TERMS OF BUSINESS
1. Nicolle Marshall LLP
1.1 Nicolle Marshall LLP (also referred to as this firm, we, our or us) is a limited liability partnership established in Jersey with registration number 1185.
2. Scope of services
2.1 These Terms of Business (“these Terms”) set out the general terms on which we will provide legal services to you. When you instruct us to advise on a new matter, we will normally send you a letter of engagement confirming the instructions. The terms of that letter of engagement (if any) and these Terms will together form the contract between us for that matter.
2.2 Advice which we give is restricted to the matter upon which we are specifically instructed. Where there is any conflict between these Terms and any letter of engagement we send to you, the letter of engagement will prevail over these Terms.
2.3 By instructing us to provide further services in addition to the scope of our work set out in the letter of engagement, you accept these Terms in relation to those further services.
2.4 Where instructions are given on behalf of a company or other entity, we shall be entitled to assume that these Terms have been brought to the attention of and approved by the directors or appropriate officers (as the case may be).
2.5 The product of the services provided by us is for your benefit alone and solely for the purpose of the matter to which they relate. Unless we expressly agree otherwise in writing, it may not be used or relied upon for any other purpose or by third parties. Our duty of care is to you as our client and does not extend to any third party. We accept no responsibility for any consequences arising from reliance upon the product of our services by any person other than you.
2.6 We reserve the right to vary these Terms from time to time, including during the course of the provision of services, without your prior consent. These Terms and any future variations will be published on www.nicollemarshall.com by way of public notice to all current and prospective clients. On the basis of such publication, you shall be deemed to have agreed to these Terms and all such variations.
3. Client due diligence
3.1 We are required to complete due diligence checks on all new and existing clients. These checks will include gathering information and documents to identify and verify each individual or entity for whom we act and, if applicable, each principal or beneficial owner or controller of that entity, together with details of the source of funds for your matter. We may conduct electronic identity verification procedures and searches.
3.2 We may immediately stop acting for you if, within a reasonable period, you fail to produce or delay in producing any information or documents (in a form acceptable to us) we require for our due diligence checks. If we so terminate our engagement, that termination will be without any liability on our part and without prejudice to our ability to claim our fees, disbursements and charges incurred prior to that termination.
3.3 We are not permitted to provide final advice to enable a transaction to complete until our due diligence checks have been finalised. Any advice that we give to you prior to the completion of the due diligence checks will be taken to be preliminary advice on which you cannot place any reliance and for which we accept no liability.
3.4 If we know or suspect that any party involved in a matter is involved in money laundering or holds the proceeds of crime, we may be required by law to make a report to the Jersey Financial Intelligence Unit (the “FIU”) and if notification is made, we are prohibited from advising the suspected party that we are doing so. These requirements override our duty of confidentiality to you. If a report is made to the FIU, we must stop work on the matter until we are authorised by the FIU to proceed. By instructing us, you agree that such reports can be made. We cannot accept responsibility or liability for any loss, damage or expense (whether direct, consequential or otherwise) arising from any delay or otherwise as a result of making any report to the FIU and/or ensuring compliance with and discharge of our legal obligations.
4. Provision of services
4.1 Unless expressly set out in our letter of engagement, we do not advise on any matters governed by the laws of any jurisdiction other than Jersey. We do not provide tax or investment advice and will not be responsible for any tax consequences that arise from reliance upon the product of our services legal advice or documentation. All services will be provided with reasonable skill and care by, or under the supervision of, a Jersey qualified lawyer or, where our engagement letter provides that we will advise on matters governed by the laws of another jurisdiction, by, or under the supervision of, a lawyer qualified to provide such advice. Unless otherwise agreed by us in writing, we owe a duty of care to you as our client and to no one else.
4.2 You agree that: (a) you will provide us with clear, timely and accurate instructions in relation to your matter, (b) you will provide us with all relevant information and documents to represent you and provide services to you, (c) all information and documents provided are complete, accurate and up to date, and (d) are supplied as quickly as practicable. You undertake to tell us of any subsequent changes to the information and documents provided as well as about any further information which might be relevant.
4.3 Unless advised otherwise, we will assume that we are authorised to accept instructions from any person whom we reasonably believe to have authority to give instructions to us (this will include, in the case of a company, any directors, officers and employees) and that we may act on instructions given orally. We shall also be entitled to rely on any information provided to us by such persons.
4.4 If we are instructed by more than one person or more than one representative of a company or other entity which is our client, we are entitled to act on the instructions of any one of such persons and to correspond with any of such persons unless otherwise agreed. In this situation there will be no rights of confidentiality between such persons or representatives so that all information and documents can be shared with you and such other persons.
4.5 At no time is the advice given by us to be regarded or construed as evaluating or recommending a commercial decision or a given course of action. The determination and the consequences of any course of action are matters entirely to be determined by you. We do not provide investment advice or tax advice.
4.6 Should we need to instruct overseas lawyers or other professionals we shall do so, unless otherwise agreed, on your behalf and as your agent. They will be responsible to you for the quality and accuracy of the advice they provide, and you will be directly responsible for payment of their fees and expenses although we may agree with you that such payments are made by you to us for us to pass on to them on your behalf. Before making any such appointment on your behalf, we will consult with you and seek your agreement to the appointment.
4.7 If you or your agent instruct us to give a professional undertaking, we reserve the right to refuse to do so. Where we give any such professional undertaking, we will usually require you to support this in writing and to confirm agreement to the terms. In any event we will be entitled to full security to meet the obligations incurred on your behalf and all costs associated with the undertaking on a fully indemnity basis. An undertaking once given (and subject to its terms) will not necessarily be able to be withdrawn and may be for an unlimited time. In relation to any such undertaking given on your behalf, you agree fully and immediately to indemnify us in respect of all claims, time costs, liabilities and disbursements incurred by us in complying with it.
4.8 Where you provide us with a power of attorney, we may act on that power of attorney in accordance with its terms consistent with your general instructions and without the need for your specific written instructions to act upon it. Nevertheless, we reserve the right to request specific written instructions and may at our discretion refuse to act without such written instructions.
4.9 We shall not be required or under a duty to disclose to you any information we may have or be deemed to have about any matter affecting you which we may have acquired in the course of acting for or providing services to any other client.
5. Communication
5.1 Unless you inform us of a preferred method of communication, we will use whatever mode of communication appears appropriate in the circumstances. We may communicate with you and any agent in writing, by telephone, by facsimile and/or by e-mail and we accept no liability for any data corruption, interception, computer viruses or similar issues which may arise from that correspondence.
6. Fees
6.1 Our fees and charges will be calculated on the basis set out in our letter of engagement or as otherwise agreed with you.
6.2 Except where we have agreed otherwise with you, our fees will be based on the time spent dealing with a matter according to our hourly rates. Time spent on your matter will include, without limitation, preparation for and attendance at meetings and hearings, research, considering and working on and drafting papers/documents, correspondence (including emails), making and receiving telephone calls, preparing attendance notes, travelling from the office when this is necessary. Other factors may also affect our fees including, for example, complexity, value and urgency, and we reserve the right to add an uplift to our fees to take into account these other factors, and to make a charge for the use of our precedents and know-how. The amount of time spent on a matter will also be influenced by the manner in which you respond to our requests for information. The timely provision of details/documents requested and up to date information will help us to spend less time on your matter.
6.3 Our hourly rates are set out in our letter of engagement and vary according to the level of seniority and expertise of each adviser. The rates are normally reviewed annually but we may alter rates at other times without notifying you of the change to the rates and the rates applied will be those in force at the time the work is undertaken to provide the services.
6.4 If we provide a fee estimate for a piece of work such estimate is our indication, made in good faith, of our likely fees and disbursements for carrying out the work concerned, based on our information at the time the estimate is given. An estimate is subject to revision and does not amount to a contractual commitment on our part to carry out the work for that fee. Where it becomes apparent that our fees are likely to exceed any estimate that we have given, we will discuss this further with you.
6.5 If we agree to carry out work for a fixed fee, the stated fee will be given on the basis of the information available to us at the time of fixing the fee, and the circumstances known to us being and remaining materially correct and not changing. If we carry out work in excess of that specified, our fees for that additional work will be charged at our then applicable standard hourly rates. We also reserve the right to charge additional fees on the same basis for material additional work arising from circumstances known to you when you accepted our fixed fee quotation, but did not disclose to us, or which are materially different from those envisaged when we gave our fixed fee quotation.
6.6 If a transaction or other matter does not proceed to completion, our fees will still be payable.
6.7 By instructing us, you authorise us to incur and charge for disbursements such as those relating to registry fees, court fees, courier services, government fees, travel expenses and other third party charges. We will consult you before incurring any significant disbursements. Where significant or unusual third party payments are required we may forward any related invoices to you for direct payment. We reserve the right to charge you for (a) arranging special bank transactions and special courier or postage services, (b) for travelling expenses, accommodation and subsistence, photocopying, international telephone calls, video conferencing, printing, couriers, postage, and incoming and outgoing faxes and (c) and other administration costs which we or a third party may incur on your behalf in connection with carrying out your instructions.
6.8 We reserve the right to request a payment on account of fees, disbursements and/or charges. We have no obligation to make payments of any disbursements or expenses on your behalf unless you have provided us with funds for that purpose but if we do make such payments on your behalf you agree promptly to reimburse us in full upon request.
6.9 Our mandatory due diligence procedures may result in a charge depending on the extent of the due diligence required. In the event that we are requested to provide copies of due diligence records to third parties, we may charge a fee depending on the extent of the due diligence required and will action only subsequent to receipt of a signed mandate of release by you.
6.10 Unless otherwise inapplicable, we will add GST to your invoice for the services which we provide as part of our engagement and, if applicable, on any disbursements or charges in relation to those services.
6.11 In the event that you are required to withhold or make any deductions in respect of any tax or similar levy, you will pay to us such additional amount as will ensure we receive the same total amount that would have been received if there were no such withholding or deduction.
6.12 There are special rules about litigation costs and fees and these will be sent to you separately where you are involved or could become involved in litigation and you instruct us to act on your behalf.
7. Billing and payment terms
7.1 The timing of our invoices will depend on the nature of the work but as a general rule, unless otherwise agreed with you in writing, we will invoice for outstanding fees and disbursements/expenses on a monthly or quarterly basis. We may also raise an invoice after a substantial amount of work has been carried out over a short period of time or on completion of a matter. A breakdown of any invoice will be provided on request. There may be a delay in invoicing disbursements incurred on your behalf pending our receipt of the relevant invoices from suppliers or the recording of expenses in our records and our bills are not a final bill in relation to disbursements and expenses. We may apply any money that is held in your client account towards the discharge of any outstanding fees or disbursements/expenses, provided the money is not held for a specific purpose.
7.2 Our invoices are payable within 14 days from the invoice date unless we have agreed otherwise with you in writing. If payment is not made within 14 days, we may charge interest at a monthly rate of 2%.
7.3 Where monies are received on your behalf following completion of any transaction for which we have provided services, our fees, disbursements and other charges shall be payable before any balance is remitted to you.
7.4 Without prejudice to our right to claim interest, if payment is not made when due (or if we request payment on account of fees, if payment is not made when requested), we may stop acting for you and retain documents and papers belonging to you, together with our own records, pending payment in full of all amounts due to us.
7.5 Where we are instructed by more than one client in respect of your matter, responsibility for our fees will be joint and several unless agreed otherwise with us.
7.6 You remain personally responsible for payment of our fees where it is intended that our fees will be met from any source other than your own funds. You are liable when payment is due, whether or not monies are available from any such other intended source.
7.7 If an account remains unpaid and we decide to commence legal proceedings against you in order to recover the sums you owe us, then we will be entitled to recover from you the full legal costs that we incur in connection with those proceedings at our standard hourly rates, together with all disbursements (including fees of counsel and any overseas lawyers engaged by us in our attempts to recover payment from you).
7.8 We reserve the right to exercise a lien over all of your papers and documents pending payment to us of any outstanding fees or other costs or disbursements/expenses payable by you.
8. Client account funds
8.1 We do not accept cash from clients.
8.2 All clients’ money accepted by us will be held in an account separate from the firm’s money. It will be held on trust. If required by relevant regulations, we will pay interest on clients’ money in certain circumstances.
8.3 Where we are holding money for you, on account or otherwise, we may use this money towards payment or part-payment of any of our outstanding invoices. We will always inform you when this is being done.
8.4 Where we are holding money for you on account or otherwise and we have suspicions of money laundering or any illegal activity we reserve the right to refuse to transfer out such money without the prior sanction of any relevant authorities.
8.5 In the event of any bank at which a client account is held being subject to or undergoing any form of “insolvency” (such as désastre, liquidation, administration or any similar process), we shall not be liable for any losses, damages, liabilities, claims, costs and expenses howsoever arising from the insolvency, including without limitation, the loss of any or all of the monies held by the client account bank as referred to above. We shall not be responsible for seeking or undertaking any due diligence on any bank’s financial position.
9. Termination
9.1 Your continuing instructions will amount to acceptance of these Terms and we expect to continue to act for you until we finish the work concerned. Either you or we may bring our engagement to an end at any time by notifying the other in writing. If you wish to terminate, you should notify the partner with responsibility for your matter.
9.2 We will not terminate without good reason. In addition to any other ground set out in these Terms, we may cease acting for you in any of the following circumstances: (a) we believe that your actions may potentially breach any laws or rules of professional conduct, (b) we consider there has been a breakdown in the relationship of trust and confidence between us, (c) your failure to give us adequate instructions or your failure to pay any amount due to us in accordance with our payment terms referred to in these Terms, (d) you are insolvent or (e) in any other circumstances where, in our opinion, it is not appropriate or possible for us to continue acting If either of us terminates, you must pay us all fees, disbursements and expenses incurred before termination, plus any further fees and disbursements for work necessary to transfer those papers to which you are entitled to another adviser.
9.3 All our rights set out in these Terms shall continue to apply even if you or we terminate our engagement.
10. Documents and safe custody
10.1 Unless otherwise agreed in writing, we do not generally provide any safe custody or similar services. Where so agreed, documents and other items held by us on your behalf will be held at your risk and we accept no liability arising from their loss, damage or destruction.
10.2 We will retain all papers, documents and files relating to a matter until all fees, disbursements and expenses in connection with it have been settled in full and, thereafter in accordance with these Terms save that, on your instructions, we will provide originals (or, if so requested, copies, for which a charge may be made) of any documents (excluding any internal memoranda, attendance notes and other documents and correspondence for our own purposes) belonging to you which we are holding or which we have under our control and which have come into existence while we provided the services.
10.3 We may make electronic copies of all documents that we hold as a result of providing services and, save for significant original documents such as trust instruments, conveyances, leases and testamentary instruments, we may destroy hard copies. After 11 years after the earlier of completion of the services specified in our engagement and termination of such engagement, we may destroy all such documents, other than significant original documents and we will treat you as having so consented to the destruction of such documents and files as set out above. If we are requested and agree to retain files beyond the 11-year period specified above, we reserve the right to charge for so doing.
11. Intellectual property and use of documents
11.1 We retain all copyright and other intellectual property rights in everything developed or prepared by us either before or during the course of a matter relating to you including all reports, letters, documents, precedents, written advice or other materials we provide to you. You are entitled to use those reports, letters, documents, precedents, written advice or other materials for the purposes for which they were obtained and for all reasonably associated purposes.
11.2 We may use any of the documentation, created either by us or by any parties we instruct on your behalf, for research purposes or to form the basis of advice to our clients, provided we do not breach our duty of confidentiality to you. This documentation may be held in hard copy, electronic format and in our know-how database.
11.3 Subject to the provisions of applicable professional rules and data protection legislation, you are not entitled to receive or review our internal memoranda, attendance notes and other documents and correspondence for our own purposes relating to your matters irrespective of whether our fees on those matters included the production of that correspondence.
12. Conflicts of interest
12.1 We reserve the right to provide legal services to any other person or entity and it is a condition of our engagement that you agree that we may represent, now and in the future, existing or new clients in any matters that are not substantially related to our work for you. We also reserve the right not to accept instructions in respect of any matter, or to decline to continue to act further on the grounds of conflict of interest or otherwise (as to which our determination shall be final). In the event that we become aware of a potential or actual conflict of interest, we will notify you as soon as practicable (though we are not obliged to notify you of the nature of any such conflict). Subject to our professional rules, we may in such circumstances put procedures in place to manage such conflict or may decline or cease to act for you.
12.2 We are prohibited by professional rules governing the conduct of lawyers from acting in any matter where there would be a conflict of interest or significant risk of a conflict of interest. Without your prior consent, we cannot and will not represent any client adverse to you in a specific legal matter if we have obtained confidential information from you that is material to that matter. However, in instances in which we have no such material confidential information, you agree that we can represent other clients in legal matters, even those potentially or actually adverse to you or any connected or associated persons, without your further consent. In order to minimise the likelihood of a conflict arising, you must notify us as soon as possible as you become aware of a potential conflict, or situation that may give rise to a conflict.
13. Confidentiality and data protection
13.1 We shall not divulge any confidential information which we may obtain in relation to your affairs, except where required in the proper discharge of our duties under our engagement or to any person to whom we have properly delegated any of our functions to enable them to perform our duties diligently and properly and in all cases, where permitted by applicable law.
13.2 Notwithstanding the provisions set out in paragraph 13.1, we may disclose information which would otherwise be confidential if it is permitted by applicable law, and to the extent that it is: (a) required by law or our professional rules, (b) required or reasonably requested by any securities exchange, listing authority, or regulatory or governmental body to which we or you are subject or submit, wherever situated whether or not the requirement of the information has the force of law, (c) disclosed to our professional advisers, insurers and bankers, (d) information which has come into the public domain through no fault of our own or (e) where such information was obtained or independently developed by us on a non-confidential basis (as long as we do not know or have reason to know of any breach by such source of any confidentiality obligations with respect to it).
13.3 Where information we hold consists of personal data about you and/or your officers, employees, shareholders, beneficial owners, controllers, associates, agents and, where applicable, family members, you acknowledge that we may process such personal data in accordance with any data protection legislation applicable to us and our privacy policy.
13.4 You undertake that any information provided to us has been provided legitimately and that there is a legitimate basis under any applicable data protection legislation for providing such data to us.
13.5 This firm is the primary data controller in relation to our engagement.
13.6 We may wish to refer to matters on which we have acted for you where we reasonably consider that such matters are in the public domain or are otherwise not of a confidential nature. Unless you advise us otherwise in writing (either generally or in relation to any particular matter), we will take it that you consent to this.
13.7 If we have suspicions of money laundering based on information obtained by us professionally, it may be necessary or appropriate for us to report those suspicions to the relevant authorities. Such a report does not breach any duty of confidentiality owed by us to any client.
14. Limitation of liability
14.1 Our aggregate liability in contract and in tort (including negligence) or under statute or otherwise, for any loss, liability or damage suffered by you or any other person that may arise from or in connection with our services shall be limited to the lesser of (a) £3,000,000 and (b) that proportion of such loss, liability or damage suffered by you or any other person after taking into account any of your or any other person’s contributory act or omission (including any contributory negligence) and any amount which you or any other person would have been entitled to recover from any other adviser or party in the absence of any exclusion of limitation of liability agreed with such adviser or other person. This is agreed as a reasonable limitation on our liability.
14.2 We are not liable for indirect or consequential loss, nor are we liable for any loss of anticipated profit or other benefit. Our services are provided to you on the basis that you specifically agree any claim will be made against this firm and will be enforced only against the assets of the firm and, apart from its assets, you shall have no recourse to the personal assets of any partner, consultant or employee of the firm or any of their respective personal representatives or related persons.
14.3 You agree that no action or proceedings under or in respect of our services shall be brought against us after the expiry of 3 years from the date services are last performed in respect of the matter to which the action or claim relates.
14.4 Save as expressly agreed in writing, we do not accept or assume any duties or liability to any person other than you and we therefore exclude, to the fullest extent permissible by law, any liability to third parties. We do not limit or exclude liability in respect of any losses which cannot be excluded or limited by applicable law.
15. Complaints
15.1 If you have any concerns about the provision to you of any services, you should raise these with Clare Nicolle or Nick Marshall in the first instance. If you remain dissatisfied, you may contact the Law Society of Jersey at P.O. Box 493, St Helier, Jersey JE4 5SZ, or by email at ceo@jerseylawsociety.je. The Law Society of Jersey may in some circumstances assist to resolve any dispute in accordance with its own resolution procedures, or by conciliation or mediation, or by implementing any appropriate professional disciplinary procedures.
16. General
16.1 Any failure by us to insist upon strict performance of any of these Terms, or any failure or delay by us to exercise any rights or remedies whether under these Term, at law or otherwise, shall not be deemed a waiver of any of our rights to insist upon the strict performance of these Terms or of any of our rights or remedies as to any default under these Terms.
16.2 If any of these Terms is found by any court of competent jurisdiction to be illegal, invalid or otherwise unenforceable then that provision shall, to the extent necessary, be severed and shall be ineffective but without affecting any other of these Terms.
16.3 We shall not be liable for any failure or delay in providing any services as a result of circumstances beyond our control (acting reasonably) including, without limitation, cyber-attack, fire, flood, storm, earthquake, wars and civil disturbance.
16.4 We shall not be responsible for any failure to provide services on any issue which falls outside the scope of our engagement and shall have no responsibility to notify you of, or the consequences of, any event or change in the law (or its interpretation) which occur after the date on which the services cease to be provided.
17. Arbitration
17.1 Any claim, dispute and controversy arising out of or in connection with our engagement (including, without limitation, any question regarding our engagement’s existence, validity or termination or any claims of professional negligence) may, at our sole option be referred to and finally resolved in Jersey by a single arbitrator under the London Court of International Arbitration Rules then in force, and those Rules are deemed to be incorporated into this paragraph. Judgment on the award(s) rendered by the arbitrator may be entered in any court of competent jurisdiction. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Jersey. The language to be used in the arbitral proceedings shall be English. If you have initiated a court action at the time that we choose to submit the matter to arbitration, then you agree that such court action will be discontinued.
18. Governing law
18.1 These Terms are governed by and will be construed in accordance with Jersey law. Subject to the paragraph above (Arbitration), you and we irrevocably agree to submit to the exclusive jurisdiction of the courts of Jersey over any claim or issue arising under or in connection with these Terms and you and we waive any objection to proceedings being brought in those courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum.