In these terms and conditions, the following terms shall bear their ascribed meaning:
“Address” means 27 Old Gloucester Street, London, WC1N 3AX;
“Agreements” means the legal agreements set out in the Instructions;
“Appointment” has the meaning given to it in paragraph 4;
“ECS”, “we” “our” or “us” shall mean Elemental CoSec Limited a company registered in England and Wales with registered number 07707780;
“Fees” the fees for the Appointment as specified to the Instructing Party;
“you”, “your” or the “Appointor” means the person whom the Process Agent will be accepting service on behalf of and as more particularly set out in the Instructions;
“Instructing Party” means the person providing the instructions to ECS, whether or not they are the same person as the Appointor or an agent acting on behalf of the Appointor.
“Instructions” means the details provided by the Instructing Party to ECS whether through the website of ECS, by email, phone or by any other means and as may be updated from time to time;
“Named Representative” means the individual specified in the Instructions to be contacted when the Process Agent has accepted service on your behalf;
“Proceedings” means a claim brought by a party to an Agreement against the Appointor and issued out of any court or tribunal in England and Wales or in relation to any arbitration in England and Wales or in relation to any arbitration in England and Wales;
“Process Agent” means Elemental Process Agent Limited a company registered in England and Wales with registered number 01745936; and
“Service of Process” means service of Proceedings upon the Appointor in accordance with the Agreements
- If the Instructing Party is an agent of the Appointor, then by completing the Instructions the Instructing Party confirms that they have full authority to bind the Appointor to these terms and conditions. The Instructing Party agrees that neither ECS nor the Process Agent owe it any duty relating to the Appointment. All obligations of ECS and the Process Agent are only owed to the Appointor.
- ECS acts as the exclusive agent of the Process Agent and is authorised to bind the Process Agent to these terms and conditions.
- The Instructions must include the name and contact details of the Named Representative and you hereby agree to update the Process Agent with any changes to such contact details or any change in the identity of the Named Representative.
- In consideration of payment of the Fees, the Process Agent will act as your agent for the acceptance of Service of Process on your behalf at the Address in relation to all or any of the Agreements and subject to these terms and conditions (the “Appointment”).
- As soon as reasonably practicable after Service of Process, the Process Agent will notify you of the service by one of the means specified in the Instructions and seek your instructions as how best to deliver the documents served upon the Process Agent to you or your advisers.
- In the event that no response is received from you following notification by the Process Agent, the Process Agent shall use its reasonable endeavours to contact you by whatever means seem appropriate in its sole discretion but shall accept no liability for failure to contact you other than via the notified contact details of the Named Representative.
- The Process Agent will follow your reasonable instructions relating to the despatch of the documents served on them and such despatch shall release the Process Agent from its obligations. Neither ECS nor the Process Agent have any responsibility to ensure or guarantee any receipt by you or your agent(s) of any documents served on the Process Agent.
- You will be responsible for all administrative fees incurred by ECS or the Process Agent with respect to the receipt and forwarding of served documents. Such fees may include notarial fees, postage and handling fees and other reasonable fees. Failure to pay these fees within 15 days of an invoice, shall entitle the Process Agent or ECS to terminate the Appointment.
- If required, the Process Agent will issue a letter confirming the Appointment (the “Confirmation Letter”) in a form acceptable to the Process Agent. Such Confirmation Letter may be issued to the Appointor or such other person as you may specify. Should more than one letter or addressee be required, such letter or addressee will be charged at £40 plus VAT per letter or addressee.
10. You may not use the Address for any other purpose unless otherwise expressly agreed with the Process Agent.
11. The appointment of the Process Agent starts on the earlier of (i) the date of payment of any or all of the Fees and (ii) the date of the Confirmation Letter and shall expire after the period specified in the Instructions unless otherwise extended by the parties.
12. As part of internal procedures and in order to comply with applicable money laundering regulations (including the Money Laundering Regulations 2007), ECS or the Process Agent may require you to provide confirmation of the identity of the beneficial owner(s) and officers of the Appointor or other reasonable information. You agree to provide all requested information promptly and to confirm that all information provided is complete, accurate and not misleading. In the event that you fail to comply with this paragraph 12, either ECS or the Process Agent may terminate the Appointment with immediate effect and without penalty.
13. You may terminate this contract at any time by written notice to the Process Agent, but such termination shall be without prejudice to any rights accrued to the parties prior to such termination and shall not entitle you to any refund of the Fees.
14. Provided the Fees have been paid in full and, subject to the terms of paragraphs 8 and 12, neither ECS nor the Process Agent may terminate the Appointment other than in the case of material breach by you or the Instructing Party of these terms and conditions.
15. You will have no right of action against ECS or the Process Agent in respect of any failure to perform any duty hereunder unless such failure is due to negligence or wilful default. In any event, the total liability of ECS and the Process Agent will be limited to ten times the value of the Fees.
16. Neither ECS nor the Process Agent shall be liable for any loss of profits, loss of chance, tortious liability, consequential loss or indirect loss.
17. Nothing in these terms and conditions shall exclude any liability for death or personal injury arising from the negligence of ECS or the Process Agent, or any liability arising from the fraud, or fraudulent misrepresentations of ECS or the Process Agent or any other liability that cannot be excluded by law.
18. You agree and understand that the Fees are substantively based on the limitations of liability included within these terms and conditions and that these limitations of liability are fair and reasonable in the circumstances.
19. You will indemnify us and the Process Agent against all liabilities, claims, costs and expenses arising in any way whatsoever whether out of the Appointment or otherwise unless such liabilities, claims costs or expenses are incurred because of our or the Process Agent’s negligence or wilful default.
20. The Process Agent will use reasonable endeavours to ensure that it is able to accept service at the Address during normal working hours. However, if it becomes necessary for the Process Agent to amend the Address, then the Process Agent may amend the Address by giving not less than one months’ notice to you.
21. Any notices to ECS or the Process Agent relating to the Appointment must be given in writing at the registered office of ECS or the Process Agent respectively. Any update of the contact details of the Named Representative or a change in the Named Representative may be communicated by any reasonable means to the Process Agent, but will only take effect when the Process Agent has confirmed the change in writing (which may include email).
22. Any notices to be given to you may be provided to the Named Representative using any of the contact details provided in the Instructions.
23. In the event of any conflict between these terms and conditions and the Instructions, these terms and conditions shall apply.
24. No persons other than ECS, the Process Agent or the Appointor shall have any rights under or in connection with the Appointment pursuant to the Contract (Rights of Third Parties) Act 1999.
25. These terms and conditions, and the Instructions, will be exclusively governed by and construed in accordance with the laws of England and Wales. You and the Instructing Party agree that the courts of England and Wales will have jurisdiction over any claim, dispute or matter arising from or in connection with your relationship with ECS and/or the Process Agent, including the enforceability of these terms and conditions. ECS and the Process Agent have the right, in their absolute discretion, to commence and pursue proceedings in any competent jurisdiction(s).