemnify us against all liabilities and costs arising from actions, proceedings, accounts, claims or demands brought against us in connection with the performance of our Services.
Unless specifically instructed or contracted to do so, we shall not provide professional advice of any nature, including without limitation, investment, trust, tax or accounting advice. For the avoidance of any doubt, any comments made by us in connection with investments should not be construed as investment advice and are made without responsibility. We are entitled to take investment advice or to appoint investment advisers and/or investment managers during the performance of our Services. We are not liable for any loss caused to the value of any trust or entity’s assets provided that we acted in good faith when selecting an investment adviser.
Professional indemnity insurance
We have professional indemnity insurance.
We may disclose any information to our professional indemnity insurers or advisers.
If we are instructed by more than one person or more than one representative of a company which is our client, we are entitled to act on the instructions of any one of such persons and to correspond with any of such persons unless otherwise agreed.
In this situation there will be no rights of confidentiality between such persons or representatives so that all information and documents can be shared with any one of you. If there is a difference of opinion on your instructions you may need to be separately represented and if a conflict of interest arises between you or your representatives, we may have to cease acting for both or all such persons or companies.
If you or your agents instruct us to give a professional undertaking we reserve the right to refuse to do so. Where we give any such professional undertaking we will usually require you to support this in writing and to confirm agreement to the terms. In any event we will be entitled to full security to meet the obligations incurred on your behalf and all costs associated with the undertaking on a fully indemnity basis. An undertaking once given (and subject to its terms) will not necessarily be able to be withdrawn and may be for an unlimited time.
In relation to any such undertaking given on your behalf, you agree fully and immediately to indemnify us in respect of all claims, time costs, liabilities and disbursements incurred by us in complying with it.
Powers of attorney
Where you provide us with a power of attorney we may act on that power of attorney in accordance with its terms consistent with your general instructions and without the need for your specific written instructions to act upon it. Nevertheless we reserve the right to request specific written instructions and may at our discretion refuse to act without such written instructions.
In consideration for providing the Services, we are entitled to remuneration in accordance with our standard fees in force from time to time (available on request at any time), or as individually agreed between us and yourself from time to time, which fees shall be payable free of taxes and shall be a first charge on the assets of the relevant trust or entity. Where we charge on a time basis, we will provide you with our current hourly charging rates. Full details of rates will be provided on request. SAVE THAT we have the right to automatically apply an annual adjustment to our fixed fee arrangements in line with inflation and/or increases in staff charge out rates, such increases will apply from 1 January in any calendar year. Our rates do not include disbursements or expenses, which will be added to our invoices as appropriate.
In the absence of any agreement to the contrary, we will charge for the Services on the basis of the time spent in carrying out the work. Time spent will include time spent in conducting customer due diligence procedures and travelling to or from any meetings.
Time based fees will be charged at varying rates depending on the nature of the work and the seniority and specialist knowledge of the personnel undertaking such work. These rates may be changed from time to time. Full details of rates will be provided on request. The precise rate will be based on a number of factors including:
Time spent on a matter will be recorded by all our members dealing with it and the total time recorded will be one but not the only factor taken into account in assessing the level of fees to be charged for work done on a time spent basis. We will always be willing to discuss the basis for charging a particular matter at the outset.
Where hourly rates are given these are exclusive of tax and disbursements.
Where an estimate of fees is requested and given, unless otherwise agreed, it is only an indication of the amount anticipated as being the likely charge and shall not be regarded as an agreed fee for the work on the transaction unless specifically confirmed as a fixed quotation. No estimate or quotation will be effective unless given in writing. In particular any estimate or quotation will be on the basis of the information you have given us, that you have provided us with all key information and documents at the outset, there are no material changes of instruction, there are no material changes of circumstances, the fee does not include disbursements and costs, there are no unforeseen complex, legal or other issues, if administrative matters proceed as expected and do not become protracted for reasons beyond our control and we do not need to liaise with other non identified parties. Our charges may therefore differ from estimates and quotations which are provisional. We can indicate current unbilled time costs on request.
Hatstone shall use its reasonable endeavours to notify you in writing at least 30 days in advance of any changes to the basis on which it calculates its fees.
Invoices are payable within 30 days of the relevant invoice date.
Hatstone shall be entitled to settle its fees and pay its costs and expenses from the managed assets without your consent or any third party when it deems fit. We may liquidate assets of managed entities for this purpose.
In the event that our Services are terminated and we are subsequently requested to provide information or documentation, or act in relation previously managed entities (including trusts or companies), we will be entitled to charge reasonable fees for complying with such requests. Where you make such a request, you shall meet such fees in advance. In the event that we are requested to provide documents relating to managed entities to a third party (including to you or any trust beneficiaries), and in the event we agree to do so, we will be entitled to take such copies as we consider reasonable and the cost of such copies (and the making of such copies) shall be met by that third party.
Any invoice not paid in accordance with the provisions above shall bear interest until payment at the rate of 5% per annum and such interest shall be payable on demand. You will pay any unpaid invoice and interest on our request. You shall indemnify us for any loss arising as a result of any unpaid invoice and interest.
We will be entitled to charge an incidental fee to cover out of pocket expenses and document management activities.
Where we are obliged to charge goods and services tax or any other similar tax in respect of any of the services which we provide, we will add the relevant tax to our charges and disbursements at the applicable rate from time to time in force. All estimates or quotations given by us (or on our behalf) are given exclusive of disbursements and exclusive of any goods and services tax or any other similar tax unless otherwise expressly stated.
Our normal policy is to bill matters (other than those on which a scale fee or annual fee will be charged) on an interim basis at least every month or at completion of a transaction if earlier. In some cases, particularly for significant matters, we reserve the right to set a limit for unbilled time and render an account whenever this limit is reached.
All disbursements made on your behalf (including company searches, travel expenses, charges for document production, photocopying and facsimiles) will be charged on the next bill sent to you although we reserve the right to require payments in advance for significant disbursements which are likely to arise. We also reserve the right to request payments on account of future fees and third party costs to be incurred in a matter.
All fees and disbursements will be due (without any right of set off) for settlement in US Dollar upon presentation of our invoice. Interest at the rate of 0.6 % per month will be added to all fees and disbursements which remain outstanding for more than 60 days from the invoice date.
We may settle any invoices for fees and disbursements out of any managed assets, including trust or corporate, as soon as the invoice has been rendered and drawn to your attention.
Where any fees and disbursements remain outstanding for more than 60 days beyond their invoice date we reserve the right to cease providing any Services until all outstanding fees and interest thereon have been settled in full and an amount has been received on account of future fees and disbursements. On ceasing to provide any such Services as a result of fees and disbursements being overdue we will not answer any correspondence or attend to any filings or other matters which may need to be attended to on your behalf in relation to the Services and we shall not incur any liability as a result of our ceasing to provide Services in these circumstances. We reserve the right to charge for time spent in collecting overdue fees, disbursements and third party charges.
Our policy is not to accept cash from clients.
Monies paid to Hatstone on your behalf in connection with the Services will be collected and held by us in the clients’ account on your behalf. When any monies are transferred to our clients’ account you agree that the monies will be held subject to these provisions.
All monies held in our clients’ account will be held to your order or as instructed by you but will only be paid away on your express written instructions and subject to our having satisfied all regulatory requirements and all taxation requirements in respect of monies so held and the payee.
All monies held in a client’s account will earn interest which will be calculated and accrued on a quarterly basis in arrears. If the interest earned in a calendar quarter exceeds the amount of $20 the amount of such interest earned and accrued will be added to the balance of monies in the clients’ account.
Where interest earned in the calendar quarter is equal to or less than $20 there will be no entitlement for you to receive interest on the monies in such account as the administrative costs of arranging for the calculation and accrual of such amounts of interest will exceed the value of the interest earned.
Unless otherwise agreed it shall not be our responsibility to comply with any reporting requirements which may arise in relation to the receipt of interest on monies held in the clients’ account.
In the event of any bank at which a client account is held being subject to or undergoing any form of “insolvency” (such as liquidation, administration or any similar process), we shall not be liable for any losses, damages, liabilities, claims, costs and expenses howsoever arising from the insolvency, including without limitation, the loss of any or all of the monies held by the client account bank as referred to above.
We shall not be responsible for seeking or undertaking any due diligence on any bank’s financial position.
Addition of Funds
Monies transferred by you or any other person or entity to us (or any company under our administration, management or control) will only be accepted by us on the terms of the applicable trust instrument or company constitutional documentation or otherwise in the event that we have been able to complete our due diligence requirements to our satisfaction. We retain the right for whatever reason to return the funds to the remitter at our sole and absolute discretion at any time including on the day of receipt. No interest will be paid on any monies which are returned to the remitter for the period the funds are in our possession or control.
We will not be liable for, and you indemnify us in respect of, any costs, lost interest or any other liabilities otherwise incurred by us as a result of the funds being returned to the remitter for whatever reason.
In the absence of an express agreement in writing to the contrary, all rights, interests and other property transferred to us in relation to the applicable trust or entity shall be treated as the absolute gift, transfer or assignment of such property by you to us to be held upon the terms of the applicable trust or company constitution.
During the rendering of our Services, where we consider it appropriate, we may incorporate companies or other legal entities to hold assets of the trust or otherwise. The costs of incorporation, management and maintenance of such companies may be met from the assets of the trust. If there are insufficient assets in the trust to do so then the provisions in relation to Fees will apply.
We will provide or arrange the provision by service providers from either inside or outside of the Hatstone Group, of corporate services to or in respect of the incorporated company as we may in our absolute discretion determine. Services by one or more such corporate service provider (the “CSP”), may include, but not necessarily limited to the following:
We, along with the Hatstone Group service provider and the CSP shall not be liable for any loss arising to any company for carrying out any of the services unless such loss arises as a result of the fraud or wilful misconduct of any such party.
Save as otherwise agreed in writing, we may retain commissions or other payments customarily or by usage payable as a result of transactions entered into for your account without liability to account therefor. We do not, however, seek to obtain any commissions as a term of doing business with any third party.
You will keep us informed as to your contact details to enable us to communicate with you and especially if the matter is urgent or sensitive.
In the event of our needing to give you any notices in respect of the Services pursuant to these Terms of Business or if we otherwise need to communicate with you we shall do so by way of letter, fax, e-mail or telephone at your usual address or number or the address or number last given to us for communications generally. Where you send us a communication from a particular address, e-mail address or number we may respond to that address, e-mail address or number unless you specifically request us not to do so.
We do not encrypt messages unless by prior agreement and cannot guarantee the security of any transmission in any event and accept no responsibility or liability for the same. If you do not wish us to communicate with you by any particular method then you must instruct us accordingly.
We may communicate electronically with you and other parties in relation to the Services. However, the electronic transmission of information cannot be guaranteed to be secure or virus or error free and such information could be intercepted, corrupted, lost, blocked, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We both recognise the systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazards. We will need to access electronic information and resources in carrying out the Services including via an internet connection for remote access.
We will not be liable for misdirection, or any defect referred to above and you agree to accept these risks.
Waiver and assignment
Failure by you or us to exercise or enforce any rights available to us shall not amount to a waiver of any such rights. Neither you nor we shall have the right to assign the benefit (or transfer the burden) of these Terms of Business to another party without the written consent of the other party.
Storage of data, files and papers
After termination of the provision of the Services, we are entitled to retain all papers and documents which have come into existence in the course of our providing the Services until all fees and disbursements in connection with the provision of the Services and any third parties shall have been settled in full.
Subject to payment in full of all fees and disbursements, we will, on your instructions, provide originals (or, if so requested, copies) of any documents belonging to you which we are holding or which we have under our control and which have come into existence while we provided Services. We reserve the right to retain copies of such original documents which may be requested and we reserve the right to require payment of our reasonable copying charges in advance of providing any such documents.
Where, as part of providing Services, we have created internal memoranda, attendance notes and other documents for our own purposes then in accordance with accepted principles such documents shall belong to us and we shall not be obliged to hand over originals or copies of any such documents to you or to any other adviser appointed by you unless ordered to do so by a court of competent jurisdiction.
We may retain all documents belonging to you whether as originals or copies, and we will keep originals or copies of all such documents for so long as may be necessary and as may be required by local laws from the date of termination of our instructions in relation to a particular matter. In the British Virgin Islands, we typically retain documents for 5 years after completion of any matter or, where our instruction was terminated prior to completion, the date the instruction terminated. We may also retain records for longer than 5 years where there is a dispute or where there is a legal or regulatory reason for doing so. Our retention policy and details of how we may use your data is set out in our Privacy Notice. During this period we reserve the right but have no obligation to make electronic copies of such documents, correspondence, memoranda, notes and, save for original signed documents, we reserve the right to destroy hard copies and store the remainder of the filing electronically immediately after the matter is concluded.
After the relevant retention period, our continued retention (whether in electronic form or otherwise) of files of papers and documents (other than originals) is on the clear understanding that we reserve the right to destroy all such papers and documents at such time as we consider appropriate unless we have been instructed and agree to the contrary at or prior to the termination of our instructions in relation to the particular matter in which we have provided Services. In drawing this matter to your attention we will treat you as having so consented to the destruction of such files as set out above.
Should we need to retrieve files from storage in relation to continued instructions or any new instructions to act for you in a matter where previous files may be relevant, we would not normally charge for the retrieval of files from storage. If, however, you or any third party with your agreement makes a specific request for information concerning a matter in which we are no longer acting for you and you wish to receive specific documents or other papers, we reserve the right to charge for fulfilling any such request.
We retain copyright in all documents we draft in connection with a matter but we license you to use these documents for your purposes.
For the purposes of marketing, publicising or selling our services we may want to disclose that we have advised you, in which event we may identify you by your name and indicate the general nature of the relevant matter and any details, which have become publicly known. We will not do this if you specifically ask us not to do so.
We ensure that your data is kept private and confidential and held in accordance with the Banks and Trust Companies Act, 1990.
Client due diligence and anti-money laundering procedures
As a matter of law, we are required to operate anti-money laundering checks and procedures in respect of the Services. We reserve the right to apply such checks and procedures (including in particular confirmation of identity and address/place of business and verification of capacity to give instructions in the case of limited companies or partnerships and source of funds) in respect of all matters in which we are instructed to provide the Services. Any failure to provide such information as we request in order to enable us to carry out such checks entitles us to terminate our client relationship and we accept no responsibility or liability arising directly or indirectly as a result of our need to do this. Any information and documentation provided to us in order to enable us to operate such checks and procedures may be subject to disclosure and production pursuant to orders having legal effect in the British Virgin Islands. In certain circumstances we are required to disclose information and documentation pursuant to anti-money laundering statutes or court procedures concerning our clients to third parties such as banks providing services to such clients. By instructing us in any matter and providing such information as we require, you will have consented to our onward disclosure of such information to third parties where appropriate.
Exchange of Information for Tax Purposes
We may be required by legislation or by agreement with tax authorities to report certain information about you and your relationship with us, including information about your accounts to the tax authorities in the British Virgin Islands, which may then pass that information to the tax authorities in another country where you may be subject to tax; or directly to the tax authorities in other countries
where we reasonably think or are required to presume you are subject to tax, or where we receive a direct and legitimate request from a foreign tax authority about you or your accounts.
Where we are required to report information about you and/or your relationship with us, including information about your accounts, this information includes (but is not limited to) the account number, the account balance or value, the gross amount of interest dividends and other income paid or credited to the account, the aggregate amount of redemption payments, the total gross proceeds from the sale or redemption of property paid or credited to the account, your name, address, date and place of birth, country of residence and any social security number or taxpayer identification number or equivalent. In addition, we may need you to provide us with further information, documents or certifications about your identity, tax residence, nationality and status.
If we are required to report information about your accounts, you agree that you will provide additional information or documents we need from you and that confidentiality rights under applicable data protection or similar laws will not apply to information we report or obtain from you to comply with our obligations. If you do not provide us with information or documents we need, we may be required by certain jurisdictions to apply a withholding tax to amounts, including interest, dividends and other income we pay to you, or close your account. In such instances we will not be liable to you for any loss you may suffer as a result of our complying with legislation or agreements with tax authorities in accordance with this condition, unless that loss is caused by our gross negligence, willful default or fraud.
Variation and publication of these Terms of Business
We reserve the right to vary these Terms of Business from time to time including during the course of the provision of Services in any particular matter. Where we do vary these Terms of Business in the course of our providing Services to you, we shall use reasonable efforts to draw such variation to your attention.
A copy of these Terms of Business and any variations thereto from time to time in force will be sent to you in hard copy form upon request. However, these Terms of Business and any future variations thereto may be published on Hatstone’s website at www.hatstone.com by way of public notice to all current and prospective clients and other consumers of services provided by us. If we have given you written notice of the existence of these Terms of Business on Hatstone’s website, then, by the publication of these Terms of Business and any variations thereto on Hatstone’s website, you shall be deemed to have agreed these Terms of Business and all such variations.
Third party advisers
We reserve the right, wherever we consider it necessary or appropriate in providing the Services, to delegate our responsibility or functions to or seek advice from any third party or agent in other jurisdictions.
If, at your request, we select and instruct lawyers or agents in other jurisdictions to act on your behalf, we will take care in so doing but we will not be responsible for their selection nor for any act or omission by them and, unless otherwise agreed. we will be entitled to pay for such advice out of the assets of the managed entity but if we pay for such advice out of our own assets, rather than the assets of the managed entity, you will on our request indemnify us for the full amount of such payment. Where we obtain professional advice and meet the cost of that advice from our own assets (rather than from the managed entity), you will not seek disclosure of such advice from us.
Working for other clients
We reserve the right to provide Services to other clients at our discretion.
Our agreement to provide Services to a particular client shall not be treated as meaning that we shall not provide similar services to other clients, including in connected matters, or as preventing us from acting against one client for which we may already be providing Services in another matter.
In any cases where we may consider that there may be any conflict of interest in our acting in more than one capacity for more than one client then we shall obtain the consent of both or all parties to continue to act for both or all of them. If either party shall not agree to continue so to act then we shall cease to act for both parties in that matter.
Termination of instructions
Once instructed to provide Services on a particular matter, we expect to continue to do so until completion of that matter and we will continue to act for you in that matter until its conclusion unless:
If we cease to act for you in either of the circumstances set out in sub-paragraphs (i) or (iii) we will inform you.
Regardless of who terminates the instructions you will be responsible for payment of all billed and unbilled fees and disbursements up to the date of termination of our instructions and any costs and disbursements reasonably incurred in connection with the transfer of the work to another person chosen by you. We reserve the right to retain all papers and documents which relate to all matters in which we have been instructed until fees and disbursements have been paid as set out under our payment terms.
We will cease to act on behalf of the managed entity in accordance to such managed entity’s constitutional documentation. In such event, we will refund the relevant portion of any fees taken in advance but will be entitled to responsibility fees in full and to our fees, costs and expenses in relation to ceasing to act on behalf of the managed entity in accordance to such managed entity’s constitutional documentation.
In the event that we notify you of our wish to retire as trustee of a trust, you will use your best endeavors to find a successor trustee which is acceptable to us. If a successor trustee is not found within three months of our giving such notice to you, we may at our discretion take whatever steps necessary to transfer or wind up the managed entity and you will indemnify us and keep us indemnified from liability for any loss, costs, damages or other adverse consequences arising (whether to you, beneficiaries, us or any third party) as a result of such action.
This section, together with the terms relating to fees, warranties and undertakings, data storage and exchange of information for tax purposes shall survive notwithstanding the termination of the Services.
Questions or complaints
We hope that any questions or concerns which may arise in respect of the Services which we provide to you may be satisfactorily resolved by discussion between you and our employee responsible for your affairs. We will attempt to answer all complaints, including questions as to the amounts billed, fully and promptly.
If any complaints are not resolved satisfactorily, the complaint should be made in writing to one of our directors. We will attempt to answer all complaints, including questions as to the amounts billed, fully and promptly. Should any matter be incapable of being resolved in any of the ways set out above then the courts of the British Virgin Islands shall have exclusive jurisdiction to hear such complaint or dispute applying British Virgin Islands law in all such matters.
Our aggregate liability in contract or tort (including negligence) or under statute or otherwise, for any loss, liability or damage suffered by you or any other person that may arise from or in connection with our Services, shall be limited:
Events outside the our control
In the event of any failure, interruption or delay in performance of the our obligations resulting from acts, events or circumstances not reasonably within our control, including but not limited to industrial disputes, acts or regulations of any governmental or supranational bodies or authorities, breakdown, failure or malfunction of any telecommunications or computer services, we will not be liable or have any responsibility of any kind for any loss or damage incurred or suffered by you or to the assets of the managed entity as a result.
If any term or provision in these Terms of Business shall be held to be unlawful, void or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of these Terms of Business but the validity and enforceability of the remainder of these Terms of Business shall not be affected.
These Terms of Business regarding our Services shall constitute the contract for the provision of the Services (subject to any other terms in writing agreed between us). This contract shall be governed by and construed in accordance with the British Virgin Islands law. In accepting these Terms of Business you irrevocably agree the courts of the British Virgin Islands shall have exclusive jurisdiction to settle any claim or difference or dispute, which may arise out of, or in connection with any such contract or claim and you waive any rights to claim that such courts are not the appropriate forum.
You can download a copy of our BVI terms and conditions here: HTCL BVI terms and conditions