1.1 Services. ONS FinServ Ltd (hereafter "ONS") will provide the Services as specified in the Agreement and these Terms of Business.
1.2 Compliance with Laws. Principal acknowledges, understands and agrees that ONS will manage the business, legal, corporate, fiduciary, administrative and tax affairs of the Entity, at all times, in compliance with (a) the applicable laws, regulations and decrees, including, without limitation, those related to business organization and the prevention of money laundering; (b) the Entity's articles of incorporation / articles of association / memorandum of association / deed / by-laws / operating agreement / partnership agreement; and (c) any shareholders' / members' / partners' resolutions. In any event, ONS will perform its duties and render the Services with due care and skill and in the best interest of the Entity.
1.3 Permissible Activities; No Conflict of Interest Nothing herein or in the Agreement, shall in any way preclude ONS and its officers, employees, agents, representatives, members or affiliates from engaging in any business activities or from performing services for its or their own account or for the account of others, including (without limitation) the rendering of services to other companies that may be in competition with the business conducted by Principal or by the Entity. It is understood and agreed that such undertakings shall not create any conflicts of interest on ONS's part.
1.4 Independent Advice. Principal irrevocably agrees that ONS will have the right to seek independent professional advice at Principal/Entity's expense in case of any matters of complexity. ONS will inform Principal of ONS's intent to exercise such right and the estimate costs involved. If no objection is received from Principal for a period of Seven (7) days (or within the stated period of time) of the date of notice, it will constitute an acceptance.
1.5 Duty of Good Faith. These Terms of Business impose upon ONS, Principal and Entity a duty of good faith and fair dealing in its performance and its enforcement. ONS, Principal and Entity shall perform their respective duties under the Agreement in a professional, commercial, and timely manner.
1.6 Tax and Legal Advice. Principal duly warrants that it/he/she has taken and will at all times ensure that it/he/she will take all necessary tax and legal advice with regard to the establishment and operations of the Entity serviced by ONS and that the activities or proposed activities of the Entity will not breach the laws or regulations of any relevant jurisdiction, sanctions imposed by any multilateral organization or any applicable treaty, directive, decree, law or regulation and acknowledges that ONS shall not be in any way responsible for advising Principal or the Entity. Principal further agrees and acknowledges that ONS does not provide any tax, legal or investment advice and any advice given or reports prepared for Principal or Entity shall not be treated as tax or legal advice.
1.7 Delegation; Outsourcing. ONS will be entitled to subcontract, outsource, or delegate part of the obligations regarding the Services to any company of ONS Group or an outside service provider; however, ONS will remain liable for its obligations under the Agreement.
1.8 ONS's Actions. Notwithstanding any provision in these Terms of Business or the Agreement, ONS may, act or refrain from acting when : (a) ONS has fiduciary duty and ONS considers necessary, expedient or prudent to do so; or (b) a silence from the Principal for more than five (5) days from the date of notice to a course of action suggested by ONS will constitute acceptance of the suggested course of action; or (c) such action is in breach of any applicable laws or regulations or directions; or (d) such action is not in compliance with the Entity's articles of association/ memorandum/deed/ by-laws/ partnership agreement.
2.1 Fees. In consideration of the provision of the Services, Principal/Entity agrees to be liable jointly and severally for: (a) paying ONS or its designees the relevant invoices for the Services rendered, and (b) performing all other obligations and duties contained in these Terms of Business and in the Agreement.
2.2 Fee Adjustment. All or any fees payable by Principal and Entity for the Services rendered by ONS shall be in accordance with the terms of the Agreement.
ONS is entitled, in its sole discretion by giving Principal and Entity a prior notice of thirty (30) calendar days, to adjust its hourly rates and annual fees for inflation purposes, changing market standards or conditions, or other special circumstances and the fees may be adjusted on an annual-calendar basis.
2.3 Expenses; Taxes. Any costs or expenses to be incurred in connection with the Services will be paid to ONS in advance. All collection costs, expenses and related bank charges including any legal fees shall be paid by the Principal and Entity. In the event, ONS is requested by Principal or any governmental regulation or body to produce documents or ONS's personnel as witness or in any other capacity with respect to Principal's or Entity's activities, ONS shall be reimbursed for its professional time and expenses and for the professional counsels' fees and expenses.
All fees, costs and expenses incurred by either party in connection with or arising pursuant to this Agreement shall be borne and paid by the party incurring such fees, costs and expenses including, without limitation, those of any broker, attorney, advisor, or consultant.
2.4 Payment.
(a) Invoicing and Collection Agent For the performance of the Services, ONS will charge Entity with the fees, disbursements, and taxes, by means of invoices. ONS will be entitled to demand payments before commencing the provision of any services requested, which estimate amounts will be detailed in pro-forma invoices. Invoices are due and payable to ONS within thirty (30) calendar days of the date of the relevant invoice.
For the purpose of invoicing for the Services rendered and/or the collection of fees owed, ONS will be entitled to appoint affiliates or a third party as its invoicing and/or collection service provider.
(b) Proof of Receipt. ONS will send a copy of any given invoice to Principal in accordance with clause 15.3 (Notice), who will have the right to object to any material or significant items or amounts contained in each invoice within ten (10) calendar days of the date of successful transmission or receipt of the invoice.
(c) Payment by Debit. ONS is hereby irrevocably authorised by Principal/Entity and, ONS will be lawfully entitled, to debit from Entity's bank account the sums of money owed to ONS for the Services rendered, any late interest payment and any other charges.
The above clause shall be applicable only where ONS is acting in fiduciary capacity for the Entity.
(d) Late Interest Payment and Other Charges. . If any payment is not made when due, Principal and Entity shall be in default by the mere lapse of time, without any further notice, and ONS will, as a result thereof, incur costs not contemplated in the relevant invoice then overdue. Any overdue amount shall bear interest compounded monthly, commencing thirty (30) days after the due date of the relevant invoice as established by these Terms of Business and/or the Agreement. The rate of interest shall be ONE AND A HALF PERCENT (1.5%) PER MONTH on the aggregate amount of the payment due and owed to ONS until the date of payment in full. In addition, Principal and Entity will pay any extrajudicial and judicial collection costs incurred in recovering these dues.
(e) No Waiver of Default. Acceptance of part payment or late interest payment and other charges by ONS shall in no event constitute a waiver of the default with respect to the overdue amount, and shall not prevent ONS from exercising any of the other rights and remedies available to ONS including, without limitation, the rights to suspend the provision of services or to terminate the contractual relation with Entity and Principal.
(f) Set-Off. All amounts due shall be paid in full without any deduction or withholding other than as required by law. Principal/Entity shall not be entitled to assert any credit, set-off or any counter-claim against ONS in order to justify withholding payment of any such amount in whole or in part.
3.1 Due Diligence Reviews. Principal understands and acknowledges that:
(a) ONS is legally obligated to perform due diligence checks on Principal and Principal's business organization, based on Customer Due Diligence ("CDD") national and international laws, regulations, policies and guidelines;
(b) For such purposes, ONS uses its own strict CDD policies and guidelines;
(c) Such obligation involves continuing checks and entails requesting information and documents from Principal (as ultimate beneficial owner of the business structure referred to herein), on an ongoing basis;
(d) Based on the foregoing, Principal agrees that it will be its responsibility to provide ONS with any and all information and documents to discharge ONS's CDD obligation, as requested by ONS; and
(e) Principal agrees that it will have the duty to immediately inform ONS in connection with any changes or inaccuracy regarding the CDD information and documents.
ONS is at any time, in its sole discretion, entitled to request references or additional information about Principal's identity, about the business activities of Principal/Entity or about persons involved in a Principal's/Entity's business, and further to request any and all information as ONS deems necessary or appropriate.
3.2. Continuing Duty to Inform. Principal is obligated to immediately inform and provide ONS with any information and supporting documents of any changes to the information or documents supplied to ONS and, particularly without prejudice to the generality of the foregoing, of the occurrence of any of the following:
(a) Any changes in the beneficial ownership or control of the shares/interest of the Entity;
(b) Any pledge, transfer or assignment of any or all of the shares/interest of the Entity
(c) The commencement and any further steps in any proceedings (i) in relation to any assets of Principal/Entity, or (ii) for the winding up of Principal/Entity and/or the appointment of an administrator, trustee, and receiver to manage the affairs of Principal/Entity; or
(d) The levying of any execution, distress or diligence or any similar debt recovery process or claim against any material assets of the beneficial owner.
Principal and Entity understand, acknowledge, and agree that:
(a) any of Data Subjects' information and documents are stored and kept as ONS deems necessary for its legal and business purposes and in no event will its lawful use be deemed as a violation of any legislation concerning protection of personal data. Principal and Entity hereby waive any cause of action or right to damages based on such use. Data Subjects' personal data may be incorporated in ONS's automated files and, upon the termination of the Agreement, ONS is hereby authorized to keep such personal data stored and to use these data if and to the extent that ONS is requested by law, regulations or any court order. The Data will be used for the purposes of communication with Principal and Entity, management of the relationship with Principal and Entity, performance of the Services and conducting compliance procedures imposed on ONS by applicable laws and regulations;
(b) ONS is entitled to process personal data of Data Subjects, as well as any Data, including without limitation to transmission of the Data to, from and within the ONS and to, from and within any sub-contractors, service providers and/or suppliers engaged by ONS for one or more of the below purposes, thereby allowing worldwide access to the Data to designated staff members of the ONS and/or such subcontractors, service providers and/or suppliers. Principal consents to ONS collecting, using and/or disclosing its personal data for the purpose of performing its contractual obligations to any third parties, as well as such other purpose(s) reasonably and/or customarily required by a relation of such nature, and in that regard, Principal agrees to execute such written consents or documentation as may be required by ONS.
(c) ONS is entitled to collect, use and/or disclose such information of Data Subjects as is required for the purposes of complying with applicable laws, regulations, directions, international treaties or the equivalent, including without limitation, such requests pertaining to exchange of information for tax purposes or such bank and trust information of Data Subjects requested by any local or international authorities, court of law or regulatory bodies. ONS will, where possible, provide prior notice of the aforesaid disclosure unless otherwise prohibited under applicable laws or regulations.
(d) Sharing, transfer and processing of Data within ONS Group companies is subject to ONS's Group Data Privacy Policy and ONS stores, transfers and processes Data in accordance with data protection requirements under the applicable data protection laws and regulation of various countries, including EU Data Protection laws. Further, ONS requires its third party service providers who collects, stores and processes personal data on its behalf to adhere to applicable data protection laws and regulation of various countries, including EU Data Protection laws and ONS's Data Privacy Policy.
(e) Principal and Entity hereby authorise and consent to the processing and transmission of the Data in accordance with Clauses 4(a), (b), (c) and (d). Principal represents and warrants that the consent of the Data Subjects for such processing and transmission of Data in accordance with Clauses 4(a), (b) and (c) have been obtained in so far as such consent is required.
5.1 Requests. Subject to clause 1.8, ONS may act and rely upon written or electronic requests, notifications, instruments or documents of any kind (more fully specified under clause 15.3 on Notice), which appear to have been signed (in original or facsimile or scanned image), endorsed or prepared or sent by Principal/Entity/Authorized Person provided ONS at its sole discretion has the right to verify or authenticate any such request, notification, instrument or document, but shall have no obligation to verify or authenticate any request, notification, instrument or document received via telephone, facsimile or electronic email and all actions thereof shall be conclusive and binding on the Principal.
For the protection of both Principal/authorised representative of Entity and ONS, as well as to avoid or to correct any misunderstanding, to improve services and in the interests of security, ONS has the right to, at its sole discretion and without prior notice, to record any telephonic conversation or any conversation by any other means of communication made with, or made on behalf of, Principal/Entity.
5.2 Electronic and Online Communications. 5.2 Electronic and Online Communications.For purposes of the supply of Services, each party agrees to the use of all means of electronic communications and assumes the risks associated with such use. Neither party shall be liable to the other party for any loss or damages caused by errors or viruses or by late or incomplete delivery, corruption, or destruction of information or documents. ONS may give Principal or Entity's authorised representatives access to the Amiportal ("Amiportal" which term includes any successor system or application is a web based application to access corporate documents, invoices and initiate payment of invoices) (on an “as-is basis) to enable Principal and Authorised Person(s) to view electronic documents of Entity and to have direct live communication with ONS. Principal understands and acknowledges that ONS will provide Principal or Entity's authorised representatives with a username and password to have access to the Amiportal. The Principal or Entity's authorised representatives will be solely responsible to exercise such right to access, view, and communicate and, in no event shall the password be disclosed to any unauthorised persons and ONS shall not be liable for any loss arising due to such misuse. Principal or Entity give their express consent to receive regular electronic marketing materials and email alerts.
Principal and Entity irrevocably agree not to use any of ONS's trade name or trademark (word or device) or any other intellectual property rights owned by or licensed to ONS.
7.1 Each party who receives confidential information (“Recipient”) undertakes that it shall not at any time during the term of the Agreement disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or employees of the party who discloses confidential information (“Disclosing Party”).
7.2 2Recipient may disclose the Disclosing Party's confidential information: (a) to its employees, officers, group companies, representatives, agents, third party service providers, or advisers who need to know such information for the purposes of carrying out the Recipient's obligations under the Agreement. Recipient shall ensure that its employees, officers, group companies, representatives, agents, third party service providers, or advisers to whom it discloses the other party's confidential information comply with this provision; and (b) as may be required by law, court order or any governmental or regulatory authority.
7.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under the Agreement.
8.1 Regarding the Entity. Principal warrants, and covenants to ONS that, at all times, Principal shall undertake the necessary actions and procedures to cause any person involved in the management of the shareholder(s) or member(s) or partner(s) of the Entity, the Entity, (collectively referred to as “Associates”), to comply (as applicable) with the following:
(a) serve at least 30 days' written notice on ONS before consummating any sale, transfer, conveyance, assignment, charge, lien, pledge, encumbrance or any other disposal of any part or all of the shares/interests or any of the Entity's assets;
(b) ensure and cause the Entity to have, at all times, sufficient cash funds in the Entity's bank account to meet its business and financial obligations including, without limitation, ONS's invoices regarding fees, time spent, costs, expenses, ordinary disbursements, and any and all of the Entity's tax liabilities;
(c) provide all information as required for the purpose of the Entity's compliance with its statutory, legal or regulatory obligations; and
(d) perform such acts, execute and deliver such instruments and documents, and do all such other things as may be reasonably necessary for any purposes contemplated hereunder or in any other legal instruments regarding the services provided to the Entity.
8.2. Regarding Principal and Associates Principal represents, warrants, and covenants that the following statements are and will remain at all times complete, true, and accurate regarding Principal and the Associates (for purposes of this provision only, each of these persons is collectively referred to as "They"):
(a) They are not government officials or residents in or dealing with countries subject to the sanctions of the United Nations, United States of America or European Union;
(b) All acts required to be done by ONS will comply with all laws affecting or binding upon the Entity or Principal and all statements and documents which Principal requests ONS to sign will be complete, true, and accurate;
(c) Principal will provide complete, true, and accurate accounts or supporting documents that will allow ONS to cause Entity to have and keep proper accounts and to file accurate tax returns;
(d) They will disclose and have disclosed to ONS all the information relating to their condition (financial or otherwise), their business affairs, objects and their (future) actions or transactions, material for disclosure to ONS in connection with its (management) services and all other information which may be necessary in order for ONS to make any informed decision or take any appropriate course of action;
(e) They, as applicable, are not and will not be used for or engaged in offshore gambling or gaming, arms or sex related business or illegal, unethical or immoral activities such as money laundering and tax fraud;
(f) Principal is aware of his/her/its tax affairs and is responsible for the same and agrees and consents to ONS's disclosure of any information related to Principal and/or Entity as may be requested by relevant government authorities under applicable laws and regulations; and
(g) They comply with all relevant legislation in relation to the Services and shall obtain and maintain all necessary licences and consents.
Principal undertakes that it shall not engage in any illegal activities which means any activity designated anywhere in the world as illegal or criminal which, without prejudice to the generality of the foregoing, shall be deemed to include activities relating to terrorism, drug trafficking, money laundering, gambling, lotteries, pornography, receiving the proceeds of criminal activities or trading with countries which may from time to time be subject to embargo imposed by the Security Council of the United Nations, the European Union or any successor or similar international organization.
10.1 Indemnity by Principal and Entity. Principal and Entity will, during the applicability of these Terms of Business and thereafter, jointly and severally indemnify and hold ONS (including its directors, officers and employees) harmless from and against any and all claims in contract, tort or suits instituted by any third party, as well as from and against any liabilities, damages, charges, fines, taxes, costs and expenses sustained, incurred or expended, directly or indirectly, by ONS (including, without limitation, any fees, costs and expenses of attorneys, auditors and other experts engaged by ONS), arising out of or in connection with: (a) any Principal's breach or negligent performance or non-performance of these Terms of Business and the Agreement; (b) any claim made against ONS for actual or alleged infringement of a third party's intellectual property rights; (c) any claim made against ONS by a third party arising out of or in connection with the provision of the Services. This indemnity shall not cover ONS to the extent that a claim results from ONS's gross negligence or wilful misconduct as determined by a final court judgment.
10.2. After-Tax Basis. If a payment due under this Section is subject to tax (whether by way of direct assessment or withholding at its source), ONS shall be entitled to receive from Principal/Entity such amounts as shall ensure that the net receipt, after tax, to ONS in respect of the payment is the same as it would have been, were the payment not subject to tax.
11.1 Entire Financial Liability of ONS. This Section sets out the entire financial liability of ONS to Principal/Entity as its exclusive remedy in respect of: (a) any breach of these Terms of Business and the Agreement or statutory or fiduciary duties; and (b) any causes of action based on misrepresentation or tortious acts or omissions (including gross negligence), restitution or otherwise arising under or in connection with these Terms of Business and the Agreement.
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES' INTENTION AS TO THE ALLOCATION OF RISKS HEREUNDER AND, THUS, PARTIES AGREE THAT THESE LIMITATIONS AND EXCLUSIONS ARE REASONABLE. ONS'S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING GROSS NEGLIGENCE), BREACH OF ANY STATUTORY OR FIDUCIARY DUTIES, MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THESE TERMS OF BUSINESS AND THE AGREEMENT SHALL BE LIMITED TO THE FEES CHARGED BY ONS DURING THE YEAR IN WHICH THE BREACHING EVENT REFERRED TO IN THIS CLAUSE OCCURRED.
11.2 Limitation of Liability. ONS shall not be liable to Principal/Entity for any breach, loss, damage, claims, fines, charges, costs or expenses resulting from actions taken by ONS in discharging ONS's duties, unless any of the foregoing is the result of and can be attributed to ONS's gross negligence or wilful misconduct in the rendering of the Services, as determined in a final and enforceable judgment issued by a competent court.
11.3 Exclusion of Liability. All terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Business and the Agreement. Except as expressly required by law without the possibility of contractual waiver, in no event will ONS be liable to Principal/Entity or third party for the following:
(a) any special or consequential, punitive, or incidental damages (including, without limitation, loss of profits, revenues or data), whether based on breach of contract, tort (including negligence or strict liability) or otherwise and regardless of the form of the legal action, even if Principal/Entity has been advised of the possibility of any such loss or damage;
(b) for any late payment of fines, penalties, costs or interests charged by any governmental agency to Principal/Entity due to Principal/Entity's delayed transfers or insufficiently detailed wire transfer instructions or for foreign currency exchange losses incurred by Principal/Entity;
(c) for any action taken (or consequences thereof) by ONS based on any forged document where such action by ONS would have been reasonable had the document not been forged;
(d) for any acts (either by commission or omission) executed pursuant to the independent professional advice, nor for the accuracy or completeness of any such advice; and
(e) loss arising from a misunderstanding or transmission error or fraudulent requests received through telephone, telex, facsimile, email or any other means of communication irrespective of authentication and ONS acting upon such request. This non-liability includes any damages incurred in connection with the use of multimedia or cyber facilities, as well as any other commercially available communication facility.
12.1 Suspension. . Without prejudice to any other rights or remedies that ONS may have, Principal and Entity acknowledge and agree that ONS shall have the unilateral right to suspend the supply of Services (including any statutory obligations) arising automatically on Principal/Entity's default to pay ONS's invoices for more than thirty (30) days after the due date for payment.
12.2 Termination. Either party may terminate the Services or the rights granted under the Agreement at any time without any liability or obligation whatsoever upon ninety (90) days prior written notice to the other party. Furthermore, the Services and the Agreement may be terminated by any of the parties with immediate effect by written notice upon the occurrence of any of the following:
(a) If the other party breaches any provision of these Terms of Business, the Agreement and fails to cure such breach within forty (40) calendar days of written notice describing the occurrence of a breach hereof; or
(b) In the event that the other party is subject of investigation by a regulator or governmental authority for involvement in any money laundering activity or is charged with any criminal offence; or
(c) Principal or Entity does not comply with the laws or regulations of any applicable jurisdiction; or
(d) In the event that (a) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (b) a substantial part of the other party's property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency; or
(e) If the other party ceases to do business, or otherwise terminates its business operations; or
(f) In the event that Entity's shareholders' control or Entity's control is acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of the assets or business of any of the foregoing are to be acquired by any organization that is not affiliated with Principal, except as a result of an assignment permitted hereunder; or
(g) ONS is unable to contact Principal or its representative(s) for a period in excess of three (3) months; or
(h) In the event of any change in nature of business of the Entity.
ONS (including its directors, officers and employees) will not be liable for any damages, charges, fines, taxes, costs and expenses sustained, incurred or expended by Entity, Principal or any third party in connection with its resignation, and any subsequent action or omission.
ONS is unconditionally and irrevocably authorized to convene a general meeting of shareholders/members/partners of the Entity and to vote on behalf of the Entity's shareholders/members/partners in favor of ONS's resignation and discharge for its previous management.
12.3 Consequence of Termination
(a) Amounts Due; Right to Retain Documents. If the Agreement is terminated in accordance with this Clause or the relevant provision under the Agreement, the parties will assist each other in the transition period. ONS will continue to perform the Services subject to the terms and conditions as contemplated under the Agreement and these Terms of Business and, once all amounts due are paid to ONS in full, ONS will transfer Principal's and Entity's information and documents to any person designated in writing by Principal.
(b) Termination for Dissolution; Document Retention. ONS will retain such Entity's and Principal's records or copies of records, as applicable, for the minimum statutory period and use such records and copies of records in accordance with the statutory requirement. ONS is authorised to automatically destroy such records unless otherwise agreed with Principal/Entity.
(c) Notice to Government Agencies. On the termination of the supply of Services, ONS shall have the right to unilaterally serve notice on any government agency or authority (including the Registrar of Companies/Chamber of Commerce, tax authorities, regulatory authorities, ONS's supervisory authority) and other relevant service providers (including banks) regarding the fact that ONS has ceased to supply Services to the Entity.
These Terms of Business and the Agreement shall be governed by and construed and enforced in accordance with the laws of the jurisdiction as specified under the Agreement applicable to contracts made and to be performed therein, excluding any conflict-of-laws rule or principle that might refer the governance, interpretation or enforcement of these Terms of Business and the Agreement to the laws of another jurisdiction. References to applicable laws, statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application is modified from time to time by other provisions (whether before or after the date hereof) and shall include any statutes or provisions of which they are re-enactments (whether with or without modification) and any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision applicable hereto.
14.1 Dispute Handling; Jurisdiction. The parties shall endeavor to resolve any dispute, whether arising during the term or at any time thereafter which involves the validity, construction, meaning, performance, termination, or effect of these Terms of Business and the Agreement, or the rights or liabilities of the parties, promptly and in an amicable and professional manner by negotiations between the parties. Any dispute between the parties arising out of or resulting from these Terms of Business or the Agreement that is not resolved through negotiation within a period of sixty (60) days of the first written claim notice by the aggrieved party shall be settled exclusively by final and binding litigation. The proper venue for any and all disputes in any way relating to or arising under these Terms of Business and the Agreement shall be a court of competent jurisdiction in the city as mentioned under the Agreement. However, ONS may initiate legal proceedings against Principal regarding the terms agreed in any jurisdiction then corresponding to the domicile or residence of Principal. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
15.1 Assignment and Novation. Principal and Entity may not assign and/or novate his/her/its rights and obligations under any agreement with ONS to any affiliated or third party without the prior written consent of ONS. ONS shall have the right to assign and/or novate its rights and obligations under any agreement to any Affiliates or third parties upon intimation of such assignment and/or novation to Principal/Entity.
15.2 Force Majeure. The obligations of any party will be suspended during any period of Force Majeure. For purposes of these Terms of Business or the Agreement, a “Force Majeure” shall mean a major cause beyond a Party's reasonable control (and not involving any fault or negligence of the Party affected) including, without limitation, acts of God, acts of war, revolution, riots, civil commotion, acts of a public enemy, embargo, acts of government in its sovereign capacity, strikes, lockouts, boycotts, fire, earthquakes, floods or other natural disasters. In this regard, changes in business circumstances or business objectives shall not constitute a “Force Majeure.” In the event of the occurrence of any Force Majeure, the party claiming Force Majeure shall use reasonable efforts to mitigate the effects of Force Majeure in order to perform its obligations under these Terms of Business or the Agreement.
15.3 Notice. For the purposes of these Terms of Business, a notice, invoice or any other message shall be deemed to have been received at the following times: (a) if sent by courier: at the moment of delivery by the courier to the addressee; (b) if sent by registered letter: on the date noted on the return receipt; and (c) if sent by telegram, e-mail or facsimile: on the date of sending or successful facsimile transmission that is, the sender has a hard copy of a confirmation page evidencing that the facsimile was completed in full to the correct fax number or the sender's printed name on top of the electronic mail will be a sufficient signature. FAX COMMUNICATIONS AND FAX SIGNATURES, INCLUDING THOSE FOR THESE TERMS OF BUSINESS OR THE AGREEMENT, ARE FULLY BINDING ON THE PARTIES. Unless otherwise expressly indicated in this Agreement, all references to “days” shall mean calendar days.
15.4 No Partnership or Agency. Nothing in these Terms of Business and under the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
The place of business of ONS or any activities undertaken by ONS shall not be deemed to be an office, place of business or permanent establishment of Principal.
15.5 Third Party Right. The parties to the Agreement shall be Principal and/or Entity and ONS. A person who is not a party to the Agreement shall not have any rights arising from or in connection with it unless such rights are expressly provided for in the Agreement.
15.6 Entire Agreement. These Terms of Business are applicable to, and are an integral part of, the Agreement. If these Terms of Business deviate from the terms and conditions of the Agreement, the terms and conditions of the Agreement will supersede these Terms of Business.
15.7 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or these Terms of Business or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.8 Severability. If a provisions of these Terms of Business or Agreement, is or becomes illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable or the parties shall negotiate in good faith with a view toward substituting therefor a suitable and equitable solution in order to carry out the intent and purpose of such invalid provision.
15.9 Variation. No variation or amendment to the Agreement shall be valid or effective unless in writing and signed by authorized representatives of each party hereto. ONS shall have the right to make any changes to these Terms of Business.
15.10 Headings; Definitions. Headings used herein are for convenience of reference only, and shall not affect the construction of, or be taken into consideration in interpreting, these Terms of Business and the Agreement. In these Terms of Business and the Agreement (including the recitals), all capitalized words and expressions shall be construed as having the meanings attributed to them as specified herein. References in these Terms of Business and the Agreement to recitals, sections, paragraphs and schedules are to sections and paragraphs in and recitals and schedules to these Terms of Business and the Agreement. The recitals, documents referred to herein, and schedules to these Terms of Business and the Agreement shall be deemed to form part of these Terms of Business and the Agreement.
15.11 Survival. The relevant rights and obligations of the Parties shall survive the termination of these Terms of Business or the Agreement including, without limitation, this provision and the provisions concerning compensation, termination, confidentiality, indemnification, liability, and general provisions (including governing law and jurisdiction).
15.12 Language. These Terms of Business or the Agreement is in the English language only. All notices and other communications to be made or given pursuant to these Terms of Business or the Agreement will be in the English language, except for those communications received from national or local authorities or professionals granted, issued or produced in countries where the English language is not their official language.
15.13 Announcements. No party shall make, or permit any person to make, any public announcement concerning these Terms of Business or the Agreement without prior written consent of the other parties (such consent not be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction.
Unless expressly waived in writing by the ONS these Terms of Business (these “Terms of Business”) will be deemed to be incorporated in all agreements/Letter of Engagement entered into, and applicable to all Services rendered by ONS. For specific business units, additional terms and conditions will apply and both these Terms of Business and the additional terms and conditions will be read in consonance with each other.
Capitalized terms referred herein and not defined shall have the meaning and interpretation as provided in the Agreement
"Agreement" means an agreement made in relation to the provision of the Services by ONS in connection with the Entity.
"Affiliates" means an entity that controls, is controlled by or is under common control with ONS, either directly or indirectly through one or more other entities that control, are controlled by or are under common control with such party. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, through membership, by contract or otherwise.
"ONS" means the relevant ONS company/companies, foundation(s) or individual(s) employed by ONS, acting as service provider (either on its own behalf or as agent of other ONS's affiliates) as defined in the Agreement.
"ONS Group" means ONS, its shareholder(s), subsidiaries or affiliates worldwide.
"Data" means the information of the Data Subjects, any personal data as defined under relevant law in which the Data Subject is established or where the Data Subject resides, included in Know Your Client file or any other documents or databases which are disclosed to or received by ONS as part of the Agreement.
"Data Subjects" mean Principal (directors, officers and employees of Principal, in case Principal is an entity), Authorised Person as provided in the Agreement, the Entity, its directors, officers, affiliates, any service provider to Entity or any other individuals whose Data are collected by ONS for the performance of the Services.
"Entity" means company(ies) and/or partnership(s) and/or foundation(s), specified in the Agreement, the Proposal and Engagement Letter, or approved by Principal, or Structure Chart which may be amended from time to time and in respect of which ONS provides the Services.
"Principal" means any individual or legal person having a direct or indirect beneficial interest in the Entity and/or as defined under the Agreement.
"Services" means services as defined and detailed out under the Agreement in connection with the Entity.