"Beneficial Owner" means the Person who either directly or indirectly through his/her Professional Intermediary instructed TMS FZE to form the Company and / or provide the Services and is the Person disclosed to the bank, brokerage or other third party supplier of Services as the Beneficial Owner.
"Client" means the Beneficial Owner of the Company or representative authorized by the Beneficial Owner of the Company who has requested TMS FZE to provide Services to the owner or representative of the Company.
"Company" means any company, trust, foundation, mutual fund or other legally recognised structure established and/or administered by TMS FZE.
"Designated Person" means a representative designated in writing and advised to TMS FZE by the Client to handle specific matters relating to the Client.
"Direct Cost" means any costs incurred by TMS FZE on behalf of the Client or his/her Company regardless of whether or not the Direct Cost is incurred in furtherance of the Services.
"TMS FZE" means TMS FZE Management Services Ltd. or any company affiliated with TMS FZE Management Services Ltd.
"Person" means any natural person or Company.
"Professional Intermediary" means lawyers, accountants, investment advisors, fiduciary service providers and other similar professionals.
"Services" means, but is not limited to, company formation, administration, registered agent, company secretarial, directors or nominee shareholders, book-keeping or Accountancy, bank or brokerage introductions, trustee, consultancy and other similar or related services provided by TMS FZE to the Client's Company.
II. REFUSAL TO PROVIDE OR TO CONTINUE PROVIDING SERVICES
TMS FZE reserves the right at any time to refuse to or to discontinue providing Services, without notice and without reason, to any Client or his/her Company.
III. CLIENT AND COMPANY INFORMATION - PRIVATE AND CONFIDENTIAL
TMS FZE maintains Client and Company information, such as the name, contact details and any other information concerning the Client or Company is private and confidential. As such, the information provided by the Client to TMS FZE or that acquired by TMS FZE during the provision of Services is stored in a secure location, is accessible only by designated staff of TMS FZE, and is and will be used only for the purpose for which the Client provides the information. Client and Company information will not be disclosed to third parties without the Client's express written consent or to further the purpose for which the information was provided or if disclosure is compelled by a competent court of law.
IV. CLIENT'S RESPONSIBILITIES
A. The Client is solely responsible for receiving tax, regulatory and other legal advice regarding the Client's Company, the Services provided by TMS FZE to the Client and all Client matters in all the relevant jurisdictions of the Client's citizenship or residence and the jurisdiction of incorporation or where business is conducted by the Client's Company. TMS FZE can make introductions of professionals to the Client regarding these matters, but TMS FZE does not at any time purport to provide tax, regulatory or legal advice and is not responsible for either the same or the subsequent professional advice received from the introduction of other professionals to the Client.
B. The Client shall provide TMS FZE with a signed Company Order Form and Beneficial Owner Declaration inclusive of all due diligence information indicated in the Company Order Form and Beneficial Owner Declaration. The Client shall also provide, if applicable, all other information required by banks, brokerage firms or other third parties with which the Client instructs TMS FZE to engage in relation to the Company or provision of Services to the Company or the Client.
C. The Client shall ensure TMS FZE always has correct contact details and instructions regarding all matters regarding the Client's Company and Services requested by the Client. This includes, but is not limited to, informing TMS FZE of details of transactions and copies of agreements or commitments entered into by the Company, any conduct of the Client or the Client's Company that may result in litigation or other adverse consequences, and other similar matters. TMS FZE is not responsible for consequences where such information has not been accurately provided by the Client.
D. The Client shall not involve the Company in any unlawful act or conduct as the same may be defined in the jurisdictions in which the Client's Company does business or has adverse legal implications in the jurisdiction in which the client resides and/or is liable for taxation in. The Client understands and confirms that it shall be the Client's sole responsibility to determine whether any such acts or conduct are unlawful. The Client understands and confirms that TMS FZE shall not be responsible for any unlawful act or conduct in which the Client or its Company has been engaged.
E. The Client shall be responsible for all financial commitments of its Company and understands and, consequently, the Client confirms that TMS FZE is not responsible for any financial commitments of the Client's Company.
F. The Client shall indemnify and hold harmless TMS FZE, its affiliates, directors, employees and agents from and against all claims, actions, costs (including legal) and liabilities arising out of or relating to these Terms of business and the Services provided to the Client and the Client's Company.
Please note that TMS Group provides an execution only service in respect of the formation of companies, opening bank accounts and related services. Therefore comments or suggestions made by us should not be considered as formal advice. Should you require formal structuring advice, please contact us.
V. FEES AND DIRECT COSTS
A. The Client undertakes to make payment of the negotiated and agreed fees for Services charged by TMS FZE upon the Client receiving an invoice from TMS FZE and the Services actually being provided to the Client or the Client's Company by TMS FZE for the same.
B. The Client undertakes to pay TMS FZE, in advance, or when agreed between the Client and TMS FZE to reimburse, all Direct Costs of any kind relating to the Client's Company. The Client understands and confirms that TMS FZE shall not be liable for any penalties, fines or other liabilities incurred by the Client or by the Client's Company.
C. The Client is responsible for informing TMS FZE in a timely manner regarding the Client's decision to discontinue the Client's Company or the provision by TMS FZE of Services to the Client or the Client's Company. Any failure by the Client to provide such information in a timely manner and the adverse consequences that may result from such failure are the sole responsibility of the Client.
VI. DIRECTORS, NOMINEE SHAREHOLDERS AND REGISTERED OFFICE
A. Directors provided by TMS FZE shall at all times review and consider requests from the Client in relation to the Client's Company or Services provided to the Client or the Client's Company, but Directors provided by TMS FZE shall not be required to act in any manner they deem to be dishonest, illegal, improper or unethical regardless of whether or not such requests are in fact dishonest, illegal, improper or unethical.
B. TMS FZE shall procure the resignation of Directors provided by TMS FZE upon written request from the Client.
C. Nominee Shareholders provided by TMS FZE shall issue a declaration of trust to the Client or the Client's Designated Person in relation to shares owned, as a matter of law, by such Nominee Shareholders provided by TMS FZE to the Client's Company.
D. TMS FZE or the registered agent in the relevant jurisdiction may relocate offices at any time and such a move may require changing of the mailing or registered office address of the Client's Company. TMS FZE shall provide the Client as much advance notice as possible of any such move, but the Client understands and agrees that TMS FZE shall not accept responsibility for any costs incurred by the Client or the Client's Company as a result thereof.
VII. DISCLAIMER OF LIABILITY
TMS FZE expressly disclaims any liability to the Client, the Client's Company, and all third parties for any damage or loss to the Client, the Client's Company or any other Person arising out of the use of the Client's Company or the provision by TMS FZE of Services to the Client, the Client's Company or any other Person.
VIII. GENERAL PROVISIONS
A. All instructions or requests concerning the Client, the Client's Company or Services to be provided by TMS FZE to the Client or the Client's Company shall be given by the Client in writing to TMS FZE.
B. All communications in relation to Services provided by TMS FZE to the Client or the Client's Company shall be deemed received by the Client or the Client's Company if sent to the postal address, email address or facsimile provided to TMS FZE by the Client or the Client's Company.
C. TMS FZE shall not be liable for any failure to comply with any instructions (in whole or in part) received from the Client and shall not be responsible for consequences arising from non-receipt of instructions for any reason. The Client has responsibility to ensure they receive receipt of TMS FZE's confirmation of instructions and it is recommended they do so if the instruction is substantial, time sensitive or material.
D. TMS FZE reserves the right to read, review or inspect any communications, documents or other items received at TMS FZE's office for the Client or the Client's Company.
E. These Terms of business supersede any other understanding the Client believes he/she has with TMS FZE, whether oral or written, and no variation of these Terms of business shall be effective unless agreed in writing by TMS FZE.
F. Any and all obligations of TMS FZE shall cease immediately if the Client fails to observe these Terms of business or if TMS FZE learns that the Client's Company is or has been used for activities other than that disclosed by the Client in the Company Order Form or the Client has provided incorrect information at any time to TMS FZE with regard to any aspect of his/.her Company.
G. These Terms of business shall be governed by and interpreted in accordance with the substantive laws of Hong Kong and all disputes arising in connection thereto shall be finally settled by the Courts of Hong Kong. For the avoidance of doubt, the Client and the Client's Company and TMS FZE agree that the decision of such judgement shall be binding on all parties.
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