Terms and Conditions of Service

Professional Company Secretarial Solutions

1.      Introduction

Elemental CoSec Limited (“ECS“) aims to provide a high quality service in every respect and we will make sure that the services we provide to you operate as smoothly and as well as possible. These terms and conditions govern the services to be provided by ECS to you.

Your attention is brought to the limitations of liability in paragraph 22 below. Please read this carefully and ensure that you understand and accept this provision.

These terms are intended to apply to all present and future dealings you have with ECS and your new or continuing instructions will amount to your acceptance of these terms.

These terms were last updated on 5 March 2015.

2.      Key point of contact

If you have any problems with our services, please contact your client manager or any other member of staff. We will try to resolve any problem quickly, through our internal complaints handling system.

3.      Confidentiality
Other than as may be required by law or as otherwise set out in these terms and conditions, both ECS and you, as applicable (the Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party , its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business or its products or its services which the Receiving Party may obtain.

4.      Basis of charging

All fees are exclusive of VAT (as applicable). Our rates are normally reviewed annually, with effect from April in any year. Our VAT number is GB 144 2779 02.

5.      Disbursements

Out-of-pocket costs incurred by the firm on your behalf will be invoiced to you as they are incurred. These may include Company Registry fees, search fees, charges for photocopying, faxes, couriers, secretarial overtime and other office services. VAT (as applicable) will be added to disbursements.

6.      Billing

We will send you a bill for our general charges annually in advance, unless arranged otherwise. Additional Matters will be billed on a monthly basis. ECS will be pleased to discuss any special invoicing arrangements required.

7.      Payment of bills

Payment of bills is due within 15 days from their date. We may charge interest on any outstanding amount from the date of the invoice at 2% per annum above the NatWest Bank’s prevailing base rate from time to time. Our fees and disbursements will be payable by you regardless of the outcome of the matter on which we have been instructed. Should a third party agree to pay our fees but fail to do so, you will nevertheless be responsible for discharging them.

8.      Storage, retrieval and use of documents and information

ECS does not offer storage of physical documents and you confirm and agree that we are not obliged to store physical documents on your behalf. We may destroy any document you send to us.

ECS will store documents electronically as reasonably required to perform our services.

We reserve the right to make a separate charge for searching for, retrieving and providing relevant information from our files and systems in relation to a matter on which we have provided services, in connection with assisting you in responding to a request under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004.

For the purposes of best practice and compliance with relevant financial and other regulatory requirements, you agree that we may disclose to appropriate third parties your files, papers and documents for review and audit purposes. We will take reasonable steps to ensure that confidentiality is maintained.

In connection with any application to the Court for an order that ECS pay any costs incurred by you or another party to any litigation we are conducting on your behalf, or in the event that we face a claim by a third party arising from or in connection with a matter on which we have been providing services, you agree that we may in evidence or for the purpose of seeking legal or other advice, disclose your papers and documents and details of our instructions and services provided.

9.      Connected companies

If you are a company within a group of companies, these terms also apply to any of your holding subsidiary or associated undertakings for whom we accept instructions, whether we receive those instructions directly or from you. If you instruct us to represent a subsidiary or associated company, our duty of care is only owed to that subsidiary or associated company for as long as you or your holding company retain a significant interest in it.

If you are an existing client who requests ECS to act for any company in which you (or it) have or obtain a significant interest and that company fails to pay ECS’s bill(s) in full by the due date, you agree to be responsible for the unpaid amount in accordance with these terms.

10.  The client

You will be our only client on any matter on which you instruct us, unless we agree otherwise. Advice that ECS gives on any matter is given solely in relation to that particular matter. It is not to be relied on in any other matter, nor to be disclosed to any third party without ECS’s prior written consent.

11.  Copyright

ECS retains the entire copyright and all other rights in all documents provided to you. You are granted a non-exclusive licence to use such documents for the matter for which they are provided but not otherwise.

12.  Giving us your instructions

For ECS effectively to service your company secretarial requirements, it is important that you disclose all relevant information to us fully, accurately and promptly.

You accept that the nature of our business inevitably means that we will be providing services to other clients who operate in your industry. We will not under any circumstances pass on to you confidential information which we may receive from another client which may be of commercial or other interest to you. We will of course observe similar confidentiality in relation to any confidential information we receive from you.

If we or any individual employed or engaged by us (“Appointee”) accepts your instructions to act as a director or secretary of your company, it will be on the basis that you grant the Appointee a complete indemnity and hold the Appointee harmless against any costs claims expenses or fees which may be claimed or made against the Appointee where they have acted in accordance with your instructions. Nothing in this paragraph shall limit or exclude liability beyond what is permitted by appropriate law and any indemnity granted to an Appointee shall only be as wide as is permitted by the Companies Act 2006. You will ensure that appropriate Directors’ and Officers’ Insurance is available to protect the Appointee, both while they act as director or secretary and for the period of six years following the termination of their appointment.

You undertake to cause proper accounting and other records for the Company to be kept and to file or cause to be filed all HM Revenue & Customs returns and all papers and documents which are required by law to be filed with any authority. You will also ensure that all such accounting and other records, HM Revenue & Customs returns and other papers and documents are true and correct and that all tax payable by the Company is duly paid. You further undertake that you will provide, and will use your best endeavours to ensure any third parties including (but without limitation) the company’s auditors (where appointed) provide, complete, accurate and timely information and documentation sufficient to enable us to fulfil our obligations as company secretary.

You agree to indemnify us immediately upon first written demand from and against all liabilities, obligations, losses, damages, suits, costs, charges and expenses whatsoever and howsoever arising in relation to or resulting from the performance of our duties as company secretary or otherwise in connection with this agreement. We will not be liable, and you will have no right of action against us, for any failure to perform in the manner described above, or any delay in so performing, any of such duties, except where such failure of delay is due to our negligence or wilful default. Furthermore you agree that we will not be obliged to make any inquiry as to the justification, validity or correctness of any notice, instruction or direction received (or purporting to be received) from you as to the authority of any such person signing (or purporting to sign) such notice or giving (or purporting to give) such instruction or direction. The provisions of this paragraph will survive the termination of this agreement.

13.  Communications with you

You understand that ECS is entering in to this agreement solely on the basis that neither the preparation nor the signature of any notice, minute, resolution, form, return or other document by ECS in the course of its duties under this agreement will be taken as representing the advice or approval of ECS in relation to the subject matter of that document, any transaction contemplated by it, the terms and provisions contained in it or otherwise in any respect.

We check communications with anti-virus software, but again cannot guarantee that transmissions will be free from infection and we recommend that you also use your own anti-virus software.

We operate a firewall and automatic spam filter. These may block a small number of genuine emails so that they do not reach their intended recipient at ECS. In such circumstances we will not be liable for any loss, damage, costs, interest and expenses (“Loss”) you may incur directly or indirectly as a result.

You agree that, to ensure regulatory compliance and for the protection of our clients and our business, we may monitor and read emails and attachments sent to and from our servers.

14. Online Incorporations

ECS offers an online incorporation system (the “System”) which allows you to incorporate a variety of legal entities.

We will supply you with an order number or other form of access to the System. This information will be used by you to access the System and will control the documents you can view. You must keep this information confidential and secure. You must notify us immediately if this information is no longer confidential or secure.

The System provides general guidance but does not include legal advice. Legal advice should always be obtained if you are in any doubts as to your rights or obligations.

By completing all of the necessary fields and submitting an incorporation through the System, you confirm that ECS is authorised to submit such incorporation to Companies House on your behalf.

You confirm that you are responsible for compliance with all relevant laws including, but not limited to, the Data Protection Act 1998 and the Money Laundering Regulations 2007. To the extent that you are acting as an agent for another party, you confirm that you have all necessary consents and have carried out all necessary checks in order to use the System.

15.  Termination

You may terminate your instructions to us in writing at any time by giving not less than one months’ notice. Any notice to terminate this agreement given by you will not be effective unless it is accompanied by undated, pre-signed prescribed forms notifying the Registrar of Companies of:

1.      the cessation of our appointment as company secretary and the name of our successor; and

2.      if applicable, the change of the Company’s registered office to another address.
We will date and file these forms at Companies House on your behalf as soon as practicable after receipt.

In the event that we give notice to terminate this agreement, you must immediately appoint a successor as company secretary and ensure that completed signed prescribed forms notifying the Registrar of Companies of the details referred to above are filed at Companies House as soon as practicable, sending copies by post to us on the same day as the originals are sent to the Registrar.

We will only stop acting for you for very good reason, for example, serious or persistent failure to pay our bills, comply with our request for a payment on account, give clear, proper or timely instructions on how we are to proceed, or if it is clear that there is no longer sufficient trust and confidence between us. Where possible, we will give you reasonable notice that we will cease acting for you.

If you or we decide to terminate our relationship, you must still pay our charges and disbursements until we cease acting for you and any other post termination changes mentioned in this document.

You agree that until the action specified above has been taken and all sums due to us have been duly paid, we will have a lien on the statutory books and registers of the company in our possession.

16.  The Money Laundering Regulations 2007

The Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 require us to undertake Customer Due Diligence on all new clients and prospective clients before the business relationship commences or an occasional transaction is undertaken. This involves identifying the client and any ultimate ownership and control structure where appropriate and verifying this information on the basis of documents, data or information obtained from reliable and independent sources. Such sources may include electronic identification services which use credit reference information to verify an individual’s identity, but this is not a credit check and the individual’s credit file will not be affected.

We reserve the right to pass on to you the costs we reasonably incur as part of the Customer Due Diligence process. All information and documentation obtained will be filed and recorded in accordance with the Regulations and you agree that, if requested, we may disclose the same to others acting on your behalf.

In certain circumstances, we may be required by law to disclose suspicions of money laundering (by clients, prospective clients or anyone associated with matters on which we are acting) to the relevant regulatory authorities. We are unlikely to be permitted to inform you that we have made or are contemplating making such disclosures and, pending consent to proceed from the relevant authorities, may be unable to take any further action on your behalf or may be required to cease acting for you.

We do not accept any liability for any Loss flowing directly or indirectly from our compliance with our duties (or our duties as we understand them) in respect of the matters outlined above.

17.  Financial Services Regulation
We are not authorised by the Financial Services Authority (“FSA”) for the purposes of the Financial Services and Markets Act 2000 to provide you with certain advice or services in relation to certain securities and other “investments” covered by that Act. This means that, whilst we are able to undertake for you some activities in relation to such “investments” which arise out of, or are incidental or complementary to, the services we provide for you, there will be occasions when you will need a person who is so authorised by the FSA to give you the necessary investment advice. In addition, because we are not authorised by the FSA, with some exceptions, we are prohibited under the Financial Services and Markets Act 2000 from making certain communications of invitations or inducements to engage in investment activity covered by that Act.

As a result:

we cannot give advice on the merits of investment transactions or act as a broker or arranger of transactions;

where we advise you or provide you with any document or other material, we do so in a company secretarial capacity and are not to be regarded as making any invitation or inducement to engage in investment activity;

we will assume that your decision to discuss or negotiate a proposed transaction has been, and any decision actually to enter into a transaction will be, made by you on the basis of your own assessment of the business, financial and policy aspects of the matter; and

we can not communicate invitations or inducements to engage in investment activity on your behalf.

18.   Reserved Legal Activities

ECS is not a law firm and it is not regulated by the Law Society of England and Wales or any similar body. ECS does provide certain commercial and corporate legal services but none of these are ‘reserved legal activities’ as such term is defined in the Legal Services Act 2007. By engaging ECS you confirm your understanding of the status of ECS with respect to legal activities.

All such legal activities are provided by ECS either in its capacity as a provider of company secretarial services or as a provider of paralegal services.

In certain circumstances we may provide you with documents or advice which you should check with a regulated law firm. You agree that it is your responsibility to satisfy yourself of the appropriateness of any document or advice and, if necessary, confirm this with your law firm.

19. Registered Office and Mail Forwarding Services

If instructed, ECS will provide a central London address for use as a registered office and/or mail forwarding address. ECS will ensure that relevant mail sent to that address will be forwarded to another address in accordance with your instructions subject to payment of the relevant fees;

You will comply with all statutory requirements relating to the use of a registered office and indemnify ECS against all liability in respect of any failure to comply with any such statutory requirements.

Upon termination of the services, for whatsoever reason, you shall immediately change the registered office of the relevant company and notify the Registrar of Companies of such change. In the event that you do not change the registered office of the relevant company in a reasonable period, you hereby irrevocably authorise ECS to notify the Registrar of Companies that the registered office has changed to any relevant correspondence address that ECS is aware of or, as appropriate, that the company has no valid registered office.

We may open and review all mail received on your behalf for any reason we may determine including, but not limited to, (i) in order to ensure that our services are not being used for an illegal purpose; and (ii) to monitor your activities in order to comply with our obligations under the Money Laundering Regulations 2007.

20. Accountancy and Tax Advice

Unless explicitly instructed, we will not be providing you with tax advice, or advising on the tax implications of any work we carry out for you. You acknowledge that it is your responsibility to satisfy yourself of the tax implications of your activities and those resulting from any instructions you give ECS.

ECS does not provide audit services and nothing we do will constitute formal audit support.

21. Process Agent Service

Further terms applicable to the Process Agent Service (or Agent for the Service of Process) can be found here.

22.  Limitation of Liability

Without prejudice to the other terms, in no event will ECS be liable for any indirect or consequential loss. Further ECS will not be liable for any loss of goodwill, loss of business, loss of anticipated profits or savings or any pure economic loss, even if such losses are direct losses.

ECS will be liable to you for costs of rectifying mistakes and/or errors made by ECS and any fines or penalties levied on you as a result of our negligence.

For the avoidance of doubt, ECS is only responsible to our client and accepts no liability in respect of any losses suffered by your shareholders or other stakeholders.

In any event, ECS’s total liability to you for any loss shall not exceed the greater of (i) twice the aggregate of the fees due to ECS from you over the previous 12 month period or (ii) £10,000, whichever is the higher.

The parties accept and agree that the fees agreed by ECS are substantively based on the limitations of liability included within these terms and conditions unless otherwise expressly agreed and, given this, the parties agree that these limitations of liability are fair and reasonable in the circumstances.

Nothing in these terms and conditions shall exclude loss for death or personal injury or any liability we may have for loss caused by fraud, fraudulent misrepresentation or reckless disregard of our duties, or any other loss that the law prohibits us from excluding.

Save in the case of fraud or wilful misconduct carried out by us or our employees, we shall not be responsible for any unauthorised access of your or any connected person’s user account or to any data held by us that was provided by you, including without limitation, the alteration, deletion or theft of data.

23.  Exclusion of third party rights

Except where expressly specified in any engagement letter or a specific matter, nothing in these terms and conditions or in any other agreement or arrangement between us will confer any rights or other benefits on any third parties, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

24.  More information

We aim to provide a high quality service in every respect. However, if for any reason you are not satisfied with the work which we do for you, and remain unsatisfied after discussing it further, please ask for details of our complaints procedure.

25.  Governing law

Your relationship with ECS (and any claim, dispute or matter arising under or in connection with it) will be exclusively governed by and construed in accordance with the laws of England and Wales. You irrevocably agree that the English courts will have exclusive jurisdiction over any claim, dispute or matter arising from or in connection with your relationship with ECS and/or the enforceability of these terms and conditions, save that ECS has the right, at its sole and absolute discretion, to commence and pursue proceedings in any alternative competent jurisdiction(s).