FL INTERNATIONAL TAX ADVISORS, INC.
GENERAL TERMS AND CONDITIONS OF SERVICE
Incorporation by Reference. These General Terms and Conditions of Service are deemed to be incorporated by reference into the FLI Engagement Letter, and any addendums or modifications executed in writing by both parties, and shall be read and constructed as integral part of the Contract, and shall be interpreted in the following order in case of discrepancy or ambiguity among the following documents:
1. Contract for Delivery of Professional Services.
2. FL International Tax Advisors, Inc. General Terms and Conditions of Service.
3. Proposal for Delivery of Professional Services.
4. Addendums or modifications executed in writing by both parties.
Scope of Engagement. FL International Tax Advisors, Inc. (“FLI”) has been retained to deliver services as established in an Engagement Letter Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services accepted and agreed to by the Client.
We expect that in connection with our work for you, you will provide us with clear, timely, and accurate instructions; you will provide all documentation required for the matter in a timely manner; and you will review our tax advice and any documentation we produce carefully to ensure that it is in accordance with your requirements. It is important that you let us know if there is any additional information which might be relevant to the matter and may have a bearing on the advice given or documents drafted.
During the course of our engagement, you may seek our professional opinions or beliefs regarding the likely outcome of your matters or the likely effectiveness of various courses of action. Any expressions (solicited or otherwise) on our part concerning such possible outcomes or courses of action are expressions of our best professional judgement, but are not guarantees.
General Terms. These General Terms and Conditions (the “Terms and Conditions”) set forth the terms of your retention of FL International Tax Advisors, Inc. (and its affiliated entities and third-party service providers, collectively, “FLI”) to provide tax advice and related services and constitutes an agreement between us.
The Terms and Conditions (notwithstanding any guidelines for advice or counsel that you may provide to us), and any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services (attached to these Terms and Conditions) set forth our entire agreement for rendering professional services for the current matter, as well as for all other existing or future matters (collectively, the “Engagement”) except where we otherwise agree in writing.
Fees. Upon fulfilment of the FLI Conflicts Check, or together with this Agreement, FLI shall deliver to you a Proposal for Delivery of Professional Services, outlining our fees for the Engagement and which may serve as a benchmark for future business between the parties. Upon your execution of the Proposal for Delivery of Professional Services, it becomes binding on the parties and the fees there outlined, shall be those owed to FLI by you.
Billing Statements. Our statements for fees and expenses shall be rendered as agreed in the Proposal for Delivery of Professional Services and shall be due and payable at the time of invoicing, as agreed to in the Proposal for Delivery of Professional Services. Failure to make payment as outlined, entitles FLI to unilateral termination of this Agreement and its Annexes, and you shall be liable for any costs and fees already incurred.
Termination. Our retention may be terminated by either party at any time by written notice by or to you. Such written notice may be (a) your notification to us of your termination of the relationship, (b) our confirmation to you of the completion of our Engagement, or (c) our notification to you of our withdrawal (as allowed or required by any applicable rules of professional conduct, FINCEN, OFAC, or other applicable regulation). If permission for withdrawal is required by a court, we shall apply promptly for such permission and termination shall coincide with the court order for withdrawal.
Our Agreement will also end, regardless of whether or when written notice was sent by or to you, upon the constructive completion of our work. When constructive completion of our work shall have occurred will depend on the particular facts of our engagement. If this Agreement or our services are terminated for any reason, such termination shall be effective only to terminate our services prospectively and all the other terms of this Agreement shall survive any such termination.
Upon cessation of our active involvement in a particular matter (even if we continue active involvement in other matters on your behalf), we will have no further duty to inform you of future developments or changes in law or tax policy as may be relevant to such matter. Further, unless you and we mutually agree in writing to the contrary, we will have no obligation to monitor renewal or notice dates or similar deadlines which may arise from the matters for which we had been engaged.
You agree promptly to reimburse us for all fees and expenses, including the amount of our time at normal billing rates, as incurred by us in connection with, preparing for, or responding to any inquiries or consultations regarding your tax matters. Without limiting the scope of the foregoing, and by way of example only, this paragraph extends to all such fees and expenses incurred by us for the work on your matter. The total outstanding amount plus any additional amounts for services and other Client charges incurred up to the date of, and subsequently as a consequence of, termination will be immediately due and payable upon presentation of our final statement.
If our engagement is terminated and you engage us again, these Terms and Conditions shall apply to such subsequent engagement unless we agree otherwise in writing.
File Retention. We will maintain records in connection with these Terms and Conditions in accordance with our records retention policy, as may be amended from time to time.
Data Privacy and Use of Client Data. In the course of performing our services, we, and our affiliates and any third-party service providers we are engaged with, may need to collect and/or process data that we receive from you. You consent to our collection and processing of any data you may provide to us (or authorize to be provided to us) in the course of the Company’s performing our services, including, without limitation, data that may constitute personal information. You hereby confirm that you are authorized, and have all the rights, consents, and legal bases as may be necessary, to provide any such data to us (or have a third party do so).
For a small subset of personal information, you may provide to us, including but not limited to your contact and billing information, FLI is the business or data controller, as those terms are defined in applicable privacy laws. In addition to using that information to provide and bill for our services, we may send communications, such as updates on developments, newsletters, invitations to events, or other messages we believe might be of interest to you, to any email address, postal address, or other contact information that you may provide to us. You may request to unsubscribe to these communications at any time. For further information on what information we collect, how we use it, and where to address any questions, please contact us.
No Guarantee of Success. It is impossible to provide any promise or guarantee about the outcome of your matters. Nothing in this Agreement or any statements by our staff constitute a promise or guarantee. Any comments about the outcome of your matter are simply expressions of judgment and are not binding on us.
Corporation. FL International Tax Advisors, Inc. is a corporation organized under the laws of Florida. Pursuant to those statutory provisions, an obligation incurred by a corporation, whether arising in tort, contract or otherwise, is solely the obligation of the corporation and partners are not personally liable, directly, or indirectly, by way of indemnification, contribution, assessment or otherwise, for such obligation solely by reason of being or so acting as a partner.
Limitation of Liability. FLI shall not be liable for any error of judgement or damage, loss, claims, proceedings, demands, liabilities, costs, or expenses whatsoever or howsoever suffered or incurred by the Client or any other person at any time as a result of, or directly or indirectly in connection with, this Agreement of the provision of services by FLI under this Agreement, unless caused by actual fraud, gross negligence or willful misconduct by FLI as determined by a final award rendered by a competent arbitration tribunal, as set out in the “Dispute Resolution” Section of this Agreement. FLI shall bear no liability whatsoever if unable to perform the services in a given jurisdiction, provided FLI provides notice to Client of its inability to provide such services in such jurisdiction. FLI bears no liability for damages incurred by delays resulting from Client’s failure to timely and accurately provide FLI with information required by FLI or local laws for FLI to provide the Services.
Direct Damages. Notwithstanding any contrary term herein, the Parties’ aggregate liability for all damages – regardless of the legal basis on which they arise or are incurred – is limited to the amount of all service fees paid by Client to FLI for the services during the six (6) months immediately preceding the event giving rise to such liability.
Indirect Damages. Neither party will be liable to the other for any kind of indirect, special, incidental, or consequential damages of any kind – including lost profits – regardless of the form of action, whether in contract, tort (including negligence), or otherwise, even if such party has been advised of the possibility of such damages.
Indemnification. The Client shall fully indemnify FLI and its officers, directors, agents, employees, third-party service providers (where applicable), successors and assigns and hold them harmless, to the full extent permitted by law, from and against any threatened, past, pending or future claims, whether contractual or pursuant to wrongful act, dispute or controversy of any nature instigated by any person other than the Customer arising, directly or indirectly, in connection with the performance by or on behalf of FLI of the rights and/or obligations under the Agreement or the rendering of any Service, except for any claims resulting from actual fraud, gross negligence or willful misconduct by FLI. The amount indemnified by the Client to FLI and its officers, directors, agents, employees, third-party service providers (where applicable), successors and assigns pursuant to this paragraph shall include, but shall not be limited to, all claims, proceedings, demands, liabilities, damages, losses, taxes, fines, penalties, costs, expenses and legal fees, and any interest thereon, suffered, incurred, arising or expended that FLI may at any time directly or indirectly incur. In this Agreement, references to actual fraud, gross negligence or willful misconduct shall mean a finding to such effect by the final award of an arbitral tribunal, as set out in the “Dispute Resolution” Section.
Force Majeure. Neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, service or cyber-attack, natural disasters, acts of God, war, government action, or any other cause which is beyond the reasonable control of such party.
Conflicts of Interest. Before we begin advising a client, we try to determine whether there are any conflicts of interest that would interfere with our ability to protect that client's interests. Should we determine in the course of our engagement that a conflict has arisen, we will immediately notify you. We similarly ask you to notify us if you become aware of any actual or potential conflicts of interest. If either you or we conclude that our engagement should or must be terminated, we will do our best to protect your interests by assisting in providing a smooth transition to another service provider.
We regularly assist many clients, and continuously receive additional clients. Some may be your direct competitors or may have business interests contrary to yours. It is even possible that, during the time we are working for you, an existing or future client may seek to engage us in connection with an actual or potential transaction in which such client's interests are or potentially may become adverse to Client's interests.
If and when this happens, we will notify you, and pending review of applicable rules of professional conduct, decide on a course of action.
Miscellaneous. Careful review of this letter will ensure your understanding of the terms of our engagement. Please raise and discuss with me any questions you may have.
This letter shall be binding upon and inure to the benefit of the respective successors and permissible assigns of FLI and you, as the case may be.
The parties to any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services are jointly and severally responsible for all obligations due us and represents that each has full authority to execute our Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services so that they are binding. Through Incorporation by Reference into our Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services, these Terms and Conditions need not be signed but may be, in one or more counterparts and shall be fully binding on each party countersigning, whether or not any other proposed signatory ever executes it. If any provision of this Agreement or the application thereof is held invalid or unenforceable, the invalidity or unenforceability shall not affect other provisions or applications of these Terms and Conditions which can be given effect without such provisions or application, and to this end the provisions of these Terms and Conditions are declared to be severable.
Communications Derived from Professional Services. Any communication (the “Communications”) issued by FLI, in writing or any other means, shall be considered by the Client as part of the scope of the services the Company has agreed to provide, subject to the limitations and conditions established in these Terms and Conditions.
The nature of our relationship requires the Client’s prompt communication to FLI of their decisions relating to the procedures requested and agreed to, as they are carried out. These communications may be carried out in any writing, verbal, or electronic communication. However, these communications shall in no way modify the terms, conditions, and binding nature of this engagement, as any modification to these Terms and Conditions shall be carried out in writing and may be modified from time to time unilaterally by FL International Tax Advisors, Inc.
Confidentiality. The Client and the Company agree to maintain the confidentiality of all information and documents related to this engagement, and the services rendered in accordance with this letter (the “Confidential Information”), except those that: (i) at the moment of disclosure, are available to the general public; (ii) the disclosure of which is required by a Government authority or due to judicial, legal, or administrative decision binding on the party; or (iii) the disclosure of which is expressly authorized by the Party obtaining the information.
Client Certification. The Client represents, warrants and covenants to FL International Tax Advisors, Inc. ( “FLI”), as of (a) the date that a Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services is accepted, and/or signed by the Client, (b) while any entities formed by FLI on behalf of the Client have FLI or its Affiliates or Partners as Registered Agent, Registered Office, General Partner, or Authorized Signatory, or (c) while any entities not formed by FLI but have FLI or its Affiliates or Partners as Registered Agent, Registered Office, General Partner, or Authorized Signatory, on all subsequent dates that:
1.1 Compliance with Laws and Other Instruments. A client’s acceptance and/or signature on a Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services to which this document is incorporated, or any other documents that are prepared by FLI and/or furnished to the Client by FLI is genuine, and any persons signing such documents are duly authorized to sign and enter into such documents. In addition and if an entity is the Client, (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (b) the execution, delivery and performance by it of these Terms and Conditions are within the powers of the signatory, the signatory has been duly authorized by all necessary action on behalf of such entity, such entity requires no action by or in respect of, or filing with, any governmental body, agency or official, or any third party (except as disclosed in writing to FLI as of the date of execution) and such signature does not and will not contravene, or constitute a default under, (i) any provision of its certificate of incorporation, by-laws, limited liability company operating agreement, limited partnership agreement or other comparable organizational documents or (ii) any provision of applicable law, rule or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding upon such Client or any material agreement or other instrument to which the Client is a party or by which the Client or any of its respective properties is bound, or any material license, permit or franchise applicable to the Client or its business, properties or rights other than such contraventions or defaults that do not impair or otherwise affect the Client’s ability to perform its obligations under these Terms and Conditions, or any other document prepared by FLI and/or furnished to the Client by FLI. The Client certifies that these Terms and Conditions, together with any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services, or any document prepared by FLI and/or furnished to the Client constitutes the legal, valid and binding obligations of the Client enforceable against the Client in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity. Neither the execution, delivery nor performance of these Terms and Conditions, together with any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services or document prepared by FLI and/or furnished to the Client (including through any power of attorney) nor the consummation of the transactions contemplated hereby or thereby, will result in the creation or imposition of any lien or encumbrance upon any of the assets or properties of such Client.
1.2 No Legal Action Pending, Lis Pendens, Etc. The Client certifies there is no legal action, suit, arbitration or other legal, administrative or other governmental investigation, inquiry or proceeding (whether federal, state, local, or foreign) pending or, to the knowledge of the Client, threatened against the Client that, individually or in the aggregate, if adversely determined, is reasonably likely to impair or otherwise affect the Client’s ability to perform its obligations under this these Terms and Conditions, together with any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services or is reasonably likely to have a material adverse effect on the Client’s financial condition.
1.3 Acknowledgment of Risks; Access to Information. The Client hereby acknowledges he, she, or it has been provided and has carefully reviewed these Terms and Conditions, and any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services, or any documents prepared and/or furnished by FLI to the Client. The Client understands the risks of, and other considerations relating to, the investment structures that the Client has requested FLI to form. The Client also has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of the information in any documents furnished or provided by FLI.
1.4 Evaluation and Ability to Bear Risks. The Client’s decision to form any entities in accordance with a Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services, was made by the Client independently. The Client is authorized to make such decisions and has relied on its or their own tax, legal and financial advisers with regard to all matters relating to the formation of any entities by FLI (including federal, state, and local tax matters and, if applicable, tax matters relating to non-United States jurisdictions) and not on any advice or recommendation of FLI or any of its affiliates, other than informal suggestions, unless a formal opinion is requested and given in writing by FLI. The Client’s prior experience with entities formed in different jurisdictions and its general knowledge about the management, proposed operations, and prospects of the entities formed by FLI, together with the Client’s advisers, have been used to make an informed decision with respect to the merits and risks of the formation of any entity by FLI. After all necessary advice and analysis, the Client has evaluated the risks of the entities being formed by FLI on the Client’s behalf and has determined that such entities and/or structures are suitable for the Client’s corporate structure.
1.5 Jurisdiction Governing Agreement. The Client acknowledges that any matters related to the Engagement are governed as provided in these Terms and Conditions and accepts the Dispute Resolution clause of such Terms and Conditions as providing for binding arbitration.
1.6 Obligation to Make Payments; Compliance with Laws and Regulations. The Client agrees that it will, at all times, comply with any applicable legal or tax requirements of the entities formed by FLI. The Client agrees to furnish FLI with any representations and forms as shall reasonably be requested by FLI, to be furnished to any taxing authority or other governmental agency upon request. The Client confirms that (a) it will pay FLI any amounts due to FLI, (b) it will pay any and all taxes to any jurisdictions in which it is applicable and, (c) it will comply with any and all corporate and tax compliance obligations in any jurisdiction in which it is applicable. The Client acknowledges and guarantees that it will indemnify FLI with respect to any losses or expenses FLI or incurs because of non-compliance by the Client.
1.7 Correctness of Information. The Client represents and warrants that the information he, she or it has provided in any documents furnished to FLI or provided in connection with these Terms and Conditions, and any Proposal for Delivery of Professional Services or Contract for Delivery of Professional Services (collectively “Attachments”) (which Attachments are incorporated in these Terms and Conditions by reference, and which constitute representations and warranties to FLI, as if expressly set forth herein), and in any U.S. Internal Revenue Service or other tax form delivered to FLI, is true, accurate and complete and may be relied upon by FLI.
1.8 Confirmations Relating to USA PATRIOT Act and Other Laws and Regulations.
1.8.1 The Client represents and warrants that (a) neither he, she or it nor any of its principals, affiliates, beneficial owners, management officials, investors, or authorized contact persons or family members are (i) an individual, entity or organization named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (“OFAC”) (the “SDN List”) or in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit or Support Terrorism) (as amended from time to time); (ii) a non-U.S. shell bank or a Person providing banking services indirectly to a non-U.S. shell bank; (iii) a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (iv) otherwise prohibited from investing in the United States or other related jurisdictions, or through business or estate planning entities (whether incorporated or not) pursuant to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”), Executive Order 13224, the U.S. Bank Secrecy Act, or other applicable anti-money laundering, anti-terrorism, embargo or trade sanctions, and asset control statutes, laws, regulations, rules or orders, including, without limitation, any other statutes, rules or regulations in effect under the laws of the United States pertaining to prohibitions on money laundering or anti-terrorist financing or to transacting business or dealing in property that may be blocked or may belong to Specially Designated Nationals as those terms are used by OFAC) (collectively, “Government Regulations”) (categories (i) through (iv) together, a “Prohibited Investor”); (b) he, she or it does not control, is not controlled by or under common control with any Prohibited Investor; and (c) if it is a financial institution subject to the anti-money laundering (“AML”) program requirements of the USA PATRIOT Act, it has adopted and implemented AML programs required by the USA PATRIOT Act and the regulations promulgated thereunder.
1.8.2 If the Client is acting on behalf of one or more clients in connection with this engagement, the Client represents and warrants that the Client is or will be subject to the anti-money laundering program requirements of the USA PATRIOT Act, and the Client further represents that it has (a) implemented a customer identification program as required under Section 326 of the USA PATRIOT Act and the regulations promulgated thereunder; (b) conducted the required due diligence on client(s) on whose behalf the Client is acting; (c) determined that such client(s) are NOT Prohibited Investors; and (d) retained and will continue to retain evidence of any such identities, any such source of funds or any such diligence as required by the USA PATRIOT Act and related regulations.
1.8.3 The Client represents and covenants, on its behalf and on behalf of its affiliates, that (a) the Client is not, to the best of its knowledge, (i) the target of any sanction, regulation, or law promulgated by OFAC or any other U.S. governmental entity (such sanctions, regulations and laws, together with any supplement or amendment thereto, the “U.S. Sanctions Laws”) such that the entry into a Contract or Proposal for Delivery of Professional Services, and/or these Terms and Conditions or the execution of any documents prepared by or furnished by FLI of any of the transactions contemplated hereby or thereby would contravene such U.S. Sanctions Laws; or (ii) owned or controlled (directly or indirectly) by or acting on behalf of any person or entity that is the target of any U.S. Sanctions Laws such that the performance of any of the transactions contemplated hereby or thereby would contravene such U.S. Sanctions Laws; (b) the monies used to fund the Client’s entities have not been and will not be derived from or related to any illegal activities, including but not limited to, money laundering activities, and the proceeds from the Client’s business activities will not be used to finance any illegal activities.
1.8.4 The Client acknowledges and agrees that: (a) the U.S. and other jurisdictions are constantly in the process of changing the Government Regulations or creating new Government Regulations, or similar laws, regulations, requirements (whether or not with force of law) or regulatory policies and many financial intermediaries are in the process of changing or creating responsive disclosure and compliance policies (collectively, with the Government Regulations, the “Requirements”), and (b) FLI could be requested or required to obtain certain assurances from the Client, disclose information pertaining to the Client to governmental, regulatory or other authorities or to financial intermediaries or engage in due diligence or take other related actions in the future. The Client acknowledges that FLI seeks to comply with all applicable laws concerning money laundering and related activities, and that it is FLI’s policy to comply with Requirements to which it is or may become subject and to interpret them broadly in favor of disclosure. The Client hereby agrees to promptly provide additional information or take such other actions as may be necessary or advisable for FLI (as determined by FLI, in its reasonable discretion, to be in the best interests of FLI) to comply with any Requirements, related legal process or appropriate requests; and the Client hereby consents, to the extent deemed appropriate, in the reasonable discretion of FLI, to disclose to relevant third parties of any information provided by the Client or its affiliates for these purposes.
1.8.5 The Client acknowledges that if, following the formation of any entity, FLI in good faith believes that the Client is a Prohibited Investor or otherwise engaged in suspicious activity, or if the Client refuses to provide promptly information that FLI requests, FLI has the right or may be obligated to report such action or confidential information relating to the Client to the regulatory authorities, prohibit additional work to be made, or immediately terminate the services for the Client. The Client further acknowledges that, to the fullest extent permitted by law, the Client will have no claim against FLI or any of its affiliates or agents for any form of damages as a result of any of the foregoing actions.
1.8.6 The Client hereby understands that to help the United States government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each Client who opens an account, as may be further requested by FLI and any responses provided to and any other information requested by FLI are deemed to be made in these Terms and Conditions, a Proposal or Contract for Delivery of Professional Services, or any document as provided above, as if expressly set forth herein.
1.9 Bankruptcy, Pending Lawsuits, Outstanding Judgments. The Client represents and warrants that the Client has never filed for or been involved as a debtor in bankruptcy proceedings and there are no suits pending or judgments outstanding against it which, in any one case or in the aggregate, could impair its right and ability to make any payments to FLI, or to comply with any obligation herein.
Power of Attorney.
2.1 Appointment of the Manager as Attorney-in-fact and Agent. The Client hereby constitutes and appoints FLI and its managers and officers as his, her or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for the Client and in the Client’s name, place and stead, in any and all capacities, to form any entities in the United States or abroad on the Client’s behalf, and to take any and all other actions as are authorized by the power of attorney provisions contained in the laws of the jurisdiction of the action of FLI. The power of attorney granted hereby shall be deemed an irrevocable special power of attorney, coupled with an interest, which FLI may exercise for the Client by the signature of FLI or by listing the Client as a member executing any instrument with the signature of FLI as attorney-in-fact for the Client. This grant of authority shall not be affected by the subsequent death, disability, incompetency, termination, bankruptcy, insolvency or dissolution of the Client, and shall survive the assignment by the Client of the whole or any portion of the Client’s entities.
2.2 Authorization to Execute Instructions. The Client hereby authorizes and instructs FLI to accept and execute any instructions relative to the entities formed by FLI on the Client’s behalf. FLI may rely conclusively upon and shall incur no liability in respect of any action taken upon any notice, consent, request, instructions or other instrument believed in good faith to be genuine or to be signed or sent by properly authorized persons.
Miscellaneous Provisions.
2.3 Amendments and Waivers. These Client Certifications may be amended only with the written consent of FLI, and FLI shall promptly notify the Client of any changes to such certifications. The observance of any provision of this document may not be waived (either generally or in a particular instance and either retroactively or prospectively). No delay or omission in the exercise of any power, remedy or right herein provided or otherwise available to any party hereto shall impair or affect the right of such party thereafter to exercise the same. Any extension of time or other indulgence granted to any party hereto shall not otherwise alter or affect any power, remedy, or right with respect to the other party hereto, or the obligations of the party hereto to whom such extension or indulgence is granted. All remedies, either under these Terms and Conditions and the documents incorporated by reference, or by law or otherwise afforded, shall be cumulative and not alternative.
2.4 Survival of Representations and Warranties; Indemnity. All representations and warranties contained herein or in any Attachments hereto made by the Client shall survive indefinitely following the execution and delivery of this document. The Client and his, her or its fiduciaries, if any, shall and hereby do agree to indemnify and hold FLI, FLI’s Manager, and each of their respective controlling persons, officers, directors, members, partners, shareholders, employees, affiliates and each other person of FLI, if any, who controls or is controlled by any of the foregoing, within the meaning of Section 15 of the Securities Act, free and harmless from and in respect of any and all claims, actions, demands, causes of action, liabilities, losses and expenses whatsoever (including, but not limited to, legal fees and disbursements and any and all other expenses whatsoever reasonably incurred in investigating, preparing for or defending against any litigation, arbitration proceeding, or other action or proceeding, commenced or threatened, or any claim whatsoever) arising from the breach or alleged breach of any of the representations, warranties or covenants made in these Terms and Conditions or in any Attachment hereto, or any action for securities law violation instituted by the Client which is finally resolved against the Client by judgment or arbitration.
2.5 Additional Information. The Client agrees to furnish additional information with regard to the Client’s suitability as a client, should FLI request such information, including documentation as the Manager may reasonably request to assist it in ascertaining compliance with Securities Laws, the rules of FINRA, or any Requirements.
2.6 Successors and Assigns. These Terms and Conditions and the documents incorporated by reference shall be binding upon and inure to the benefit of and be enforceable by the respective successors of the parties hereto. However, the Client shall not transfer or assign any of its rights in this collective Engagement, and any attempted transfer or assignment shall be void and without force or effect.
2.7 Applicable Law. Subject to the laws noted in these Terms and Conditions, this document shall be construed in accordance with and governed by the internal substantive laws (without giving effect to the choice of law or conflict of law rules or provisions that would cause the application of the laws of any jurisdiction other than New York) of the State of New York, regardless of whether it has been executed by the Client outside of the United States. To the extent a dispute is determined not to be arbitrable, the Client agrees to and hereby does irrevocably submit to the exclusive jurisdiction of the courts of the State of New York, with respect to any investigation, action, suit, arbitration or other proceeding and each Client without an office in the United States hereby designates and approves the Manager as its agent for service of process.
2.8 Arbitration. If any dispute arises concerning the interpretation, validity, or performance of this agreement or any of its terms and provisions, including but not limited to the issue of whether or not a dispute is arbitrable, then the parties shall submit such dispute for binding arbitration exclusively through private and confidential binding arbitration to be held in Miami, Florida before three neutral arbitrators. The arbitration shall be administered by ICDR pursuant to the Rules of the American Arbitration Association/ICDR. Each party shall select one arbitrator, and the two arbitrators so selected shall agree upon a third arbitrator which third arbitrator shall preside over the dispute. The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator must apply New York substantive law to the proceeding; however, the arbitration shall be governed by the procedural law of the seat. The arbitrator will have the power to grant all legal remedies including provisional remedies and award compensatory damages provided by law, however, the arbitrator may not order relief in excess of what a court could order. The arbitrator shall not have authority to award punitive or exemplary damages. The arbitrator shall prepare and provide the parties with a written award including factual findings and the legal reasoning upon which the award is based. The arbitrator shall not have the power to commit errors of law or legal reasoning or to make findings of fact except upon preponderance of the evidence. The arbitrator shall award costs and attorneys’ fees in accordance with the terms and conditions of this agreement. Any state or federal court situated in Miami, Florida, and having jurisdiction may enter judgment on the award rendered by the arbitrator or correct or vacate such award to the extent allowed by applicable law. The parties understand that by agreeing to binding arbitration they are giving up the rights they may otherwise have to trial by a court or a jury and all rights of appeal, and to an award of punitive or exemplary damages. Pending resolution of any arbitration proceeding, either party may apply to any court of competent jurisdiction situated in Miami, Florida, for any provisional remedy, including but not limited to a temporary restraining order or a preliminary injunction, excluding however, any dispute relating to discovery matters, and for enforcement of any such order. The application for or enforcement of any provisional remedy by a party shall not operate as a waiver of the agreement to submit a dispute to binding arbitration. Subject to the ultimate award of costs, the costs of the arbitrators and the arbitration shall be borne and paid when due equally by each of the respective parties to the arbitration during the arbitration (with interest payable by any party who does not pay such costs when due at the lesser of 25% per annum or the maximum rate allowed by law, compounded annually, plus costs of collection).
By instructing us to carry out your wishes without a signature, you accept and agree to binding private arbitration as provided above.
2.9 Headings. The headings of the sections of this document are inserted for convenience only and shall not be deemed to constitute a part hereof.
2.10 Severability. In the event any provision of this document is determined to be invalid or unenforceable, such provision shall be deemed severed from the remainder of this document and replaced with a valid and enforceable provision as similar in intent as reasonably possible to the provision so severed and shall not cause the invalidity or unenforceability of the remainder of this document.
Entire Agreement. This document, together with its Attachments (which Attachments are incorporated in this document by reference), the Terms and Conditions, and the Proposal and Contract for Delivery of Professional Services, and any documents prepared by or furnished by FLI to the Client, constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and any other prior or contemporaneous written or oral agreements, statements or assurances with respect to this subject matter are hereby rescinded and terminated.