Terms and conditions

These terms and conditions govern the relationship between M Advisory (M Advisory, also referred to as we/us/our) and you as our client. If there is a conflict between these terms and an individual engagement letter or engagement email agreed between us and you, the latter will prevail.

Legal advice

We advise only on the laws of the Cayman Islands. We do not accept responsibility for any failure to advise on matters which fall outside the scope of your instructions or our stated areas of competency. We assume your compliance with, and adequate consideration of, legal and regulatory requirements imposed on you by any relevant jurisdiction.

Unless we explicitly state otherwise in our advice, or we otherwise agree in writing, our advice is provided solely for the purposes of the instructions to which it relates and for the benefit only of the person to whom it is addressed (or to an identified underlying client of a professional who is instructing us on their behalf).

If our advice is to be communicated to other parties, we ask to be informed at the earliest possible opportunity.

Due diligence requirements

As with other professional service firms, we are required to identify our clients (and, in a number of cases, beneficial owners) for anti-money laundering and combatting terrorist financing (AML CTF) purposes when accepting instructions in relation to a number of areas of our business.

Notwithstanding the scope of any regulatory requirements, we reserve the right to terminate our relationship at any point where we have concerns about either the nature of the transaction(s) on which we are advising or persons involved with them or if any request for further information is not met promptly (whether we have an obligation or right to request such information or not).

We reserve the right to conduct credit checks (or to engage third parties to conduct credit checks) on any client, and by engaging us you consent to such checks. We also reserve the right to seek guarantees of payment of our fees in relation to new clients or clients who do not have an established credit history.

Communication

At the outset we will notify you of the lawyer who will have principal conduct of the matter, and the partner who will have overall responsibility of the matter.

We will keep you informed from time to time of the progress of any instructions and will usually do so by email or telephone. We will communicate orally or in writing with any person who is, or appears to be, from the office or institution by which we were initially contacted, and take instructions from any such person, unless you specifically request otherwise. Such requests should be made to the relevant partner and will apply only in respect of the matter in which they were made.

We will use various forms of electronic communication in the course of taking and acting on instructions from you. Unless you advise us otherwise, we will assume communication by email is acceptable to you. If you wish to communicate via Whatsapp and/or similar messaging service, you may do so, and we will request you to execute a separate agreement covering such forms of communication, noting any legal or technical reservations due to the format.  Please note that even if we utilise such forms of communication such as Whatsapp, official documents, advice, requests for advice and any form of official communication between us will require at the very least, email confirmation. 

With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. We use scanning software to reduce the risk of viruses, malware and similar damaging items being transmitted through emails or electronic storage devices. We also expect you to operate such software. However, electronic communication is not totally secure and we cannot be held responsible for damage or loss caused by non-receipt, delayed receipt, inadvertent misdirection, interception by third parties, viruses nor for communications which are corrupted or altered after dispatch. Nor do we accept any liability for problems or accidental errors relating to this means of communication especially in relation to commercially sensitive material.

Any email communications to or from us may be monitored by us for operational or business reasons.

When you seek and receive legal advice from us on your rights and obligations, legal advice or attorney-client privilege is likely to attach to our communications related to that advice. If we act for you in contemplated or actual legal proceedings, litigation or lawyer-client privilege is likely to attach to our communications related to those proceedings. You should be aware however that legal privilege may be lost by communicating with third parties or with people in your own organisation who are not involved in the giving of instructions to, or in the seeking, obtaining or receipt of advice from, us.

Whilst making every reasonable attempt to secure personal data, we cannot accept responsibility for any unauthorised access or loss of private information that is beyond our control. If you choose to communicate with us by any messaging application, such as WhatsApp, WeChat or any other form of messaging system or service including but not limited to Zoom, Webex, Microsoft Teams or any other video conference system, we accept no liability for any loss or damage and assume no risk which may occur as a result of any virus or security breach.

Please refer to the provisions of our Privacy Policy in schedule 1 for further information on how we collect personal data, how we use it, what rights and choices you have in relation to the personal data we hold and process and how you may contact us.

Termination

You may terminate your instructions to us and we may cease to act for you at any time, in each case by written notice but we are entitled to and will retain all your papers, documents and other property in our possession while there is money owing to us or any other third party which we may have engaged on your behalf, for our/their fees and expenses in relation to any matter.

In the event that our engagement is terminated, you will be responsible for the cost of all work completed up to the date of termination and any costs incurred by us in concluding or transferring the matter. No discount will be offered on the basis of a premature closing of a transaction or other matter.

Liability cap and scope of liability

Our maximum aggregate liability to you in respect of any engagement is limited to the lower of a) the value of our legal invoices that have been paid, for such engagement, or b) for up to the maximum of US$250,000 or its equivalent value in any other currency. Please note that we will not be liable for:

1. the acts or defaults of any third party including any agents or sub-contractors, and will only accept liability for direct loss suffered by the person instructing us or a disclosed underlying client alone and, in any event, only to the extent that such loss was reasonably foreseeable as arising from our act or default giving rise to the loss;
2. any punitive, exemplary or multiplicatory damages or similar claims beyond the actual amount of your loss;
3. any consequential loss or loss of profit however arising, whether or not such loss was foreseeable and whether it was suffered by the person by whom we are instructed or any third party;
4. your action on advice given by us on an earlier occasion without first confirming with us that the advice remains valid in the light of any changes in the law or your circumstances and will accept no liability for losses arising from changes in the law or in the interpretation of the law which are first published after the date on which our advice is given;
5. any losses where those losses are due to inaccurate, incomplete or misleading information provided to us; or
6. any inability on our part to perform our services for any cause beyond our reasonable control, including adverse weather conditions affecting us.

In any event, you agree not to bring such claims against us.

If we are jointly, or jointly and severally, liable to you with any other party we shall only be liable to pay you the proportion of your losses which is found to be fair and reasonably due to our fault. We shall not be liable to pay you the proportion which is fairly and reasonably due to the fault of another party.

It is a fundamental provision of these terms and conditions that you agree no individual has or will have any personal responsibility to you for the legal services provided by them on our behalf. This does not limit or exclude any liability for the acts or omissions of any of our employees acting under our supervision or within the scope of their employment with us.

Instructions from lawyers or other professional intermediaries

The nature of our business is such that we are often instructed by other lawyers or other professional intermediaries.

Underlying clients

We expect to be informed of the identity of your underlying client or clients at the outset and to be given telephone and email contact details regardless of who undertakes responsibility for our fees. We will assume that you will pass on our advice in a timely and accurate manner but reserve the right to communicate directly with the person you have identified as the underlying client at any stage.

If you carry out business in a recognised or equivalent foreign jurisdiction for compliance with AML CTF legislation and you are subject to equivalent application of the FATF Recommendations with respect to AML CTF then for due diligence purposes we may be able to rely on customer due diligence carried out by you on the underlying client. In such cases if you consent to such reliance then you must hold the relevant records for a minimum period of five years after the completion of the matter and allow us to inspect those records upon request or if required by the laws of the Relevant Country, provide us with copies of the AML CTF documents collected by you from your client.

Fees

If your firm does not accept responsibility for our fees we expect to be told either in your initial instructions to us or immediately on receipt of any estimate or communication from us in relation to fees. All estimates are given on the basis that the person requesting them is paying and are subject to change if this is not the case. Whilst we often waive requirements for money on account when dealing with law firms who are long established intermediaries, we may require payment on account if such firms do not confirm that they will be responsible for our fees.

Where your firm does not accept responsibility for our fees we expect you to use all reasonable commercial endeavours to assist us in obtaining payment of our fees from the party responsible.

Conflicts of interest

If we are instructed by your firm in relation to an entity and have previously been instructed by your firm in relation to that entity we will assume that no conflict of interest issues arise unless you explicitly tell us otherwise.

Acting for banks

If we receive instructions from you to issue an opinion to a bank we will assume that you are acting on behalf of the bank unless you advise otherwise.

Conflict of interest and potential conflict of interest

It is not possible to avoid all potential conflicts of interest and we therefore seek to manage them. In addition to the steps we take, in order to minimise the likelihood of a conflict arising, you must notify us as soon as you become aware of any potential conflict, or situation that may give rise to a conflict.

No exclusivity. We act for a very large number of financial institutions and multinational groups. None of those clients have agreed to use us exclusively and we do not expect you to. However, this means that we would not consider a conflict to arise merely by virtue of providing advice to a competitor. Similarly, the fact that we act for you in relation to one matter does not mean we will decline to act for another client against you in relation to an unrelated matter in future.

Associations. We have an association arrangement with West Bay Global Services Cayman in the Cayman Islands and with CCP Financial Consultants Limited, in the British Virgin Islands. We may, from time to time, enter into additional association agreements with other entities, either in the Cayman Islands, the British Virgin Islands or in other jurisdiction for the provision of certain ancillary fiduciary services.  The parties to these relationships herein the “Associations”.

Except where clients of the Associations have explicitly authorised disclosure, we do not have access to information other than the information available to any other unaffiliated person and will proceed on the basis that the relevant Association is an entirely unrelated entity. In order to ensure quality of service and where relevant, we will operate on the basis that you have authorised us to communicate freely and share information with the Association regarding your instructions unless you indicate otherwise to us in writing.

Confidential information. In the course of advising on a transaction we will almost always receive information in confidence; the possibility that we have received such information in relation to an entity in respect of which you instruct us is high. It is a term of our relationship that you agree that we shall not be under any obligation to communicate that information to you where it has been obtained from another source in confidence.

Nature of our role. We are also frequently asked to advise in a situation where, despite differing commercial interests, what each client requires from us is similar (e.g. ensuring and confirming that the transaction documents are valid and binding insofar as the law on which we are qualified to advise is concerned). We would seek client consent to such a role except in situations where a lawyer in another jurisdiction instructs us on behalf of multiple parties.

Searches and registration. We do not consider that a request to obtain publicly available information, to request information from a registered agent or registered office provider, to register documents, to create and file registers, or to effect service of documents gives rise to a conflict of interest and will undertake such instructions without carrying out any conflict check procedures.

Previous advice. We do not usually consider the fact that we have previously advised another third party in relation to a relevant entity to represent a conflict of interest. Acting for you does not preclude us from acting for another client in any matters that are not substantially related to our work for you. We may represent other clients’ interests in other matters even if they are directly adverse to you or your affiliates. We may ask that you permit us to disclose the fact of accepting your instructions to our previous client.

As soon as you have identified the entities or assets to which your instructions relate, we will carry out an internal database search to see whether we have previously advised in relation to that entity or asset. We will utilise other methods only if specifically instructed to do so.

You should note a number of inherent limitations. Firstly, we are only able to search against names of entities incorporated or organised in the Cayman Islands. Unless all relevant parties are made available to us at the point at which we are instructed, a potential conflict may only come to light once we have commenced work. Secondly, details of shareholders/directors etc. and changes of names are often only made available to us at a very late stage in a transaction and we will only conduct fresh conflicts searches if asked to do so.

If, at whatever stage and for whatever reason, it transpires that we are not able to complete the instructions, you agree to pay for work done and expenses incurred up until the point at which it is determined that it is not possible for us to continue to act.

Managing conflicts

In the event that we identify a conflict, our first step will be to contact you to alert you to a potential conflict and ask you for permission to disclose your identity to the law firm or client for whom we have previously acted. Once we have received this, we would contact the other client giving them such details about you and the proposed transaction as we are authorised to disclose, and seeking their permission to disclose to you details of the previous transaction and client. At this point, we would be able to put before you the details of the nature of our previous involvement with the relevant entity so that you can decide whether you believe it is in your best interests that we act. If such communications are with your lawyers we do not consider that we have an obligation to ensure that every nuance of the possible ramifications of such a conflict has been explained to them.

If you are unable or unwilling to give permission for us to disclose your name or any transaction details it is unlikely that we will be able to obtain permission to disclose information from the other party.

Subsequent issues such as the implementation of an information barrier and taking such safeguards as you consider necessary should you wish us to accept your instructions will be agreed on a case by case basis.

Subsequent conflicts

In the event that a conflict of interest arises between two or more clients after we have accepted instructions to act for one or more of them, we reserve the right to cease acting for any or all parties irrespective of the order in which we were instructed.

Under no circumstances will we act for any client adverse to you in a specific legal matter if we have obtained confidential information from you which is material to that matter unless you give us express written permission to do so. However, in circumstances where we do not have such material confidential information, we may represent other clients in legal matters, even those potentially or actually adverse to you or any of your affiliates, without the need to obtain your consent.

Basis of charging

We generally charge fees based either on a time and expertise basis or on a fixed fee basis.

When our fees are based on the amount of our time and expertise a matter requires, our professional fees are normally calculated by reference to the current hourly rate of the lawyer concerned, applicable to the type of work done at the time the work is done. We reserve the right to charge higher rates or apply an uplift if either the nature of the work or the applicable deadlines justify this.

Hourly rates vary both between departments and lawyers and the hourly rates of the lawyers working on your instruction are available on request. These rates are reviewed periodically and are adjusted and applied automatically from the time they are reviewed.

Estimates

For many transactions we are able to give estimates of the cost of completing the work. Estimates are not fixed fees or caps on our fees and are provided solely for the purpose of indicating to you the likely overall cost of our services. In the event that the actual fees that are chargeable on a time and expertise basis exceed the estimate, we shall be entitled to recover from you our fees in full.

Fixed fees

On occasion we are able to provide fixed fee quotations for particular instructions or elements of work within a larger instruction. We expect to be paid the amount of the fixed fee regardless of the time or expertise required to complete the work. Subject to otherwise agreeing with you reasons for which any actual amount is above the fixed quote, we will not seek to charge more than the fixed fee quotation if our time and expertise costs exceed the fixed fee.

Fee caps

In certain limited circumstances, we may agree to cap our fees at a particular level. In this event we will charge fees for time incurred up to but not in excess of the amount of the fee cap. No fee cap will be implied into any estimate unless expressly stated by us in writing.

Aborted or delayed transactions

Transactions may be aborted or delayed for a variety of reasons beyond our control. Our fees are not conditional upon a transaction or other matter happening or not happening. We do not work on a contingency basis and in these circumstances we will charge for work done up to the time the transaction aborts or is delayed.

Disbursements

In instructing us you are authorising us to incur such external expenses as we consider necessary or reasonable and agreeing to reimburse us for such expenses (where they are incurred by us directly or indirectly via any agent instructed on your behalf by us). In relation to certain disbursements we also seek to recover part of the fixed costs associated with that type of disbursement (for example, we charge set fees for registry searches) and in the absence of agreement to the contrary will also add a charge calculated at 3% of our professional fees in respect of printing/photocopying costs and other general expenses not charged directly. However, we are not obliged to incur any fee, cost or expense on your behalf and we will have no liability to you in the event that we fail to pay for any fee, cost or expense unless we have agreed explicitly to pay such disbursement on your behalf and you have put us in cleared funds sufficient to cover the cost of such disbursement in full prior to it falling due.

Although we will ordinarily pay such disbursements directly and seek reimbursement in our invoice to you, for any significant third party disbursements (such as expert reports, external counsel’s fees or significant payments of stamp duty) we reserve the right to pass such disbursements directly to you for payment.

Grossing-up

Our charges are net of any bank charges and withholding taxes and you should not assume that we are registered for tax in any country or state from which you may choose to make payment. If you are compelled to make any deductions from payments on account of such charges or taxes, you must gross up the payment so that we receive the amount stated on the face of any invoice which we issue.

Orders for costs

You agree to pay the full amount of our fees and disbursements in litigious matters irrespective of the outcome of any proceedings or any order for costs or any order on assessment which may be made. We should point out that even if you are successful in your litigation and you are entitled to the payment of your costs by another party (i) it is unlikely that you will recover the full amount which you have been billed by us, (ii) in some cases it is not possible to recover the amount awarded from a party against whom a costs order is made, and (iii) certain costs which form part of our fees and disbursements will not be recoverable including fees relating to work done by foreign qualified lawyers; this does not limit or reduce your obligation to pay the full amount of our fees and disbursements in full.

Joint instructions

Where our client or other person responsible for payment of our fees in relation to a particular matter constitutes two or more persons, then each person shall be jointly and severally liable for the full amount of payment of our fees and disbursements.

Payment on account

We often require some or all of the fees we estimate as likely to be incurred on an instruction to be paid at the commencement of the instruction and held on account of our fees and any disbursements incurred for you in relation to that instruction.

Where we receive such payment on account, we will hold the money in a non-interest bearing account which is segregated from our money. As and when invoices are rendered for professional fees and disbursements, you authorise us to apply the sums held in such account on your behalf to immediately settle such invoice.

In the event that the fees and disbursements incurred for you in relation to that instruction exceed the sums paid on account, you will settle the balance immediately in cash in the ordinary course.

Where there are any sums left on account following the conclusion of an instruction, we will either refund the balance to the account from which it was transmitted or we will seek your permission to apply it to another instruction if appropriate. In order to refund any balance, we may require certain information from you in order to comply with our obligations under applicable anti-money laundering regulations and legislation and our internal policies. You agree to promptly provide us with all requested information and further agree that in the event such information is not provided, we will not refund any balance.

Sums received as part of a transaction

Other than in conveyancing matters relating to land situate in a jurisdiction whose law we practice, we generally do not provide our client account for the purposes of holding sums payable to third parties, whether as part of a transaction on which we are advising, to facilitate an escrow account arrangement, a trust arrangement or otherwise. In the event that such services are required, specific arrangements and additional due diligence will be required to comply with our regulatory obligations.

Bank failures

We accept no liability for any sums held in a client account which are not readily available to us as a consequence of failure of any financial institution or any restriction by that Bank of access to deposits.

In the event of the failure of a Bank or similar event relating to insolvency or illiquidity of the Bank, our liability for sums held by us (whether money on account for fees or sums received by us as part of a transaction) which have been deposited with a Bank is limited to such sums as we can reasonably recover in the bankruptcy or reorganisation of the Bank.

Invoices

Although often for non-contentious matters we will usually submit an invoice at the completion of a transaction, unless we explicitly state otherwise, we reserve the right to submit invoices periodically (not more than monthly). Contentious matters will usually be billed monthly.

Invoices will be submitted by email only.

Payment is due immediately. If you wish to dispute any part of an invoice in good faith then you must do so within 14 days of receipt of the invoice after which time the invoice shall be treated for all purposes as agreed. Any notice of dispute must be in writing and must clearly set out the basis of your objection.

Delinquent accounts

30 days. Where any sums are not paid within 30 days of the date of an invoice, an interest rate of 8% shall be applied immediately.

45 days. Where any sums are not paid within 45 days of the date of an invoice we reserve the right to also impose a late payment charge of US$300 in relation to administration of the outstanding fees (exclusive of the 8% interest rate).

75 days. For any sums not paid within 75 days of the date of the invoice we also reserve the right to rescind and forfeit any discounts or preferential fee arrangements which otherwise applied to the relevant invoice and reinvoice at the full amount which otherwise would have been payable, and you agree to pay such amounts in full.

In the event that it becomes necessary to engage collection agents, tracing agents, lawyers or other third parties to secure payment of any invoice, you will be responsible for the payment of all such charges on an indemnity basis, which shall be added to the relevant invoice. We may provide any documents relating to you (including documents provided for compliance purposes) to such collection agents to assist with recovery of outstanding amounts.

Stop work

We reserve the right to stop or suspend working in relation to any matter where the relevant client has not paid any outstanding invoice(s). In the event that we do stop or suspend working on any matter on the basis of unpaid fees, we shall not be liable for any loss or damage which this may cause.

Practices

We will always seek to act in what we reasonably believe to be your best interests throughout the terms of our engagement. However, we will not act in any way which is either illegal or unethical. In particular:

(a) we have strict anti-bribery and anti-corruption policies and procedures;

(b) we will not engage in or facilitate any form of tax evasion, or unlawful avoidance of tax reporting requirements;

(c) we will not engage in or facilitate any actions which are intended to directly or indirectly pervert the course of justice in any jurisdiction; and

(d) we will always treat any personal data we are provided with in a manner which respects the privacy of the underlying data subjects, using appropriate security systems to store and use your data, in the manner described in these terms.

Confidentiality

It is agreed between you and us that any information relating to the business or finances of the other party shall at be treated as confidential save where such information is or was:

(a) already known to the recipient from a source other than the other party without any obligation of confidentiality;

(b) in the public domain or becomes public knowledge otherwise than as a result of the unauthorised or improper conduct of the disclosing party;

(c) disclosed as required by any law or order of any court, tribunal or judicial equivalent, or pursuant to any direction, request or requirement (whether or not having the force of law) of any central bank, governmental, enforcement, supervisory or other regulatory agency or taxation authority (provided that, if legally permissible, the disclosing party will promptly inform the other party prior to disclosing any such information);

(d) disclosed for legitimate business purposes to associates, affiliates, professional advisors, service providers or agents, engaged by one of the parties and who receive the same under a duty of confidentiality;

(e) made available by a third party who is/was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information; or

(f) disclosed with the consent of the other party.

It is deemed to be understood and relied upon, that any confidential information provided to the other party in relation to any principals, affiliates, shareholders, beneficial owners, authorised persons, directors, officers, employees and agents of the disclosing party is and has been provided with the consent and acceptance of any the relevant persons, which the disclosing party will be responsible for obtaining.

Unless otherwise instructed, we may disclose confidential information to any entity which we are in association with.

Intellectual property rights

We will retain all copyright in any document prepared by us during the course of our instructions unless specifically agreed otherwise.

Data protection

Where we obtain “personal data” and act as a “data controller” as defined in the Data Protection Law of the Cayman Islands (DPL), you acknowledge that we may process such information in accordance with data protection laws applicable to us (including DPL) and our privacy notice which is available at schedule 1 or upon request.

If you require us to handle information subject to Regulation (EU) 2016/679 of 27 April 2016 (GDPR) and you are unable to rely on Article 45 or Article 49 of GDPR in making such documents and records available to us, we will enter into EU standard contractual clauses with you in the appropriate form as the European Commission may prescribe pursuant to Article 46 of GDPR).

Please refer to the provisions of our Privacy Policy for further information on how we collect personal data, how we use it, what rights and choices you have in relation to the personal data we hold and process and how you may contact us.

Record Retention

All memoranda, internal communications and attendance notes prepared by us remain our property. Subject to payment of our fees and disbursements we agree you will be entitled to receive such correspondence and draft documents that are your property but you agree that we may invoice you at our standard rates for preparing files for delivery and delivering them to you and for taking copies for our use and retention.

This does not affect your right of access to your own personal data pursuant to relevant data protection laws.

We reserve the right to retain any files including electronic copies to comply with our legal, regulatory and professional obligations and we may be obliged by law to disclose the contents of same.

Miscellaneous

These terms and conditions shall govern the terms of our relationship from the time when we receive formal instructions from you to proceed with any matter. The obligations created hereunder shall continue after the completion of the matter or the termination of the relationship.

These terms and conditions are our standard terms and conditions of engagement, and as such may be amended from time to time by us. These terms and conditions are subject to any specific variations which may be agreed in writing between us in any signed engagement letter.

If we merge or amalgamate with another firm any engagement which we have with you shall not terminate as a result and the successor firm shall continue the engagement.

You may not assign any rights which you may have against us, any of our partners or directors to any other person without our prior written consent.

If any of the provisions of these terms and conditions are found to be unenforceable for any reason in any jurisdiction, the remaining provisions shall not be affected.

Governing law and jurisdiction

These terms and conditions and service contract with you are made under the law specified in the engagement letter entered into between you and us, or, in default of any other specified governing law, the following governing law and jurisdiction shall apply:

a) Cayman Islands law for engagements with M Advisory and WB Global; and

b) British Virgin Islands law for engagements with CCP.

By entering into a service contract with us, you irrevocably submit to the exclusive jurisdiction of the applicable court above to hear, decide and settle any dispute which may arise out of or in connection with these terms or the provision of our services.