Terms and Conditions of Business

1. The following Terms and Conditions govern the basis on which we provide the Services to you. They will override any other terms and conditions stipulated or incorporated by you in your instructions or any negotiations unless otherwise expressly agreed by us in a separate engagement letter with you. They will apply to all work provided by us to you in relation to the Services, including any work undertaken before your delivery to us of a signed letter of engagement.
2. A copy of these Terms and Conditions will be sent to you by ordinary post or by email. A current copy of these Terms and Conditions will also be made available for inspection at our offices in Kabul, Afghanistan, and Dubai, United Arab Emirates, during normal business hours.
3. We may revise these Terms and Conditions from time to time. We will notify you by ordinary post or email of any changes which we consider material as soon as practicable after their introduction. We will not increase our Rates during the course of any retainer without your consent.

1.       Definitions and interpretation

1.1.     In these Terms and Conditions (unless the context otherwise requires) the following words and expressions will have the corresponding meanings.

Business Day: Any day (other than a Friday or Saturday, or national public holiday) on which banks are open in the Relevant Jurisdiction for normal banking business.

Client, you or yours: Any person to whom we provide the Services and, in the case of an individual, includes his/her heirs, personal representatives and assigns and, in the case of a body corporate, includes its successors or assigns.

Bertwin Lord Consulting, we, our, us, the company: Bertwin Lord Consulting, any company or partnership legally or beneficially owned by or affiliated to or associated with Bertwin Lord Consulting and their subsidiaries and associates wheresoever each and any of them may be situated.

Employees: All partners, officers, employees, consultants and agents of Bertwin Lord Consulting and all directors, officers, employees, consultants or agents of any of its subsidiaries or associated companies.

Rates: The fee earners’ rates per hour and administrative charges (if any), as set out in the letter of engagement.

Relevant Jurisdiction: The relevant jurisdiction (if any), as set out in the letter of engagement.

Service Provider: The member(s) of Bertwin Lord Consulting that provides the Services to you.

Services: The provision of advisory and/or representative services as described in the letter of engagement.

1.2.     Headings in this Agreement are inserted for convenience only and will be ignored in construing this Agreement.

1.3.     Unless the context otherwise requires, words (including definitions) denoting the singular number only will include the plural and vice versa.

1.4.     References too statutes and/or statutory provisions will be construed as referring to such statutes or statutory provisions as respectively replaced, amended, extended or consolidated.

1.5.     The expression “person” will be construed to include references to any person, firm, company, partnership, corporation or any agency of it.

2.       Obligations

We undertake that we will exercise reasonable skill and care in the performance of our work and will exercise the utmost good faith in our dealings with you.

3.       Fees and disbursements 

3.1.     We believe that fees for the Services should be fair and reasonable, having regard to all the circumstances of the instructions. The circumstances which may affect the level of fees include:

3.1.1.  time spent on the matter;

3.1.2.  monetary amount involved;

3.1.3.  specialist legal or technical knowledge required;

3.1.4.  number and length of documents;

3.1.5.  place and time of day at which the work was carried out;

3.1.6.  importance and urgency of the matter to you; and

3.1.7.  complexity of the matter

3.2.     Time spent on a matter will be one, but not the only factor taken into account in assessing the level of fees to be charged. The individual responsible for your matter will always be willing to discuss the basis for charging a particular matter at the outset.

3.3.     Where an estimate of fees is requested and given, and unless we agree to fixed fees for any Services in a letter of engagement, it is only an indication of the amount anticipated as being the likely charge and will not be regarded as an agreed fee for the work or matter.

3.4.     The amount of work required in respect of any project is often uncertain, and often the best that can be achieved is for you to be kept informed by us on a regular basis as to the build-up of costs as the action proceeds. Whatever the outcome of the matter, you are liable to us for the fees and disbursements. If you are the successful party in a formal proposal or bid action, you may be entitled to recover your costs in part or in full from the end-customer. The fact that you may not be able to recover your costs from the end-customer does not absolve you from your responsibility to pay our costs in full.

3.5.     Unless we agree to the contrary in writing, we reserve the right to bill you for Services we have provided on an interim basis.

3.6.     Disbursements, as these are incurred, will be added to the applicable interim or final invoice rendered. Depending upon the matter in question, we may request a payment on account of disbursements to be incurred.

3.7.     Disbursements may include, but are not limited to, attestation fees, filing fees, registry fees, court fees, registration fees, third party reports, counsel and foreign counsel fees, courier fees, international telephone calls above US$100 in total, and publication costs. We do not generally charge for secretarial support and administrative services such as photocopying. However, in the event that we are required to dedicate a significant amount of administrative services to an individual matter, or adhere to an accelerated timetable, we reserve the right to charge for such administrative services. We will agree on any such costs with you before they are incurred.

3.8.     Usually the fees of any foreign counsel or other advisers instructed by us on your behalf will not be included as disbursements in our invoice. You will be responsible for the settlement of such fees directly with such foreign counsel or adviser. In the event that the foreign counsel or adviser requires a contract with us direct, we will require their full fees to be paid to us in advance of our instructing them on your behalf.

3.9.     All invoices are payable within 14 days of presentation. Interest at a rate of 3% above LIBOR may be charged, at our discretion, on unpaid invoices.

3.10.   Should you have any queries regarding an account once an invoice has been rendered for payment, please contact the individual responsible for the matter.

3.11.   Our fees are exclusive of applicable taxes and withholdings.

4.       Intermediaries

Where you are an intermediary representing an ultimate Client whose affairs are the subject matter of the Services you will be primarily liable for our costs and fees.

5.       Concerns about our Service

If you are dissatisfied with the handling of your instructions by the Company, you may raise the concern directly with any Officer or Principal of the Company. The partner will cause it to be thoroughly investigated.

6.       Termination

6.1.     You may terminate your instructions to us in writing at any time but we will be entitled to keep your papers and documents while there is money outstanding to us for our fees, charges, expenses and disbursements.

6.2.     In some circumstances we may consider that we ought to stop working for you. We will continue to act for you on a particular matter until its conclusion unless and until:

6.2.1.  you do not produce requisite due diligence material (see Clause 17);

6.2.2.  it is no longer appropriate or in your best interest for us to continue to act;

6.2.3.  there are fees which have been billed and which are overdue for payment; or

6.2.4.  a conflict arises which is not reasonably foreseeable or possible to detect at the time of taking the instructions.

6.3.     If we cease to act for you we will advise you in writing and you will be responsible for all work in progress, fees and disbursements up to the date of termination and for any costs and disbursements reasonably incurred in connection with the transfer of any work.

6.4.     In the event that you terminate your instructions or for any reason the Services do not proceed to completion, we will be entitled to charge for the time spent in providing the Services.

7.       Non-Exclusivity

We may provide the Services to any other Client at our discretion subject always to our obligations of confidentiality and obligations regarding conflicts.

8.       Conflicts

8.1.     We provide a wide range of services to a large number of clients and whilst we have procedures in place to try to prevent any conflict, it is possible that a conflict of interest may arise as a result. If we become aware or are notified of a possible conflict of interest, you will be notified and if possible procedures will be put in place to ensure confidentiality and independence of advice.

8.2.     We are not obliged to inform you of the nature of the conflict, if to do so might, in our opinion, compromise our duties to any other client.

9.       Indemnity

You undertake at all times to hold us harmless and to indemnify us to the greatest extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise from the provision of the Services by us. For the avoidance of any doubt, this indemnity will not apply in any claim by you against us and is without prejudice to any other limitation of liability or indemnity given in favor of us, and will remain in full force and effect notwithstanding the termination of the Terms and Conditions.

10.     Limitation of liability

10.1.   Should we breach any of our duties to you and become liable to compensate you, the following will apply.

10.1.1. You agree to make no claim against an individual partner, principle, or member of our staff.

10.1.2. Our maximum liability to you is limited to the lesser of the amount of Fees paid under the subject retainer agreement or US$20,000.

10.1.3. We are not liable for indirect or consequential loss or loss of anticipated profit or other benefit.

10.1.4. You will not be able to recover damages twice in respect of the same fact, matter or circumstance.

10.1.5. There will be no liability for damages less than US$10,000 (excluding for this purpose all legal, accounting and investigation fees incurred by and on behalf of you). Where the amount of damages claimed is greater than US$10,000, and subject to clause 10.1.2, the full amount will be recoverable.

10.2.   Your relationship is solely with the Company, and the Company has sole legal liability for the Services and for any act or omission in the course of providing the Services. No Service Provider of the Company will have any personal legal liability whether in contract, negligence or otherwise. In particular, the fact that an individual Service Provider signs in his or her own name on any letter or other document or communication in the course of carrying out the Services does not mean he or she is assuming any personal legal liability for that letter, document or communication.

11.     Communication

11.1.   We will communicate with you by way of letter, fax, email, telephone or any combination of the above at the address or number last given to us by you in communication generally.

11.2.   We assume that you are willing to receive all general correspondence sent via email. We do not guarantee that messages, documents or files sent by email are virus-free. As such, we accept no liability or responsibility for any loss or damage, however caused, by any virus.

12.     Storage of client documents

12.1.   After the completion of any matter, we are entitled but not obligated to retain all papers and documents which have come into our possession or into existence in the course of our acting for you until all fees and disbursements have been settled in full.

12.2.   We will keep all documents, correspondence, memoranda and notes which have been created in the course of the instruction for such period as we consider appropriate. During this period we reserve the right, but have no obligation, to make electronic copies of any such documents, correspondence, memoranda and notes and, save for original signed documents, we reserve the right to destroy hard copies and store the remainder for filing electronically. After the period of continued retention (whether in electronic form or otherwise) of such documents, correspondence, memoranda and notes (save for original signed documents), we have the right to destroy all such files, unless you have requested in writing to the contrary at or prior to the conclusion of any matter in question. In accepting these Terms and Conditions you consent to the destruction of such files.

12.3.   Should we need to retrieve files from storage, either in relation to new instructions to act for you (where the archived files are relevant) or where you have asked us to retrieve specific documents or papers, we reserve the right to charge for such services.

13.     Website and intellectual property

13.1.   All correspondence, files and records (other than statutory corporate records) and all information and data held by us on any computer system is the sole property of the Company for our own use and you acknowledge that you have no right of access or control over such information.

13.2.   Our website (www.BertwinLordConsulting.com) and all material contained in it, provides general information only. None of its content constitutes legal or professional advice, and it should not be relied upon as such.

13.3.   We do not accept responsibility for any loss which may arise from reliance on information contained in this website.

13.4.   We do not guarantee that documents or files within this website are virus- free. As such we accept no liability or responsibility for any loss or damage, however caused, by any virus.

14.     Privacy

14.1.   We will ensure that any personal data gathered under the Terms and Conditions will be used only for the provision of the Services. We reserve the right to use any data for marketing and promotion of other services offered by us unless requested by you not to do so. Your personal data will not be sold, or rented to third parties.

14.2.   Your privacy is very important to us. By instructing us, you consent to us using your personal data. You must not send us any personal data if you object to that information being processed by us in the ways described in these Terms and Conditions. No personal or sensitive data will be used other than for the purpose for which it was originally obtained and all personal data will be processed fairly and lawfully.

14.3.   We are the sole owner of all information and personal data obtained through our website and through acting for you. You may request and receive copies of any personal data that we may hold about you.

15.     Disclosure

15.1.   We will not divulge or use for our own benefit any confidential information which we may obtain in relation to your affairs, except where required in the proper discharge of our duties under these Terms and Conditions or to any person to whom we have properly delegated any of our functions to enable them to perform our duties diligently and properly.

15.2.   Notwithstanding the provisions set out in Clause 15.1, we may disclose information which would otherwise be confidential if, and to the extent that it is:

15.2.1. required by law;

15.2.2. information which has come into the public domain through no fault of either party, where such information as was in the party’s possession prior to the date it was obtained in connection with the Services; or

15.2.3. where such information was obtained or independently developed by the party on a nonconfidential basis (as long as the party does not know or have reason to know of any breach by such source of any confidentiality obligations with respect to it).

16.     Requests for quotes or marketing material

Unless otherwise requested in writing by you, we reserve the right to use the details of the identity of a client and a brief outline of the nature of the matter in our marketing material. We will inform you of our intention to use such information. However, where such information is already in the public domain, we will assume that you have given your consent to the use of such information for publicity purposes.

17.      Client due diligence

We may ask you for information and documentation to identify and verify your identity and the identity of certain persons connected to you. Where we make such request, you agree that if such information and documentation is not made available to us when required we may without any liability terminate the engagement with you with immediate effect.

18.     Issues outside the relevant jurisdiction

We do not advise on any issues other than those governed by the law(s) of the Relevant Jurisdiction as indicated in the letter of engagement

19.     Force Majeure

We will bear no liability for loss, damage or delay howsoever arising caused by circumstances outside our control of whatsoever kind.

20.     Partial invalidity

If, at any time, any provision of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Terms and Conditions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

21.     Joint and several liability

Where the Client is more than one person:

a)        each such person appoints the other such person(s) to act as his agent to exercise full power and authority in connection with the Services on his behalf;

b)        the obligations of the Client in connection with the matter will be joint and several; and

c)        where we communicate with one of the parties which comprise the Client, such communication will be deemed to be with all of the parties which comprise the Client and it will be assumed that such party is authorized to give instructions to us on behalf of each party.

22.     Liability to third parties

Save as expressly agreed in writing, we do not accept or assume any duties or liability to any person(s) other than you and we therefore exclude any liability to third parties.

23.     Arbitration

23.1.   Both parties will use all reasonable endeavors to negotiate in good faith and settle amicably any dispute arising from or in connection with these Terms and Conditions.

23.2.   Either party may elect to submit any dispute between the parties, arising from or in connection with these Terms and Conditions, and which is not settled by agreement in writing between the parties within thirty days after it arises, to arbitration in accordance with;

23.2.1.   Non US Customers: the arbitration rules of the London Court of International Arbitration (“Rules”) effective on the date of the Client’s instructions. If a dispute is submitted to arbitration, the parties will be bound by the arbitration decision and award.

23.2.2.   US Customers: the arbitration rules of the State Court of Virginia Arbitration (“Rules”) effective on the date of the Client’s instructions. If a dispute is submitted to arbitration, the parties will be bound by the arbitration decision and award.

23.3.   Any such arbitration will be conducted:

23.3.1.    in Virginia in the English language for all US Customers;

23.3.2.   In the Registered Jurisdiction for all Non US Customers;

23.3.3.   in accordance with the Rules; and

23.3.4.   by a single arbitrator:

23.3.4.1.  to be agreed between the parties; or

23.3.4.2.  failing such agreement within thirty days of the election to submit the relevant dispute to arbitration in accordance with this clause, by a single arbitrator appointed by the

23.3.4.2.1. President for the time being of the London Court of International Arbitration for all Non US Customers; and

23.3.4.2.2. Dually appointed authority for the State Arbitration Court of Virginia for all US Customers

24.      Jurisdiction

24.1.   The construction, validity and performance of these Terms and Conditions will be governed in all respects by the laws of the Relevant Jurisdiction.

24.2.   Any claim, dispute or difference concerning the engagement letter and any matters arising from it will be determined in accordance with the procedure set out in Clause 23.