SMART MBS shall be referred to as the “Company” and these conditions shall be deemed to be incorporated into all contracts, whether in writing or verbally, made by the Company with “the Client”.
The Client warrants that it has the capacity, power and authority to enter into and be bound by the terms and conditions contained herein.
A Client may not assign its rights and obligations under any agreement with the Company to any affiliated or third party without the prior written consent of the Company.
Subject to the provisions for earlier termination contained herein, these terms and conditions shall continue in effect unless terminated by the Company or the Client with one month’s prior written notice of such termination.
The Company’s terms and conditions may be varied or superseded at any time by agreement in writing between the Company and the Client.
Nothing in these terms & conditions or in any dealings or transactions shall be construed so as to create a partnership or joint venture between the Company and any other party.
2. EXCLUSIVITY OF SERVICES
2.1 The Services provided by the Company shall not be deemed exclusive and the Company shall be free to render similar services to others so long as its services hereunder are not compromised or impaired in so doing.
3. DELEGATION OF COMPANY FUNCTIONS
3.1 The Company shall provide the services through its directors, officers, servants and agents and shall have full power to delegate the whole or any part of its functions hereunder to any person, firm, body corporate, trust or other entity including, without prejudice to the generality of the foregoing, the power to appoint nominees, agents or delegates to assist the Company in its duties.
4.1 Save as otherwise agreement, the Client from whom the Company receives instructions, shall be solely and exclusively liable to the Company as principal for all costs, charges and expenses that shall be due to the Company.
4.2 The Client shall remunerate the Company in accordance with rates currently applied by the Company and in force at the time the service was supplied. Such costs, charges and expenses shall include, all outlay incurred on behalf of the client. Fees charged shall be subject to the additional of Value Added Tax (VAT) at the rate in force at the time the invoice is issued, in accordance with relevant VAT regulations.
4.3 Payment of all invoices rendered by the Company shall be made within 30 days of the date the invoice was rendered, after which the Company reserves the right to add interest at the statutory rate for the time being.
4.4 If the Company shall refer an unpaid invoice to debt collection agents for collection the Client shall pay, in addition to the amount due on such invoices, such further sum as shall be equal to the collection agent’s reasonable fees and costs.
4.5 If the Client fails to pay the Company in full for all fees and disbursements, the Company shall have the right to suspend work on the Client’s instructions and shall be entitled to apply any part payment received in discharge of any outstanding fees.
4.6 The Company is entitled to retain and withhold, any and all documents including corporate records belonging to the Client, until all amounts due have been discharged by the Client.
4.7 Fees shall be reviewed on an annual basis and any changes thereto shall be communicated to the client.
5. TERMINATION OF SERVICES
5.1 The Company reserves the right at any time and without any liability or continuing obligation to the Client to terminate this engagement if:
i. The Client is in material breach of any of the terms of the engagement and/or the Client failed to make good such breach within 30 days of notice requiring the same;
ii. The Company is not satisfied that it can proceed or continue with the engagement without being subject to civil or criminal liability;
iii. The Client’s instructions expose, or may expose, the Company or any person connected with the Company to adverse publicity or other serious public censure; or
5.2 Any reasonable costs incurred by the Company in remedying a breach of any of the provisions herein, shall be subject to a subsequent claim for damages by the Company for loss arising as a result of such breach.
5.3 Termination will not affect accrued rights, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payments save that the Client will pay:
i. The Company’s fees to the date of termination;
ii. Any additional expenses necessarily incurred by the Company as a result of the Client terminating the engagement;
iii. Any losses necessarily realised in settling outstanding obligations; and
iv. Any fees for binding commitments entered into prior to termination.
6. LIMITATION OF LIABILITY
6.1 The Client covenants and agrees to indemnify and keep indemnified the Company, from and against, any and all liabilities, obligations, losses, damages, claims, costs, taxes, penalty taxes, actions, proceedings, suits and expenses, including, without limitation, legal fees incurred by or asserted against the Company in providing the Services to the Client (other than liabilities arising out of the negligence, fraud or default of the Company in the performance of the Company’s duties hereunder).
6.2 The Company will perform the services required for the Client with all reasonable diligence and skill. If however, any liability to the Client shall arise on the part of the Company, (whether under the express or implied terms of the contract or in any other way) for any damage or loss sustained or incurred by the Client for any one claim or a series of claims, such liability shall in all cases whatsoever be limited to the payment by the Company on its own behalf and on behalf of its servants, nominees and agents to the lesser of €100,000, OR an amount equal to twice the average annual fee value in the three preceding years of the action or inaction giving rise to the claim, or series of claims.
6.3 On no account will the Company, be liable for losses, damages, costs and expenses (including interest and pecuniary or tax penalties, if any) arising as a result of fraudulent acts or failure to act, misrepresentations or wilful error of Client’s directors, executives, employees, attorneys-in-fact or collaborators.
6.4 Notwithstanding anything else contained in these terms and conditions, the Company shall not be liable to the Client for loss of profits, loss of contracts or other loss arising indirectly or consequently from negligence or breach of contracts by the Company in the performance of its services.
6.5 Where the instructions to, or the advice from, the Company shall be given orally, the Company shall have no liability to the Client for any misunderstanding or misinterpretation which may arise thereof whether on the part of the Company, its servants, nominees or agents or the Client.
6.6 The Client agrees that it will take all reasonable, immediate and necessary steps to mitigate any loss the Client may suffer as a result of any error or omission on the Company’s part and notify the Company immediately of any potential or actual claim and that the Company will have no liability in the event of the Client’s failure to fully and promptly meet the Client’s responsibilities in this regard.
6.7 In the event of any action or proceeding being brought against the Company as a result, directly or indirectly, of the Services rendered by the Company hereunder as a result of instructions or directions from the Client, the Client commits itself to require before the relevant courts the replacement of the Company by the Client itself or another person in such actions and shall, in addition, hold the Company harmless of, including, but not limited to, any responsibilities, charges, expenses relating to legal counsel, expenditure and indemnification as a result of the same action or proceeding.
6.8 In relation to any action taken or proposed to be taken by the Company, in relation to any court proceedings to assist the Client or to defend itself (other than in circumstances arising out of the negligence, fraud or default of the Company in the performance of the Company’s duties hereunder), the Company may, at the cost of the Client, consult with legal counsel at any time and any action or omission suffered or taken by the Company in good faith in reliance on or in accordance with the opinion or the advice of such counsel shall be full protection and justification to the Company with respect to the action or omission so suffered or taken.
6.9 The Company shall have no liability for any claim made by the Client arising out of the provision of any goods or services by the Company unless written particulars thereof (giving full details of the specific matter in respect of which such claim is made) are received by the Company within the period of 12 months after the date of the Company’s invoice for such goods or services. In these conditions the expression “goods” shall be deemed to include (without limitation) publications and documents of all descriptions.
6.10 The Company is not responsible for providing tax advice to the Client in respect of the jurisdiction in which the Client is tax resident nor indeed is it responsible for the provision of taxation advice for any company controlled or managed by the Client. The provision of the Services and the advice provided relates exclusively to the companies incorporated and administered by the Company.
7. CLIENT RESPONSIBILITIES
7.1 The Client shall inspect any goods supplied immediately on receipt and shall within 10 working days of such inspections give notice to the Company of any allegation of deficiency. If the Client fails to give such notice the goods shall be deemed to be in all respects in accordance with the Client’s instructions and the contract.
7.2 The Client undertakes to observe the utmost good faith in its dealings with the Company.
7.3 It is the Client’s responsibility to ensure the Company receives complete, accurate and timely information and assistance in order that the Company can provide the Services in a timely manner. The Company will not be responsible for the consequences of any delay or failure to meet this responsibility and any such delay or default may result in additional fees for which invoices may be raised, whether or not the Services were originally undertaken on a fixed fee basis.
7.4 The Client agrees that commercial decisions are not within the remit of the Company’s duty of care and in making such decisions the Client must take into account the restrictions on the scope of the Company’s work and other factors, commercial and/or otherwise, of which the Client and any other advisors are, or should be, aware from sources other than the Company’s work.
7.5 The Client acknowledges that the Client must make their own enquiries in carrying out searches into registered trademarks or business names.
8. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
8.1 The Company shall retain all ownership, copyright and other intellectual property rights in everything developed, designed or created by the Company either before or during the course of an engagement including systems, methodologies, reports, record books, software, know-how and working papers. The Company also retains all ownership, copyright and other intellectual property rights in all written advice or other materials provided by the Company to the Client. The Client shall have the right to use such material for the purpose intended by the Client’s instructions and for no other purpose unless otherwise agreed by the parties.
9. ELECTRONIC COMMUNICATION
9.1 The Company may communicate via email, fax or other electronic media (“electronic communication”) or provide information to the Client in electronic form.
9.2 The Client hereby agrees that it will jointly and severally indemnify the Company against any and all losses, damages, costs, expenses, liabilities, actions, proceedings, claims or demands of any nature whatsoever which may be incurred by or made against the Company or any of its directors, officers, managers, servants or agents directly or indirectly by reason of any act, deed, matter or thing done or alleged to have been done by the Company in accordance with the authorities and instructions granted by the Client via electronic communication or otherwise.
9.3 The Client acknowledges that if the Company is working on the Client’s premises, the Company may need to connect to the Internet through the Client’s internal network in order to access the Company system and the Client remains responsible for the security and virus protections on the Client’s network in such situations.
10. FORCE MAJEURE
10.1 Neither the Company nor the Client shall be liable in any way for failure to perform its retrospective obligations under this business arrangement if the failure is due to causes outside the reasonable control of the party which has failed to perform.
11. DATA PROTECTION & PRIVACY
11.1 Both parties confirm that they will comply with the Data Protection Acts 1988, Data Protection (Amendment) Act 2003, the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 and any other applicable legislation and amendments thereto.
12. INFORMATION AND CONFIDENTIALITY
12.1 Where the Client gives the Company confidential information the Company shall keep it confidential.
12.2 The Client shall not (except under the compulsion of law) disclose any information relating to, or to the affairs of, the Company (including any holding, subsidiary or associated company or body corporate of the Company) to any person not authorised to receive same and shall use all reasonable endeavours to prevent any such disclosure.
12.3 Neither the Company nor the Client will be prevented from disclosing confidential information; (a) which is or becomes public knowledge other than by breach of an obligation of confidentiality, (b) which is or becomes known from other sources without restriction on disclosure; or (c) which is required to be disclosed by law or any professional or regulatory obligation.
13. COMPANY STAFF
13.1 The Client undertakes that during and for a period of 6 months following this engagement the Client will not, without the Company’s consent;
i. Solicit or entice away (or assist anyone else in soliciting or enticing away) any member of the Company’s staff with whom the Client has dealt with in connection with an engagement during the 12 months immediately prior to the Client’s approach; or
ii. Employ any such person or engage them in any way to provide Services to the Client.
14. ARBITRATION/ DISPUTE RESOLUTION
14.1 If any difference shall arise between the parties hereto or any of them as to the interpretation of this agreement or as to the rights, duties or liabilities of any party hereunder or to any act, matter or thing arising out of or under this agreement, the same shall be submitted to a single arbitrator to be appointed by the parties in dispute or, in default of agreement, to two or more arbitrators, one to be appointed by each of the parties in dispute. A third arbitrator is to be appointed by the two arbitrators or, in the absence of their agreement to such an appointment, a person shall be nominated by the Chairman of the Chartered Institute of Arbitrators (Irish Branch) and such submission shall be a submission to arbitration under the provisions of arbitration legislation of the Republic of Ireland for the time being in force.
15. STATUTORY & REGULATORY OBLIGATIONS
15.1 The provision of the Company’s services are subject to anti-money laundering statutory and regulatory requirements and procedures. The Company has the following obligations:
i. To conduct Client identity checks;
ii. Maintain client identity and transaction records;
iii. Report suspicions of a money laundering offence, an offence of terrorist financing or a compliance offence to the relevant authorities;
iv. To educate and train Company staff on the above requirements; and
v. Implement procedures to prevent and detect money laundering.
15.2 Pursuant to statutory and regulatory obligations, we may request information from you to meet our obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
15.3 Where we provide designated service (as defined under the AML/CTF Act). We are a reporting entity under the legislation and as such must meet stringent identification and verification requirements.
15.4 We must know your by collecting information to identity you or any agent acting on your behalf and taking all necessary steps to verify this prior to providing any service.
15.5 We will maintain all information collected in a secure manner in accordance with the relevant privacy principles and the AML/CTF Act. We will only disclose information about you where we reasonably consider that we are required to do so under Irish law.
15.6 This means that your identification information may be disclosed to government agencies or law enforcement agencies. We may also disclose this information to other entities involved in providing services to you to the extent that this information is required to fulfil that entities’ AML obligations.
15.7 You agree to provide such information upon request. If you do not provide this information we may not be able to provide services to you.
16. GOVERNING LAW & JURISDICTION
16.1 These conditions and all legal relations arising from same shall be governed by and construed in accordance with the laws of the Republic of Ireland and shall be subject to the jurisdiction of the courts of the Republic of Ireland.
17.1 A failure by us to take action to enforce our rights does not constitute a waiver of any right or remedy under this agreement unless it is in writing and signed by us.
17.2 A waiver by us of any specific provision of this agreement does not affect any other provision of this agreement.