Madeira Terms of Business
INTRODUCTION
All standard terms used in this introductory section are defined below.
These Terms and Conditions and any specific Written Engagement shall constitute the entire agreement and understanding of the applicable parties and, in the event of conflict between these Terms and Conditions and any specific Written Engagement, the Written Engagement shall prevail.
These Terms and Conditions supersede and replace all and any terms and conditions previously issued by Fairway Madeira.
Each Customer to which Services are being or have been provided shall be deemed to have accepted these Terms and Conditions from and with effect from the earlier of the date upon which these Terms and Conditions are first brought to the attention of the Customer and / or by the performance by Fairway Madeira of any of the Services.
These Terms and Conditions may be varied from time to time by delivering the varied Terms and Conditions to the Customer by electronic means. On the basis of such delivery, the Customer shall be deemed to have agreed to these Terms and Conditions and all such variations.
Members of the Fairway Group are regulated by the Jersey Financial Services Commission (“JFSC”) in the conduct of trust company, pension and funds administration businesses under the Financial Services (Jersey) Law 1998 (as amended). Details of all regulated entities are published on the website at www.fairwaygroup.com.
DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, the following words and phrases shall, save where the context requires otherwise, have the following meanings:
“Appointees” means in relation to any Serviced Entity any directors, officers, secretaries, trustees, nominees, members, shareholders, partners, unit holders, or other persons provided by Fairway Group to or in respect of a Serviced Entity;
"Company” or “Fairway Madeira” means Fairway Madeira Corporate Services, Unipessoal S.A. (Zona Franca Da Madeira), a legal entity registered at the Commercial Registry of Funchal (Madeira, Portugal) under number 515 027 367;
“Customer” means owners/controller/s of any “Serviced Entity”;
“Customer Due Diligence” (”CDD”) means relevant verification measures for any settlor, protector or trustee of a trust; or any founder, guardian or foundation council member of a foundation; or any beneficial owner, director or secretary of a company, for which Fairway Madeira provides Services and for any person who has any power over the disposition of property and assets which are subject to any trust, foundation or company, or any person on whose behalf a transaction is being conducted (and includes the person who exercises ultimate effective control over a body corporate or unincorporate) and any other person required to be verified for customer due diligence purposes under the laws of the local jurisdiction;
“General Data Protection Regulation” or “GDPR” means Regulation (EU) 2016/679 of the European Parliament and the Council of the European Union adopted on 27 April 2016 and enforceable on 25 May 2018. The Data Protection Legislation governs the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
“Fairway Madeira Appointees” means all persons provided by any member of Fairway Madeira (whether or not pursuant to a Written Engagement) to act as a director or other officer, trustee, foundation council member, manager, signatory or shareholder of any Serviced Entity;
“Fairway Madeira Employees” means the employees, directors, officers and consultants (as appropriate) of Fairway Madeira;
“Fairway Group” means all subsidiary companies of Fairway Group Limited and other entities, whether or not incorporated, that may form part of the Fairway Group from time to time, including but not limited to:
Fairway Madeira;
Fairway Trust Limited, a company incorporated in Jersey under registration number 78740;
Fairway Pension Trustees Limited, a company incorporated in Jersey under registration number 99073;
Fairway Fund Services Limited, a company incorporated in Jersey under registration number 99203; and
Any other affiliated company or Subsidiary of Fairway Trust Limited;
“Interest” means any company shares in issue, bonds, notes, warrants, options or any other company securities, fund shares or units, partnership interests or any other interest or entitlement in respect of a Customer other than in the of a trust or foundation, where the term “Interest” shall be interpreted as meaning an entitlement, of any nature, of a qualifying beneficiary of a trust or foundation. In the case of individuals “Interest” shall be interpreted as being the assets of that individual from which he or she expects to derive benefits from the Fairway Madeira Services;
“Interest holder” means the identified beneficial owner/s who directly or indirectly control the Customer by virtue of Share interest or entitlement and, in the case of a trust or foundation, the Settlor/s (if still living) and each qualifying beneficiary. In the case of an individual, “Interest holder shall include his/or her heirs, duly appointed representatives, their estate/s, or any other successors or assigns. Where an interest holder is a body corporate, “Interest holder” shall include any predecessor or successor or assign;
“Fee Schedule” means schedule of fees and charges issued by Fairway Madeira and as amended from time to time or the provisions relating to fees in any Written Engagement;
“Privacy Notice” means the data protection privacy notice and policy available on the website at www.fairwaygroup.com;
“Proper Instructions” means any requests or instructions which are sent by courier or post or given by any other means of electronic transmission (including facsimile or email) in a readable form in respect of any of the matters referred to in these Terms and Conditions which are signed (or purported to be signed) by or on behalf of the Customer. In instances indicated in advance by the Customer and agreed by Fairway Madeira, Fairway Madeira may also act pursuant to instructions, information or requests by telephone and such telephonic instructions shall be deemed to be Proper Instructions. Subject to these Terms and Conditions where Proper Instructions are given by telephone, they shall be authenticated in such manner as shall be agreed between the Customer and Fairway Madeira from time to time and written confirmation thereof shall be sent by post, facsimile or email to Fairway Madeira as soon as practicable thereafter;
“Regulations” means all laws, regulations, rules, requirements, codes of practice, policies, practices and guidelines in force from time to time, applicable to the Services and/or Fairway Madeira and any request or requirement of any (or any quasi) governmental, administrative, judicial or regulatory body or person;
“Regulatory body” means anybody exercising regulatory authority over Fairway Madeira in any jurisdiction in which it has either a physical presence or in which it carries out any activities which would be construed as regulated financial services business under the laws or regulations of that jurisdiction;
“Serviced Entity” means any corporate body (wherever incorporated), foundation, individual, partnership (of whatever kind as permitted by applicable law) or other association or body (whether or not incorporated) or trust or other structure or arrangement to or in respect of which Services are provided by Fairway Madeira;
“Services” means all of the professional services and facilities agreed by Fairway Madeira to be provided by it to or for the use and benefit of an interest holder and / or a Serviced Entity;
“Subsidiary” means an entity, even if not incorporated as a company, which is controlled by another entity, called a parent company, including any subsidiary of the parent company on which that company ultimately depends, and has the meaning given to this term in Decree-Law No. 98/2015 of 2nd June of 2015.
“Terms and Conditions” means these terms and conditions, as amended from time to time;
“Third Party Service Provider” means any consultant, agent, adviser or independent contractor who renders services Fairway Madeira in connection with the Services from time to time; and
“Written Engagement” means: (i) any agreement in writing entered into between Fairway Madeira and the Customer relating to the terms of provision of the Services (including administration, management and nominee agreements); and / or (ii) any letter (and any attachments including these Terms and Conditions) sent to the Customer which sets out the contractual terms between Fairway Madeira and the Customer relating to the provision of Services. In these Terms and Conditions: (a) unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine and the neuter and vice versa; (b) references to "Clauses" are to Clauses of these Terms and Conditions; (c) Clause headings are inserted for convenience only and shall not affect construction; (d) references to persons shall include companies or associations or bodies corporate or unincorporated; (e) a reference to "including" or "in particular" (or any similar expression or other part of speech) shall be construed as being followed by the words "without limitation"; and (f) references to enactments are to such enactments as are from time to time modified, re-enacted or consolidated and shall include any enactment made in substitution for an enactment that is repealed.
A reference to these Terms and Conditions or to any agreement or document referred to in these Terms and Conditions shall be construed as a reference to such agreement or document as amended, varied, modified, supplemented, restated, novated or replaced from time to time.
A reference to the Customer in these Terms and Conditions may include (in the case of individuals) the survivor or survivors of them, the heirs and personal representatives of each of them and (in the case of a company or other body corporate) its successors: provided always that any change in identity of the Customer is approved by Fairway Madeira, at its sole discretion, and having regard to its obligations under the Regulations, including, but not limited to, its customer identification and verification obligations.
1. PROVISION OF SERVICES AND GENERAL AUTHORITY
1.1. Fairway Madeira will provide, or arrange to provide, the Customer with the Services as agreed from time to time between the Customer and Fairway Madeira. Services may be supplied by any member of the Fairway Group and any Written Engagement entered into with any member of the Fairway Group shall apply in all respects (unless otherwise specified) to any other member of the Fairway Group that supplies Services to the Customer.
1.2. Fairway Madeira and each Fairway Madeira Employee shall be authorised by the Customer to do anything which is reasonably necessary either to perform the Services or to comply with the Regulations.
1.3. Except as expressly provided otherwise in Clause 7 (Instructions and Actions): (a) these Terms and Conditions shall not create or give rise to any rights to any third parties; and (b) no third party shall have any right to enforce or rely on any provision of these Terms and Conditions which confer or may confer any right or benefit on any third party, directly or indirectly, expressly or impliedly. The application of any legislation giving to or conferring on third parties contractual or other rights in connection with these Terms and Conditions shall be excluded.
2. TAX AND OTHER PROFESSIONAL ADVICE
2.1. The Customer represents and undertakes that it has taken, and will at all times take, at its own expense appropriate tax, legal, financial and accounting advice with regard to the Services. Fairway Madeira and Fairway Madeira Employees do not provide tax, investment business, legal, financial or accounting advice and have no responsibility or liability for the accuracy or completeness of any such advice given to or acted upon by Fairway Madeira or the Customer.
2.2. It remains the ongoing responsibility of the Customer to obtain any specialist tax, investment business, legal, financial and/or accounting advice and where necessary to supply copies of such advice to Fairway Madeira. This extends to all transactions undertaken by Fairway Madeira or any Fairway Madeira Employee on behalf of the Customer in respect of the Services. Fairway Madeira and/or Fairway Madeira Employees shall not incur any liability in connection with any specialist advice supplied to or any reliance by Fairway Madeira and/or any Fairway Madeira Employee on any such advice.
2.3. Fairway Madeira shall not be under any obligation in any circumstances (unless otherwise agreed with the Customer in writing) to notify the Customer of any matter (including any change in law, policy, facts or otherwise) which may affect any information, advice or opinion provided by or on behalf of the Customer to Fairway Madeira.
3. ANTI BRIBERY AND CORRUPTION
3.1. The Customer acknowledges that, in accordance with relevant Legislation, Regulations, best practice and / or common guidance, Fairway Madeira maintains procedures to prevent bribery or corruption.
3.2. Fairway Madeira reserves the right to carry out due diligence on the Customer in relation to the provision of the Services. The due diligence checks may include undertaking searches of publicly available information on the Customer. Details of Fairway Madeira’s procedures for the prevention of bribery and corruption are available on request.
3.3. The Customer warrants to Fairway Madeira that:
i. neither the Customer nor the Serviced Entity has, at any time, breached any local or international law relating to the prevention and countering of corruption, bribery or tax evasion at any time; and
ii. for so long as the Services are being provided the Customer and the Serviced Entity will not engage in any activity or conduct intended to facilitate or assist tax evasion.
4. REMUNERATION AND EXPENSES
4.1. Fairway Madeira shall be entitled to remuneration for the provision of the Services and disbursements (including under Clause 19 (Termination of Services)) in accordance with any fee arrangements set out in any Written Engagement as amended (if applicable) or otherwise in accordance with any Fee Schedule from time to time in force in relation to the Services.
4.2 Fairway Madeira shall be entitled to be reimbursed for all disbursements, duties, taxes and proper expenses incurred by it in connection with the Services. This includes a 3% general disbursement charge as standard.
4.3. All invoices issued in respect of the Services provided by Fairway Madeira, are issued payment upon receipt; these shall be deemed accepted by the Customer unless disputed within 7 working days of receipt of an invoice. Any objection of the Customer shall be notified in writing to Fairway Madeira in accordance with Clause 23 (Notices).
4.4. All monies payable to Fairway Madeira in connection with the Services shall be payable upon presentation of the relevant invoice and Fairway Madeira reserve the right to charge interest at the rate of 1% per month on all fees, duties, taxes and disbursements which remain outstanding for more than 30 days from the invoice date.
4.5 Fairway Madeira may deduct any unpaid sum payable to it, which for the avoidance of doubt includes any entity within the Fairway Group, in connection with the Services from the assets of any Serviced Entity without the consent of the Customer. If it exercises this right, Fairway Madeira shall inform the Customer in writing in accordance with Clause 23 (Notices).
4.6 Each Customer undertakes and guarantees to pay all Service fees and disbursements payable in respect of the Services under these Terms and Conditions and any Written Engagement as they fall due.
4.7 The Customer hereby expressly waives any right which they may have to: (a) require that Fairway Madeira shall first seek recourse against or exhaust the assets of any person (including any Customer or Serviced Entity); or (b) join in, or otherwise make party, any other person (including any Customer or Serviced Entity) to any claims or proceedings before pursuing the Customer under any guarantee or indemnity or other provision in these Terms and Conditions or any Written Engagement.
4.8 To the extent that Fairway Madeira has instructed or appointed a third party in connection with the provision of any Services to the Customer, that Customer shall be solely responsible for the costs of such third party.
4.9 Fairway Madeira reserves the right to review the Fee Schedule from time to time and make changes without prior notice or approval unless agreed otherwise. The fee schedule will be reviewed annually and customers advised of any changes to annual responsibility fees or hourly rates.
4.10 Upon termination of the Services to the Customer, the provisions of Clause 19 (Termination of Services) shall apply in respect of any refund of fees.
5. COMMISSIONS
From time to time, members of the Fairway Group may receive payments from third parties in connection with Services provided to a Serviced Entity ("Commissions"). Where such Commissions are received, Fairway Madeira shall be entitled to retain the Commissions without accounting to either the Customer or the Serviced Entity. Information concerning Commissions paid to members of the Fairway Group can be made available to the Customer or Serviced Entity (as appropriate).
6. CUSTOMER'S OBLIGATIONS AND UNDERTAKINGS
6.1. The Customer shall ensure that Fairway Madeira is kept in funds sufficient to allow it to meet in full all sums payable by such Serviced Entity to Fairway Madeira (including all fees, duties, remuneration, disbursements, taxes and proper expenses payable by the Serviced Entity under these Terms and Conditions and any Written Engagement) and for such Serviced Entity to otherwise meet its liabilities as and when they become due. Fairway Madeira may require a minimum amount of £5,000 (or currency equivalent) to be retained on account in respect of each Serviced Entity subject to the terms of the Written Engagement.
6.2 Where the Customer is more than one person (corporate or individual) each such person hereby agrees that the other such person(s) shall act as his agent to exercise full power and authority in connection with the Services on his behalf and all obligations of the Customer in connection with the Services shall be joint and several.
6.3 The Customer hereby undertakes and warrants in relation to each Serviced Entity that:
i all assets which are or will be introduced to the Serviced Entity have been lawfully introduced and are not derived from or otherwise connected with any criminal activity;
ii the Serviced Entity will not be engaged in or involved, directly or indirectly, with any unlawful activity or used for any unlawful purposes;
iii. no instructions given to a Fairway Madeira Employee will require or involve any unlawful act or contain any falsehood and all information and documentation given to a Fairway Madeira Employee by or on behalf of the Customer or any Serviced Entity will be complete, accurate and not misleading;
iv. the Serviced Entity will not undertake any activities which will require a licence, consent or approval in any jurisdiction without first obtaining the required licence, consent or approval or which will breach any conditions contained in any such licence, consent or approval; and,
v. the Serviced Entity will not undertake any activities considered sensitive as described in the Sound Business Practice Policy published from time to time by the JFSC or any equivalent regulatory body in any other jurisdiction.
6.4 The Customer shall procure that the Serviced Entity complies with all Regulations and applicable filing requirements in any and all applicable jurisdiction/s.
6.5 Promptly upon request, for the purposes of any foreign tax law requirements (including, but not limited to the EU Savings Directive and / or the US and / or UK Foreign Account Tax Compliance Act and / or the Common Reporting Standards), the Customer (if an individual) shall provide to Fairway Madeira his individual tax identification number in his country of residence or equivalent alternative confirmation regarding their tax status.
6.6 The Customer shall keep Fairway Madeira adequately informed as to all business to be transacted in the name of or for the account of each Serviced Entity and ensure that each Serviced Entity is run in a proper and business-like manner.
6.7 The Customer shall promptly provide to Fairway Madeira any information and documentation that Fairway Madeira may request from time to time in order to comply with the Regulations (including CDD requirements), or otherwise to enable Fairway Madeira to provide the Services.
6.8 The Customer shall ensure that all information and documentation previously supplied to any Fairway Madeira Employee is current and accurate and the Customer shall inform Fairway Madeira immediately of any material changes to such information.
6.9 The Customer shall notify Fairway Madeira in advance of any proposed change/s to its constitutional documents, ultimate beneficial ownership, shareholders or directors and provide Fairway Madeira with documentation relating to such changes at the time of notification.
6.10 The Customer shall neither knowingly cause nor knowingly permit anything to be done which will or may be calculated to incur, or which may lead to, any civil or criminal liability or penalty on the Fairway Group and/or the Fairway Madeira Employees.
6.11 The Customer shall maintain all necessary insurance in connection with its business (including, in the case of a body corporate, full and valid directors’ and officers’ liability insurance) and provide evidence of such insurance promptly upon request.
6.12 As soon as reasonably practicable upon becoming aware of the following matters, the Customer shall notify Fairway Madeira of:
i. any event which could be reasonably foreseen to have a material effect on the Serviced Entity, its assets or activities or upon Fairway Madeira's willingness to continue to provide the Services (including, any act or thing evidencing any of the following in respect of any Customer or Serviced Entity: its insolvency, its inability to pay its debts as and when they fall due, any compromise reached with its creditors, the commencement of its liquidation (voluntary or otherwise), winding up or dissolution, the appointment of any administrator or receiver to it or in respect of any of its assets, or any other similar or analogous event or proceeding in any jurisdiction); and / or
ii. any actual or threatened proceedings or investigation (and any attendant publicity) of any kind in any jurisdiction which involve any Customer or Serviced Entity and any progress thereof, and it shall promptly provide such information as Fairway Madeira may, in its discretion, require in respect thereof.
6.13 Where the Services include the provision of Fairway Madeira Appointees, the Customer shall not, without the prior written consent of Fairway Madeira, take any action, enter into any agreement or contract, give any undertaking, make any representation or otherwise incur any liability on behalf of the Serviced Entity.
6.14 The Customer shall notify Fairway Madeira in writing at least 30 days before: (a) alienating, assigning, selling, pledging or otherwise disposing of or encumbering any part of a Serviced Entity or the Customer's interest in a Serviced Entity; or (b) consenting to, suffering or permitting any of those things to occur.
6.15 The Customer shall not, without the prior written consent of Fairway Madeira, use the logo, name, address, electronic mail, website address, telephone or facsimile numbers of any member of the Fairway Group or allow the same to appear on any or in any communication or document (including any website, notepaper, documentation, advertising material or offering) belonging to or connected with the Serviced Entity.
6.16 Any actions taken or not taken by the Customer or any third party (whether empowered as an attorney, director, partner or otherwise) shall be proper and lawful and shall not prejudice any member or employee of the Fairway Group.
6.17 The Customer shall not, without the prior written consent of Fairway Madeira, whether directly or indirectly, solicit or attempt to solicit the employment of any Fairway Madeira Appointees or Fairway Madeira Employees involved directly or indirectly in performing the Services whilst the Services are being performed or for a period of one year following completion or termination of the Services.
7. INSTRUCTIONS AND ACTIONS
7.1. The Customer acknowledges that Fairway Madeira will exercise independent discretion on any relevant matter in accordance with the Regulations and the constitutional documents of each relevant Serviced Entity.
7.2. Subject to these Terms and Conditions, Fairway Madeira undertakes to endeavour to deal with and act upon Proper Instructions in a reasonable and timely manner.
7.3. Fairway Madeira may act upon Proper Instructions given or purportedly given by any person that it reasonably believes to be authorised to give such instructions on behalf of the Customer and / or a Serviced Entity. Fairway Madeira is not obliged to verify the genuineness or authority of such instructions which appear to be authentic and do not contain any manifest error.
7.4. Fairway Madeira may refuse to take any action or, may take such actions which it considers in good faith could prevent or mitigate a situation arising which, in its reasonable opinion:
i. may contravene any Regulation or be inconsistent with any fiduciary or other duty owed by a member of the Fairway Group or any Serviced Entity;
ii. may cause a member of the Fairway Group to be liable for the payment of money or in any other way unless it is indemnified to its reasonable satisfaction in advance (including as to the sources from which such indemnification obligation will be met); or,
iii. could result in damage to the reputation or good standing of a member of the Fairway Group.
7.5 Fairway Madeira may refuse to comply with any Instructions given by telephone or electronic transmission (including email or facsimile) which Fairway Madeira suspects does not satisfy such authentication or confirmation procedures (if any) as have been notified by Fairway Madeira to the Customer or agreed by Fairway Madeira with the Customer. Fairway Madeira may refuse to take any action or comply with any Instructions where they have any suspicion that any communication or document is fraudulent or the person giving or purporting to give any communication is not duly authorised to give such communication.
7.6 Fairway Madeira may take any of the actions in Clause 7.5 in the event that:
i. any demand is made against a Serviced Entity for payment of any sum due including any taxes, duties, fees or other governmental or state impositions and such payment has not yet been made; or
ii. Fairway Madeira requires instructions from the Customer and / or a Serviced Entity and has, within a reasonable time, been unable to obtain instructions which it considers adequate and proper.
7.7 In the events described in Clause 7.6 and, provided that Fairway Madeira has first given notice to the Customer that this Clause 7.7 shall apply and the Customer has not (within the period stated in such notice) taken such action as is specified therein, Fairway Madeira may:
i. take no further action on a particular matter;
ii. take no further action in relation to the Customer or any Serviced Entity; or,
iii. utilise any assets of any Serviced Entity (or any assets held by it on behalf of the Customer) in or towards the satisfaction of any such demand.
7.8 No liability shall attach to Fairway Madeira in respect of or in connection with:
i. its failure to comply with any requests, instructions or communication (including any Proper Instructions) which are not in writing or which it considers are unclear, contradictory, incomplete, ambiguous or contain errors;
ii. the non-receipt of any requests, instructions or communication, written or otherwise;
iii. the lack of authority of any person purportedly giving instructions on behalf of the Customer or any Serviced Entity;
iv. the use of electronic communications and the internet to provide the Services. Email is transmitted via a public network and as a result is not secure and may be intercepted, lost, destroyed or delayed. None of Fairway Madeira, the Fairway Madeira Appointees or the Fairway Madeira Employees shall incur any liability for any breach of confidentiality, delay, interception, loss, failure, computer virus or data protection and shall be entitled to be indemnified against any resulting liability; or,
v. any action or inaction (including any failure to comply with any instructions) in accordance with the provisions of these Terms and Conditions, including any of Clauses 7.4, 7.5, 7.7 and 7.10.
7.9 The failure to provide any authentication or confirmation notified by Fairway Madeira to the Customer or agreed by Fairway Madeira with the Customer from time to time shall not invalidate any Proper Instructions or other instructions (whether given by telephone or electronic transmission or otherwise) and Fairway Madeira may act on these without enquiry.
7.10 Fairway Madeira is authorised to take any steps which in its sole discretion it thinks fit to protect any business or assets of the Customer and to engage such advisers as it considers in its discretion appropriate and any expenses incurred as a result shall be borne by the Customer. Where a business or any interest therein is contained in the assets of the Customer, unless otherwise agreed in writing, Fairway Madeira shall not be bound or required to interfere in its management or conduct.
7.11 To ensure that Fairway Madeira is able to carry out the Customer's instructions accurately, to help Fairway Madeira to improve its service and in the interests of security, the Fairway Group may monitor and / or record communications including telephone calls and the Customer consents to such monitoring and / or recording. Fairway Group's recordings shall be and will remain Fairway Group's sole property and Fairway Madeira shall have the authority to deliver copies or transcripts of such recordings to any person including court, tribunal, arbitrator or regulatory authority of competent jurisdiction as it sees fit.
8. CONFLICTS OF INTEREST
8.1. If Fairway Madeira becomes aware or is notified of a material conflict of interest or duty which affects the interests of the Customer or any Serviced Entity: (a) Fairway Madeira shall consider how to manage such conflict of interest and, to the extent it considers it appropriate in the circumstances, shall notify the Customer and / or put procedures in place in relation to confidentiality and independence; and (b) Fairway Madeira is authorised to continue to act in all applicable capacities notwithstanding any such conflict of interest.
8.2. Without prejudice to Clause 8.1 Fairway Madeira shall be entitled to (if relevant) cause any Serviced Entity to employ any member of the Fairway Group to perform Services for and on behalf of the Serviced Entity on the same terms and conditions as are usual between Fairway Madeira and its Customers.
8.3. Subject to Clause 5 (Commissions), where any benefit, whether direct or indirect, is received by Fairway Madeira (and any of its agents or delegates) in respect of:
i. any purchase or sale of investments;
ii. a member of the Fairway Group acting in any capacity for or in connection with any company, partnership, investment fund, scheme or other entity, the shares, interests, notes or units of which are comprised in the assets of any Serviced Entity;
iii. any arrangement entered into on behalf of any Serviced Entity; or,
iv. the provision of any other services to or in connection with any Serviced Entity.
Fairway Madeira (and any of its agents or delegates) may pay any such benefit obtained (less any agreed fees and proper expenses reasonably incurred in the provision of Services relating to the relevant transaction) to the relevant Serviced Entity, as appropriate.
8.4 Unless otherwise agreed with the Customer in writing, no member of the Fairway Group (or any of its agents or delegates), is precluded from acting in any transaction or for any other person, customer, company, firm or other entity with which the Customer is associated in any way.
8.5 No member of the Fairway Group (or any of its agents or delegates) shall be obliged to disclose to the Customer or take into consideration any fact, matter, finding or other information where:
i. it would, or might, be in breach of any duty or of confidence to any other person;
ii. it comes to the attention of Fairway Madeira (or any of its agents or delegates), but which is not intended for any principal contact dealing with (or for) the Customer; or
iii. such disclosure would be contrary to any applicable Law or Regulations.
9. CONFIDENTIALITY
9.1. Fairway Madeira will treat all information which the Customer provides to Fairway Madeira and which the Customer identifies as confidential (or which by its nature would reasonably be expected to be confidential) as private and confidential, and may and will only disclose such confidential information in the following circumstances:
i. where Fairway Madeira is required to disclose by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body;
ii. where there is a duty to the public to disclose or it is in the public interest to do so to investigate or prevent fraud or other illegal activity;
iii. where the disclosure is necessary to perform Fairway Madeira's regulatory obligations or where the disclosure is desirable to protect the interests of Fairway Madeira;
iv. in relation to the auditors, accountants and / or legal advisers of the Customer or any relevant Serviced Entity;
v. where Fairway Madeira has entered into an administration agreement with a Third Party Service Provider or appointed an agent in connection with the Services and Fairway Madeira considers it is necessary or desirable to disclose the confidential information to enable the Third Party Service Provider or agent to perform its obligations (and in this case steps will be taken to ensure that the Third Party Service Provider or agent is subject to confidentiality provisions which Fairway Madeira considers appropriate);
vi. where Fairway Madeira is required to open bank accounts for, or operate bank accounts on behalf of, the Customer with a financial institution and Fairway Madeira considers it necessary or desirable to disclose the confidential information to enable the financial institution to perform its obligations and/or with whom Fairway Madeira undertakes banking transactions on behalf of the Customer; or,
vii. at the Customer's request or with the Customer or other relevant person's consent.
9.2. Fairway Madeira may disclose information held about the Customer and / or any Serviced Entity to its agents or delegates and to other entities of the Fairway Group.
9.3. The Customer will treat all information concerning all members of the Fairway Group (including the customers, business, terms of business, fees, activities and other affairs of Fairway Madeira) as private and confidential, and may and will only disclose such confidential information in the following circumstances:
i. where the Customer is required to disclose by any court of any competent jurisdiction, governmental, supervisory or regulatory body;
ii. where there is a duty to the public to disclose or it is in the public interest to do so to investigate or prevent fraud or other illegal activity; or,
iii. at Fairway Madeira's request or with the prior written consent of Fairway Madeira.
9.4 For the avoidance of doubt, the provisions of this Clause 9 (Confidentiality) shall remain in full force and effect notwithstanding the termination of the Services or these Terms and Conditions ceasing to apply.
10. INTELLECTUAL PROPERTY
All correspondence files and records (other than statutory records) and all information and data held by Fairway Madeira on any computer system is the sole property of Fairway Madeira for its sole use and neither the Customer nor any Serviced Entity shall have any right of access thereto or control thereover except in so far as required by law.
11. DATA PROTECTION
11.1 The Customer acknowledges that Fairway Madeira is bound by the Data Protection Legislation.
11.2 For the purposes of this Clause 11, the terms “to process”, “processing”, “processor”, “controller”, “Personal Data” and “Sensitive Personal Data” shall have the same meaning as set out in the Data Protection Legislation.
11.3 The Customer confirms that it has read and understood the Fairway Group’s Privacy Policy https://www.fairwaygroup.com/privacy-policy (the “Privacy Policy”) and acknowledges that Fairway Madeira has communicated the lawful purpose for processing Personal Data.
11.4 The Customer agrees that members of the Fairway Group may hold and process electronically, manually or otherwise any Personal Data and Sensitive Personal Data held for the purpose as set out in the Fairway Group’s Privacy Policy.
11.5 Fairway Group is committed to protecting and respecting the privacy of its’ Customers at all times. Therefore, Fairway Madeira will respect and protect the Customer’s right to privacy and will process Information in accordance with the provisions of the Data Protection Legislation.
11.6 The indemnification set out in Clause 15 and any other remedies given under these Terms and Conditions shall apply in the event of alleged breaches under this Clause 11.
11.7 Fairway Group’s obligations to the Customer depend upon the nature of the relationship with the Customer.
11.8 Fairway Madeira as Data Controller.
In situations where the Customer provides Personal Data as the data subject, the Fairway Group receives that Personal Data in its capacity of data controller.
11.9 By agreeing to these Terms and Conditions the Customer hereby undertakes a contractual obligation as a result of which the parties agree that the Fairway Group will deal with the Customer’s Personal Data in accordance with the Privacy Policy. The Privacy Policy (the terms of which may be changed from time to time) is incorporated into these Terms and Conditions.
11.10 Fairway Madeira as Data Processor.
In situations where the Customer provides Personal Data where the Customer is the data controller, the Fairway Group receives that Personal Data in its capacity of data processor; and these Terms and Conditions shall represent the data processing agreement.
11.11 Where the Customer is the data controller and Fairway Madeira as a result receives Personal Data as a data processor, the Customer hereby warrants that all Personal Data so provided is obtained processed and provided in accordance with the Data Protection Legislation, and that where applicable, the consent of the data subject has been obtained. In such circumstances the Customer will provide the data subject with a copy of the Privacy Policy.
11.12 The Customer acknowledges and agrees that, where the Fairway Group acts as data processor when providing its Services, Clause 11 of these Terms and Conditions applies and these terms and conditions serve as the data processing agreement.
11.13 Fairway Group shall, in the performance of the data processor services act as a data processor on behalf of and under the lawful and reasonable documented instructions of the Customer, acting as a data controller. Fairway Group hereby accepts and undertakes in the performance of the data processor services:
(i) to process Personal Data for the purposes, subject matter and duration set forth in the agreement between Fairway Group and the Customer;
(ii) to take all adequate technical and organisational security measures required pursuant to the Data Protection Legislation;
(iii) in so far as Fairway Group would gain knowledge of any accidental or unlawful loss, modification, disclosure or access or of any other form of unauthorised processing, or of any disruptions endangering the security of Personal Data, to inform the Customer hereof in writing without undue delay;
(iv) to ensure that the Fairway Madeira Employees process such Personal Data in accordance with the instructions given by the Fairway Group, and that they are bound by a duty of confidentiality or are under an appropriate statutory obligation of confidentiality;
(v) not to engage another data processor or sub-processor without prior specific or general written authorisation of the Customer (unless allowed under the terms of the agreement between the parties), and inform the Customer of any intended changes concerning the addition or replacement of such other data processors or sub-processors, giving the Customer the possibility to object hereto; in any case, the same data protection obligations as set out in these Terms and Conditions shall be imposed on that other (sub-) processor by way of a contract and Fairway Group will remain fully liable to the Customer for the performance of the other (sub-)processor’s obligations;
(vi) to ensure that Personal Data is only transferred to countries outside the European Economic Area subject to appropriate protections, such as standard data protection clauses approved by the European Commission;
(vii) to refer to the Customer any request it may receive from data subjects for access or changes to or deletion of the Personal Data provided by the Customer to Fairway Group or for the exercise of any other data subject rights, and provide assistance to the Customer in as far as may reasonably be expected of Fairway Group, in order for the Customer to respond to requests from data subjects relating to the exercise of their legal rights;
(viii) to assist the Customer in ensuring compliance with its legal obligations under the Data Protection Legislation relating to data security and data breach notifications, data protection impact assessments, and prior consultation in as far as may reasonably be expected of Fairway Group;
(ix) at the discretion of the Customer, to delete or return all relevant Personal Data to the Customer after the end of the data processor services, and delete existing copies unless a legal obligation requires Fairway Group to store the personal data for a longer period, and:
(x) to make available to the Customer all information that is reasonably necessary to demonstrate compliance with the obligations laid down in this Clause 11, and allow the Customer and auditors mandated by the Customer, at reasonable intervals and with a maximum of once a year, access to any relevant premises to audit/inspect Fairway Group’s data security policies and procedures. The Customer will give three weeks’ notice prior to such audit/inspection.
11.14 The Customer represents and warrants that it will not give instructions to Fairway Group that would in any way cause Fairway Group to be in violation of the Data Protection Legislation and/or the rights of a data subject.
11.15 All reasonable costs and expenses incurred by Fairway Group in the performance of its obligations under Clause 11 shall be paid for by the Customer.
11.16 In accordance with the Data Protection Legislation, the Customer must give explicit consent via Fairway’s Services Application Form(s) that Fairway Madeira may transfer and / or grant access to Information held about the Customer and / or any Serviced Entity to its approved agents and / or delegates or to other members of the Fairway Group, for the purposes of such processing. The Information may also be disclosed on a confidential basis to a prospective assignee or transferee of any member of the Fairway Group in accordance with Clause 20 (Assignment).
12. SAFE CUSTODY AND DOCUMENT RETENTION
Fairway Madeira will keep all such deeds and other documents which it considers appropriate, or where it is instructed in writing by the Customer to do so, in its safe custody facilities. Such deeds and documents maintained in safe custody facilities will be retained whilst Fairway Madeira provide Services to the Serviced Entity. Other documentation may be destroyed after a period of 10 years. These facilities are provided in accordance with the Regulations and are carefully regulated, controlled and designed to limit the possibility of unauthorised access or damage by fire. In the absence of gross negligence, Fairway Madeira accept no responsibility for any deeds or documents held in safe custody that are damaged or lost as a result of theft, fire or water damage or an event or circumstances beyond its reasonable control. Fairway Madeira does not accept items of realisable value such as bearer certificates, bullion or jewellery into its safe custody facilities.
Where Fairway Madeira retains originals or copies of any files and records along with any Information or documents belonging to the Customer or any Serviced Entity following the termination of the Services, Fairway Madeira reserves the right (but shall not be under an obligation): (a) to retain such copies for a period of 10 years from the date of termination of the Services and thereafter to destroy all such documents (whether originals, photocopies or electronic copies) at such time as Fairway Madeira in its sole discretion considers appropriate; and (b) (without prejudice to Clause 12.2(a)) to make electronic copies of all such documents as Fairway Madeira has retained to destroy hard copies of all such documents which Fairway Madeira has retained. Where the Services have been terminated, Fairway Madeira reserves the right to retain all Information and / or documents belonging to the Customer or any Serviced Entity until all fees, duties, expenses and disbursements are settled in full. Fairway Madeira cannot be held liable for the destruction of any records destroyed in accordance with this Clause.
13. CUSTOMER AND SERVICED ENTITY MONEY
13.1. Money belonging to the Customer or any Serviced Entity will be maintained at all times separate from Fairway Madeira's own funds.
13.2. Fairway Madeira shall not pay interest to the Customer or to any Serviced Entity on monies held in Fairway Madeira's client account(s) for any period of time.
13.3. To the extent that tax has to be deducted from interest earned on funds held on behalf of the Customer or paid out to the Customer, Fairway Madeira may (but shall not be obliged to) account to the tax authorities for tax deducted. The Customer (including each Serviced Entity) is responsible for seeking its own tax advice in this regard.
13.4. Fairway Madeira strongly recommends that all funds are remitted by way of electronic transfer, as cheques sent by public mail, carry a risk that they may be intercepted, lost, destroyed or delayed. If a Customer and / or its approved agents and / or delegates choose to make a remittance by way of cheque, none of Fairway Madeira, the Fairway Madeira Appointees or the Fairway Madeira Employees shall incur any liability for any breach of confidentiality, delay, interception, loss or data protection breaches and shall be indemnified against any resulting liability. Where Customer remittances are made by cheque, Fairway Madeira and / or the Fairway Madeira Appointees and / or the Fairway Madeira Employees will only accept responsibility upon receipt of cleared funds.
13.5. On receipt of any monies, Fairway Madeira must be satisfied as to the source of these funds. If it has any doubts as to the source of funds Fairway Madeira may:
(i) refuse to receive or to return monies; and / or
(ii) be bound by law to notify the relevant authorities.
13.6. The Customer and each Serviced Entity will not request Fairway Madeira to take or refrain from taking any action whatsoever in relation to monies or assets or documents of any nature which could in the sole opinion of Fairway Madeira result in a contravention of the Regulations.
13.7. Fairway Madeira shall not be responsible for complying with any reporting requirements outside of Portugal in relation to interest earned on monies held in any account of the Customer or any Serviced Entity.
14. DELEGATION
14.1. Without prejudice to Clauses 8.2 and 8.3, Fairway Madeira, in performing its duties hereunder may, at the expense of the Customer, appoint any agents or other delegates to perform in whole or in part any of those duties.
14.2. Fairway Madeira shall notify the Customer of such delegation and will provide such information in relation to the proposed delegation as may be reasonably requested.
14.3. Fairway Madeira shall not be liable for any loss arising from a delegation made pursuant to Clause 14.1 provided that the selection of such delegate was made in good faith.
15. LIABILITY AND INDEMNIFICATION OF FAIRWAY MADEIRA
15.1. No member of the Fairway Group shall be liable for (and the Customer shall not make any claim against any member of the Fairway Group to recover any damage, cost, charge, expense, loss or liability which the Customer or any other person may suffer or incur by reason of or arising out of):
(i) the carrying out of the Services (or of any other obligations under these Terms and Conditions or any Written Engagement) by or on behalf of Fairway Madeira except to the extent arising directly from the fraud or gross negligence of a member of the Fairway Group;
(ii) acting on any Proper Instructions;
(iii) any tax, fines or other penalties assessed or levied on the Customer or its investors;
(iv) any failure or delay in the performance of its obligations in connection with the Services arising out of or in connection with circumstances beyond its reasonable control (including acts of God, civil or military disturbances, outbreaks of war, acts of terrorism, natural disaster, act of government or any other authority, accidents, labour disputes or failure of any power, telecommunications or computers);
(v) the exercise by it of any right or discretion in these Terms and Conditions or any Written Engagement; or,
(vi) any indirect or consequential economic loss or damage whatsoever, whether or not foreseeable.
15.2 The Customer undertakes to the greatest extent permitted by law to indemnify Fairway Madeira and at all times keep Fairway Madeira fully and effectively indemnified against all losses, actions, suits, proceedings, claims, demands, damages, costs, and expenses (including legal and professional fees), and liabilities (or actions, investigations or other proceedings in respect thereof) whatsoever (including all such reasonable costs, charges and expenses as any member of the Fairway Group may reasonably pay or incur in responding to or disputing any such actual or potential actions, claims or demands in or enforcing the rights of any member of the Fairway Group) which may arise or accrue or be taken, commenced or threatened to be commenced, made or sought from or against, or incurred by any member of the Fairway Group (and in the case of a claim whether or not such claim is successful, compromised or settled) by any other person whatsoever (including any governmental agency or regulatory body). This indemnity is given in connection with: (a) any Serviced Entity; (b) the provision of any Services; (c) any communication from the Customer or any Serviced Entity; or (d) any breach by the Customer or any Serviced Entity of any of its obligations under these Terms and Conditions or any Written Engagement. This indemnity shall not extend to any claims or losses to the extent attributable to fraud or gross negligence of a member of the Fairway Group. If any payment is made under this Clause 15 (Liability and Indemnification of Fairway Madeira), the Customer agrees that he shall not seek recovery of that payment from Fairway Madeira at any time.
15.3 The Customer's release and undertaking and indemnity in Clauses 15.1 and 15.2 shall extend to Fairway Madeira's Third Party Service Providers, agents and delegates mutatis mutandis as if those third party agents and delegates were listed as persons to whom such release and such undertaking and indemnity were given. Fairway Madeira shall hold the benefit of such release and such undertaking and indemnity on trust for the said third party agents and delegates and their heirs, successors, assigns and personal representatives.
15.4 The maximum aggregate liability of Fairway Madeira in respect of any claim arising as a result of or in connection with the Services or any Serviced Entity, will be limited to the lesser of £500,000 or an amount equal to 5 times the annual remuneration. For the purpose of this Clause 15.4, the limitation of liability shall be calculated in accordance with the remuneration payable in force to Fairway Madeira and agreed at such time as the claim occurred rather than at the date that such event was discovered.
15.5 Fairway Madeira shall not under any circumstance be liable for:
(i) loss and damage arising from matters and circumstances outside the control of Fairway Madeira, including if any information technology, communication or other such system should fail or be interrupted;
(ii) any loss of profits, loss of business or loss of or damage to reputation or goodwill; or
(iii) any indirect or consequential losses.
15.6 The provisions of this Clause 15 (Liability and Indemnification of Fairway Madeira) are without prejudice to any other limitation of liability or indemnity in favour of Fairway Madeira and shall remain in full force and effect notwithstanding the termination of all or any part of the Services or these Terms and Conditions or any Written Engagement ceasing to apply.
16. VALUATION AND CALCULATION
16.1. Where a member of the Fairway Group makes any calculations (including any valuation) in accordance with these Terms and Conditions or any Written Engagement in connection with the Services or any Serviced Entity:
(i) Fairway Madeira shall be entitled at the expense of the Customer to utilise (and to rely without enquiry on) any pricing services or other services of one or more third parties to assist Fairway Madeira in the discharge of its duties; and
(ii) where the Customer has notified Fairway Madeira in writing that any particular pricing service is not to be used in the calculation of the value of any particular asset, Fairway Madeira shall not utilise those services.
16.2. Where Fairway Madeira is required to value any asset not listed or quoted on a recognised market, the value shall be determined by a professional person or firm nominated by the Customer as qualified to value such investments or chosen by a member of the Fairway Group and such professional person may be an agent or delegate of any member of the Fairway Group or the relevant Serviced Entity. If any such determination is not made by Fairway Madeira, it shall be made at the expense of the Customer and Fairway Madeira shall be entitled to rely upon it without enquiry.
16.3. Fairway Madeira shall have no responsibility for the valuations (or errors therein) provided by a Customer or an independent valuer.
17. IDENTITY INFORMATION AND VERIFICATION
17.1. Fairway Madeira is required by law to operate anti-money laundering and other checks and procedures in respect of all aspects of the provision of the Services. The time at which such information and documentation is required and the form in which it shall be delivered to Fairway Madeira shall be determined by any member of the Fairway Group in its absolute discretion. If Fairway Madeira is not provided with any information and documentation it requests to enable it to meet its legal and regulatory ongoing obligations, Fairway Madeira may, without prior notice to the customer, suspend or terminate the provision of the Services with immediate effect and without liability or responsibility for any direct or indirect loss caused.
17.2. Information and documentation provided to a member of the Fairway Group in accordance with Clause 17 (Identity Information and Verification) may be subject to disclosure and production pursuant to Regulations, orders of any court of competent jurisdiction or any competent judicial, governmental, law enforcement or regulatory body, as required.
18. WRITTEN ENGAGEMENTS
18.1. Where Fairway Madeira and the Customer enter into a specific Written Engagement relating to the Services which does not expressly replace the Terms and Conditions in its entirety, the terms of the Written Engagement shall prevail to the extent of any conflict or contradiction between the terms of the Written Engagement and the Terms and Conditions.
18.2. Where these Terms and Conditions have applied for any period and Fairway Madeira and the Customer subsequently enter into a Written Engagement which expressly replaces the Terms and Conditions in their entirety, the Terms and Conditions shall cease to apply on or from the effective date of such Written Engagement without prejudice to any accrued right or obligation of the parties.
19. TERMINATION OF SERVICES
19.1. Fairway Madeira may terminate the provision of the Services at any time in respect of any Serviced Entity in any of the following circumstances:
(i) upon giving three months' written notice to the Customer;
(ii) immediately upon written notice given to the Customer if in the opinion of Fairway Madeira (or a member of the Fairway Group);
(iii) the Customer is insolvent or liable to be declared en désastre or subject to a creditors' (insolvent) winding-up or any equivalent or similar procedure in any jurisdiction:
(iv) the Customer is or is believed by Fairway Madeira to be in material breach of these Terms and Conditions or any Written Engagement;
(v) there has been any change in ownership of a Serviced Entity such that there shall be a new Customer in relation to that Serviced Entity and no Written Engagement has been put in place between Fairway Madeira and the Customer;
(vi) the Customer (or any of its officers or employees not provided by a member of the Fairway Group) has been charged with any criminal offence involving dishonesty or is or has been the subject of any criminal, judicial or regulatory investigation in any jurisdiction;
(vii) in accordance with Clause 17 (Identity Information and Verification) there has been a failure on the part of the Customer to supply such CDD in relation to any Customer or the Serviced Entity as shall be required by Fairway Madeira, from time to time, or if any such information supplied in relation to CDD is deemed by Fairway Madeira (or a member of the Fairway Group) to be deliberately or recklessly false or misleading;
(viii) in accordance with Clause 22 (Force Majeure);
(ix) any of the activities of the Serviced Entity are no longer consistent with the activities contemplated in any Written Engagement; or,
(x) any fees, duties, taxes and disbursements invoiced by Fairway Madeira in relation to any Serviced Entity have remained outstanding and unpaid in whole or in part for more than 60 days after the invoice date.
19.2 Where termination occurs pursuant to Clause 19.1 above, Fairway Madeira shall not be liable to the Customer or to any Serviced Entity for any loss incurred, directly as a result of such termination.
19.3 A Customer may terminate the appointment of Fairway Madeira in respect of the Services to such Serviced Entity on giving not less than three months' written notice to the other.
19.4 Upon termination of the Services in respect of a Serviced Entity for any reason, the Customer shall promptly provide details of the new service provider which shall be required in order to maintain the Serviced Entity in good standing under the laws of its jurisdiction and shall provide an address to which Fairway Madeira may transfer all documents belonging to the Serviced Entity. For the purposes of this Clause 19.4, "documents" means all documents belonging to a Serviced Entity but does not include documents belonging to a member of the Fairway Group including internal communications, legally privileged communications (including advice, opinions, correspondence, emails and file notes) and documents reasonably considered to be the intellectual property of a member of the Fairway Group.
19.5 In the event that the relevant information in relation to any new service provider is not provided to Fairway Madeira by the date on which the notice to terminate the Services takes effect, Fairway Madeira reserves the right to withdraw Services without appointment of any replacement service provider and to arrange for the resignation of any Fairway Madeira Appointees without the appointment of successors (unless the laws and regulations prevent any such unilateral withdrawal). Fairway Madeira may transfer any shares or interests in any Serviced Entity held by Fairway Madeira Appointees (or nominee) into the name of the Customer or other beneficial owner nominated by the Customer in respect of such share or interest subject to proof of entitlement.
19.6 Upon termination of the provision of Services in respect of a Serviced Entity for whatever reason, Fairway Madeira shall be entitled to:
(i) Receive all fees, duties, costs, charges, expenses and other disbursements due to it up to the date of termination of the Services;
(ii) charge, in accordance with the usual rates for work done by a member of the Fairway Group, for all time spent and disbursements incurred (whether before or after the termination takes effect) in connection with the transfer of administration of the Serviced Entity;
(iii) make such retentions and receive such indemnities as it may require in respect of any actual or contingent liability and may take such action as it deems necessary to limit such liability;
(iv) retain any documents or retain any assets (including assets held on behalf of the Serviced Entity or to the order of the Serviced Entity or on behalf of or to the order of any company or other body in common ownership with the Serviced Entity or otherwise connected or affiliated to the Serviced Entity in any manner) until such time as all fees, duties, expenses, disbursements or liabilities due and payable are discharged; and,
(v) retain any fees paid in advance relating to any Serviced Entity.
19.7 Save as otherwise agreed, neither the Customer, the Serviced Entity nor Fairway Madeira shall hold itself out as being in any way connected with or interested in the business of the other following the termination of the Services.
20. ASSIGNMENT
20.1. The Customer agrees and accepts that Fairway Madeira may transfer its rights and/or obligations to another entity of the Fairway Group without prior written notice.
20.2 Fairway Madeira may not assign or transfer the whole or any part of its rights and benefits under any Written Engagement and / or these Terms and Conditions to a third-party entity without the consent of the Customer. For the purpose of any such assignment or transfer, Fairway Madeira may disclose Information about the Customer and any Serviced Entity to any prospective assignee or transferee, provided that Fairway Madeira shall use its reasonable endeavours to procure that such prospective assignee or transferee is placed under an obligation of non- disclosure equivalent to that in Clause 9 (Confidentiality).
20.3 The Customer and/or the Serviced Entity shall not assign or transfer all or any part of its rights, benefits and / or obligations under any Written Engagement and / or these Terms and Conditions.
20.4 These Terms and Conditions shall be binding upon and inure to the benefit of each party and each of the respective successors and assigns.
21. SEVERABILITY
If at any time one or more of the provisions of these Terms and Conditions or any Written Engagement becomes invalid, illegal or unenforceable in any respect, that provision shall be severed from the remainder and the validity, legality and enforceability of the remaining provisions of these Terms and Conditions and the Written Engagement shall not be affected or impaired in any way.
22. FORCE MAJEURE
Fairway Madeira shall not be liable for any failure or delay to provide the Services or in performing any of its obligations hereunder or for any losses of whatever kind and wherever occurring as a result of events, circumstances or causes beyond the reasonable control of Fairway Madeira.
23. NOTICES
23.1. All notices and instructions to be given by the Customer to Fairway Madeira or another member of the Fairway Group in connection with the Services shall be given in the form of Proper Instructions.
23.2. Any notice required to be given under these Terms and Conditions or any Written Engagement shall be in writing and addressed to the party concerned at such address or on such facsimile number or email address from time to time notified to the other for the purpose, failing which the registered office or the last known usual address of such party.
23.3. For this purpose, any notice:
i. delivered personally shall be deemed to have been given at the time of such delivery;
ii. sent by ordinary post shall be deemed to have been given three normal business days after posting;
iii. sent by facsimile or email shall be deemed to have been given at the time of dispatch provided that notices received by Fairway Madeira other than during normal business hours and on normal business days shall be deemed to have been given immediately upon Fairway Madeira reopening for business; or,
iv. sent by commercial courier shall be deemed to have been given on the date and at the time of signature of the courier's delivery receipt.
23.4. The provisions of this Clause 23 (Notices) shall not apply to the service of any document which relates to legal proceedings before a court or tribunal.
24. CLAIMS BY INDIVIDUALS
24.1. In case the Customer is not satisfied with the Services, Fairway Madeira has established a complaints procedure in accordance with its obligations and responsibilities as an entity regulated by the Development Society of Madeira and International Business Centre of Madeira.
24.2. Thus, in the first instance, you should write to Fairway Madeira detailing your complaint, which will be registered and investigated by the Fairway Group's board of directors and its compliance department, with a view to resolving the dispute.
24.3. However, if the problem persists after a period of 3 months, the client, in conjunction with Fairway Madeira, undertakes to notify the Directorate of Consumer Services, which will carry out the corresponding mediation.
24.4. In the absence of an agreement, the Directorate of Consumer Services will automatically forward the process to the Arbitration Centre for Consumer Conflicts of the Autonomous Region of Madeira, which will hold the arbitration session and, if necessary, the corresponding trial.
25. CORPORATE CLAIMS
25.1 In case the Customer is not satisfied with the Services, Fairway Madeira has established a complaints procedure in accordance with its obligations and responsibilities as an entity regulated by the Development Society of Madeira and International Business Centre of Madeira.
25.2. Thus, in the first instance, you should write to Fairway Madeira detailing your complaint, which will be registered and investigated by the Fairway Group's board of directors and its compliance department, with a view to resolving the dispute.
25.3. However, if the problem persists, after a period of 3 months, the Client together with Fairway Madeira, commit, within a maximum of 7 days, to scheduling a meeting, which will be mediated by the lawyers of both parties, with a view to resolving the dispute out of court.
25.4. If no agreement is reached, and after the above-mentioned procedure has been completed, the Client may resort to legal means.
26. PROPER LAW
26.1 These Terms and Conditions shall be construed in accordance with and governed by Portuguese laws. The Customer agrees to submit to the non-exclusive jurisdiction of the Madeiran courts in respect of all matters in connection with the Services and these Terms and Conditions.
26.2 For any matters which are not specifically stated in these Terms and Conditions, the Portuguese laws shall apply in their entirety.
February 2025