TERMS & CONDITIONS
Terms & Conditions
TBA Terms and Compliance – Corporate Responsibility
TBA Terms and Compliance – Due Diligence
TBA Terms and Compliance – Private Client Identification
Client Engagement Procedures – Legal Warning
1.1 TBAmeans the multi-jurisdictional marketing insignia of a worldwide of companies offering company formation and related services. Participating companies are independent of one another and have no authority with regard to any member, express or implied, to represent, bind or act directly or indirectly as a statutory, managing or general agent for any purpose whatsoever, nor to be based in any jurisdiction outside that in which they are incorporated.
1.2 TBA expression shall include its successors in title and assigns on its own behalf and as agent for the TBA Officers (as hereinafter defined) and the employees thereof and any company under their direct or indirect control and any director or employee thereof.
1.3 TBA Officers means any person or company nominated by TBA who may from time to time be appointed as director, alternate director, secretary, assistant secretary, manager, partner, accountant, VAT Agent, trustee, protector, bank signatory, other officer, administrator, registered agent, provider of a registered office or address for legal service or registered shareholder of the Company and the employees thereof and any company under their direct or indirect control and any director or employee thereof (which expression shall include any of them).
1.4 Company means the company, trust, partnership or other structure established and / or administered by TBA at the request of the Owners (as hereinafter defined).
1.5 Services means the provision by TBA and / or the TBA Officers of management, administration and other services requested by the Owners or the Owners Appointees (as hereinafter defined) or such other activities required to maintain the Company in good standing including where appropriate on the statutory registers of the country of establishment / incorporation of the Company.
1.6 Owners means the beneficial owners or owner of the Company which expression shall in the case of an individual include their heirs, personal representatives and assigns and shall in the case of more than one person mean such persons jointly and severally and shall include the survivor or survivors of them and their respective heirs, personal representatives and assigns of the other part.
1.7 Managing Agent means a person who may be authorised by all the Owners of the Company to issue requests to TBA relating to the Company.
1.8 Owners Appointees means any person who is not an TBA Officer and who may from time to time be nominated, appointed or act as Managing Agent, director, alternate director, secretary, assistant secretary, manager, partner, trustee, protector, bank signatory, other officer, grantee of a power of attorney, administrator, registered agent, provider of a registered office or address for legal service or registered shareholder of the Company (which expression shall include any of them).
1.9 Terms of Business means these Terms of Business or such other new Terms of Business as may from time to time be published on TBA website or about which the Owners Appointees may from time to time be informed.
1.10 Illegal Activities means all illegal activities which, without prejudice to the generality of the foregoing, include activities relating to terrorism; drug trafficking; money laundering; receiving the proceeds of criminal activities or trading with such countries as might from time to time be subject to any embargo imposed by the Security Council of the United Nations, the European Union or the United Kingdom.
1.11 Prohibited Persons means persons:
1.11.1 prohibited under the laws of any country by reason of being a minor or having no legal capacity (for whatever reason) or otherwise unqualified to be a party to a contract.
1.11.2 who are undischarged bankrupts or are otherwise disqualified from acting as a director or who have been imprisoned or found guilty of any criminal offence (other than a motoring offence carrying a non-custodial sentence).
1.11.3 who have been proven to act in a fraudulent or dishonest manner in any civil proceedings.
1.11.4 who are resident in a country subject to any international restriction or embargo including, but without prejudice to the generality of the foregoing those imposed by the Security Council of the United Nations, the European Union or the United Kingdom.
1.12 Prohibited Activities means:
1.12.1 Activities currently not approved by TBA which are activities involving: arms, weapons or munitions; mercenary or contract soldiering; security and riot control equipment such as stun guns, electronic restraining devices, CS gas or other similar materials, pepper sprays or any other device that could lead to the abuse of human rights or be utilised for torture; technical surveillance or bugging equipment; industrial espionage; dangerous or hazardous biological, chemical or nuclear materials including equipment or machinery to manufacture or handle such materials and the transportation, handling, disposal or dumping of such materials; human or animal organs; the abuse of animals, genetic material; adoption agencies including surrogate motherhood; the abuse of refugees or human rights; pornography; drug paraphernalia, the provision of degrees or qualifications; the provision of credit cards; pyramid sales, time share, religions, religious cults and charities.
1.12.2 Financial business involving: soliciting funds from the public; offering investment advice to the public; the management of investments other than where the assets so managed comprise the property of the Company or the operation and administration of collective investment schemes.
1.12.3 Unless otherwise agreed in writing any activity relating to the provision of financial services which requires a licence in any jurisdiction.
1.12.4 Any activity whatsoever that may damage the good reputation of TBA or the country of establishment / incorporation of the Company.
2. UNACCEPTABLE BUSINESS
If any Owners or Owners Appointees are or become Prohibited Persons or engage in any Illegal Activities or the Company engages in any Illegal Activities or Prohibited Activities TBA may at its discretion immediately terminate the Services or take all or any actions as are authorised in Clause 8.4 of these Terms of Business.
3.1 The Owners confirm, undertake, warrant and covenant with TBA and the TBA Officers that they are the ultimate beneficial owners of the Company and that they are not and will not act in a fiduciary capacity for any other person, firm or company in relation to the Company.
3.2 The Owners confirm and warrant that they, and shall procure that the Owners Appointees:
3.2.1 will comply with these Terms of Business.
3.2.2 will consent to act if appointed as Owners Appointees and that such Owners Appointees understand their legal duties and obligations.
3.2.3 have taken appropriate tax and legal advice with regard to the establishment and operation of the Company.
3.2.4 agree that TBA and the TBA Officers can (but shall not in any event be obliged to) rely on communications received from the Owners or the Managing Agent in determining what steps it is required to take in administering the Company and providing the Services.
The Owners (for themselves and on behalf of the Owners Appointees) covenant with TBA and with the TBA Officers and with the Company and where appropriate shall procure that the Company covenants with TBA and TBA Officers that they will at all times INDEMNIFY and KEEP INDEMNIFIED TBA and TBA Officers:
4.1. against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities which may arise or occur or be taken, commenced, made or sought from or against TBA or the TBA Officers in connection with or arising from the use or actions of the Company or the provision of the Services;
4.2 in respect of anything done or omitted to be done by TBA or the TBA Officers provided that this provision shall have no application to any liability for death or personal injury arising from the negligence of TBA or the TBA Officers or to any liability arising as a result of fraud on the part of TBA or the TBA Officers;
4.3 in respect of any failure of TBA and the TBA Officers to comply wholly or partially with any instruction or request made by the Owners, Owners Appointees or the Company and that TBA and the TBA Officers shall not be responsible for non-receipt thereof or any errors or ambiguity therein;
4.4 in respect of any loss or damage arising from the use of facsimile or email, including the use of unencrypted email, failed or incomplete transmission, distortion and loss of privacy arising from viruses or otherwise;
4.5 in respect of any penalties, fines, fees or other liabilities incurred by the Owners and / or the Owners Appointees and/or the Company in relation to the Company and/or the Services.
5. NO LIABILITY FOR LOSS
TBA and the TBA Officers expressly disclaim any liability to the Owners, the Owners Appointees, the Company and any third parties for any damage or loss to the Owners, the Owners Appointees, the Company or any other person arising out of the acquisition or operation of the Company and/or the Services by the Owners, Owners Appointees, the Company or any other person.
6. OWNERS OBLIGATION
6.1 The Owners must give TBA 90 days’ advance written notice of their intention to discontinue the Services.
6.2 The Owners must obtain from TBA its written consent before seeking to change the beneficial ownership of the Company or seeking to appoint new Owners Appointees and such applications must be accompanied by details of such proposed changes or appointments which shall without prejudice to the generality of the foregoing include an appropriately certified copy of the passport and proof of residential address of such persons and TBA reserves rights to request further information concerning such proposed changes and to decline to accept such applications.
6.3 The Owners shall and shall procure that the Owners Appointees shall:
6.3.1 undertake forthwith to inform TBA of any matters which might affect the Company and/or TBA ‘s willingness or ability to provide, or continue to provide, the Services.
6.3.2 inform TBA of the nature of the activities of the Company and seek TBA ‘s consent in writing before making any material changes in those activities.
6.3.3 seek TBA ‘s consent in writing prior to placing any advertisement or public announcement relating to a Company or any activities that may be undertaken by it.
6.3.4 at all times guarantee the due payment and reimbursement to TBA of all fees, disbursements and expenses incurred by TBA in connection with the Company and in providing the Services.
7. ADDITIONAL OWNERS OBLIGATIONS
When TBA provides TBA Officers
7.1 If TBA provides TBA Officers, the Owners must, at all times, keep the Company in funds sufficient to discharge its liabilities as and when they become due and at the request of TBA or the TBA Officers shall pay to the Company such sums as may be required to enable the Company to discharge in full such liabilities.
7.2 If TBA provides TBA Officers, the Owners shall and shall procure that the Owners Appointees shall:
7.2.1 forthwith to inform TBA of any matters that might affect the Company or any matter that is material to the management or affairs of the Company.
7.2.2 at the request of TBA or the TBA Officers, immediately provide all information so requested by TBA to assist TBA to prepare financial statements for the Company.
7.2.3 at the request of TBA or the TBA Officers disclose to TBA or the TBA Officers of any and all information concerning any corporate asset, transaction or business of the Company.
7.2.4 apply to TBA in writing for consent before seeking to alienate, assign, sell, pledge or otherwise dispose of or encumber the Owners or the Owners Appointees interests in the Company or any part thereof. TBA reserves rights to request further information concerning such proposed changes and to decline to accept such applications.
7.2.5 where the Owners Appointees are grantees of a power of attorney from the Company, act with the utmost good faith to the Company, maintain accurate records, disclose in writing any relevant facts relating to potential conflicts of interest with the Company to the Company and the TBA Officers and inform the Company and the TBA Officers in writing each time a power is exercised and the details of such acts and must acknowledge that if the Company is fraudulently induced to execute a power of attorney or any grantees act illegally or in bad faith any transactions benefiting those grantees can be set aside and those grantees will be held liable on a full indemnity basis to the grantor.
8. INSTRUCTIONS AND REQUESTS
8.1 The Owners, the Owners Appointees and the Company agree to provide all requests to TBA and the TBA Officers in writing by letter or facsimile and TBA shall only consider such requests if they are signed by all the Owners or the Managing Agent.
8.2 The Owners acknowledge that TBA is bound by regulatory and other obligations under laws and regulations of the jurisdiction in which the Services are provided and the jurisdiction of incorporation / establishment of the Company and agree that any action undertaken by TBA or the TBA Officers to comply with those laws or regulations shall not constitute a breach of TBA’s obligations hereunder.
8.3 TBA and the TBA Officers shall not in any event be required to take any action which they consider unlawful or improper or which may cause TBA or any of the TBA Officers to incur any personal liability and the Owners, Owners Appointees and the Company agree that TBA shall not be liable to them for refusing to take any such action.
8.4 Where permitted under these Terms of Business or if instructions are requested by TBA or the TBA Officers and no instructions have been received by TBA within 30 days, or where the urgency of the matter requires action within such lesser period as may be stated in the request, TBA or the TBA Officers may immediately and with no liability to the Owner, the Owners Appointees or the Company take no further action on a particular matter; or take no further action at all in relation to the Company and/or the Owners and/or the Owners Appointees; or take such other action as they shall in their absolute discretion consider appropriate or as it may be advised by its legal advisers.
The Owners irrevocably agree and consent that, if the Company is a company and the TBA Officers are directors or managers of that company, or the Company is a Partnership and the TBA Officers are members or managers of that partnership, or the Company is a trust and the TBA Officers are trustees or protectors of that trust, TBA or the TBA Officers may, without further notice to the Owners take such steps as they shall in their absolute discretion consider appropriate which shall without prejudice to the generality of the foregoing include having the Company struck off, dissolved or liquidated; or effecting a resignation of all or any of the TBA Officers; or transferring all or any of the shares, capital or interest of the Company into the name of the Owners; or appointing the Owners as a director, officer, trustee or protector of the Company; or take such other action as they shall in their absolute discretion consider appropriate or as it may be advised by its legal advisers.
9. PAYMENT OF FEES
9.1 The Ownership of a Company shall not pass to the Owners until payment in full has been received by TBA, no refunds are given after an order has been processed and no refunds will be made where TBA cease to provide Services.
9.2 TBA will not provide Services unless TBA has received in full and in advance all fees and disbursements due to it in relation to the Company or the provision of the Services.
9.3 The Owners hereby irrevocably authorise TBA to withdraw moneys from any funds held by it on behalf of, or on any account managed by it, on behalf of the Owners and/or the Company in order to discharge all and any fees and expenses payable to or by TBA or the Company.
9.4 Should TBA cease to provide Services or should the Owners advise TBA that they no longer require a Company the Company or the Owners must reimburse TBA for any fees or costs which may be incurred and pay TBA’s fees in relation to the strike off, dissolution, liquidation or transfer of the Company or otherwise to replace TBA or the TBA Officers.
9.5 Fees are as stated in TBA’s Fee Schedule, as published from time to time, or as may be agreed with the Owner. Any changes will be published on TBA’s website, or as from time to time may be notified to the Owner.
9.6 Where any fees for Services remain unpaid for more than 60 days TBA and the TBA Officers may thereupon at their discretion immediately terminate the Services, and/or obtain payment direct from any assets of the Company and/or the Owners and in such circumstances TBA reserves the right to treat these Terms of Business as terminated without further obligation and to act in accordance with Clause 8.4 of these Terms of Business.
9.7 Unless otherwise agreed in writing with the Owners, TBA will not pay any interest on any money held by TBA for the benefit of the Company and/or the Owners and/or the Owners Appointees.
9.8 TBA and its associated companies and their officers, agents and employees shall be entitled to retain any commission or fee which is paid or may become payable to it notwithstanding that such commission or fee is payable as a direct or indirect result of TBA or the TBA Officers acting for the Owners and/or the Owners Appointees.
9.9 In the event that the Owner requests TBA to transfer the management of the Company to another agent or Corporate Service Provider, TBA will not transfer the Company until all outstanding fees (including government fees, duties, taxes and other third party disbursements together with TBA ‘s professional and transfer fees) have been paid in full.
10. CONFIDENTIALITY AND PRIVACY
10.1 TBA and the TBA Officers agree that where the Owners, the Owners Appointees or the Company deliver to them confidential information they shall use all reasonable endeavours to keep it confidential.
10.2 TBA and the TBA Officers collect personal information and personal data when the Owners, Owners Appointees and the Company communicate with them and use this personal data and information to facilitate supplying the Services and from time to time to provide information, reference notes, guidelines, advice and for marketing such products and other services and providing such other information as TBA may from time to time make available to them. TBA protects personal information and personal data from unauthorised access, use or disclosure. Except where permitted in these Terms of Business the personal information and personal data collected is used only for these purposes and it is never sold, lent, leased or otherwise distributed outside TBA. The Owners and the Owners Appointees ACCEPT that this may mean that personal information and personal data may be transferred to countries that do not provide adequate protection of data in accordance with Article 26 (1) of the EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
10.3 TBA and the TBA Officers reserve the right to treat the obligations of confidentiality and privacy in Clause 10.1 and 10.2 as not applicable and may divulge confidential information, personal information and personal data when they are obliged by law, or when required by third parties in order for TBA or the TBA Officers to provide the Services or when TBA has been unable to obtain the Owners or Managing Agents instructions and it appears to TBA to be in the best interests of the Owners and/or the Owners Appointees and/or the Company to provide such confidential information, personal information or personal data.
10.4 Without prejudice to the said duty of confidentiality, TBA and the TBA Officers reserve the right to act for other clients (including competitors of the Company, the Owners or the Owners Appointees).
10.5 Any report, letter, information or advice TBA or the TBA Officers give to the Owners, Owners Appointees or the Company is given in confidence solely for the purposes of providing the Services and is provided on condition that they undertake not to disclose the same or any other confidential information made available by TBA or the TBA Officers without TBA’s prior written consent.
10.6 Notwithstanding any provision hereof, TBA and the TBA Officers shall be entitled and are irrevocably authorised to open, read and copy all and any correspondence, letter, fax or other communication received by the Company and/or it on behalf of the Company, the Owners or the Owners Appointees.
11. DUE DILIGENCE
11.1 Before requesting the provision of any Services by the Agent, the Intermediary shall obtain the following Due Diligence Information on the Client and all individuals and entities directly involved in the Company as shareholders, directors, account signatories, attorneys-in-fact or in any other similar capacity, unless such individuals or entities are already known to the Agent:
A photocopy of current passport, certified as true copy by a notary, barrister, solicitor, consular officer, bank officer or other individual of similar official standing. Such photocopy shall include the holder’s signature page and shall be made in such quality that the face of passport holder can be clearly identified. Upon the expiry of such passport, the Intermediary shall obtain similar copy of the new and current passport.
11.2 Before any Services are provided by the Agent, the Intermediary shall provide to the Agent an Order Form and a full set of ordinary copies of the Due Diligence Information, as described above, such copies to be sent to the Agent by any means of Communication, except fax. If specifically requested by the Agent, the Intermediary shall provide to the Agent additional details on the background and activities of the Client.
11.3 In addition to the Due Diligence Information, the Intermediary shall at all times keep up-to-date records of the Clients’ contact details, including the residential and mailing address, telephone and fax numbers, and email address.
11.4 If the Client is a corporation or group of related corporations (for instance, linked by shareholdings in each other) the Agent shall obtain the Due Diligence Information on all private individuals who are the ultimate beneficial owners of such group of related corporations. This condition does not apply if such corporate Client is a public company.
11.5 The Intermediary shall maintain the Due Diligence Information for at least five years from the date when the business relationship ends between the Intermediary and the Client.
11.6 Should Agent at any time be required by law to hold the original Due Diligence Information, the Intermediary shall provide all such documents, as requested by the Agent, within five business days after the receipt of such request. The Intermediary hereby confirms that there are no obstacles or limitations, in particular imposed by any confidentiality regulations, which would prevent the release of such documents by the Intermediary to the Agent.
11.7 The Intermediary shall not provide any of the Services to any third party while knowing that these are for a subsequent resale without imposing on such third party the same Due Diligence requirements as indicated above.
11.8 Before any Services are provided by the Agent to the Intermediary, the Intermediary shall provide the Agent with the original Due Diligence Information on the Intermediary itself. Such Due Diligence Information shall only be provided once at the commencement of the business relationship between the Agent and the Intermediary, and thereafter shall only be updated from time to reflect any material changes in the organisation of the Intermediary, as the case may be.
12. ACTIONS TO PROTECT THE COMPANY
When TBA provides TBA Officers, TBA and the TBA Officers shall be entitled to take any steps which they may in their absolute discretion think fit to protect the interests and/or assets of the Company and to take such professional advice in the interests of and at the expense of the Company as TBA or the TBA Officers may consider necessary.
13. CESSATION OF SERVICES
13.1 TBA and the TBA Officers shall be entitled without notice to cease to provide the Services, if:
13.1.1 The Owners or the Owners Appointees fail to observe these Terms of Business;
13.1.2 It comes to the attention of TBA or the TBA Officers that the Company is being used for activities which were not included in the application form provided by the Owners to TBA or as subsequently advised and accepted in writing by TBA;
13.1.3 In the event of the death of any the Owners or the Owners Appointees, the Owners do not provide TBA , within a reasonable time, with the name of an appropriate substitute;
13.1.4 In the event of the death of an Owner, including in the case of joint persons acting as the Owners, the death of any one such person, the Owners fail to make provision for the disposition of the affairs and the Ownership of the Company;
13.1.5 When TBA provides TBA Officers, any of the TBA Officers resigns or in the event that any legal proceedings are commenced against the Company (including any injunction or investigation proceedings).
13.2 In any of the circumstances described in Clauses 12.1 above, TBA reserves the right to take action as authorised in Clause 8.4 of these Terms of Business and reserves the right to treat these Terms of Business as automatically terminated without obligation on the part of TBA.
13.3 TBA may cease to provide Services at its discretion if it provides 30 days’ notice to the Owners or the Managing Agent of its intention so to do.
13.4 The Company, the Owners and the Owners Appointees acknowledge that TBA and the TBA Officers may have continuing regulatory/fiduciary duties under applicable law. Accordingly, without prejudice to TBA ‘s and the TBA Officers rights, it is agreed that TBA and the TBA Officers shall be entitled (but not obliged) to continue to provide Services so as to discharge such duties and TBA shall be entitled to charge at its applicable rate for the provision thereof.
In offering and providing the Company and/or the Services, TBA and the TBA Officers do not, nor is it to be interpreted as though they do in any way sanction, advocate or condone directly or indirectly the commission of any unlawful act or omission by any person or company in any jurisdiction or the use of the Company or Services for any illegal or fraudulent purpose.
Any notice, given by the Owners, the Owners Appointees, the Company, the Managing Agent, TBA or the TBA Officers which is delivered personally shall be deemed to have been given at the time of such delivery; sent by letter post in the UK shall be deemed to have been given 3 days after posting; sent by courier shall be deemed to have been given 5 days after despatch, sent by airmail letter shall be deemed to have been given 8 days after posting; by letter post outside the Isle of Man shall be deemed to have been given 15 days after posting or sent by facsimile shall be deemed to have been given at the time of despatch.
16.1 These Terms of Business supersede all prior Terms of Business and agreements whether oral or written with respect to such subject matter.
16.2 No exercise or failure to exercise or delay in exercising any right power or remedy vested in any party under or pursuant to these Terms of Business shall constitute a waiver by that party of that or any other right power or remedy.
These Terms of Business shall be governed by and construed in accordance with the laws of England & Wales and the Owners and the Owners Appointees and where appropriate they shall procure that the Company irrevocably submit to the exclusive jurisdiction of the Courts in England, Cyprus or any other jurisdiction.