Definitions

Conyers Dill & Pearman” or “we” (or derivatives) of “the Firm” means the Conyers Dill & Pearman contracting party as named in our accompanying email or letter (the “Engagement Letter”) or, if no such contracting party has been named, then Conyers Dill & Pearman Limited, a Bermuda company.

you” (and derivatives) means the person identified as the “Client” or, in the absence of any person so identified, the addressee or addressees named in the Engagement Letter.

Representation

  1. We will represent you in connection with the identified Matter.  We have not been retained to represent you in a general capacity.  Our role will be limited to advising on Bermuda law. We rely on the strict understanding that you have obtained, or will obtain, proper professional advice as to the laws of any other relevant jurisdiction.  We do not provide advice, and will not be advising, and you agree not to rely on advice given, relating to commercial or financial aspects of the Matter.
  2. We act for you only and not any other person, affiliates or other related entities.  No third party may rely upon our advice unless this is agreed to by us in writing.
  3. Where we act for multiple clients or addressees each such person is jointly and severally responsible for all obligations due to us and each represents that she/he/it has full authority to instruct us.
  4. We will typically allocate the Liquidations Manager to oversee the Matter and an Administrator with principal direct day‐to‐day responsibility for the Matter. We may use the services of other or additional lawyers as we consider necessary or appropriate for the efficient conduct of the Matter. Should the liquidator appointed be a Director of Conyers, that Director will have overall conduct of the Matter.
  5. These Standard Terms and Conditions of Engagement supersede any prior written or oral agreements between you and us and unless we otherwise agree in writing, these Standard Terms and Conditions of Engagement contain our entire agreement for rendering professional services. You acknowledge and agree that we may in our sole discretion, at any time and from time to time, change these terms, and if we do so, we will post any such changes on our website: https://www.conyers.com.  Your continued instructions following any such change will constitute your acceptance of those changes.

Conflicts

  1. Acknowledgment. You acknowledge that we have represented, now represent and will continue to represent in a wide variety of matters numerous clients, operating nationally and internationally in a number of different industries. You further acknowledge that in light of the scope of our practice, there might arise after the date of this letter conflicts of interest that, in the absence of a conflict waiver, could impair the ability of you or other clients to select us as your or their counsel.
  2. Waiver/No Disqualification. You agree that we, insofar as permitted by the relevant professional rules applicable to our lawyers, after the date of this letter, represent other entities or persons adverse to you on matters (each, “Allowed Representation”) that are not substantially related to (i) the Matter or (ii) any other legal services that we are rendering or in the future may render to you (with or without a separate engagement letter). An Allowed Representation may include but is not limited to representation (possibly in formal adverse proceedings) of other entities or persons whose interests are adverse or different to yours or where you are not a party but the other client is or we are seeking documents or other evidence from or involving you. You agree that we may disclose the fact of our representation of you, the existence of this waiver to any person or entity in connection with pursuing such a representation and, to the extent required, we may obtain a formal conflict of interest waiver, provided that such disclosure does not convey any confidential or non-public information and is not adverse to your interests or the general nature of our representation of you. You also agree that you will not assert that either (A) our representation of you in connection with any past, current or future matter or (B) our actual, or possible, possession of confidential information belonging to you is a basis to disqualify us from representing another entity or person in connection with any Allowed Representation. You further agree that any Allowed Representation does not breach any duty that we owe to you. You also acknowledge and agree that our confidentiality obligations to another client may prevent us from sharing with you any information provided to us by them or on their behalf or the fact that we are relying on this waiver, and you waive and agree not to assert any rights you might otherwise have that arise from our acting accordingly.
  3. You acknowledge that we will rely on your agreements and waivers set forth in these paragraphs and agree that such agreements and waivers (1) are, to the extent permitted by applicable laws or applicable rules of professional conduct, irrevocable, (2) will automatically be part of the terms of any future engagement of us by you and (3) will be equally applicable to you and to your affiliates, successors and assigns.

Fees

  1. Unless otherwise agreed, our fees are based upon the amount of time and attention involved, the nature and complexity of the particular matter, its time sensitivity and the seniority and experience of the staff) involved.  Please note that our hourly rates are subject to change, generally on an annual basis. You may request an update on whether the minimum fee is close to being exhausted and an estimate of additional fees and expenses that may be incurred to conclude the Matter.  We reserve the right to agree a fixed fee and/or add a weighting to our fees in matters involving urgency, novelty, unusual responsibility, complexity.
  2. You will be responsible for courier and delivery charges, hotel and travel costs (if relevant), and all other out‐of‐pocket expenses reasonably incurred in handling the Matter. You will be charged office disbursements generated by the Firm, on a provision basis and/or as a fixed percentage of the total fees as appropriate. These disbursements include for example: charges for photocopying, printing, scanning, document production, telephone and faxes) which are not charged directly to the engagement. You are also responsible for all costs and expenses (including government filing fees) we may advance on your behalf. VAT will be included where applicable.
  3. All our fees, costs and expenses are net of any applicable withholding taxes or surcharges.

Invoices

  1. We will send you an upfront invoice representing the Minimum Fee for the Matter Further invoices will be sent as additional fees and disbursements are incurred and are payable on receipt unless alternative arrangements have been made. If you expect to be reimbursed by a third party and/or your invoices are to be directed to a third party, you remain responsible for the payment of our invoice.
  2. You agree that we may send our invoices to you by email or other electronic means.
  3. We reserve the right to apply interest at the applicable statutory rate in each jurisdiction in which we operate on all invoices that remain unpaid for 30 days on the outstanding balance from the due date of the invoice until paid.

Electronic Communications

  1. In the course of our acting for you, we will communicate with you by email or by other electronic means.  It is understood by you that the electronic transmission of information via email or other means cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use.  Accordingly, while we will use reasonable efforts to ensure that our electronic communications are secure and reach you safely and in confidence, we shall not have or incur any liability to you arising out of or in connection with electronic communications with you.  Further, Conyers will have no liability to you for any action taken or any failure to act in reliance upon any electronic communications, including email and email attachments, which Conyers receives and which it reasonably believes in good faith was transmitted by you or someone authorised by you.

Changes in the Law

  1. Our advice is given on the basis of the laws in force at the date of the advice.  Unless you expressly instruct us to do so in writing, we are under no obligation to advise, and accept no responsibility for advising in relation to subsequent changes in the laws and/or their effect, if any on you.  It is possible that changes may occur in the law and its interpretation before our advice is acted upon.  We accept no responsibility for any loss due to changes in the law or its interpretation that occur subsequent to our advice being delivered to you.

No Independent Investigation

  1. Our responsibility is limited to responding to specific instructions received from you, or on your behalf from your professional advisers or agents, and we are under no obligation to investigate or verify independently the accuracy or completeness of such instructions. If we are obliged to make any assumptions as to matters of fact, or the laws of any other jurisdiction, we may rely entirely upon those assumptions without independent verification.

External Information and Public Records

  1. In advising you, we may rely on, or provide you with, information obtained from third parties (including, but not limited to, experts, witnesses or government agencies or registers) whether or not certified as being true copies of the originals. You acknowledge that Conyers has no responsibility, and will not be liable for, any damage or loss caused by errors or omissions contained in information obtained from third parties.

Intellectual Property

  1. We retain all ownership rights in all intellectual property of any kind created for you by us, including all copyrights which may arise through collaboration with you. Our intellectual property may not be reproduced, or provided to any third party, without our prior written consent.

Confidentiality

  1. We will keep information you provide confidential except where you agree that information may be disclosed or where we are required by law to provide information to others.

Consultation with Firm Counsel

  1. We sometimes use internal and external counsel to advise us regarding our ethical, professional and legal duties. You agree that if we determine in our own discretion during the course of or following the representation of you that it is either necessary or appropriate to consult with either in-house counsel or, if we choose, outside counsel (collectively, “Firm Counsel“), we have your consent to do so in what are and are deemed to be communications protected by attorney-client privilege, and that our representation of you shall not, thereby, waive any such attorney-client privilege protecting the confidentiality of communications with Firm Counsel and you shall not have any right to disclosure of those communications.

Retention of Deeds and Documents

  1. At the conclusion of a transaction, we will store files, papers and deeds on your behalf for a reasonable period of time and in accordance with the applicable legislative requirements and our best practice.  Such papers or files may be stored in electronic form.  Storage by any means is currently free of charge.  We may sub-contract out storage facilities to independent third parties.  We also reserve the right to destroy your files and papers without further reference to you unless we receive a written request from you not to do so during this period of retention.  At your request, we will return any papers or property belonging to you which are not subject to a lien or otherwise being stored for safe keeping. We may charge you, and require payment in advance, for any and all costs, including time costs at applicable hourly rates, for any work undertaken in providing you with copies of files or documents or responding to any requests or demands for copies of such files or documents.  This provision shall apply both during our representation of you and following the termination of Conyers’ representation of you.

Lien

  1. Without affecting any lien to which we are otherwise entitled at law, we shall be entitled to retain by way of lien any of your funds, property or papers which are, from time to time, in our possession or control until all costs, disbursements, interest and other moneys due to us have been paid and our lien will continue despite that we have ceased to act for you.

Anti-Money Laundering Laws

  1. Our engagement is subject to and only effective upon completion of our usual client intake procedures, including customer due diligence and anti-money laundering requirements and the carrying out of appropriate conflict checks and processes.
  2. We may require certain information from you in order to comply with our statutory obligations, including in relation to anti-money laundering and anti-terrorist financing laws and you undertake to provide us promptly with true and accurate copies of such information in a format that is satisfactory to us. Under our statutory obligations we are required to disclose to the relevant authorities any knowledge or suspicion that another person is engaged in, or that assets represent a benefit from, money laundering or other criminal conduct.
  3. We are and will at all times remain fully compliant with all applicable laws, statutes and regulations relating to anti-bribery and corruption in all of the jurisdictions in which we operate. We have and will at all times maintain proper internal policies and procedures to ensure compliance with all relevant anti-bribery and corruption laws, statutes and regulations and copies of our policies are available upon request. In the (unlikely) event we cease to comply and/or maintain policies in accordance with all applicable laws, statutes and regulations relating to anti-bribery and corruption, or believe that we are unable to comply and/or maintain such policies, we will immediately inform you of the fact.

Sanctions

  1. The Firm is subject to laws that restrict it from dealing with entities, individuals, organisations and/or investments which are subject to applicable sanctions regimes. You represent and warrant, on a continuing basis, that both you and any of your controllers and owners are not (i) named on any list of sanctioned individuals, entities and organisations pursuant to United Kingdom (“UK”) regulations (as extended to Bermuda) or by the US Treasury Department’s Office of Foreign Assets Control (“OFAC”), or otherwise applicable in Bermuda; or (ii) otherwise subject to sanctions imposed by the UK, OFAC or Bermuda.
  2. It is our policy to ensure that any member of the Firm, or any individual partner or employee of the Firm, complies with sanctions regimes or other legal or regulatory constraints which might apply.  In addition, if circumstances arise where continuing to act on a matter would be likely to involve, at the discretion of the Firm: (1) a material or potential risk to any member of the Firm, or (2) a material risk of any member of the Firm being in breach of any governmental, or intergovernmental or regulatory sanction, law or regulation, or being subject to sanctions, we reserve the right to cease acting without liability for so doing. If we become aware of such a situation we will endeavour to bring the matter to your attention and consult with you about appropriate steps to mitigate any consequential inconvenience to you.

Privacy

  1. We are committed to maintaining the security, confidentiality and privacy of your personal information. Please click here for further information on the terms of our Privacy Notice which may be amended from time to time and is set out at https://www.conyers.com/privacy-notice. You agree to be bound by the terms of our Privacy Notice, including the use of personal information by us in accordance with the Privacy Notice.
  2. You represent and warrant that all information, including personal information, provided to us now or during the term of this engagement has been lawfully collected and provided in accordance with applicable data protection and privacy legislation and all required consents have been obtained.

Termination

  1. You have the right to terminate our representation by written notice at any time. Similarly, we will also have the right to withdraw our representation of you at any time. In either case, our accrued fees and disbursements will be payable up to the date of termination and will also be payable for any fees and disbursements reasonably accrued post termination. In the event of termination by either you or this Firm, should one of our Directors be acting as Liquidator, he/she will resign and you will be required to ensure that a replacement liquidator is appointed in accordance with Bermuda law.

Limitation of Liability

  1. In any circumstance where we are responsible with other persons for any damage howsoever caused to you, it is agreed that our liability shall be limited to such sums as we reasonably ought to pay having regard to our responsibility for the damage and on the basis that such other persons are deemed to have paid to you such sums as they ought reasonably to have paid. In the event an order is made requiring us to make a contribution to another person in respect of the damage suffered by you, our liability to you shall be reduced by the amount of the contribution so ordered.
  2. Further and in any event, unless otherwise agreed in our Engagement Letter, Conyers’ liability whether arising in contract or in tort (including negligence) or under statute or otherwise for any loss (including direct loss and indirect or consequential loss and including loss of business or profits), liability or damage suffered by you (including any and all legal costs and/or interest) or any other person that may arise from or in any way be connected with our provision of legal services to you or our representation of you, shall absent fraud or dishonesty on the part of Conyers be limited to US$1.5 million. For the purposes of this clause, all claims arising from the same act or omission or one series of related acts or omissions will be regarded as one claim.
  3. Any claim made by you or any other person in respect of any loss of whatever kind (including direct loss and indirect or consequential loss of any kind), liability or damage arising from or in connection with our provision of legal services, must be made within three (3) years of the date when the earliest possible cause of action (in contract or in tort (including negligence) or under statute or otherwise) would have accrued or did accrue. A claim shall only be considered made if and when court proceedings are validly served on us.

Force Majeure

  1. We shall not be held liable for any delay or failure to fulfil our obligations to you as a result of causes beyond our reasonable control. Such causes include, but are not limited to: fire, floods, hurricanes, tropical storms, typhoons, acts of god, acts and regulations of governments, wars, riots, strikes, lock outs or industrial disputes.

Governing Law / Dispute Resolution

  1. This agreement and your retention of us shall be governed by, and construed in accordance with the laws of Bermuda.
  2. If you have a dispute in relation to any aspect of our legal fees or have any complaint about any aspect of our service being provided to you, you should bring your concerns to us at the earliest opportunity so that any issue can be identified and we may have the opportunity of resolving the issue promptly and without adverse impact on our business relationship.
  3. In the event of a dispute arising out of, in connection with or relating to the interpretation, performance or breach of our or your obligations or duties relating to your engagement of us to provide legal services to you (“Dispute“), there may be a risk of public disclosure of attorney-client privileged information or attorney work product or otherwise confidential and commercially sensitive information if such a Dispute is litigated in court.

You agree that, at our option, any Dispute (other than a Regulatory Complaint) may be settled by confidential binding arbitration to be held in Bermuda before a retired judge of the Supreme Court or the Court of Appeal of Bermuda, or a Queen’s Counsel of England or Wales, or a Queen’s Counsel of Bermuda, or a Fellow of the Chartered Institute of Arbitrators with legal qualifications (with sufficient experience in each case of the Bermuda legal system as may be appropriate to the subject matter of the Dispute) acting as a Sole Arbitrator whose identity is to be agreed between you and us, or, in the absence of agreement, to be appointed by the President of the Chartered Institute of Arbitrators.  The arbitration will be conducted in the English language, subject to the provisions of the Bermuda Arbitration Act 1986 and in accordance with the UNCITRAL Conciliation Rules currently in force.  The seat and place of arbitration, and the governing law of this arbitration agreement, shall be Bermuda, unless the Parties agree otherwise in writing.

For the purposes of this clause, a Regulatory Complaint is a complaint to the Professional Conduct Committee under section 18A of the Bermuda Bar Act 1974.

It is further agreed that, notwithstanding the foregoing, we may, at our absolute discretion, commence debt recovery claims and actions against you either in the courts of Bermuda or in the Courts of your jurisdiction of residence for payment of any invoices that you fail to pay within the agreed payment period following repeated requests.

Service of Process by Email

  1. You agree that if we issue Proceedings against you in connection with these instructions (or determine that it is necessary to apply to the Court to be removed from the record as acting for you) then we may serve such Proceedings or application on you by email (using the address you have provided) and such service will be deemed to have been effected on the day of sending and to have occurred within the jurisdiction

Severance

  1. If any provision or part-provision of these Standard Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted but that shall not affect the validity and enforceability of the rest of the Standard Terms and Conditions.