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TERMS & CONDITIONS

FOR

ECONOMIC SUBSTANCE ASSESSMENT SERVICES

1. PURPOSE OF THIS DOCUMENT

 

This document contains the terms and conditions on which we, Sage Corporate Consultants Limited (“SAGE BVI”) provide our Economic Substance Assessment Service (“ESAS”) to you. It applies only to your use of this service, ESAS, with respect to a BVI legal entity (the relevant entity) and does not affect any other relationship you have with us.

 

 

2. OUR SERVICE

 

In consideration for the payment of the specified fee you will be provided with this service, our ESAS, with respect to the relevant entity in respect of which our service was requested.

 

  • Our service: ESAS, comprises: the use of our Economic Substance Assessment Tool (“ESAT”). This is essentially an online questionnaire that includes a general review of the nine (9) categories of relevant activity under the Economic Substance (Companies and Limited Partnerships) Act of the BVI (“ESA”). Through this review provided by the ESAT, a BVI legal entity can identify whether its business activity falls within any one or more of these categories.

 

  • In addition to the use of our ESAT, our service also comprises an independent verification of the information provided through ESAT by our team of consultants and the provision of a formal economic substance assessment report (“ESA Report”). This report is based on the information you provided through the ESAT and confirms the extent to which the relevant entity is caught under the scope of the ESA as well as which category of relevant activity it falls within IF it is carrying out the type of activity that is caught within such category. In so doing the ESA Report provides a classification of the relevant entity under the ESA.

 

  • The ESAT provided as part of this service is not nor is it intended to provide legal advice. Furthermore, the ESA Report provided as part of this service is not nor is it intended to be legal advice or a legal opinion.

  • It is also important to note that: the economic substance legislation is fact-specific as this relates to obtaining thorough analysis as it relates to any given BVI legal entity, and thus there can be no substitute for obtaining legal advice on a case-by-case basis. ESAS is therefore properly utilised and most effectively utilised as a first step in evaluating how the BVI Economic Substance Regime impacts a BVI legal entity. Once this service has been obtained proper consideration can be given as to what further steps are required to ensure that the BVI legal entity is compliant with the ES Act and the BVI economic substance regime. 

  • Information provided and views expressed through the ESAT and set out in the ESA Report which comprise this service, depend solely on your responses being accurate in all respects as we rely solely on the information which you provide to us. We make no attempt to verify any of the information you provide or to check for inconsistencies with other data or information about the relevant entity, which we may obtain from the registered agent of the relevant entity or from any other source.

  • The ESAT includes certain legal terms as set out in the ESA and thus these do not bear their ordinary meaning. The correct interpretation of these terms is essential to ensuring that the analysis is accurate. For that reason, if you are not aware or unsure of these terms and/or whether they apply to your BVI legal entity, you should take legal advice on the legislation and its application to your particular situation.

 

  • This service: ESAS does not establish an attorney-client relationship, and as a result we do not assume any duty of care to you by providing this service.  Any such relationship or duty will only come into existence if you formally instruct us to conduct an economic substance analysis pursuant to a letter of engagement.

  • Furthermore, any views expressed and points made through this service are not protected by legal advice privilege. The only way to obtain the benefit of legal advice privilege is to formally instruct us to provide a legal opinion in relation to economic substance pursuant to a letter of engagement.

  • Once we have received payment for the ESAS we will provide to your registered agent the  electronic link through which you will access and utilise our ESAT.

 

  • Upon confirmation of completion provided to us through your registered agent (or by you directly where you requested this service directly from us); we will provide the ESA Report to the e-mail address provided within 2-3 business days.

 

  • This service is provided for the benefit of you as our client and the relevant entity with respect to which our service is used. You may only disclose a copy of the ESA Report to third parties upon a non-reliance basis. We do not accept any duty of care to any third party to whom you disclose our report.

 

  • We may suspend the provision of this service from time to time, particularly to facilitate routine maintenance of the relevant systems and/or to update or modify the ESAT and its operation to reflect changes in BVI law, regulations, official guidance and/or the proper interpretation thereof.

 

 

3. COMMUNICATION

 

We will use electronic communication in the course of taking and acting on instructions from you. Unless you advise us otherwise we will assume communication by email is acceptable to you. With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties.

 

  • We use scanning software to reduce the risk of viruses, malware and similar damaging items being transmitted through emails or electronic storage devices. We also expect you to operate such software. As electronic communication is not totally secure and not always reliable we cannot be held responsible for damage or loss caused by non-receipt, delayed receipt, inadvertent misdirection, interception by third parties, viruses; or for communications, which are corrupted or altered after despatch. We also do not accept any liability for problems or accidental errors relating to this means of communication especially in relation to commercially sensitive material.

 

  • Whilst making every reasonable attempt to secure personal data, we cannot accept responsibility for any unauthorised access or loss of private information that is beyond our control.

 

4. SCOPE OF LIABILITY

 

We will not be liable for the acts or defaults of any third party, including your registered agent or any intermediary, and will not be liable for any punitive, exemplary or multiplicatory damages or similar claims.

 

We will also not be liable for any consequential loss or loss of profit however arising, whether or not such loss was foreseeable and whether it was suffered by the person by whom we are instructed or any third party;

 

  • Furthermore, we will not be liable if you act on an assessment or recommendations given by us on an earlier occasion without first confirming with us that this remains valid in the light of any changes in the law or your circumstances and will accept no liability for losses arising from changes in the law or in the interpretation of the law which are first published after the date on which this is given.

 

  • We will also not be liable for any losses where those losses are due to inaccurate, incomplete or misleading information provided to us; and shall not be liable for any inability on our part to perform our services for any cause beyond our reasonable control, and you agree not to bring such claims against us.

 

It is a fundamental provision of these terms and conditions that you agree no individual has or will have any personal responsibility to you for the services provided by them on behalf of Sage BVI.

 

5. DISCLOSURE AND CONFLICTS OF INTEREST

 

Given the nature of this service, we do not consider it a conflict of interest for different persons to use this service, ESAS, even where their interests are opposed. Furthermore, our ESAS is not provided on a limited or exclusive basis to any person or group. This does not affect our obligation to maintain the confidentiality of information provided by each and every client in relation to the use of this service.

 

  • Where we are engaged by a registered agent, professional intermediary or law firm in relation to this service then, unless otherwise indicated, we will act on the basis that such person/party is engaging us as agent for their underlying client(s). Where we are engaged by an agent on behalf of a principal these terms will be binding upon both the principal and agent. In all other cases we act for the instructing client as principal and not as agent for any other party unless otherwise agreed. Any service provided will be solely for the benefit of the relevant entity.

 

  • You agree not to share the ESA Report with any other person except as may be expressly agreed by us or as expressly permitted by these Terms and Conditions.

 

6. BASIS OF CHARGING

 

Use of the Service is charged on a per entity basis at the specified rate as agreed with your registered agent, intermediary or agreed with you where you engaged us directly. We will require advance payment for our service.

 

Our charges are net of any bank charges and withholding taxes and you should not assume that we are registered for tax in any country or state from which you may choose to make payment. If you are compelled to make any deductions from payments on account of such charges or taxes, you must gross up the payment so that we receive the amount stated on the face of any invoice which we issue.

 

  • No VAT or similar charge is currently payable for the provision of our service.

 

  • Invoices will be submitted by email only to the person who has requested our service by email in respect to a particular entity.

 

  • If you wish to dispute any part of an invoice in good faith then you must do so within 30 days of receipt of the invoice after which time the invoice shall be treated for all purposes as agreed. Any notice of dispute must be in writing and must clearly set out the basis of your objection.

 

7. BANK FAILURES

 

We accept no liability for any sums held in a client account, which are not readily available to us as a consequence of failure of any financial institution, which is regulated, and doing business in any jurisdiction where you have instructed us.

 

In the event of the failure of a Bank or similar event relating to insolvency or illiquidity of the Bank, our liability for sums held by us (whether money on account for fees or sums received by us as part of a transaction) which have been deposited with a Bank is limited to such sums as we can reasonably recover in the bankruptcy or reorganisation of the Bank.

 

8. CONFIDENTIALITY

 

All information that you provide to us will be treated as confidential unless you advise us otherwise or the Information is already in the public domain. Much of the information you provide to us will also be covered by legal professional privilege, although the rules relating to privilege vary by jurisdiction, and are determined by law.

 

We will take all commercially reasonable steps to maintain adequate safeguards to protect the confidentiality of any information relayed to us. We will not be liable for any loss of confidentiality caused by the actions of a third party, which could not have been prevented by the operation of commercially reasonable safeguards.

 

  • We may in certain circumstances be permitted or compelled to disclose confidential information to regulatory or law enforcement authorities. In such cases we will not be liable for any disclosure, which we reasonably believe to be in compliance with our legal obligations.

 

  • At the completion of a matter we will retain relevant documents for at least the minimum periods prescribed as required under applicable law. After the end of those periods we may dispose of the files without further reference to you.

 

9. INTELLECTUAL PROPERTY RIGHTS

 

We will retain all copyright in any document prepared by us.

 

The trademarks, service marks, trade names, and logos, including, but not limited to, page headers, custom graphics, button icons, and scripts (together, Trademarks) used and displayed on our services are registered and unregistered trademarks, service marks and/or intellectual property of Sage BVI or its licensors. You may not copy, imitate or use the Trademarks, in whole or in part, for any purpose. No license or other right to use any Trademark used or displayed on our service is granted to you.

 

  • You agree and undertake that you will not (i) reverse engineer or decompile our service, the ESAS, or any part thereof, or attempt to do so; (ii) access, or attempt to access, any areas of the computer system or other information thereon in relation to this service (except as expressly provided as the use of the service in the ordinary course through the relevant Link); (iii) use any robot, spider, other automatic device, or manual process to “screen scrape,” monitor, “mine,” or copy the pages provided through the service or the content contained thereon in whole or in part; and (iv) use any device, software or routine to interfere or attempt to interfere with the proper working of the service, or (in each case) procure, enable, permit or assist any other person to do any of these things.

 

  • You may not without the prior written consent of Sage BVI use framing techniques to enclose the online service, ESAT, or any Trademark, logo or trade name or other proprietary information including the images or information obtained that is found on the service or the content of any text or the layout/design of any page or any form contained on a page as part of our service.

 

10. DATA PROTECTION

 

We may obtain, use, process and disclose personal data about you in order to carry out our instructions and for other related purposes including updating and enhancing our client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance.

 

11. MISCELLANEOUS

 

These terms and conditions shall govern the terms of our relationship in relation to the provision of our service: the ESAS and may be amended  from time to time by Sage BVI. However no variation shall affect any accrued rights.

 

  • You may not assign any rights which you may have against Sage BVI or any of our partners to any other person without our prior written consent.

 

  • If any of the provisions of these terms and conditions are found to be unenforceable for any reason in any jurisdiction, the remaining provisions shall not be affected.

 

12. APPLICABLE LAW AND DISPUTE RESOLUTION

 

These terms and conditions and your relationship with Sage BVI with respect to this service is made under and governed by British Virgin Islands (BVI) law.

 

Any dispute or disagreement between you and Sage BVI, which cannot be resolved amicably through discussions and negotiation, shall be resolved exclusively by mediation in the British Virgin Islands by a sole mediator who is on the register of court appointed mediators as maintained by the Registry of the Eastern Caribbean Supreme Court in the BVI.

 

  • The preceding paragraph does not limit Sage BVI’s ability to claim or take any proceedings against you in any court for unpaid fees, disbursements, or charges reasonable incurred in the provision of this service.

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