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DW&P Dr. Werner & Partner (hereinafter referred to as ‘DW&P’ and/or ‘Service Provider’) is the brand under which the member firms of company DW&P Services Ltd. operate and provide professional services.
These include:
- (i) DW&P VFA Agent Ltd
- (ii) Dr. Joerg Werner – Advocate & Legal Practitioner
- (iii) Borg Galea & Associates
- (iv) DW&P Services Ltd
- (v) Servox Ltd.
Together, these firms form the DW&P network. ‘DW&P’ is often used to refer either to individual firms within the ‘DW&P’ network or to several or all of them collectively.
Definitions
Agreement- Means the Engagement letter in conjunction with these Terms and Conditions and considered as one instrument.
Client- Means the person, whether natural or legal, party to this Agreement confirming and engaging the services of the Service Provider. The term also covers the Clients appointed representatives/employees and or any companies that the Client has executive control over; both of which are duly notified to the Service Provider.
Service Provider- Means the other party to this Agreement providing the Services requested and confirmed by the Client as set out in the Engagement Letter. The term shall deem to include any officers, employees, contractors and agents so appointed by the Service Provider.
Subject matter- Means the subject of the Agreement, more specifically as set out in the Engagement letter.
Working Hours- Means 0900hrs to 1700hrs every weekday, excluding weekends and public holidays in Malta.
I. Performance
In all and any role accepted by it pursuant to this Agreement, the Service Provider shall have the specific duty to act efficiently and professionally in accordance with sound administration practices and shall report directly to the Client, or his nominees, in addition to such other persons that it may have to report to in accordance with applicable Law provided that the Client shall confirm in writing to the Service Provider the names and contact details of any such persons that the Service Provider shall provide such information.
The operation of this Agreement shall not preclude the Service Provider from engaging in other business activities, including the provision to third parties of services, which are similar to the services provided for herein in any manner. Furthermore, the Client is fully aware that such provision of similar services, even to entities or operations actively competing with the Client, shall not constitute a conflict of interest or any breach of this Agreement whatsoever.
Service provider reserves the right to delegate part of or all of its duties created under this agreement, to any third party service providers under the same provisions of these terms and conditions.
- • Accompanied by what appears to be the Client’s signature; or
- • Originating from the fax number or email address/es provided by the Client; or
- • Received following a telephone call originating from the Service Provider to the number provided by the Client at the time of the signing of this Agreement or on any other number provided by the Client at any later stage throughout the performance of this Agreement; or
- • Reasonably believed to be received from or originating from the Client.
II. Instructions & Communication
For the purposes of this Agreement, the Service Provider shall only accept the instructions of, and shall communicate with the Client directly. Any further representatives of the client must be duly notified by the client the service provider.
The Client shall communicate with the Service Provider through telephone, electronic mail and other communications provided that all such communications are provided with features capable of confirming receipt of the instructions.
Any communication received by the Service Provider in terms of the last preceding sub-section shall be deemed genuine and originating from the Client if on prima facie they are:
Provided that any instructions given by the Client are not in violation of the Laws of Malta or the laws in force at the place where the instructions are to be carried out; with regards to the latter, the verification and/or confirmation of this shall be the sole responsibility of the Client.
It is agreed that any obligation on the part of Service Provider is at all times subject to the condition that:
- a) any action requested by the Client is lawful and legitimate and in accordance with the Memorandum & Articles of the Companies when such instructions are issued on behalf of a company within the clients portfolio; and
- b) there is not in force any regulatory order, instruction or request in relation to the action requested by the Client that might hinder or otherwise qualify or condition such action.
The Service Provider shall be entitled to determine, in its reasonable discretion, whether the conditions stated in paragraphs
(a) or (b) above are satisfied.
III. Disclosure
The Client binds himself and undertakes to keep the Service Provider duly informed, at all times, about all circumstances and happenings which concern it in any way and which might affect the Companies or which relate in any way, even remotely, to the Subject Matter of this Agreement.
Due to the Service Provider’s obligations at law, the Client binds himself to furnish the Service Provider with recent suitable documentation for confirmation, on a regular basis, upon a mere verbal request to this effect from the Service Provider. These may be required for KYC and due diligence purposes as well as to allow the Service Provider to correctly perform the terms of this engagement, as per the internal operating procedures currently in force at the time.
Furthermore, the Service Provider shall have access, without restrictions of any sort, to the correspondence, documents, invoices, statements, balances, trading and accounting records, including bank note transactions as well as all company secretarial records including minutes of meetings and copies of all contracts, transactions and other important books and information relating to the Companies or, in any way, pertinent to the Companies and its business activities as and when necessary and required by law or any regulatory authority , upon request.
The Client hereby declares that the initial funds and/or assets and/or property to be invested in Malta in either the Clients or Companies’ within Clients portfolio name, and any ensuing additions to such assets, property and/or funds have not originated from any criminal activities, operations, transactions or other illicit dealings.
- a) The Service Provider may be requested by the Courts of Law or competent authorities to give information regarding business relationships, transactions and its appointment to competent authorities, in terms of the Laws of Malta;
- b) The Service Provider reserves the right to process data in files for marketing purposes. • Marketing Purposes: Neither party shall use the other party’s trademarks, service marks, logos, and/or branding in external publicity material without such other party’s prior written consent.
- • Use of Client Name: Notwithstanding anything herein to the contrary, the Service Provider may use the name of the Client and the performance of the Services provided in marketing and publicity materials, as an indication of its experience, and in internal data systems.
Client further declares that s/he is not a Politically Exposed Person (PEP) and undertakes to inform the Service Provider immediately if any of his close family members are such PEP, or if client/family becomes a PEP throughout the duration of this Agreement.
The Client hereby acknowledges that:
IV. Representation & Warranty
The Client represents and warrants that Client is the person who has ultimate effective control over any Companies indicated as part of Clients portfolio, and that any change in such status will be duly communicated to the Service Provider before any third party or successor–in-title (whether directly or indirectly) makes effective use of such changed status.
V. Fees, Costs and Payment
As remuneration for the services rendered by the Service Provider under this engagement, and without prejudice to the costs provided in sub-sections (2) and (3) of this Section, the Client will pay, or cause payment to the Service Provider, annually in advance for any services renewable on an annual or hourly basis as outlined in the covering letter, the agreed amount, upon presentation of invoice; and such other amounts in accordance with the Service Provider’s charging policy from time to time for such other services that the Service Provider may have been requested to provide in respect of the engagement;
Provided that the Parties agree that the Service Provider may revise the costs chargeable to the Client, as the case may be, according to the time and skill required to provide the requested services to the Client or to the Companies and/or in line with the Service Provider’s charging policy by informing the Client in writing.
Provided that any changes to the fees outlined in the provided Letter of Engagement shall be considered as final, however, if there needs to be any changes, the client will be informed 15 days in advance, and consent of both parties would be necessary to revise an already signed and consented Letter of Engagement.
Further amounts may be agreed from time to time between the parties hereto in respect to any other or further services that the Service Provider may accept in writing to provide to or in connection with such engagement or any other co-operation in the future.
Furthermore, the Client undertakes to reimburse the Service Provider for all disbursements and expenses whatsoever reasonably incurred by the Service Provider in the performance of its services contracted herein not previously foreseen or reckoned for.
VI. Books and Related Records
The Service Provider expressly agrees that all books and records relating in any manner whatsoever to the business of Client, and all other files, books and records and other materials owned by Client or the Companies, whether prepared by the Service Provider or otherwise coming into the Service Provider’s possession, shall be the exclusive property of the Client and/or the Companies as relevant, regardless of who actually prepared the original material, books or records. All such records and books and other related material shall be returned immediately to the Client/Companies upon the termination of this Agreement.
Throughout the duration of the engagement the Service Provider may send the Client, documents, correspondence, and other information. These copies are to be the Clients’ file copies. Clients should retain them with the appropriate care. The Service Provider will also keep the information in a file in their respective office. Once the term of engagement has been fulfilled, the file maintained by the Service Provider will be closed and any original documents will be returned to the Client. The file maintained by the Service Provider will be retained for approximately 10 years after which term the file will be destroyed unless written instructions from the Client are received to the effect of retaining the file for a longer term.
VII. Confidentiality
The Service Provider and any other contracted personnel working with/engaged by the Service Provider shall, at all times throughout the term of this Agreement and after termination of the Agreement (such obligation surviving in full notwithstanding such termination), maintain confidentiality and secrecy in respect of all and any information which has come to their knowledge by reason of their work related to the Client or this Agreement, or otherwise available in all the books and other records of the Client and concerning dealings and activities of the Client. The Service Provider shall refrain from divulging or in any way bring such information to the notice of third parties, whether in Malta or abroad, except where this becomes mandatory under applicable Law.
VIII. Indemnity & Freedom from Responsibility
The Client shall indemnify and hold harmless the Service Provider, its partners, directors, agents and employees, from and against all claims, actions, demands, losses, costs, expenses (including, without limitation, all legal fees and disbursements), damages, liabilities and lawsuits arising from any breach of Client’s or Attendee’s obligations under this Agreement. Saving the exception that there is fraud or wilful default of the Service Provider, its partners, directors, agents and/or employees.
In no event shall the Service Provider be liable for any indirect, consequential, incidental, reputational or future damage incurred by the Client, including, but not limited to, business interruption, lost business, lost profits, or lost savings, even if it has been advised of their possible existence.
It is expressly agreed that this indemnity continues in force without time limit and independently of this Service Agreement, and where the client is more than one person the indemnity shall be joint and several.
Liability: The Client agrees that neither the Service Provider nor a partner, director, agent and/or employee shall be liable to the Client and/or the Client’s Company or any other person for any loss howsoever arising to the Client or Company in connection with the affairs of the client or Company whether in respect of anything done or omitted to be done by the Service Provider, save in the event of fraud, wilful concealment or wilful neglect on the part of the Service Provider, subject to a maximum aggregate liability towards the Client which shall not exceed the sum of two (2) times our fee paid or payable during the period of one (1) contractual year under the Service Agreement.
X. Applicable Law and Jurisdiction
This Agreement and all rights and obligations hereunder, including matters of validity and performance shall be governed by and construed in accordance with the Laws of Malta, and the parties hereto submit to the exclusive jurisdiction of the Courts of Malta in connection herewith.
- a) At its discretion, terminate this Agreement and/or resign from any offices held within a company belonging to the Client and/or cease to provide any other service, and file all such statutory notices as may be required;
- b) At the expense of the Client or the Companies concerned, take all necessary measures to maintain the good standing of the operational licence belonging to the Client or the Company concerned, or that may be in the best interest of the Client, including instructing such professional advisors as may be necessary or indicated for such purpose;
If any of the provisions, sections or sub-sections of this Agreement be, or become invalid or unenforceable, the remaining provisions shall be, and continue to be fully effective. In such an event the Parties undertake to replace the provisions, sections or sub-sections so held with provisions, sections or sub-sections that represent the original intention of the Parties as closely as possible yet avoiding the cause of such invalidity or unenforceability.
IX. Particular Remedies
Without prejudice to its rights of remuneration and indemnity as specified in this Agreement, which provisions shall survive termination of this Agreement, the Service Provider may, upon giving notice:
Provided that the Service Provider shall not be obliged to take any such action, or be liable or responsible for any inaction, action or anything done or not done pursuant to this Section (Particular Remedies).
Subject to the foregoing, the Client may terminate this Agreement at any time and for any reason by giving 2 months’ notice in writing to the Service Provider, provided that all and any outstanding fees, expenses and other amounts properly due to the Service Provider are immediately settled and no claim for the re-imbursement of any payments for any remaining term of service is made.
X. Notices
Any official notice required or permitted to be given under this Agreement by one party hereto to another shall be in writing by fax, email or other means of communication capable of confirming receipt during working hours. When such notice arrives outside working hours it will be deemed to have arrived on the next working day. Such notice shall be deemed to have been given on the date of the confirmation of receipt, at the fax number, email or other address last provided by the other party, by the sender
XI. Termination
The Service Agreement may be terminated by giving 1 (one) prior written notice actually received by the other party; Always provided that in the event either Party is in material breach of any provisions of this Service Agreement and such breach is incapable of being rectified within 15 business days, either Party is empowered to terminate this Service Agreement forthwith with three (3) working days prior written notice and to take such independent action in its absolute discretion in order to rectify the situation as deemed fit. In the event of termination due to the material breach by the Service Provider, any fees paid by the Client under this Service Agreement in advance shall be refunded to the Client on a pro-rata basis.
XII. Data Protection
To enable DW&P to discharge the services agreed in this engagement letter, comply with related legal and regulatory obligations and for other related purposes including updating and enhancing client records and analysis for management purposes, as a data controller, we may obtain, use, process and disclose personal data about you as the Client.
DW&P confirms that it will comply with the provisions of all relevant data protection legislation, including but not limited to the General Data Protection Regulation (EU) 2016/679 (‘GDPR’), the Data Protection Act (Chapter 586 of the Laws of Malta), any subsidiary legislation thereto, which may be amended from time to time. Furthermore, DW&P has the necessary technical and organisational security measures in place to comply with the relevant requirements when processing personal data.
