Terms & Conditions
1. The Group
The Albany Group (“Albany”, “the Group”, “we”, “us” or “our) comprises the following companies; each of their parent, subsidiary companies; associates and affiliates; and each of their employees, officers and directors.
- Albany Trustee Company Limited
- Argonaut (Guernsey) Limited
- Albany Management S.A.
- Albany Trustee Company (U.K.) Limited
- Albany Trustee Company (Turks and Caicos) Limited
- Continental Nominees Limited
- Island Nominees Limited
- Investment Services (Guernsey) Limited
- Albany Directors Limited
The above named companies are licensed and regulated as Fiduciaries by the Guernsey Financial Services Commission.
This document sets out the standard terms of business (“the Terms”) which will apply to the services we provide (“the Services”), subject to any applicable trust instrument or other governing document, and any variations contained in an Engagement Letter. For the purpose of these Terms all references to “you” and “your” refers to the addressee(s) of our Engagement Letter; shareholders, ultimate beneficial owners, settlors (including economic settlors) of Client Entities principals of nominee arrangements; and clients generally.
3. Engagement Letter
An Engagement Letter, which will incorporate these Terms, and any agreed variations, will be issued and signed before Albany will provide the Services.
Subject to any variations contained in any Engagement Letter, the Services we provide shall include the formation, management and/or administration of trusts, companies, foundations, partnerships and other incorporated or unincorporated entities (“Client Entities”) and the provision to such Client Entities of registered offices, resident/registered agents, trustees, protectors, directors, secretaries, nominees and other officers and any other activities which are incidental thereto.
Additionally, Albany Trustee Company Limited is licensed by the Guernsey Financial Services Commission to carry on the restricted activities of subscription, registration, dealing, administration, custody and promotion in connection with Category 1 and Category 2 controlled investments and the Services provided by Albany Trustee Company Limited may include such activities.
5. Fees and disbursements
Fees will be charged to you at our standard rates or as otherwise agreed in writing. We reserve the right to amend these rates from time to time and will provide you or your nominated intermediary with such updated rates unless you request that we don’t inform you.
Invoices will be raised at least annually and shall be payable by you or Client Entities within 30 days. You agree that invoices may be raised and/or fees collected by Albany Trustee Company Limited on behalf of and in respect of services provided by other Albany Group companies and sub-contractors. You authorise Albany to procure payment of such invoices out of relevant Client Entities’ bank accounts. In the event of non-payment within the said 30 days, Albany is entitled to remuneration as a first charge on Client Entities’ assets or on assets as Albany may hold as nominee, custodian or trustee for you.
Albany will charge at its standard rates for work undertaken in connection to third party enquiries of whatsoever nature and for any disbursements, including advisory or legal fees, etc., which we may incur in connection therewith.
As a regulated and licensed body, we are obliged to maintain internal records and operating standards at certain levels and some time charges will reflect the costs of these requirements.
Invoices will include a charge for any disbursements and expenses reasonably incurred in connection with the Services we provide to you. A charge to cover sundry expenses (comprising telephone, standard rate postage, the sending of faxes and copying) will be levied in accordance with our standard rates or as otherwise agreed in writing. All other expenses and disbursements, will be paid by Client Entities directly to third-party suppliers, or otherwise will be reimbursed to us.
6. Your Obligations
You shall prepare and provide to us, in a timely fashion, such documentation and/or information as we may from time to time reasonably request to enable us, on Client Entities’ behalf, to procure that: all notices and documents required to be filed or served upon government agencies, registrars, etc. are duly so filed in accordance with applicable law; company registers, books and records are maintained in accordance with applicable law; the ultimate beneficial owner(s) are properly identified in accordance with applicable law; and Client Entities’ officers (including trustees, directors, partners and the like) are kept apprised of the business, activities and actions of the Client Entities and of any subsidiaries.
You shall not cause or permit any action or event which may be illegal; ultra vires; conflict with Client Entities’ constitutional documents; or result in civil or criminal liability on us, our officers and employees; and/or our associated group companies.
You shall not sell or dispose, nor cause the sale or disposal, of the beneficial ownership of Client Entities or of assets held by Albany as nominee, custodian or trustee for you without giving prior notice to Albany.
You shall not take any action with regard to Client Entities nor enter into any contracts on their behalf without the consent of a majority of such Client Entities’ governing forum (e.g. trustees, directors, partners or equivalent) such majority to include at least one person introduced by Albany (if any).
You shall procure that each structure of Client Entities shall maintain sufficient cash bank balances to cover Albany’s fees and expenses; statutory fees, charges and taxes; and maintain a reasonable working balance.
7. Prevention of money laundering & crime
You agree to provide us with all requested documentation and information that we may reasonably require to enable us to comply with the requirements from time to time of the Guernsey Financial Services Commission under the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 as amended and related Regulations and Handbook for Financial Services Businesses, for identifying and verifying the identities of all individuals that have a beneficial or controlling interest in or may receive a benefit from any structures that we administer for you or in assets as Albany may hold as nominee, custodian or trustee for you.
You acknowledge that failure to provide the requested information may delay transactions, Albany having no liability for any loss resulting from such a failure and, if necessary, may lead to the termination by Albany of our relationship, as described more fully at Clause 16 below.
You confirm that such identification and verification information and/or documents may be required to be disclosed or provided (with or without prior reference to you) to any relevant regulatory or other authorised body, financial institutions, banks, investment houses and/or others for the purpose of satisfying their verification and due diligence requirements or to satisfy the Company’s obligations under the Disclosure (Bailiwick of Guernsey) Law, 2007, as amended, and you agree that we shall not be liable for any loss or damage which any person may suffer or incur as a consequence of our disclosure
You confirm that you are not insolvent nor are you the subject of any court action, legal proceedings or dispute of any nature whatsoever, whether criminal or civil, which has been, is currently being or (to your knowledge) is about to be taken against you.
You confirm that neither Albany nor any Client Entities administered or managed by Albany will be sought or retained to a) hinder, delay or defraud any creditors; b) engage in any illegal or criminal conduct; c) supply, trade in or move goods or services in contravention of international sanctions or import/export controls in Guernsey or elsewhere; or d) undertake licensed, regulated or restricted activities without proper authority or valid licence.
You confirm that all monies and assets paid or transferred to Albany and/or to Client Entities under Albany’s management have been generated by legitimate means, and that the transferors have full unencumbered legal right and title to those funds and assets immediately prior to their transfer to Albany or to any Client Entity administered or managed by Albany.
You acknowledge that we may undertake independent checks on documentation and information that you provide to verify their authenticity.
Neither of us will use or divulge or communicate to any person (other than as required by law or in the performance of the Services we provide for you) any confidential information concerning the business or affairs of the other of which we may become aware except with the express consent of the other and both of us will use reasonable endeavours to prevent the unauthorised publication or disclosure of such information. This obligation will cease to apply with respect to any information which becomes public (without unauthorised disclosure) but will otherwise survive the termination of our relationship.
9. Instructions and requests
Albany may accept instructions or requests by letter, facsimile, email, telephone or other form of communication. Such instructions or requests are at your risk; in particular those risks relating to delay, errors in communication, or comprehension including errors as to the information contained in the instruction or request as well as the increased risk of identity theft where the communication form used makes it more difficult to properly identify you.
Where you communicate by facsimile, email, telephone or similar, Albany shall not be under any duty to make enquiry as to the genuineness or authenticity of any instructions and you agree to hold Albany fully indemnified from and against all liabilities, losses, costs, actions, proceedings, claims and demands which may be incurred by or brought or made against Albany arising directly or indirectly from not having acted in respect of any communications not received by us or for having acted wrongly or mistakenly in respect of communications incorrectly purporting to have been sent or originated by you, other than any liabilities, losses, costs, actions, proceedings, claims and demands arising out of our fraud, gross negligence or wilful deceit.
You further agree that we may, in our absolute discretion, decline to act upon any instruction if we consider such instruction to be unauthentic, ambiguous and/or likely to contravene any legal or regulatory obligation from time to time.
Unless otherwise agreed in writing, if you, as our client, consist of one or more persons, we will be entitled to act upon the instructions of any one of you. If you are a company or partnership we will be entitled to accept instructions from any director, or other officer of that company, or partner of that partnership, as applicable or such other nominated persons from time to time.
10. Limitation on liability
Subject to any special terms and conditions agreed in particular cases, we shall not be liable for any loss or damage howsoever caused or suffered by any Client Entity, client, settlor, beneficiary or any third party, in the absence of actual fraud, gross negligence, wilful misconduct or wilful neglect.
We shall not be liable for any indirect or consequential loss howsoever caused or for any loss, damages, costs or other consequences arising from information having been misrepresented to or withheld or concealed from us.
11. Legal, tax and investment advice
We do not provide legal, tax or investment advice. You are responsible for obtaining your own legal and tax advice and you must provide us with a copy if it relates to any of the Services we provide for you.
We will file any required tax information with the Guernsey tax authorities in respect of any Client Entities that we administer for you but you remain responsible at all times for making all required tax returns and disclosures to revenue authorities in any jurisdiction.
Where investment advice is required, we will usually appoint a qualified investment adviser and reserve the right to appoint an independent party to monitor and review investments held by Client Entities managed by Albany, reasonable costs to be borne by such Client Entities.
Any opinions that we express are our own and should not be taken as a substitute for legal, tax or investment advice.
In some cases, we may receive and will retain brokerage, commission or remuneration from agents in respect of client entity transactions.
12. Data Protection
Albany shall process all information provided by you in accordance with the provision of the Data Protection Bailiwick of Guernsey) Law, 2001 (the “Data Protection Law”).
We shall retain all information and documentation as is in our possession relating to the provision of the Services for as long as we shall deem necessary to comply with applicable law from time to time including the rules and regulations of the Guernsey Financial Services Commission under the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999, as amended, or for so long as any amounts outstanding from you remain unpaid.
To the extent that any Client Entity administered by us on your behalf owns personal data which would otherwise require that company to register as a data controller under the Data Protection Law. You agree that neither you nor such Client Entity will process that personal data and you grant to us the right to process such personal data on behalf of you and the Client Entity.
13. Force Majeure
Neither of us shall be liable for any delays or failures to perform due to causes beyond our control.
Any offer contained in an Engagement Letter we provide may only be accepted by written confirmation to us that the Terms are accepted as received within 30 days from the date of issue, unless otherwise indicated, otherwise the offer will lapse.
We shall be entitled to sub-contract any part of the Services that we provide and we may pay and agree terms with such sub-contractors. We shall remain responsible for monitoring the performance of the sub-contractor unless the sub-contractor was specified by you in which case we shall only be responsible for ensuring the sub-contractor meets the terms of any agreement and not for the sub-contractor’s performance.
Complaints about our service should be submitted in writing to the Managing Director. Complaints will be investigated promptly and thoroughly before a response is issued. An acknowledgment may be issued in the meantime.
If you materially breach any of the Terms and Conditions by, amongst other things, failing to comply with our anti-money laundering procedures or we become aware that you have provided us with any false or misleading information or that you have engaged in or benefited from any criminal conduct, or in the event you fail to pay any amount due to us, we may terminate our relationship forthwith and we shall not be liable for any resulting loss.
If our relationship is terminated at our option in accordance with the above paragraph, we may ourselves, or may cause group companies; their parent, subsidiary companies; associates and affiliates; and each of their employees, officers and directors. to transfer to you any shares or ownership in Client Entities or other assets they may hold as nominee, custodian or trustee; resign such offices as they may hold in connection with Client Entities and cause you to be appointed instead; inform such resident/registered agents, Government agencies and/or Registries as necessary; and we shall be under no further obligation under this Agreement.
Otherwise either Albany or the Client may give to the other party three clear months notice in writing of their intention to terminate the Engagement. In such circumstances we will use all reasonable endeavours to transfer the administration of Client Entities to your newly appointed service provider in a timely fashion.
Albany reserves the right to levy an exit fee to cover any fees and disbursements incurred up to the date of termination and any other fees and disbursements that may be incurred by us in transferring your affairs to your newly appointed service provider and/or to retain reasonable funds in trust for a reasonable time to cover any future contingencies.
In the absence of fraud, wilful default or negligence, Albany shall not be liable for any loss or damage suffered by you or by Client Entities arising either before or after the termination of our relationship and either directly or indirectly out of any error of judgement or oversight or mistake of law on our part made or committed in good faith, nor shall we, in the absence of fraud, wilful default or negligence, be responsible for any loss or damage which you or Client Entities may sustain or suffer as the result of or in the course of the discharge of the Administrator's duties in law.
You agree to indemnify all companies in Albany, their directors, officers, employees and shareholders from and against any and all liabilities, obligations, losses, damages, actions, proceedings, suits, costs and expenses (including without limitation legal expenses, taxes and penalties) claims and demands which may be brought or asserted against any company in Albany and/or their directors, officers, employees and shareholders arising out of or in connection with the provision of the Services or our declining to act upon receipt of instructions, other than any action or claim arising out of our fraud, gross negligence of wilful default. This indemnity shall extend to any costs and expenses (including our time charges and any disbursements) incurred by us either before or after the termination of the Engagement in respect of any information we may become obliged to give any person or in respect of any notice that we are served or may become obliged to comply with as a result of the provisions of any Applicable Law, the compliance by us with any notice or order served on us in respect of the Services provided by us and the compulsory attendance by us before any court, tribunal or panel or any hearing in respect of the same.
You and Client Entities shall each indemnify and hold harmless the Administrator against all claims and demands (including costs and expenses incidental thereto) either before or after the termination of our relationship which may be made against Albany in respect of any loss or damage sustained or suffered or alleged to have been sustained or suffered by any third party otherwise than by reason of our fraud, wilful default or negligence.
Albany shall not be required to take any legal action on behalf of you or Client Entities unless fully indemnified to its reasonable satisfaction for costs and liabilities. If you require us, in any capacity, to take any action which in our opinion might make us or our agents or nominees liable for the payment of money or liable in any other way, we shall be kept indemnified in any reasonable amount and form satisfactory to us as a pre-requisite to taking that action.
These Terms are subject to change from time to time. We shall inform you or your intermediary in writing of all amendments and they shall be deemed to be accepted by you if you do not raise any objection in writing within two weeks of the notice.
If any provision or clause of these Terms is or becomes void or unenforceable in whole or in part it shall not affect the invalidity of the remaining Terms and the invalid Terms shall be replaced by Terms corresponding in sense.
21. Jurisdiction and governing law
The Royal Court of Guernsey will have non-exclusive jurisdiction to settle any dispute which may arise between us and these Terms shall be governed by and construed in accordance with Guernsey law.
Edition: June, 2009