Standard Terms and Conditions
1. Applicability
1.1 These Terms and Conditions shall apply in all instances where Evander Group Limited and its associated subsidiaries (‘Evander’) agrees to provide Services in relation to any Legal arrangement. Evander may amend any term of these Terms and Conditions at any time at Evander’s discretion in accordance with clause 29.
1.2 The Client agrees to be bound by these Terms and Conditions in relation to each Structure by completing and signing the Mandate or in accordance with clause 29. If the Client does not agree to these Terms and Conditions, the Client should give notice in writing to Evander to terminate the Services in respect of each Structure, in accordance with clause 20
2. Overarching Compliance Principle
2.1 Evander does not condone nor will it tolerate any conduct by any Client that is in violation of any rules, regulations or Applicable Laws that apply to the Client, including any tax obligations that the Client may have anywhere in the world.
3. Definitions
3.1 In these Terms and Conditions and the Mandate (as defined below) (unless the context otherwise requires) the following words and expressions shall have the following meanings:
(a) “this Agreement” means the agreement for the provision of Services in accordance with these Terms and Conditions;
(b) “Applicable Laws” means the law of the jurisdiction by which any Structure is incorporated and/or governed and the laws, rules and regulations of any other jurisdiction to which the Client or any Structure may at any time be subject (including, but not limited to, where it does business, has assets, or is subject to any intergovernmental agreement) and includes, but is not limited to, the laws, rules and regulations of Guernsey;
(c) “civil and/or criminal proceedings” includes any regulatory fiscal or customs investigation or action whether or not under any Applicable Law;
(d) “Client” means the Client(s) described in the Mandate who has/have contractually engaged with Evander and includes the heirs, executors, administrators, successors in title and any duly authorised agents of the Client(s) and the administrator, liquidator (or similar officer) of a corporate Client;
(e) “Client Information” means all present and future information and documents (including Constitutional Documents) concerning a Structure and/or concerning any Client or other person who is or may be interested under a Structure or who has benefitted or may benefit from it or is referred to in its Constitutional Documents or who has directly or indirectly contributed assets to a Structure;
(f) “Common Reporting Standard” (“CRS”) means the Common Reporting Standard developed by the Organisation for Economic Co-operation and Development and any legislation enacted by any jurisdiction to give effect to the CRS in that jurisdiction, and any agreements entered into by any jurisdiction to exchange information obtained pursuant to the CRS with any other jurisdiction(s);
(g) “Constitutional Documents” means those documents which constitute or govern a Structure, including any trust deed/instrument, memorandum or articles of association or incorporation, charter, partnership agreement and other constitutive documents;
(h) “Data Protection Legislation” means the Data Protection (Bailiwick of Guernsey) Law 2017 (as amended), together with all subsidiary legislation, acts supplements and bills supplements relating thereto, and all such other Applicable Laws relating to personal data as Evander may from time to time be subject to;
(i) “FATCA” means the Foreign Account Tax Compliance Act of the United States of America;
(j) “in writing” includes electronic communication;
(k) “liabilities” includes debts and actual or contingent obligations and all fees, charges and expenses incurred in connection with any liabilities including their recovery on a full indemnity basis;
(l) “Mandate” means the structure formation mandate completed by the Client(s);
(m) “Nominee Agreement” means any nominee agreement entered between the Client and Evander in respect of any shares of a company within a Structure;
(n) “Proper Communications” means communications made in such form (whether oral, written, telecopied, faxed or by any other electronic transmission) given, signed or sent or purported to be given, signed or sent by the Client or any person who has authority to give directions under the Mandate and/or Nominee Agreement governing any Structure;
(o) “Schedule of Fees” means the schedule of charges issued from time to time by Evander in respect of the Services;
(p) “Evander” means Evander Trustees Limited and is identified in the Mandate as instructed to provide Services and includes the officers, employees, agents, delegates or assigns of the company;
(q) “Services” means the services detailed in the Mandate or any other services from time to time agreed between Evander and the Client in writing;
(r) “Shares” means the issued share capital of any Structure;
(s) “Structure” means any company, trust, foundation or any other entity or arrangement in respect of which Evander provides Services; and
(t) “Terms and Conditions” means the terms and conditions set out in this document, and as may be amended from time to time in accordance with clause 29.
3.2 Terms capitalised in the Mandate shall have the meaning set out in these Terms and Conditions.
3.3 Headings in these Terms and Conditions are inserted for convenience only and shall not affect the interpretation of these Terms and Conditions.
3.4 Unless the context otherwise requires, words (including definitions) denoting the singular number only shall include the plural and vice versa.
3.5 Reference to a provision of a law is a reference to that provision as extended, applied, amended, consolidated, or re-enacted.
3.6 If there is any inconsistency between the Terms and Conditions, the Mandate and the Nominee Agreement, the Terms and Conditions shall prevail. However, if there is an inconsistency between any document and the Client trust instrument, the Client trust instrument shall prevail.
4. Clients Undertakings, Warranties and Confirmations
4.1 The Client Undertakes:
(a) not to sell, transfer, assign, charge, pledge, hypothecate or otherwise encumber any of the Client’s rights, title, or interest (including beneficial interest) in any Structure or assets of the Structure without the prior written consent of Evander (such consent shall not be unreasonably withheld);
(b) immediately to notify Evander of any facts or circumstances which might involve the Client, any Structure, or Evander in any civil, regulatory or criminal proceedings;
(c) immediately to provide Evander with all such information as Evander may require to ascertain the assets (including their source) and liabilities of and state of the business carried on by any Structure including, without limitation, management and other accounts on a regular basis and that all such information given shall be accurate;
(d) to provide Evander on demand with a copy of any legal, accounting and professional advice (including tax advice) obtained by or for the Client relating to any Structure;
(e) immediately to notify Evander in writing of any change of the Client’s or any person associated with a Structure’s personal details whatsoever and provide full details and documentation requested by Evander at any time, in both instances to comply with anti-money laundering, tax reporting, or other requirements under Applicable Laws (including any economic and trade sanctions imposed by any regulator in any jurisdictions where Evander operates in, or by any supranational organisation or official body including, but not limited to, Her Majesty’s Treasury, the United Nations, the European Union, or any country) or to support Evander’s business, financial and risk monitoring, planning and decision making;
(f) to provide Evander on demand with documentation/information to substantiate its compliance with Applicable Laws; and
(g) to explain to the satisfaction of Evander any transactions that any Structure has entered or may enter into.
4.2 The Client warrants that:
(a) any asset introduced to any Structure has been lawfully obtained and introduced and is not the proceeds of crime of any nature nor derived from or otherwise connected with any illegal activity;
(b) any asset introduced to any Structure has been properly declared to the relevant tax authorities under the Applicable Laws, and that the purpose of the asset transfer is not to evade or avoid tax nor to assist others in evading or avoiding tax;
(c) Proper Communications will not contain any falsehood and if acted upon will not require or involve any unlawful act or omission;
(d) the Client has made full and accurate disclosure of all relevant facts to Evander in connection with the incorporation or establishment of any Structure and the assets and liabilities of, and the business carried or to be carried on, by any Structure;
(e) the assets of any Structure and the Shares are free from encumbrance, are not the subject of any dispute and there is no attachment or other order or process made or threatened against such assets or Shares and the Client knows of no reason why any attachment order or process might or would be made or attempted;
(f) the Client is not aware of any fact or circumstance which if known to Evander might affect the decision of Evander to provide the Services; and
(g) the Client has not committed, been convicted of or investigated for any tax crimes or other offences (including those relating to money laundering, bribery or corruption) in any jurisdiction.
4.3 The Client accepts that:
(a) the Client is solely responsible for the Client’s own legal, accounting, tax and regulatory affairs and compliance with all disclosure, filing, payment and other requirements under any Applicable Laws;
(b) Evander has not given and will not give the Client any legal, accounting, tax, regulatory or other professional advice in any jurisdiction
(c) any discussions that Evander may enter into with the Client or any other person, concerning legal accounting tax regulatory or other matters, are for general information purposes only and shall not be taken to be advice to the Client and shall not be relied upon as such;
(d) the Client has been recommended by Evander to take legal, accounting, tax, regulatory and other professional advice for himself and the Structure in all relevant jurisdictions;
(e) Evander may obtain legal, accounting, tax, regulatory or other advice in respect of any Structure at the expense of the Client and/or the Structure.
4.4 The undertakings, warranties and confirmations given by the Client above are deemed to be repeated daily whilst any part of the Structure is in existence.
5. Tax Matters
5.1 The Client undertakes to inform Evander within 7 days if there are any changes to any of the following items with respect to himself or any person connected with the Structure in any capacity including, but not limited to, any beneficiaries, beneficial owners, protectors, settlors, councillors, guardians, founders or investment managers:
(a) U.S. citizenship;
(b) U.S. residence for U.S. income tax purposes. The definition of residence for these purposes is taken to be from the Internal Revenue Code as amended from time-to-time;
(c) U.S. domiciliary for U.S. Estate, gift or generation skipping purposes,
(d) U.S. Green card holders;
(e) Tax Identification Numbers;
(f) Country/ies of Tax Residency.
5.2 The Client agrees that income earned by any Structure or account may be subject to disclosure or withholding tax according to Applicable Laws.
5.3 The Client authorises Evander on his behalf and on behalf of any Structure:
(a) to make representations and disclosures including to any tax authorities or other governmental or judicial body exercising such functions under FATCA, the Common Reporting Standard, and other Applicable Laws;
(b) to make any necessary withholding or deduction under Applicable Laws in connection with the Client and any Structure and to make the relevant payment to the appropriate authorities;
(c) to take all necessary action to enable compliance by Evander with FATCA, the Common Reporting Standard, and other Applicable Laws on taxation of the Client or any Structure, including but not limited to the filing of returns, payment of taxes charges penalties or other monies due; and
(d) to take legal and other professional advice at the expense of the Client or any Structure in relation to the rights and obligations of the Client, any Structure and Evander in connection with any tax issues affecting the Structure.
5.4 The Client undertakes to keep Evander fully informed and updated of any information relevant to any disclosures required under FATCA, the Common Reporting Standard in respect of the Structure or any beneficiaries thereunder.
5.5 The Client indemnifies Evander in respect of any loss, damage, costs, penalties, fees or expenses which may be incurred as a result of any disclosure or withholding which has been incorrectly made arising from information provided by the Client or any Structure to Evander.
6. Disclosure of Client Information
6.1 Certain Client Information will be subject to the Data Protection Legislation, and the client consents to the collection, use, disclosure, and processing of Client Information by Evander in accordance with Clause 6 and Clause 31 of these Terms and Conditions.
6.2 Where Evander is bound by the requirements of trustee confidentiality, it shall, to the extent not overridden by Applicable Law relating to tax, anti-money laundering, proceeds of crime and prevention of terrorism and other legislation expressly intended to limit override or exclude such confidentiality obligations, ensure that any Client Information will only be disclosed in accordance with such legislation.
(a) in the sole opinion of Evander reached in good faith (which shall be conclusive and binding), disclosure is necessary to undertake any relevant client due diligence or verification or to perform its functions in relation to the Structure; or
(b) disclosure is to any person who provides a service to, or performs a function for, the Structure or who is appointed by Evander in connection with the Structure or who is acting as Evander’s agent delegate or sub-contractor (including their agents) including without limitation, legal and other professional advisors provided that where Evander discloses information to any such person Evander will use its reasonable endeavours to ensure that the person receiving the Client Information agrees to apply the same level of protection as Evander is required to apply to the information and to use the information only in accordance with Evander’s instructions; or
(c) disclosure is required by any governmental, regulatory, taxation or other authority, tribunal or court having jurisdiction over Evander, any incorporated or unincorporated entity within the Structure or any assets of the Structure;
(d) disclosure is in connection with or necessary for the purpose of or to assist with any Structure, the Client’s tax filing or reporting requirements; or disclosure is in connection with or to assist with any Structure or Client’s tax filing or reporting requirements; or
(e) where any internet service is provided to the Structure, disclosure is to the operator of the service; or
(f) disclosure is to any third party as a result of any proposed or actual merger, restructure, sale or acquisition of any entity within the Evander Group or to anyone to whom Evander may transfer its rights and/or obligations under the Structure provided that Evander will use its reasonable endeavours to ensure that the person receiving the Client Information agrees to use the information for the same purposes as it was originally supplied to Evander and/or as used by Evander,
6.4 In relation to clause 6.3, the Client waives all rights and remedies that the Client may be entitled to under any Applicable Laws relating to confidentiality.
6.5 Evander may transfer Client Information to other Evander Group entities or associates in accordance with Evander’s respective obligations under the relevant Data Protection Legislation, and the client hereby acknowledges and consents to such transfer.
7. Accounts
7.1 Evander may in its absolute discretion and at the expense of any Structure establish and maintain any accounts, records or books it considers necessary or appropriate to comply with Applicable Laws and to have such accounts records and books examined or audited at such times and expense as Evander deems appropriate.
7.2 No liability shall attach to Evander for any errors or omissions in any accounts or accounting books or records of or relating to any Structure maintained by Evander unless due to the fraud, wilful misconduct, or gross negligence of Evander.
7.3 If the Client requests that Evander dispense with any audit of the accounts of any Structure, and is entitled to do so under Applicable Laws, and if Evander agrees to the Client’s request the Client shall indemnify and keep indemnified Evander and any Structure respectively against any claims expenses losses and liabilities sustained by them as a result.
8. Fees, Invoices, and Expenses
8.1 Evander shall charge fees for providing the Services either in accordance with the Schedule of Fees or as otherwise agreed in writing.
8.2 Where an estimate of fees is given by Evander, it shall only be an indication of the amount anticipated to be charged and shall not be regarded as an agreed fee for the work or transaction, unless specifically confirmed in writing by a director of Evander.
8.3 Evander, as regulated entities, are obliged to maintain internal records and operating standards at certain levels and time charges may be incurred by the Client to reflect the costs of these requirements.
Invoices
8.4 In respect of invoices issued by Evander, unless otherwise agreed in writing, Evander shall have the discretion to invoice for annual fees, quarterly or monthly fees in advance.
8.5 The Client authorises Evander to pay, or procure the payment of, any invoices out of the account of any Structure should Evander choose to do so.
8.6 In the event of non-payment of invoices after 30 days, Evander shall be entitled to deduct its fees and any unpaid monies owing to it arising out of or in connection with the provision of the Services from the Structure’s assets or any assets which Evander may hold as nominee, trustee or in any other manner for the Client.
Expenses
8.7 In addition to the agreed fees payable under Section 10 of the Mandate, the Client shall, or procure that the Structure shall, reimburse to Evander on demand:
(a) expenses incurred in arranging the incorporation or establishment of any Structure;
(b) professional fees and expenses relating to taxes (whether direct or indirect and including value added tax and any duties penalties fines and interest on or in respect of taxes), each incurred in respect of any Structure whether or not recoverable;
(c) expenses of Evander incurred in:
(i) attending meetings in relation to any Structure outside the jurisdiction in which such Structure is normally administered (including travel, accommodation and associated expenses);
(ii) preparing and forwarding any notice statement or document (including courier charges); and
(iii) all other like expenses;
(d) fees and expenses of professional advisers to any Structure including lawyers, accountants and auditors;
(e) governmental and regulatory expenses for which any Structure may be liable;
(f) all expenses incurred in connection with any civil and/or criminal proceedings affecting any Structure (including its liquidation);
(g) all other charges, fees and expenses reasonably incurred by Evander in the provision of the Services and the performance of its duties;
(h) any liabilities of any Structure which are chargeable to or payable by Evander by virtue of Evander performing the functions and providing the Services.
8.8 Evander shall be entitled to use any funds held by Evander on behalf of a Client or Structure, whether such funds are held in the account of Evander or an account of a Client or Structure, to settle any disbursements which Evander has expended or which they are instructed to expend, and to pay any invoice which Evander has issued immediately after it has been issued. No notice will be given of any such deductions made.
9. Advice
9.1 Evander may require the Client to obtain professional advice in respect of any Structure, its assets, liabilities and business or the obligations of the Client or the rights and obligations of Evander or any other matter arising in respect of any Structure and to provide a copy of such advice to Evander.
9.2 If the Client fails to obtain the relevant advice at the request of Evander or if Evander considers it appropriate to obtain independent advice, it may do so at the expense of the Structure or the Client.
10. Delegation
10.1 Evander may delegate to any person at any time the performance of any of its functions and may vary or revoke any such delegation and may use custodians, sub-custodians and nominees to hold assets on behalf of any Structure and Evander shall not be liable for the acts or defaults of any delegate, custodian, sub-custodian or nominee unless caused by the fraud, wilful default or gross negligence of Evander.
11. Proper Communications
11.1 Evander may:
(a) refuse to act on communications which are not Proper Communications;
(b) require that verbal or telephoned communications be confirmed in writing and that the person from whom such communications are received indemnifies Evander in such form and to such extent as Evander shall reasonably require.
11.2 In the absence of Proper Communications Evander has discretion to take such action in relation to any Structure as it deems necessary or expedient.
11.3 In the event of conflicting Proper Communications Evander may either act on any of the Proper Communications or refrain from acting until such time as Proper Communications conform, without incurring any liability either to any Structure or to the Client.
11.4 Evander may ignore, refuse or delay acting upon Proper Communications and shall incur no liability to the Client or any Structure in so doing if in its opinion:
(a) such Proper Communications involve any illegality or risk of illegality (whether under the Applicable Laws or any other law) including financial crime;
(b) such Proper Communications are impossible to perform or fulfil;
(c) such Proper Communications would cause or expose Evander to the risk of, loss, damage, unreasonable expenditure or endeavour or reputational harm; or
(d) Evander requires further information, clarification or detail to allow it to assess whether such Proper
Communications may fall into any of the above categories (a) - (c).
11.5 Where any communication given in the form of Proper Communications by the Client to Evander is subsequently confirmed in original written form such confirmation shall clearly be marked “confirmation of instruction” so as to avoid duplication. Evander is not liable to the Client or any Structure for any loss which may be suffered by the Client or any Structure as a consequence of Evander acting twice on the same instruction if such confirmation is not clearly marked “confirmation of instruction”.
11.6 Evander shall have no duty to seek directions at any time and shall have no liability for failing to implement Proper Communications which are received too late to implement according to Evander’s standard procedure.
12. Electronic Communication by Evander
12.1 Evander may use electronic communications with the Client or any other person connected with the Structure authorised by the Client under the Mandate or otherwise in writing.
12.2 Evander cannot guarantee that any electronic communications from Evander will be secure, virus-free or successfully delivered.
12.3 Evander shall not be liable if any electronic communications are intercepted, delayed, corrupted, not received or received by persons other than the intended addressees or contain viruses. Where it is believed that this has happened with an electronic communication Evander will try to confirm the communication with the Client or other person authorised by the Client under the Mandate or otherwise in writing.
12.4 For security, legitimate business purposes and to maintain service standards, Evander may monitor internet communications (including emails) within and between it and Clients or any other person connected with a Structure as well as the use by such persons of any website or online facilities Evander operates.
13. Evander’s Liability
13.1 Evander shall not be liable to any Structure or the Client for any fees, costs, charges, expenses, loss or damage, each whether actual or contingent, arising from:
(a) any error of judgment or oversight or mistake of law by Evander in the performance of its duties in the absence of fraud, wilful misconduct or gross negligence by Evander;
(b) any event or circumstance beyond the control of Evander (including, without limitation, any failure or delay in communications systems);
(c) any exercise or non-exercise of any duty right or power or from any act or omission of Evander in the absence of fraud, wilful misconduct or gross negligence by Evander;
(d) its failure delay or refusal to carry out any act or thing which may be unlawful under any Applicable Law or which may in its opinion bring Evander into disrepute or cause Evander, or expose Evander to the risk of, loss, damage and/or unreasonable expenditure or endeavour; and/or
(e) Evander having acted wrongly or mistakenly or of failing to act wholly or in part in accordance with instructions given by way of Proper Communications.
13.2 Evander shall not be required to take any legal action on behalf of any Structure or the Client or in respect of the assets or business of any Structure or to defend any civil and/or criminal proceedings unless fully indemnified to the reasonable satisfaction of Evander against all expenses and liabilities that may be incurred by them and if any Structure or the Client requires Evander to take any action which in the sole opinion of Evander might render them liable for the payment of money or liable in any other way Evander shall be indemnified in any reasonable amount and form satisfactory to Evander before taking action.
14. Third Party Rights
14.1 Subject to clause 24, no person shall acquire any rights to enforce these Terms and Conditions pursuant to any law conferring rights of enforcement of contractual obligations on persons who are not parties to contracts. To the extent permissible under any Applicable Law, all such rights are excluded from these Terms and Conditions.
15. Clients Guarantee
15.1 The Client guarantees the payment of all fees, expenses and any other monies due by any Structure to Evander and the performance or discharge by any Structure of all the liabilities of any Structure on a full indemnity basis on demand including (without limitation) all monies due and payable under these Terms and Conditions.
15.2 The Client hereby irrevocably and unconditionally waives any such rights whatsoever that it may have under the laws of Guernsey or elsewhere at any time pursuant to the droit de division (whether or not now existing), in relation to this Agreement.
15.3 The Client hereby irrevocably and unconditionally waives any right it may have whatsoever under the laws of Guernsey or elsewhere at any time (whether or not now existing) of first requiring Evander to proceed against or enforce any other rights or security against, or claim payment from, any person before enforcing this Agreement and this Agreement shall take effect without the benefit to the Client of the droit de discussion.
16. Clients Indemnities
16.1 The Client shall indemnify and keep indemnified:
(a) any Structure against all actions proceedings claims expenses and liabilities for which any Structure at any time may be liable (including, without limitation, all monies due and payable by and all liabilities of any Structure to Evander);
(b) Evander against all actions proceedings claims expenses and liabilities against Evander or for which Evander may be liable in the course of providing facilities and services and performing duties, in the absence of fraud, wilful misconduct or gross negligence by Evander excepted; and
(c) Evander against all actions proceedings claims expenses and liabilities arising out of Evander acting or its delay in acting or refraining from acting on Proper Communications.
17. Right of Lien
17.1 Evander shall have:
(a) a lien over all the rights, assets and business of the Client and any Structure (including its books and records) and any interest of the Client in any Structure for all monies and liabilities due or accruing due (whether solely or jointly with any other person) from the Client or any Structure to Evander; and
(b) the right to set off any liabilities (whether sole or jointly with any other person) of the Client or any Structure against any assets of the Client or any Structure standing to the credit of any account in the name or under the control of Evander whether payable presently or in future and whether or not expressed in the same currency and whether held solely or jointly with another and may combine or consolidate all or any of the same.
18. Rights of Evander (Preservation)
18.1 Nothing in these Terms and Conditions shall affect any other security or surety which Evander at any time might have in respect of the liabilities of the Client and any Structure.
18.2 Any accidental omission by Evander to give notice to the Client or any Structure shall not invalidate the exercise by Evander of any right or power.
18.3 The liabilities of any Structure and the Client shall not be discharged by any part payment but shall continue until such time as all the liabilities of any Structure and the Client to Evander have been discharged.
18.4 No delay or omission of Evander in exercising any right or power shall impair any other exercise of such right or power or be construed as a waiver of any breach or default by any Structure or the Client and no waiver by Evander of any particular breach or default by any such person shall prejudice the rights or powers of Evander in relation to any other breach or default by that or any another person.
18.5 The rights and powers of Evander shall remain valid and binding for all purposes notwithstanding any change which may be made at any time in the constitution of the entity by which the business of Evander may be carried on and shall continue to be available to the entity carrying on that business.
19. Services of Evander (Non-exclusivity)
19.1 The Services provided to the Client and to any Structure are not exclusive and Evander shall be free to provide any similar services to other clients and to retain for its own benefit all fees or other moneys payable by any Structure. Evander shall not be under any duty to disclose to any Structure or the Client any fact or thing which comes to the notice of Evander during Evander providing similar services to others or otherwise.
20. Termination
20.1 This Agreement and the provision of any or all Services in respect of any Structure may be terminated:
(a) by Evander on giving not less than thirty days’ notice in writing to any Structure and to the Client;
(b) by the Client on giving not less than sixty notice in writing to Evander.
20.2 Termination shall not prejudice or affect any accrued rights and remedies of any of the parties and any clause of these Terms and Conditions which is intended to survive termination of any Service or this Agreement including, but not limited to, the right of Evander to be paid and/or reimbursed for any fees, costs or expenses and Evander’s right to obtain such payment/reimbursement from the accounts and/or assets of the Structure.
20.3 Notwithstanding the foregoing Evander may terminate this Agreement and the provision of any or all Services immediately on the happening of any of the following events:
(a) if Evander becomes aware or has reasonable suspicion that the Client or any Structure has been engaged or involved in any unlawful or wrongful act or is in breach of any Applicable Law or has otherwise so acted as to render Evander, subject or potentially subject to civil and/or criminal proceedings;
(b) if the Client or any Structure is in continuing breach for thirty days of any of the provisions of these Terms and Conditions or any other agreement between the Client or the Structure and Evander and has failed to rectify such breach after written notice from Evander requiring rectification;
(c) if any warranty of the Client is or becomes untrue or inaccurate in any material particular;
(d) if any invoices remain unpaid one month after the date of the invoice;
(e) if Evander is unable to obtain Proper Communications from the Client;
(f) if the Client provides Evander with information which is untrue, false and/or misleading; or
(g) If legal proceedings are commenced against any Client or Structure.
21. Notice & Confirmation of Instructions
21.1 Evander shall give any notices or other communication to the Client by way of letter, fax, email, telephone or any combination of the above at the address or number of the Client last given to Evander. Any such notice or communication shall be deemed to have been served and received
(a) in the case of facsimile or other electronic transmission at the time of transmission
(b) in the case of post at the expiration of 72 hours after the notice was posted and it shall be sufficient to prove that the envelope containing the notice was properly addressed and the postage pre-paid.
21.2 Any notice given by the Client or any Structure shall comply with the requirements of Proper Communications.
22. Governing Law and Jurisdiction
22.1 This Agreement shall be governed by and construed in accordance with the law of the jurisdiction from which Evander provides the Services and the parties submit to the exclusive jurisdiction of the Royal Court of Guernsey in all matters arising out of this Agreement.
23. Counterparts
23.1 Any agreement or document between Evander and the Client may be executed in one or more counterparts, and each should be deemed an original, but all of which shall constitute one and the same agreement or document. If there is more than one Client, it shall not be necessary for every Client to sign each counterpart but only that each Client shall sign at least one counterpart.
24. Assignment and Change of Administrative Centre
24.1 Evander may, upon giving reasonable notice to the Client of its intention to do so, assign or transfer the whole or any part of its rights and benefits under these Terms and Conditions to any person in any jurisdiction.
24.2 Evander may provide the Services from any jurisdiction it thinks fit and may change the jurisdiction from which the Services are provided without notice to the Client.
25. No Use of Evander Name
25.1 The Client shall not use or cause or permit to be used directly or indirectly the name of Evander in any text or document or promotional literature.
25.2 Hold out or present themselves as an agent or intermediary of Evander, irrespective of any payments, retrocessions, or other incentives. Unless by separate written agreement.
26. Severability
26.1 In case any one or more of the provisions contained in these Terms and Conditions or any agreement supplemental to it shall be invalid, illegal or unenforceable in any respect, such provisions shall either:
(a) be severed or;
(b) if such provisions would be valid or enforceable if some part of the provisions were deleted, then the provision in question shall apply with whatever modifications may be necessary to make it valid, and the validity, the legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
27. Force Majeure
27.1 If Evander’s performance of any obligation is prevented, restricted or interfered with by reason of circumstances beyond Evander’s reasonable control however arising (including, without limitation, acts of God, civil or military disturbances, piracy, outbreaks of war, acts of terrorism, natural disaster, major systemic economic distress in or amongst any jurisdiction or jurisdictions including failure of inter-bank credit markets, suspension of trading on any stock exchange or dissolution of any currency union or major state debt default, acts of government or any other authority, accidents, labour disputes or any power, telecommunications or computer failure), such obligations shall be suspended. Evander will then use reasonable efforts to resume performance as soon as possible.
28. Application to all Existing and Future Structures
28.1 The Schedule of Fees and these Terms and Conditions shall unless expressly or by implication varied or superseded, apply to all Structures established to which Evander provides Services in whichever category is deemed appropriate by Evander as well as to Structures on or after that date.
29. Right to Change Terms and Conditions and Schedule of Fees
29.1 Evander may amend the Schedule of Fees and the Terms and Conditions from time to time at Evander’s discretion. Any amendment made will take effect on a date specified by Evander, provided by this date the amendments made are available from our offices or via our website or have been informed to the Client
30. Recording of Conversations
30.1 Evander may record and monitor telephone, video or other electronic means, any conversations:
(a) where it is required to do so by any Applicable Law; or
(b) where Evander consider it appropriate to do so for security, legitimate business purposes or to maintain service standards.
31. Data Protection
31.1 Where Evander is bound by the requirements of applicable Data Protection Legislation, it shall ensure that any personal data gathered shall be used, shared and stored in accordance with such legislation.
31.2 Where the Client provides personal and financial information about itself and others (such as dependants, other family members, beneficiaries and a joint account holder, where applicable) the Client consents, and in the case of third parties, represents and warrants that it has their consent or is otherwise entitled to provide this information to Evander, that Evander may use such information in accordance with these Terms and Conditions.
31.3 Evander may collect, use, disclose, transfer and process Client Information including relating to medical, health, lifestyle, ethnic background and criminal offences alleged or otherwise and any other information which is personal data that is provided by the Client or that Evander obtains from third parties for the purposes of:
(a) assessing and identifying products and services;
(b) applying for a product of an insurance company/organisation, investment manager, custodian, asset manager, non-Guernsey financial services businesses, due diligence provider; and
(c) detecting and preventing crime (including without limitation fraud and money laundering), and any other purpose permitted by applicable Data Protection Legislation.
31.4 Evander may process Client Information to administer and manage the Structure, provide the Client or other persons associated with a Structure with statements and provide their services and products, for assessment and analysis (including credit and/or behaviour scoring, market and product analysis and internal risk management), to prevent and detect fraud, money laundering and other crime, carry out regulatory checks and meet their obligations to any relevant regulatory authority, and to develop and improve their Services and protect the interests of members of the Evander.
31.5 In order to provide the Client and any person associated with a Structure (as the case may be) with products and services, Evander needs to collect, use, share, store and process personal and financial information about individuals including the Client and other individuals associated with a Structure. Consequently, the Client agrees that Evander may obtain this information from the relevant individual directly or from third parties, such as employers, joint account holders, credit reference agencies, fraud prevention agencies or other organisations either at the time when the Client applies for services provided by Evander or which the relevant individual or any third party gives to Evander at any other time.
31.6 The Client acknowledges that Evander may give Client Information to and receives information from credit reference agencies and fraud prevention agencies. The Client agrees that subject to relevant Data Protection Legislation, Evander may provide Client Information to, and use information obtained from, other organisations to prevent and detect fraud, money laundering and other crimes and to make credit assessments. Examples of circumstances when Client Information or information relating to a Client’s partner or other members of that person’s household may be shared include but are not limited to:
(a) checking details on applications for credit and credit-related or other facilities;
(b) managing credit and credit-related accounts or facilities; recovering debt;
(c) checking details on proposals and claims for all types of insurance;
(d) checking details of job applicants and employees;
(e) making enquiries when a Client asks for any lending products or investment products and assisting in managing the Structure; and
(f) accepting any assets or distributing any assets in respect of a Structure.
(g) engagement of third parties to whom a duty has been delegated
31.7 Credit reference agencies keep a record of enquiries and may record, use, and give out information that Evander gives them to other lenders, insurers and other organisations. If false or inaccurate information is provided or fraud is suspected details may be passed to fraud prevention and credit reference agencies. Law enforcement agencies may access and use this information. The information recorded by fraud prevention agencies may be accessed and used by organisations in different countries. If the Client wishes to receive details of the relevant fraud prevention agencies, the Client may contact Evander.
32. Marketing
32.1 Evander may use Client Information to inform the Client by letter, telephone, text (or similar) messages, digital messaging platforms, email and other electronic methods, about products and services (including those of others) which may be of interest to the Client.
32.2 The Client may inform Evander in writing at any time if it does not wish to receive marketing communications from Evander.
33. Complaints
33.1 If the Client wishes to complain, the Client may do so in person, in writing, by post or e-mail, or by telephone. To make a complaint, the Client should contact the office of Evander or alternatively, the Client may submit a complaint via the following dedicated e-mail address:
(b) Via the website
33.2 Evander’s complaint handling procedures comprise:
(a) Assignment of all complaints received to a Complaint Owner who is responsible for end-to-end complaint management;
(b) Service standards in respect of response times throughout the complaint resolution process in order to always treat complaints with high priority;
(c) Escalation procedures to ensure that complaints are handled at appropriate levels of seniority;
(d) Adherence to key principles embracing fairness; thorough investigation; making Evander accessible for Clients to submit complaints; keeping Clients informed of progress towards resolution; confidentiality; record keeping; and
(e) Defined steps, being: Receiving complaints; logging complaints; acknowledgement of complaints; resolution; analysis of root causes; and closure. To obtain a copy of Evander’s complaint handling procedures email [email protected].
