Amsterdam, The Netherlands
GENERAL TERMS AND CONDITIONS 2024
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms (except where otherwise expressly provided):
Agreement means any agreement between the Company and/or any of its Group Member(s) and Clermont Hill
Applicable Law means the law governing these Terms as defined in the Agreement, which will always be Dutch law;
Board means the competent corporate body of the Company that manages, oversees, or supervises the general affairs of the Company;
Business Day means any day (other than Saturday or Sunday) on which banks are open for business in the jurisdiction of the Applicable Law;
Clermont Hill means the Clermont Hill entity contracting the Agreement with the Company and/or its Group Members;
Company means a company, trust, foundation, any other form of legal entity, partnership, or unincorporated business, set up and or maintained by Clermont Hill or to which Clermont Hill provides any Service at the request or instruction of the Company and/or its Group Members;
Director(s) means the member(s) of any corporate body of the Company, other than the shareholder, but including the liquidator;
International Business Partners means any third party that Clermont Hill uses or engages to execute on its services delivery obligations towards the serviced Company;
Fee Schedule means the schedule of fees agreed between Clermont Hill and the Company setting out the fees that Clermont Hill may charge for the Services;
Group Member(s) means (i) any (ultimate) beneficial owner or parent company (and any subsidiary thereof), subsidiary, affiliate, group or successor company and (ii) any of their directors, Board members, officers, contractors, delegates, sub-delegates, agents share- holders or representatives;
Service(s) means any service rendered by Clermont Hill to the Company, pursuant to or in connection with any Agreement; and
Terms means these general terms and conditions.
1.2 (a) References to a person shall be construed so as to include any individual, firm, company, joint venture, association, partnership (whether or not having separate legal personality) or other entity and that person’s successors in title and permitted assigns; (b) References to "in writing" shall be construed as written or represented by any means reproducible in writing, including any form of print, email, facsimile or photograph or represented by any other substitute or format for storage or transmission for writing or partly one and partly another; (c) References to any party to these Terms shall include references to such party's successors.
2. APPLICABILITY
2.1 By entering into an Agreement with Clermont Hill or engaging or accepting the Services, the Company agrees or is deemed to have agreed with Clermont Hill that these Terms (together with and subject to any written confirmation of the Company’s instructions or any other agreement in relation to the Services in any particular matter) will apply to the entire business relationship between the Company and Clermont Hill.
2.1 Notwithstanding the rights of the Company to terminate the relationship according to paragraph 7 of these Terms, Clermont Hill shall be entitled to amend these Terms. Any amendment to these Terms will only become effective three months after such amendment has been notified in writing to the Company or has been published on the website of Clermont Hill.
3. ROLE, DUTIES AND RESPONSIBILITIES OF CLERMONT HILL
3.1 Clermont Hill will provide the Services for the benefit of the Company solely. The Company explicitly agrees and shall ensure that its Group Members shall explicitly agree that Clermont Hill may outsource (part of) the Services to its International Business Partners.
3.2 The Company also acknowledges that Clermont Hill’s IT infrastructure may be partially outsourced and relying on cloud computing infrastructure and that Clermont Hill may use third-party providers or contractors (“Contractors”) for operations or services delivery.
3.3 Clermont Hill will inform the Company of any material changes to Clermont Hill’s outsourcing arrangements with details on proposed changes or new outsourcing arrangements. The Company accepts and consents to, and shall cause its Group Members to accept and consent to, the outsourcing, the use of Contractors and the information mechanism referred to in this paragraph.
3.4 Clermont Hill shall be entitled to rely on the consent, approval and authorization of the Company in respect of any act, deed, document, matter or thing if it shall have been notified of such consent, approval or authorization whether in writing, verbally or by email, by any director or officer of the Company or any other person who has been duly authorized (or Clermont Hill has reasonable cause to believe has been duly authorized) by the Company or by any professional advisors to the Company and shall not be liable for acting upon any such consent, approval or authorization.
Further, Clermont Hill shall not be liable as a result of (i) any failure on the Company's part to promptly give proper authorizations, instructions, approvals, information and documents as may be necessary to enable Clermont Hill to carry out its obligations hereunder or (ii) any failure on its part to act on instructions that it believes to be incomplete, unclear or contradictory.
3.5 Notwithstanding the foregoing, Clermont Hill shall not be obliged to do or not to do anything which it considers to be in conflict with the interest of the Company, local laws and regulations or otherwise harm Clermont Hill’s lawful interests, including its reputation.
3.6 Nothing herein contained shall constitute a partnership between the parties hereto nor shall Clermont Hill be deemed to be an employee of the Company or be entitled to any remuneration or other benefits from the Company other than as set out herein.
4. COMPLIANCE WITH LAWS AND REGULATIONS
4.1 The Company accepts and shall ensure that it and its Group Members shall accept that Clermont Hill may take whatever steps Clermont Hill considers appropriate to comply with local laws and regulations.
4.2 The Company accepts and shall ensure that it and its Group Members shall accept and commit to provide Clermont Hill from time to time with all documents and information with respect to the Company or any of its Group Members that Clermont Hill is or may be required to collect, maintain, update or use to satisfy all relevant obligations in connection with the Services provided under the Agreement or otherwise required by local laws and regulations, as well as all documents and information allowing Clermont Hill to determine the volume and nature of the transactions entered into by the Company or in relation to the Services and to fulfil its obligations under the Agreement. Any reasonable costs or expenses incurred by Clermont Hill in connection with this paragraph 4.2 shall be for the account of the Company.
4.3 Clermont Hill shall be authorized to answer any question and provide any information or documentation available to it regarding the Company, its Group Members, a structure or a transaction (i) to any tax or other governmental authority if there is a statutory obligation to do so, (ii) to any regulatory or self-regulatory body authorized to control compliance with the Applicable Law, (iii) in accordance with local laws and regulations or (iv) if Clermont Hill in its reasonable opinion believes that this is necessary or desirable for compliance with any applicable law or regulation or for defending the Company or Clermont Hill against any complaint or claim, whether on a statutory law, contract law, tax law, or criminal law basis.
4.4 Each of Clermont Hill and the Company, the latter also on behalf of its Group Members, hereby represents, warrants and covenants, that it shall not at any time engage in (i) any act or practice that would, directly or indirectly, contravene any anti-corruption act or regulation or any similar law applicable in any jurisdiction in which it engages in any activity, that prohibits bribery, money laundering or payments to public officials or private individuals, including, without limitation, any policies of any governmental or quasi-governmental agency implementing or enforcing the foregoing nor (ii) in any other unlawful activity.
4.5 The Company further warrants and undertakes that, immediately upon becoming aware thereof, it shall notify Clermont Hill of (a) any event which could be reasonably foreseen to have a material effect on the Company or its assets or activities (including, without limitation, any act evidencing the insolvency of the Company or commencing any liquidation, winding up or dissolution) or upon Clermont Hill’s willingness to continue to provide the Services; and (b) 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 it shall promptly provide such information as Clermont Hill may, in its discretion, require in respect thereof.
5. SERVICES CLERMONT HILL WILL NOT PROVIDE
5.1 The Company agrees that Clermont Hill is not responsible for the rendering of investment, accounting, commercial, data protection or any other advice whatsoever to the Company or any other person. The Services will not in any circumstance include providing, obtaining or reviewing on the Company’s behalf any tax, commercial, financial, auditing, brokerage, actuarial, banking, investment management, information technology, technical or insurance services.
5.2 Clermont Hill may engage the services of duly qualified advisers, such as auditors,
Financial advisors, or tax experts, if, and to the extent to which, these are deemed appropriate or required by Clermont Hill in relation to the Services and with the prior consent of the Company, such consent not to be unreasonably withheld. The applicable costs of such third party advisory services shall be for the account of the Company. In connection with its obligations hereunder, Clermont Hill may act and rely upon the opinion, advice or information so obtained from any duly qualified adviser whether reporting to the Company or Clermont Hill or not and, subject to these Terms, Clermont Hill shall not be responsible for any loss incurred because of it so acting on the basis of any advice received from any such qualified adviser, provided that the broker, lawyer, accountant, valuer, surveyor, auctioneer, or other expert was selected, engaged and retained with reasonable care. If the Company instructs advisers (either directly or through Clermont Hill ) on any matter relating to or in connection with the Services, Clermont Hill will not be liable to the Company for the services, advice or information provided by, or responsible for the fees and expenses of those advisers.
6. COMPLAINTS ABOUT THE SERVICES
Clermont Hill is committed to providing the Company with the highest quality of service. If the Company has any concern or complaints about any of the Services, Clermont Hill wishes to discuss and try to resolve them with the Company as soon as possible.
7. DURATION AND TERMINATION OF SERVICES
7.1 The Agreement is entered into and shall continue for an indefinite period, unless terminated in accordance with the relevant provisions.
7.2 The Agreement can be terminated by the Company or by Clermont Hill by giving three months prior written notice. However, in the event Clermont Hill renders (pre) liquidation services to the Company on the basis of liquidation service agreement between Clermont Hill and the Company, said liquidation service agreement can be terminated by the Company and Clermont Hill by giving one months notice.
7.3 Clermont Hill can also suspend the Services or terminate the Agreement with immediate effect, both in respect of any specific Service or generally if an event arises that, were the Agreement to continue, might unreasonably burden or affect any of the parties, such as by causing reputational damage, not receiving clear and timely instructions from the Company, non-compliance with any applicable laws or regulations by the Company and/or its Group Members, unreasonably refusing to settle Clermont Hill’s invoice or insolvency or a continued impairment of the moral, legal or financial integrity of the Company and/or its Group Members, to be determined at the sole discretion of Clermont Hill .
7.4 The Company can terminate the Agreement with immediate effect in case of Clermont Hill’s serious misconduct that cannot be remedied, unless such remedy is explicitly excluded under the Applicable Law.
7.5 A resignation or termination of the Agreement by Clermont Hill and any of its subsequent reasonable actions can never give rise to a claim on the part of the Company or any of its Group Members to damages. To the extent applicable and appropriate, Clermont Hill shall be authorized to inform the relevant registry, as well as, but not limited to, the trade registry, the chamber of commerce, the registry of companies, the companies house, the companies registry or any (tax) authorities of its resignation or termination of the Agreement and, if necessary, at Clermont Hill’s discretion, the underlying motivation for such resignation or termination.
7.6 Subject to paragraph 11.1 below and after full settlement of all outstanding invoices, costs and/or fees, including the transfer fee (if any), by the Company and/or its Group Members, the corporate and administration documents relating to the Company and its affairs, which are held by Clermont Hill, shall be returned to the Company, or any other person so designated by the Company for this purpose. If the Company and/or its Group Members fail to settle any outstanding invoices, costs and/or fees, including the transfer fee if applicable, Clermont Hill shall, to the extent permitted by Applicable Law, have the right not to release from its possession or control the corporate and administration documents relating to the Company and its affairs.
7.7 Upon termination of the Agreement, the Company shall reimburse or pay Clermont Hill for any fees, charges and expenses accrued at the date of termination and not previously reimbursed or paid. Furthermore, the Company shall not wrongfully represent itself as continuing to retain the services of Clermont Hill.
7.8 The termination of these Terms shall be without prejudice to any of the rights that may have accrued to any party pursuant to these Terms prior to such termination. Paragraphs 1, 4.3, 7.6, 7.7, 7.8, 8.6, 8.8, 10, 11, 12.6, 13, 14, 17, 18 19, 20 and 21 of these Terms shall survive the termination or rescission for any reason of any agreement concluded between Clermont Hill and the Company or of the engagement of Clermont Hill in relation to the Services.
8. REMUNERATION
8.1 Clermont Hill shall be entitled to:
(a) fees in accordance with the then applicable Fee Schedule, as such may be amended by Clermont Hill from time to time, or as otherwise agreed in writing with the Company from time to time;
(b) be reimbursed for all disbursements and expenses incurred by it in providing the Services;
(c) reimbursement of sundry expenses recovery charge to cover general disbursements (such as offices sundries or a fixed fee for professional indemnity insurance subscribed by Clermont Hill ); and
(d) fees which will be calculated on a time- spent basis and by reference to its standard hourly charging rates, which may change from time to time, for any additional Service not specifically agreed.
8.2 All fees, disbursements and expenses paid in advance are non- refundable.
8.3 Any sum payable under any Agreement concluded is exclusive of any applicable indirect or direct tax (which shall include any value added tax implementing the EU VAT Directive, if applicable, and any other form of value added, sales or services tax).
8.4 Unless otherwise agreed, Clermont Hill will invoice the Company on a monthly. Any fees or expenses omitted from the period stated on each invoice will be included in a subsequent invoice. Liquidation services, however, will be invoiced on annual basis at the start of the year (i.e. January 1st) in which the respective company(ies) will be liquidated.
8.5 Every year, Clermont Hill shall have the right to adjust its fees and office sundries to reflect the inflation in the jurisdiction of the Applicable Law calculated in accordance with the most commonly used indexation mechanism in such jurisdiction.
8.6 The Company agrees that all invoices shall be deemed to be accepted unless such is disputed in writing within 15 days from the invoice date. Payment of any invoice shall be due within 14 days of the date of each invoice. If payment is not made before the due date, the Company shall be in default without notice of default being required and a late payment penalty interest of 1% per month may be charged. Late payment interest will accrue as of the first day when payment becomes overdue.
8.7 In the event of continued default of payment by the Company, all costs of collection, both judicial and other third party costs, shall be for the account of the Company. Clermont Hill is entitled to outsource collection of its receivables to a third party or debt collection agency, whether or not located in the jurisdiction of the Applicable Law.
8.8 At the first request of Clermont Hill the Company shall be obliged to provide adequate collateral, in a form acceptable to Clermont Hill, for the payment obligations of the Company under the Agreement.
9. DUTIES, REPRESENTATIONS AND WARRANTIES OF THE COMPANY
9.1 The Company shall ensure that it and its Group Members provide any information, documentation, or any other form of co-operation (including for the purposes of all tax matters), all in a reasonable timeframe, that Clermont Hill requires for the provision of its Services, including, but not limited, to:
(a) copies of all resolutions of the Company’s general meeting of shareholders and, if applicable, its Board or committees of the Board;
(b) information regarding any change or anticipated change in the legal and/or beneficial ownership of the Company or in the composition of the Board of the Company;
(c) all information pertinent to the preparation of the annual accounts and the tax returns of the Company;
(d) all information concerning possible transactions to be entered into by the Company.
9.2 The Company represents and warrants to Clermont Hill that:
9.3 The Company represents, warrants (and shall ensure the same for its Group Members) that each Director is of good standing, reputable, duly qualified to act as Director of such (local) entity and will not engage in any transactions on behalf of the Company which are illegitimate in all relevant jurisdictions.
9.4 Insofar as Clermont Hill has not been or will not be entrusted with the bookkeeping of the Company, the Company (a) represents and warrants that the administrative organization and the internal control procedures of the person responsible in respect of the bookkeeping meet the standards as required under the Applicable Law.
9.5 The Company shall ensure that it and its Group Members shall notify Clermont Hill in case of any corporate action or changes to the Company, including without limitation, any transfer, sale, pledge or other disposal of the direct or indirect control over the Company (or its shareholders) at least five (5) Business Days in advance and shall promptly supply to Clermont Hill all such information and documents in connection therewith or as may be requested by Clermont Hill from time to time. The Company agrees that Clermont Hill may keep the original and/or copy of any documents, papers or other materials in either physical or electronic form, in relation to any Service for archival purposes under applicable professional standards and in accordance with the Applicable Law. After the statutory period of time under the Applicable Law obligating, as the case may be, Clermont Hill to keep the documents and files mentioned in paragraph 11.1 of these Terms has lapsed, Clermont Hill reserves the right to destroy any such documents and files.
9.6 If resolutions and general guidelines regarding the Company are communicated through an attorney in fact or an authorized person, Clermont Hill will observe and execute the same upon receipt of written confirmation that such attorney or authorized person is authorized to communicate said resolutions and general guidelines to Clermont Hill. This confirmation may be deemed to remain in effect until Clermont Hill receives specific written notice to the contrary.
10. NOTICES, ELECTRONIC COMMUNICATION AND SOFTWARE APPLICATIONS
10.1 Clermont Hill may conduct electronic communications and use software applications (including but not limited to electronic/digital signature applications) and the internet to provide the Services. There is no guarantee that electronic communications between Clermont Hill and the Company will be secure, not-intercepted, virus free, timely or successfully delivered. Clermont Hill shall not incur any liability resulting from or in connection with use of e-mail, software applications and/or facsimile communication, and shall not be liable to the Company if, due to circumstances beyond Clermont Hill ’s reasonable control, such electronic communications or software applications are intercepted, delayed, lost, destroyed, corrupted, not received or received by persons other than the intended addressees.
10.2 Clermont Hill shall not incur any liability in connection with the issuance or implementation of instructions given by e- mail, software applications, facsimile or telephone communication, provided that Clermont Hill has: (i) acted in accordance with the contents of any such instruction; and (ii) has adhered to its obligations under the Agreement.
11. DOCUMENT RETENTION POLICY
12. TAX
12.1 In this paragraph 12: Tax or Taxes means any tax of whatever nature levied, withheld or assessed by any jurisdiction or subdivision thereof and includes penalties, fines and interest relating to any of the foregoing; Reputable Tax Counsel means independent professional tax counsel (a tax advisor, accountant or lawyer) authorized to practice in a relevant jurisdiction or in- house tax counsel, reasonably acceptable to Clermont Hill ; and Tax Advice means written advice by Reputable Tax Counsel setting out the material tax consequences of a proposed set up of a group of companies or a company structure (each a Structure), a transaction or a set of transactions (Transaction), the overall or specific tax position of the Company and, confirming – without material qualifications – that the Structure or Transaction does not violate the tax laws and regulations of the jurisdictions in which the Structure or Transaction is set up or is carried out, or which jurisdictions are otherwise relevant for the tax consequences of the proposed Structure or Transaction;
12.2 It is the Company’s responsibility to obtain Tax Advice confirming the intended tax effects and the absence of unintended tax effects before requesting or instructing Clermont Hill to set up any structure, incorporate any company or carry out any Transaction. Clermont Hill is not required to verify compliance with applicable tax laws and regulations. Clermont Hill does not accept any responsibility for the tax aspects (in the broadest sense) of any Structure or Transaction in which the Company and/or its Group Members are involved and/or for executing any request or instruction delivered to Clermont Hill by the Company and/or its Group Members.
12.3 Upon first request by Clermont Hill (whether at the time of the conclusion of any Agreement, at the receipt of a request or instruction, or at any other time), the Company and/or its Group Members, as the case may be, is/are required to provide to Clermont Hill Tax Advice (or any updates in respect thereof). If Tax Advice is not provided in a form reasonably acceptable to Clermont Hill within a reasonable period of time, Clermont Hill is authorized to instruct a Reputable Tax Counsel for the provision of such Tax Advice on behalf of the Company and to charge the costs of said Tax Advice to the Company.
12.4 If Clermont Hill has reasonable doubts whether a request or instruction has the intended tax effects or believes that such a request or instruction may violate the tax laws of any relevant jurisdiction and it is not provided with a Tax Advice reasonably acceptable to it, Clermont Hill is explicitly permitted to postpone or not engage such a request or instruction and shall likewise not be held liable for any resulting damage, including consequential damage and loss of profit or opportunity (including but not limited to the loss of a tax saving), incurred as a result of postponing and/or not carrying out such request or instruction, even if at a later point in time the Company and/or its Group Members, as the case may be, have demonstrated that the request or instruction had the intended tax effects and did not violate the tax laws of a relevant jurisdiction.
12.5 The Company and/or its Group Members, as the case may be, shall bear all stamp duties, notarization fees, other documentary transfer or transaction duties and any other transfer taxes arising as a result of the carrying out of any Transaction with the Company and/or its Group Members.
12.6 The Company hereby covenants to Clermont Hill to timely payment, but in no event later than 30 days from invoicing, to Clermont Hill an amount equivalent to any amount payable by Clermont Hill to any tax authority in respect of a failure to discharge any tax levied, assessed or otherwise due by or for the account of the Company and/or its Group Members, as the case may be.
13. INDEMNITY
13.1 Both the Company and Clermont Hill shall fully indemnify each other and hold each other vis-à-vis harmless to the full extent permitted by law, from and against any threatened, past, pending or future claims, whether contractual or pursuant to wrongful act, dispute or controversy of any nature instigated by any person other than the Company vis-à-vis Clermont Hill arising, directly or indirectly, in connection with the performance by or on behalf of Clermont Hill vis-à-vis the Company of the rights and/or obligations under the Agreement or the rendering of any Service, except for any claims resulting from actual fraud, gross negligence or willful misconduct by Clermont Hill or the Company. The amount indemnified by the Company to Clermont Hill pursuant to this paragraph 13.1 shall include, but shall not be limited to, all claims, proceedings, demands, liabilities, damages, losses, taxes, fines, penalties, costs, expenses and legal fees, and any interest thereon, suffered, incurred, arising or expended that Clermont Hill may at any time directly or indirectly incur. In these Terms, references to actual fraud, gross negligence or willful misconduct shall mean a finding to such effect by the final judgement of a competent court.
13.2 Any exculpation and indemnification in favor of Clermont Hill under these Terms shall be without prejudice to the exculpation and indemnification provisions of any other agreement between the Company and Clermont Hill or any other arrangement or insurance that may exist for the benefit of Clermont Hill.
13.3 No provision of these Terms shall require Clermont Hill to expend or risk personal funds or otherwise incur any expense or other financial liability in the performance of any of its duties and obligations, or in connection with these Terms or the Services under the Agreement, if the repayment of such funds or the provision of an indemnity against such risk, expense or other financial liability is not assured to Clermont Hill.
14. LIABILITY OF CLERMONT HILL
14.1 Both Clermont Hill and the Company shall not be liable for any error of judgement or damage, loss, claims, proceedings, demands, liabilities, costs or expenses whatsoever or howsoever suffered or incurred by the Company and its Group Members vis-à-vis Clermont Hill or any other person at any time as a result of, or directly or indirectly in connection with, the Agreement or the provision of Services by Clermont Hill under these Terms, unless caused by the actual fraud, gross negligence or willful misconduct by the Company or Clermont Hill as determined by the final judgement of a competent court.
14.2 Neither the Company, its Group Members or Clermont Hill shall in any event be entitled to claim for any punitive, special, indirect or consequential damages or loss of profit or for any loss of goodwill or possible business, whether actual or prospective, as a result of, or in connection with, the Agreement or Clermont Hill rendering the Services.
14.3 To the extent legally permitted under any applicable law or regulation, the total liability of Clermont Hill for any actions, claims, losses, liabilities, damages, costs, charges or expense suffered or incurred by the Company or any of its Group Members arising, directly or indirectly, in connection with the Agreement or any Services rendered shall be limited to the amount paid-out in the relevant case, if any, under Clermont Hill ’s professional indemnity insurance, plus the amount of the deductible (own risk) that is not for the account of the insurers under the policy condition. In the event and to the extent that no monies are paid out under Clermont Hill ’s professional indemnity insurance for whatever reason, Clermont Hill ’s liability shall be limited to an amount which will not exceed the aggregate amount of fees paid for such part of the Services that gave rise to the claim over a period of the last six months.
14.4 The Company shall only bring a claim and shall ensure that its Group Members shall only bring a claim against Clermont Hill excluding any Clermont Hill Appointee (whether or not that individual or entity was involved in providing the Services to which such claim relates). No Clermont Hill Appointee will be held liable for, or in connection with, the Services or any matter relating to it to the extent permitted by the Applicable Law.
14.5 In no event shall Clermont Hill or any Clermont Hill Appointee be liable for any loss, damage, cost or expenses arising in any way from, or in connection with, any dishonest, deliberate or reckless misstatement, concealment or other conduct on the part of any other person or legal entity.
14.6 All claims against Clermont Hill shall expire on the date falling three months from when the Company is aware or could reasonably have been aware of the existence of the facts giving rise to the right to bring the said claim to the extent permitted by the Applicable Law. To the extent legally permitted under any applicable law or regulation, Clermont Hill shall furthermore not be liable in respect of any claim unless a notice of the claim is given by the Company to Clermont Hill within twelve months following the act (or omission) that gave rise to the claim.
14.7 Clermont Hill shall forward to the Company as soon as possible all claims, letters, summonses, writs or documents (a "Claim") that it receives from third parties in relation to the Company and give reasonable information and assistance as the Company may require in relation to a Claim, provided that Clermont Hill shall not be liable in respect of any delays by it in so forwarding a Claim. Save as specifically agreed as a Service, Clermont Hill shall not be authorized and shall have no obligation to acknowledge service of a Claim on behalf of the Company. Nothing in this paragraph shall prevent nor oblige Clermont Hill from commencing or defending an action in its own name at its own expense.
Clermont Hill shall not be required to take any legal action on behalf of the Company other than on such terms as Clermont Hill may in its absolute discretion determine and provided always that Clermont Hill is fully indemnified to its reasonable satisfaction for all costs and liabilities that may be incurred or suffered by Clermont Hill. If the Company acting by the Board or a duly authorized delegate requires Clermont Hill to take any action of whatsoever nature which, in the reasonable opinion of Clermont Hill, might make Clermont Hill liable for the payment of money or liable in any other way, Clermont Hill shall be, and be kept, indemnified and held harmless to any reasonable amount and form satisfactory to Clermont Hill as a prerequisite to taking action.
15. PROCEDURE FOR RESOLVING CLAIMS
15.1 Any claim by either the Company or Clermont Hill under these Terms or in connection with an Agreement shall be notified in writing. The notice of claim shall give details of the claim.
15.2 In case of a claim between the Company and Clermont Hill, the parties shall first attempt to resolve the claim amicably. If any such claim is not resolved amicably within thirty days from the date on which valid notice of the claim was given (or any longer period as is agreed by the Company and Clermont Hill in writing), it shall be finally resolved in accordance with paragraph 21 of these Terms.
16. CONFIDENTIALITY
Unless instructed by the Company to the contrary, Clermont Hill shall keep confidential all documents, materials and other information relating to the business, financial position or state of affairs of the Company and shall not disclose any of the aforesaid, other than:
(a) to the Company’s or Clermont Hill ’s professional advisors who are subject to confidentiality obligations, (b) pursuant to paragraphs 4.3 or 18 of the Terms (c) as necessary for Clermont Hill to provide the Services (d) information consisting of information or data already in the public domain.
17. DATA PROTECTION
17.1 For the purposes of performing the Services and to comply with statutory requirements, Clermont Hill may from time to time collect, compile, keep and process certain personal data (“Data”), to the extent permitted under the Applicable Law. The Company agrees to, and shall cause its Group Members to agree to, such data processing.
17.2 The Company hereby authorizes Clermont Hill and agrees to procure that its Group Members authorize Clermont Hill, to use such Data for the following purposes:
(a) the performance and provision of the Services;
(b) conducting checks on the Company and its Group Members;
(c) handling and following up on enquiries, suggestions, complaints and suspected suspicious transactions involving the Company or its Group Members;
(d) conducting service surveys to better understand the characteristics and requirements of the Company or its Group Members;
(e) assessing the suitability of the Company or its Group Members to utilize services offered or to be offered by Clermont Hill ; and
(f) enforcement in relation to the rights of Clermont Hill under the Agreement.
17.3 To the extent legally permitted under local applicable law or regulation Clermont Hill shall keep the Data confidential but it may transfer or disclose any Data to the following parties (whether within or outside of the jurisdiction of the Applicable Law) subject to a duty on the part of the recipient not to disclose any Data other than for the purposes for which the Data is provided to them:
(a) any agent, contractor or third-party service provider of Clermont Hill who provides administrative, computer, payment, data processing, debt collecting or other service for them;
(b) other members or related companies of Clermont Hill .
17.4 Pursuant to paragraphs 4 and 17.1 above, Clermont Hill explicitly undertakes not to disclose any information to other third parties and undertakes that it will comply with the applicable personal data protection laws and regulations.
18. ASSIGNMENT
18.1 None of the rights and obligations of the Agreements to which these Terms are applicable shall be assignable by either party hereto without the prior written consent of the other party.
20. SEVERABILITY
If any provision of these Terms or any of the Agreements is held to be invalid, unenforceable or to contravene an applicable law, then such provision shall (so far as it is invalid, unenforceable or contravenes an applicable law) be given no effect and shall be deemed not to be included in these Terms, but without invalidating any of the remaining provisions of these Terms. The parties shall then use all reasonable endeavors to replace the invalid, unenforceable or contravening provisions by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid, unenforceable or contravening provision.
21. ENFORCEMENT, LAW AND JURISDICTION
21.1 These Terms shall be governed by and construed in accordance with the Applicable Law and the parties irrevocably agree to submit to the exclusive jurisdiction of the courts of that location to hear and decide any lawsuit, action or proceedings, and to settle any dispute which may arise out of or in connection with these Terms.
21.2 Each of the parties to these Terms and any of the Agreements irrevocably waives any objection which it might now or hereafter have to the courts referred to above being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of, or in connection with, these Terms and agrees not to claim that any such court is not a convenient or appropriate forum in each case whether on the grounds of venue or forum non conveniens or any similar grounds or otherwise.
21.3 Each of the parties to these Terms and any of the Agreements hereby consents generally in respect of any proceedings to the giving of any relief or the issue of any process in connection with such proceedings including the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such proceedings.
21.4 No failure on the part of either of the parties to exercise, and no delay on the part of either of them in exercising, any right or remedy under these Terms will operate as a waiver thereof nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies are cumulative and not exclusive of any rights or remedies provided by law.
21.5 These Terms are solely for the benefit of Clermont Hill and the Company and only Clermont Hill and the Company shall have the right to enforce any of the provisions of these Terms.
