Terms & Conditions
Barker Adams (the “Firm”) provides all necessary advice and other professional services as British Virgin Islands lawyers. We are not able to advise on any other relevant laws or provide services other than as British Virgin Islands lawyers.
This document sets out the terms and conditions upon which the Firm will act for you (the “Terms”) unless otherwise agreed and varied in writing by a partner of the Firm. If there is any conflict between any engagement letter and these Terms, the engagement letter will prevail.
Our Responsibilities
1. We will provide our legal services with reasonable skill and care and in accordance with the professional standards expected of us and in a timely manner.
2. The nature, extent and content of any legal services we provide will be determined by the specific nature, scope and limitations of our engagement with you and your instructions, as well as the amount and accuracy of information provided to us and the timescale within which you require our services to be provided.
3. If, at your request, we provide our advice or other legal services in an abbreviated format or timescale, you acknowledge that you will not receive all the information you would have done had we provided a full written report or had more time in which to carry out the work.
4. If general advice is provided, the applicability of this will depend on the particular circumstances in which it is to be used by you (of which we might not be aware) and should be viewed accordingly. In relation to any particular transaction, specific advice on that transaction should always be sought and all material information provided to us.
5. We rely upon the accuracy of information provided to us by you, or by others on your behalf. We will not normally seek to verify or check any information provided to us by you and you acknowledge that we shall be entitled to rely on such information when carrying out your instructions.
6. The advice or other legal service provided by Barker Adams is to be used for the purposes of the matter for which we were engaged and we are not responsible for its use for a different purpose or in a different context.
7. Unless you inform us to the contrary in writing, we may correspond by means of the Internet or other electronic media. Although we will take reasonable steps to safeguard the security and confidentiality of the information transmitted, you acknowledge that we cannot guarantee its security and confidentiality. It is our policy to check all correspondence with anti-virus software; however, we cannot guarantee that email transmissions will be free from viruses.
Your Responsibilities
8. It is your responsibility in relation to our engagement to promptly provide us with complete and accurate instructions and all necessary information and to carry out any other reasonable requests made to you or others under your control. We will not be responsible for any direct or indirect consequences which may arise from any delay or failure by you to do so and these may also result in additional fees for which we may raise invoices.
9. You remain responsible for any commercial decisions that you make, and due regard must be given to the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware by means other than our work.
Responsibility for the work
10. A partner will have overall responsibility for the matter and may be contacted at any time in relation to any aspect of our services. An associate may be allocated as the primary contact on a day-to-day basis. You will be notified of the names and contact details of the responsible partner and any associate working on the matter.
11. We will try to avoid changing the legal team that handles your work but if this cannot be avoided, we will under normal circumstances inform you promptly who will be handling the matter and why the change was necessary. Similarly we will under normal circumstances inform you promptly if one or more additional lawyers are to be utilised to deal with your matter.
12. All law firms are obliged to attempt to resolve problems that clients may have with the service provided. It is therefore important that you immediately raise your concerns with us. We value your business and would wish to address any service issue at the earliest opportunity.
Professional charges
13. Unless specifically agreed to the contrary, our professional fees will be calculated based upon what we regard as being fair and reasonable having regard to all the circumstances of the case and, in particular, to the complexity of the matter, the difficultly or novelty of the questions raised, the skill, labour, specialized knowledge and responsibility involved, the time spent on the business, the number and importance of the documents prepared or perused, without regard to length, the place where and the circumstances in which the business or any part thereof is transacted, the amount or value of any money or property involved, the urgency of the matter and its importance to you.
14. If we have agreed with you at the commencement of our retainer to calculate our professional fees by reference only to the time spent by our lawyers, this time shall include the time spent advising, meeting you and others, preparing for and attending Court, considering, preparing and working on papers, correspondence, telephone calls and any time spent travelling in relation to the matters in question.
15. Our hourly rates are reviewed periodically and may be varied to reflect increases in staff costs and other overheads.
External disbursements
16. We will bill you for external disbursements such as Court fees, incorporation fees, fees for reports, barristers’ fees, filing fees, courier fees, travel costs and other expenses incurred by us on your behalf, as soon as they are incurred and irrespective of whether at that time they had actually been paid by us. Business class airfares will be charged for all international travel, unless otherwise agreed prior to the commencement of the travel. Interest is not payable to you by us in respect of any such disbursements incurred but not actually paid by us from time to time.
Office disbursements
17. You will be charged office disbursements generated by the Firm, either on a provision basis or as a fixed percentage of the total fees up to a maximum of three per cent. These expenses include telephone and facsimile charges, photocopying and printing charges, stationery, compliance charges and other miscellaneous costs. These charges and costs may include overhead charges. We also reserve the right to charge for secretarial overtime costs where necessary to deal with your matter timeously.
Progressive billing
18. The Firm reserves the right to remit invoices progressively or on an interim basis. These progressive or interim invoices may not include some disbursements falling within the period of the invoice but which were notified to us late. In these circumstances, such costs will be held over to later invoices. Payment of each invoice is due within 30 days of the date appearing on the face of the invoice.
19. We reserve the right to ask you to provide us with funds in advance on account of our professional fees and disbursements from time to time. Any retainer will be applied in whole or in part to our first invoice (and, to the extent that there is a surplus, to future invoices). We may request further payments on account for fees and disbursements to be incurred as the matter progresses. We will account to you fully for the initial payment and any future payments on account. If such funds are not provided promptly, we reserve the right not to carry out further work in the matter until funds are received. In the event that our fees and disbursements in any matter are less than the initial retainer, we will reimburse you with any balance held by us. It is important however that you understand that the total fees may be greater than any advance payments.
20. Interest is not payable by us to you on payments made by you on account of fees and disbursements.
21. If a payment to the Firm made in connection with our engagement with you will be or has been subject to tax, you shall pay the Firm on demand the amount (after taking into account any tax payable in respect of the amount and treating for these purposes as payable any tax that would be payable but for a relief, clearance, deduction or credit) that will ensure that the Firm receives and retains a net sum equal to the sum it would have received had the payment not been subject to tax.
22. It is understood between us that any failure by you to observe these terms of payment is a serious breach and will entitle the Firm to terminate our engagement with you and discharge the Firm from any obligation to continue working for you either permanently or until payment had been effected.
Interest
23. In the event that for any reason any invoice remains unpaid for a period of 60 days after the date appearing on its face, we will be entitled to charge you, in the discretion of the Firm, interest at a specified rate on any amount outstanding until payment in full is received. If no rate is specified, interest will be charged at five per cent.
File lien
24. If any payment is not made within 30 days after the due date, in addition to any other rights or remedies, we reserve the right to exercise a lien over your files and documents. This means that no files or documents will be released until all amounts owing are paid.
Termination
25. You may terminate our services at any time by notice in writing. The Firm reserves the right to cease acting for you at any time including, but not limited to, when:
(a) you have not complied with these Terms or any other terms agreed in writing; or
(b) we have not received adequate instructions from you within a reasonable time of request, or we perceive in our discretion that the necessary relationship of mutual trust and confidence required for a workable lawyer/client relationship no longer exists; or
(c) we are unable to complete our standard due diligence process which we follow in order to comply with the British Virgin Islands Anti-Money Laundering Code of Practice; or
(d) it becomes required by law or by our professional rules or ethics for us to cease to act for you; or
(e) any invoice has not been paid within 90 days of being rendered or we consider that payment of our fees and disbursements may be at risk.
26. If you or we decide that we will stop acting for you, you will remain liable to pay us our professional fees for services rendered and disbursements incurred by us up to the date of termination of our retainer.
Destruction, archival and retrieval of files
27. Upon completion of instructions the Firm agrees to store all files either in physical form or electronically (save for superfluous copies of papers and drafts which may be destroyed) for a period of twelve years after sending you our final invoice, after which they may be destroyed without further notice to you.
28. We will not destroy documents you ask us to deposit in safe custody. There will be a charge for such special storage.
29. We do not normally make a charge for retrieving stored papers or deeds in response to continuing or new instructions to act for you. However, we reserve the right to make a charge relative to the time that we spend on reading or copying papers, correspondence or other work necessary to comply with the instructions.
Documents
30. We retain all copyright and other intellectual property rights in everything developed by us both before and during our engagement with you including all documents, all information held on disk or in any information retrieval system, systems, methodologies, software and know-how save for share certificates and original documents given to us by you and expressly held on your behalf.
Exclusion of Liability
31. We will provide our legal services to you with reasonable skill and care and acknowledge that we will be liable to you for losses, damages, costs or expenses (“losses”) which are determined to have been caused by our negligence, breach of contract or willful default, subject to the following provisions:
(a) we will not be liable if such losses are due to the provision of false, misleading or incomplete information or documents or due to the acts or omissions of any person other than the Firm;
(b) where you suffer any losses for which we are jointly and severally liable with any third party or third parties, the extent to which such losses shall be recoverable by you from us, as opposed to the third party, shall be limited so as to be in proportion to our contribution to the overall fault for such losses, as agreed between all of the parties, or in the absence of agreement as finally determined by the British Virgin Islands Courts.
32. You agree not to bring a claim against any of our employees personally. This clause shall not exclude or limit the liability of the Firm or its partners for the acts or omissions of its employees performed under the Firm’s supervision or within the scope of the employee’s contract of employment with the Firm. The Firm enters into this clause for itself and as agent and trustee for each employee and the Firm has an absolute discretion as to the enforcement of this clause on behalf of its employees.
Confidentiality
33. We confirm that, except as may be required by law, a court of competent jurisdiction, or other governmental or regulatory authorities, we shall at all times keep confidential any confidential information you give to us and you agree that it will be sufficient compliance with our duty of confidence for us to take such steps as we in good faith think fit to preserve confidential information from misuse both during and after termination of our engagement with you.
34. Any advice we provide to you during our engagement with you is given in confidence solely for you to rely upon and solely for the purpose for which we were retained by you. We are not responsible to any third party who seeks to rely upon any such advice without our prior written consent having been given to such third party.
Publicity
35. Following the completion of a successful engagement or transaction, and subject to our obligation to you as set out in clauses 33 and 34 above, you agree that we may publicise or advertise our involvement, using such media as we deem appropriate. We shall use our reasonable endeavours to inform you of any publicity or advertisement in advance of its release.
Conflicts of Interest
36. We provide a wide range of services for a large number of clients and may be in a position where we are providing services to companies and organizations which you might regard as giving rise to a conflict of interest. Whilst we have established procedures to identify such situations, we cannot be certain that we shall identify all of those which exist or may develop, in part because it is difficult for us to anticipate what you might perceive to be a conflict. We request that you notify us of any potential conflict affecting this engagement of which you are, or become, aware. Where the above circumstances are identified and we believe that your interests can be properly safeguarded by the implementation of appropriate procedures, we shall discuss and agree with you the arrangements that we shall put in place to preserve the confidentiality and to ensure the advice and opinions which you receive from us are wholly independent. Just as we shall not use confidential information relating to you for the advantage of a third party, we shall not use confidential information obtained from any other party for your advantage.
Quality of Service
37. It is our desire to provide you with a high quality service to meet your needs. If at any time you believe that our service to you could be improved, or if you are dissatisfied with any aspect of our services, please raise the matter immediately with the partner responsible for that aspect of the services. If, for any reason, you would prefer to discuss the matter with someone else, please contact Mr. Stephen Adams, Barker Adams, Columbus Centre, Road Town, Tortola, British Virgin Islands. In this way we are able to ensure that your concerns are dealt with carefully and promptly.
Trigger dates
38. Following completion of our engagement with you, the Firm is not obliged to inform you of any trigger date (being a date by which you are required to do or refrain from doing an act to protect an interest or legal right). Our practice of archiving or storing files and documents for twelve years does not impose any continuing obligation on the Firm in respect of these files or documents, other than in relation to their archival or storage.
Notices
39. Any notice required to be given shall be in writing and shall be served by being posted by pre-paid mail or delivered by commercial courier service or forwarded by fax transmission to the last known address or fax number of the relevant party.
Agreement
40. Your continuing instructions will amount to your acceptance of these Terms, and the appointment of this Firm as your agents in respect of the matter for which we are retained by you.
Anti-Money Laundering Regulations
41. In order that we can comply with the British Virgin Islands Anti-Money Laundering legislation, where applicable, you may be asked to complete and return a Know Your Client Questionnaire as soon as reasonably practicable together with all requested documentation. We can accept faxed copies of the documents initially but the hard copy originals must be delivered to us.
Governing Law
42. These Terms are governed by and construed in accordance with the laws of the British Virgin Islands and each of us irrevocably submits to the exclusive jurisdiction of the Courts of the British Virgin Islands to hear and decide any suit, action or proceedings, and to settle any dispute which may arise out of or in connection with these Terms and our engagement with you.
General
43. A variation of these Terms is valid only if it is in writing.
44. The failure to exercise or delay in exercising a right or remedy provided by these Terms or by law does not constitute a waiver of the right or remedy or a waiver of other rights and remedies. No single or partial exercise of a right or remedy provided in these Terms or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
45. Nothing in these Terms shall be construed as creating a partnership or joint venture of any kind between us or as constituting one of us as the agent of the other for any purpose whatsoever. Neither of us shall have the authority to bind the other or to contract in the name of or create a liability against the other in any way or for any purpose.
46. Each of the provisions contained in these Terms shall be construed as independent of every other such provision, so that if any provision of these Terms shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then such determination shall not affect any other provision of these Terms, all of which other provisions shall remain in full force and effect.
