The following Terms and Conditions will be deemed to have been agreed by the Client by its acceptance of any of the Services. A current copy of the Terms and Conditions and the Schedule of Charges may be inspected at the registered office of Two Seas during normal business hours. Two Seas may revise the Terms and Conditions and the Schedule of Charges from time to time without the prior consent of the Client. Two Seas will notify the Client by ordinary post of any changes which Two Seas considers to be material as soon as is reasonably practicable after their introduction. The Client shall be bound by any revision of the Terms and Conditions and/or the Schedule of Charges as and when a copy of the revised document becomes available for inspection at the registered office of Two Seas.
1.1 In these Terms and Conditions, the following words and phrases shall, save where the context requires otherwise, have the following meanings:
“Agreement” means any agreement in writing entered into between Two Seas and the Client and/or the Managed Entity relating to the Services;
“Appointees” means all persons provided by Two Seas to act as a director or other officer, trustee, manager, signatory or shareholder of any Managed Entity;
“Business Day” means a day on which Two Seas is ordinarily open to carry on trust company business;
“Client” means any person to whom Two Seas provides the Services and, in the case of an individual, includes his heirs, personal representatives and assigns and, in the case of a body corporate, includes its successors and assigns;
“Employees” means the directors, officers, consultants and employees (as appropriate) of Two Seas;
“Keypoint” owns 50% of the shares in Two Seas;
“Managed Entity” means any body corporate, partnership, trust, association or other person in respect of which Services are provided;
“OFS(J)L” means Ogier Fiduciary Services (Jersey) Limited, which owns 50% of the shares in Two Seas;
“Ogier Company” means from time to time any company the majority of the shares in which are beneficially owned by Ogier Group LP, and any Subsidiary of any such company;
“Ogier Group” means collectively the Ogier Companies and the Ogier Partnerships and “member of the Ogier Group" shall be construed accordingly;
“Ogier Group LP” means the limited partnership registered in Jersey, Channel Islands on 30 January 2004 with registered number 463;
“Ogier Partnership” means Ogier Group LP and from time to time any partnership, limited partnership or limited liability partnership which is branded as an Ogier entity and in which some or all of the partners are also partners in Ogier Group LP;
“Schedule of Charges” means the schedule of charges issued from time to time by Two Seas in respect of its charges for the Services;
“Services” means all services carried out or performed for, on behalf of, or in connection with (whether before or after its establishment), any Managed Entity by Two Seas (including, without limitation and where relevant, the provision of Appointees);
“Shareholder Service Providers” means Keypoint, OFS(J)L and/or any other member of the Ogier Group that may be engaged by Two Seas from time to time on behalf of the Client and/or the Managed Entity to provide services other than the Services in respect of the Managed Entity, as contemplated by Clause 7.2;
“Subsidiary” describes the relationship of a company (the “first body”) to another company (the “second body”) if the second body (a) holds a majority of the voting rights in the first body, (b) is a member of the first body and has the right to appoint or remove a majority of the board of directors of the first body, (c) is a member of the first body and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in the first body, or (d) if the first body is a subsidiary of a body corporate which is itself a direct or indirect subsidiary of the second body. For the purposes of determining whether a company is a Subsidiary, any legal interest held beneficially for a client or for any beneficiary under a trust as a result of a professional relationship in the ordinary course of business shall be disregarded;
“Terms and Conditions” means these terms and conditions as amended from time to time; and
“Third Party Providers” means Keypoint, OFS(J)L, any other member of the Ogier Group and/or any third party that may provide or procure software, support, licences and/or services (including but not limited to in relation to billing, conflict checking and/or compliance functions) to or for Two Seas directly or indirectly in connection with the performance of the Services, as contemplated by Clause 7.1.
1.2 In these Terms and Conditions unless the context otherwise requires, words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case.
1.3 References to “Clauses” herein are to clauses of the Terms and Conditions.
2.1 Two Seas shall be entitled to:
(a) remuneration in accordance with the Schedule of Charges; and
(b) be reimbursed for all disbursements and expenses incurred by it in providing the Services.
2.2 Two Seas may deduct any unpaid monies owing to it in connection with the Services from the assets of the Managed Entity without the consent of the Client.
2.3 Where Two Seas and any Managed Entity enter into an Agreement relating to the Services which does not expressly replace the Terms and Conditions in its entirety:
(a) in the event of any conflict between the terms of the Agreement and the Terms and Conditions, the terms of the Agreement shall prevail;
(b) the Client hereby guarantees the due payment of all fees, remuneration, disbursements and expenses payable by the Managed Entity under the Agreement (and agrees that Two Seas may claim under this guarantee without first seeking recourse against the Managed Entity or any other person);
(c) the Client shall ensure that the Managed Entity is kept in funds sufficient to allow it to meet in full all fees, remuneration, disbursements and expenses payable by the Managed Entity under the Agreement.
2.4 All monies payable to Two Seas in connection with the Services shall be paid within 30 days of the issue of the relevant invoice and interest at the rate of 1% per month may, at the discretion of Two Seas, be charged on all overdue amounts.
The Client hereby warrants and undertakes that:
(a) all assets which are or will be introduced to the Managed Entity have been and will be lawfully introduced and are not and will not be derived from or otherwise connected with any illegal activity;
(b) the Managed Entity will not be engaged or involved directly or indirectly with any unlawful activity or used for any unlawful purposes;
(c) the Managed Entity will not undertake any activities which will require a licence, consent or approval in any jurisdiction without first obtaining such licence, consent or approval or which will breach any conditions contained in any such licence, consent or approval;
(d) it has taken appropriate tax and other advice with regard to the establishment, conduct, use and activities of the Managed Entity and for ensuring that the Managed Entity complies with all applicable laws and regulations in all relevant jurisdictions, and the Client acknowledges that Two Seas is not responsible for advising the Client on such matters;
(e) the Client shall procure that the Managed Entity complies with all filing requirements in any applicable jurisdiction and that all taxes and governmental dues payable by the Managed Entity are discharged;
(f) the Client shall provide such information as Two Seas may, in its discretion, require in order to comply with all applicable laws and regulations (including ‘know your customer’ requirements) and to provide the Services;
(g) immediately upon becoming aware thereof, the Client shall notify Two Seas of:
(i) any event which could be reasonably foreseen to have a material effect on the Managed Entity or its assets or activities (including, without limitation, any act evidencing the insolvency of the Client or commencing its liquidation, winding up or dissolution) or upon Two Seas’ willingness to continue to provide the Services; and
(ii) any actual or threatened litigation in any jurisdiction or any actual or threatened investigation by any judicial or regulatory authority and any progress thereof, and it shall promptly provide such information as Two Seas may, in its discretion, require in respect thereof;
(h) where the Services include the provision of Appointees, the Client shall not, without the prior consent of Two Seas, take any action, enter into any agreement or contract, give any undertaking, make any representation or otherwise incur any liability on behalf of the Managed Entity; and
(i) the Client shall notify Two Seas before alienating, assigning, selling, pledging or otherwise disposing of or encumbering any part of the Client’s interest in the Managed Entity.
4.1 Two Seas may act upon instructions (whether by letter, fax, email, telephone or otherwise) given by any person that it reasonably believes to be authorised to give such instructions on behalf of the Client and Two Seas is not obliged to verify the identity of any person purporting to be so authorised.
4.2 Without prejudice to Clause 4.1, where Two Seas does not believe that the person giving instructions is duly authorised or where Two Seas is given instructions that it believes are unclear or contradictory, it may refuse to act upon such instructions until it receives evidence to its satisfaction as to the instructions or the person giving instructions and neither Two Seas nor any of its Third Party Providers, Appointees or Employees shall incur any liability for such refusal to act.
4.3 Neither Two Seas nor any of its Third Party Providers, Appointees or Employees shall incur any liability (a) for its failure to comply with any instructions which are not in writing or which are incomplete, ambiguous or contain errors; or (b) for the non-receipt of any instruction, written or otherwise; or (c) for the lack of authority of any person purportedly giving instructions on behalf of the Client.
5.1 If:
(a) any demand is made against the Managed Entity for payment of any sum due including, without limitation, any taxes, duties, fees or other governmental or state impositions and such payment has not yet been made; or
(b) Two Seas has not been able to obtain instructions from the Client or any authorised person in circumstances where, in Two Seas’ opinion, instructions are required in order to take action that it considers necessary; or
(c) Two Seas has received instructions from the Client or any authorised person which, in Two Seas’ opinion, are or may be illegal or contrary to the interests of the Client and/or the Managed Entity or which may lead to any of Two Seas, the Third Party Providers, the Appointees or the Employees incurring personal liability,
then Two Seas may, as it deems necessary, either take such action on behalf of the Managed Entity as it thinks fit (including, without limitation, seeking professional advice at the cost of the Managed Entity, appropriating the assets of the Managed Entity to satisfy any demands for payment, winding up the Managed Entity or transferring the assets of the Managed Entity to the Client) or take no action whatsoever.
5.2 Two Seas will, as soon as reasonably practicable after taking any action under Clause 5.1, give notice to the Client of such action having been taken.
5.3 Neither Two Seas nor any of the Third Party Providers, Appointees or Employees shall incur any liability for any action or inaction of Two Seas pursuant to this Clause.
In the event of non-payment of all or any part of any fees, expenses, disbursements or liabilities due to Two Seas or which Two Seas is liable to pay on behalf of the Managed Entity or in respect of which the Managed Entity becomes liable to Two Seas in any other manner, then Two Seas shall have a lien over, or the right not to release from the possession or control of Two Seas, all or any documents or assets, including assets held on behalf of the Managed Entity or to the order of the Managed Entity or on behalf of or to the order of any company or other body in common ownership with the Managed Entity or otherwise connected or affiliated to the Managed Entity in any manner, until such time as all such fees, expenses, disbursements or liabilities due and payable are discharged. For the avoidance of doubt, this lien shall apply to all documents and assets held in relation to the matter in respect of which the fees, expenses, disbursements or liability have been incurred and in relation to any other matter whatsoever relating to the Managed Entity. Further, if Two Seas should cease to act for or in relation to the Managed Entity, a final invoice will be submitted and Two Seas reserves all rights to exercise the right of the lien aforesaid over all documents and assets held on behalf of the Managed Entity or in relation to the Managed Entity until such time as the final invoice is discharged in full.
7.1 Subject always to Clause 10, the Client acknowledges and agrees that Third Party Providers may from time to time provide or procure software, support, licences and/or services (including but not limited to in relation to billing, conflict checking and/or compliance functions) to or for Two Seas directly or indirectly in connection with the performance of the Services.
7.2 Subject always to Clauses 8.1 and 10, if services are required in respect of the Managed Entity which fall outside the scope of the Services but within the scope of the services provided from time to time by any of the Shareholder Service Providers, Twos Seas may (where it is appropriate to do so and unless the Client objects in writing) instruct on behalf of the Client and/or the Managed Entity one or more Shareholder Service Providers to provide such services upon such Shareholder Service Provider’s then current terms and conditions of business.
8.1 Two Seas, Keypoint and members of the Ogier Group provide a wide range of services to a large number of clients and it is possible that a conflict of interest may arise as a result. If Two Seas, Keypoint or any of the members of the Ogier Group (any or all of which shall be entitled to receive, use, access and/or process the data and other information referred to in Clause 10 for the purpose, inter alia, of checking for any such conflict or possible conflict of interest) becomes aware or is notified of a conflict or possible conflict of interest, Two Seas shall (as soon as reasonably practicable after it becomes aware of such conflict or possible conflict of interest) notify the Client and, if possible, procedures will be put in place to ensure confidentiality and independence of advice.
8.2 Two Seas and/or any relevant Third Party Providers shall be entitled to retain any benefit, whether direct or indirect and including any fees or commissions, obtained (a) on any purchase or sale of investments; or (b) by reason of Two Seas, the Third Party Providers, the Appointees or the Employees acting (including, without limitation, as manager, administrator, trustee, director, officer, shareholder or adviser) 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 a Managed Entity; or (c) under any banking, investment advisory or other arrangement entered into on behalf of the Managed Entity; or (d) in respect of the provision of any other Services to or in connection with the Managed Entity; or (e) from any other relevant third party service provider.
As part of Two Seas’ client take-on procedures, Two Seas will be required by anti-money laundering regulations to obtain information and documentation to identify and verify the identity of the Client and certain persons connected to them unless an exemption is available. The Client agrees that if such information and documentation is not made available to Two Seas when required by and in a form acceptable to Two Seas, Two Seas may without liability terminate the engagement with the Client with immediate effect. The time at which such information and documentation is required and the form in which it shall be delivered to Two Seas shall be determined by Two Seas in its absolute discretion.
10.1 Subject to this Clause 10, Two Seas shall maintain the confidentiality of all personal data and other information relating to the Client, the Managed Entity and the Services.
10.2 Two Seas, the Appointees and the Employees may (subject always to appropriate confidentiality undertakings being obtained) directly or indirectly disclose personal data and other information relating to the Client, the Managed Entity and/or the Services to:
(a) OFS(J)L and/or any other member of the Ogier Group;
(b) Keypoint;
(c) any Third Party Provider;
(d) any Shareholder Service Provider; and/or
(e) any other entity where such disclosure is necessary or desirable for or in connection with the proper performance of the Services,
collectively, the “Recipients”.
10.3 The Client acknowledges and agrees that any Recipient shall be entitled to use, disclose, access and/or process such data and/or information for or in connection with the purposes contemplated by the Terms and Conditions and that such data and/or information may not necessarily be contained in a separate database belonging to Two Seas. In addition, unless the Client notifies Two Seas in writing to the contrary, the Client shall be deemed to agree that, where the Recipient is a member of the Ogier Group, such data and/or information may be used, accessed and/or processed by or for any member of the Ogier Group for the business marketing purposes of the Ogier Group.
10.4 The Client acknowledges that, in certain circumstances, Two Seas, the Appointees, the Employees or the Recipients may be obliged to give evidence and/or information to courts, authorities or professional bodies / advisors (including but not limited to auditors) in connection with the affairs of the Client and/or the Managed Entity. Without prejudice to Clauses 10 and 19.1, disclosure of such information will not be made to third parties unless required by law or regulation or where the failure to make such disclosure in the opinion of the disclosing person would be prejudicial to, or in the opinion of the disclosing person cannot reasonably be avoided by, Two Seas, the Appointees, the Employees and/or the Recipients (as the case may be).
10.5 The Client acknowledges and agrees that personal data and other information may be transferred to jurisdictions outside the Kingdom of Bahrain, including without limitation to any jurisdiction in which the Ogier Group operates from time to time.
10.6 The provisions of this Clause shall remain in full force and effect notwithstanding the Terms and Conditions ceasing to apply.
Neither the Client nor the Managed Entity shall have any right of ownership, access or control in, to or over any or all records, data and/or information relating to the Client, the Managed Entity and/or the Services (other than statutory corporate records) held by Two Seas or any Recipient.
Two Seas is bound by the requirements of applicable data protection legislation. Two Seas shall ensure that any personal data gathered under the terms of the engagement will be used, accessed and processed in accordance with the requirements of current data protection legislation and only for the purposes of providing the Services (and any purpose ancillary thereto) or as otherwise set out in these Terms and Conditions. Depending on the nature of the Services, Two Seas and/or any Recipient may act either as data controller or data processor.
Two Seas will keep all such deeds and documents which it considers appropriate or, where it is requested by the Managed Entity to do so, in its safe custody facilities. These facilities are carefully regulated and controlled and designed to limit the possibility of unauthorised access or damage by fire. Two Seas does not accept items of value such as jewellery and bearer certificates into its safe custody facilities. Two Seas accepts 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, in the absence of gross negligence.
14.1 Money belonging to the Client or the Managed Entity will be maintained at all times separate from the funds of Two Seas.
14.2 To the extent that tax has to be deducted from interest earned on funds held on behalf of the Managed Entity or paid out to the Managed Entity, Two Seas will account to the tax authorities for tax deducted. The Managed Entity is responsible for seeking its own tax advice in this regard.
14.3 On receipt of any monies Two Seas must be satisfied as to the source of these funds. If it has any doubts as to the source of funds Two Seas may be bound by law to notify the relevant authorities.
14.4 Neither the Client nor the Managed Entity will request Two Seas to take or refrain from taking any action whatsoever in relation to funds or assets or documents of any nature which could in the sole opinion of Two Seas result in a contravention of any law or regulation in force from time to time in the Kingdom of Bahrain or in any other place whatsoever. Two Seas reserves the right not to comply with any request which in its sole opinion could potentially result in any such contravention or which in its opinion could result in any damage to its reputation or good standing.
All transfers and transmissions of monies, assets or documents are made at the risk of the Managed Entity and the Client, and Two Seas shall not be liable for any loss, damage or delays howsoever caused which is not directly caused by its gross negligence.
16.1 Neither Two Seas nor any of the Third Party Providers, Appointees or Employees shall be held liable for any failure or delay in the performance of the Services arising out of or in connection with circumstances beyond their reasonable control (including, without limitation, 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 any power, telecommunications or computer failure).
16.2 The Client undertakes at all times to hold Two Seas (for itself and its Third Party Providers, Appointees and Employees) harmless and to indemnify them to the greatest extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise from the provision of the Services, other than liabilities arising from the fraud, wilful default or gross negligence of Two Seas, the Third Party Providers, the Appointees or the Employees.
16.3 The provisions of this Clause are without prejudice to any other limitation of liability or indemnity given in favour of Two Seas, the Third Party Providers, the Appointees or the Employees and shall remain in full force and effect notwithstanding termination of the Terms and Conditions.
17.1 All and any obligations to provide the Services shall cease immediately upon Two Seas giving notice in writing to the Client that (a) the Client has breached any of the Terms and Conditions; or (b) any Agreement has terminated for any reason whatsoever; or (c) in Two Seas’ opinion, the Client cannot meet its payment obligations hereunder or under any Agreement; or (d) Two Seas has become aware that the Client and/or the Managed Entity is or may become subject in any part of the world to investigation by any judicial or regulatory authority or that criminal proceedings are instituted or threatened against the Client or the Managed Entity.
17.2 Where Two Seas and the Client subsequently enter into an Agreement which expressly replaces the Terms and Conditions in their entirety, the Terms and Conditions shall cease to apply without prejudice to any accrued right or obligation of the parties.
17.3 Upon termination pursuant to this Clause, each of Two Seas (for itself and its Third Party Providers, Appointees and Employees) shall be entitled to 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.
Where the Client is more than one person, (a) each such person hereby appoints the other such person(s) to act as his agent to exercise full power and authority in connection with the Services on his behalf; and (b) all obligations of the Client in connection with the Services shall be joint and several.
19.1 Two Seas may assign or transfer the whole or any part of its rights and benefits under the Terms and Conditions. For the purpose of any such assignment or transfer, Two Seas may disclose information about the Client and the Managed Entity to any prospective assignee or transferee, provided that Two Seas 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 10.
19.2 The Client shall not assign or transfer all or any part of its rights, benefits and/or obligations under the Terms and Conditions.
If at any time one or more of the provisions of the Terms and Conditions 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 the Terms and Conditions shall not be affected or impaired in any way.
Unless otherwise agreed in writing between the Client and Two Seas, the Client shall be responsible for the payment of its own costs and expenses (whether incurred directly by the Managed Entity or incurred by Two Seas) including but not limited to all taxes, corporate, registration and licence fees payable by the Managed Entity to any legal, governmental or regulatory authorities in any applicable jurisdiction.
22.1 Any notice required to be given hereunder shall be in writing addressed to the party concerned at its 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.
22.2 For this purpose, any notice (a) delivered personally shall be deemed to have been given at the time of such delivery; (b) sent by ordinary post shall be deemed to have been given 72 hours after posting; (c) sent by airmail shall be deemed to have been given seven days after posting; and (d) sent by fax shall be deemed to have been given at the time of despatch.
The Terms and Conditions and all documents, agreements and application forms into which the Terms and Conditions are incorporated (where there is no proper law clause set out in such document) shall be governed by and construed in accordance with the laws of the Kingdom of Bahrain and the Client submits to the non-exclusive jurisdiction of the courts of the Kingdom of Bahrain in connection herewith.
Contact details
Two Seas Trust B.S.C.(c)
PO Box 10476
24th Floor
NBB Tower
Government Avenue
Manama
Kingdom of Bahrain
Tel: + 973 1720 6800
Fax: + 973 1720 6801
