Terms & Conditions
TERMS AND CONDITIONS FOR PROVISION OF LEGAL SERVICES BY KSG ATTORNEYS AT LAW
These terms and conditions (“Terms”) apply to all business undertaken by KSG Attorneys at Law (hereinafter “KSG”) in the Cayman Islands and we will take your continuing instructions in any matter as your acceptance of these Terms. These Terms together with any engagement letter which is in effect between you and us, if any, are together referred to as the “Retainer” and constitute the entire agreement between you and us hereby superseding any previous agreement between you and us.
These Terms will apply whether or not you have signed an engagement letter, although in the event of conflict between these Terms and any engagement letter which is in effect between you and us, the engagement letter shall prevail to the extent of any conflict.
The references in these Terms to “KSG”, “we” and “us” mean KSG Associates, a body corporate recognised under the Legal Practitioners (Incorporated Practice) Regulations, 2006 (as revised) and registered as a company in the Cayman Islands as KSG Attorneys Ltd.
1. Our contract
The terms in this document as supplemented and/or amended by any relevant letter of engagement (‘Terms’), apply to each matter in relation to which KSG undertakes work for you.
In the event of any conflict between this document and the relevant letter of engagement, the letter of engagement shall prevail.
2. Our Role
We will at all times do our best to comply with your instructions, even where these are contrary to our recommendations, unless we feel it would be unlawful, improper or unethical to do so, or inconsistent with maintaining a proper working relationship with you.
No opinion, suggestion or comment, written or oral given by us in relation to the laws of any jurisdiction other than the Cayman Islands or in relation to any non-legal matter may be relied upon by you.
We reserve the right at our absolute discretion to allocate and re-allocate work to such member(s) of staff of any member of KSG as we deem appropriate due to the nature of the matter, business requirements or staff absences.
Our advice is given on the basis of the laws in force in the Cayman Islands (as the case may be) at the date of that advice. Unless you expressly instruct us in writing to do so we are under no obligation to advise, and accept no responsibility whatsoever for advising, in relation to subsequent changes in the laws of the Cayman Islands, and the effect, if any, on you. It is possible that changes may occur in the law and its interpretation before our advice is acted upon. We accept no responsibility for any changes in the law or its interpretation that occur subsequent to our advice being delivered to you.
3. Duty Of Care And Other Advisers
The services provided by us are for your benefit alone and solely for the purpose of the matter to which they relate. They may not be used or relied upon for any other purpose or by third parties. Our duty of care is to you as our client and does not extend to any third party.
Subject to what is set out in paragraph 14 below, no third party shall have any right under the Contracts (Rights of Third Parties) Act 2014 to enforce any of the Terms, provided that no right or remedy of any such person which exists or is available otherwise than by virtue of that Act shall be adversely affected by the Terms.
We will, on your behalf, instruct, liaise with or coordinate advice from other professional advisers, including foreign lawyers. We will not be responsible for the accuracy or appropriateness of the advice given or work undertaken by those other advisers or for payment of their fees and expenses.
We do not provide services relating to the laws of any jurisdiction outside the Cayman Islands and cannot be responsible for the accuracy or appropriateness of the advice given or the work undertaken by foreign lawyers.
4. Complaints Procedure
If at any time you have any queries or concerns on any aspect of a matter, then please do not hesitate to contact a partner of the firm.
5. What We Expect From You
We shall be entitled to assume that whoever gives us instructions to provide services has actual authority to do so and we shall be entitled to rely on any information provided to us by that person.
Where instructions are given on behalf of a company, LLP or other organisation we shall be entitled to assume that the Terms have been brought to the attention of and approved by the directors of the company, members of the LLP or, in the case of any other organisation, the appropriate officers of that organisation.
Where our client consists of more than one person or entity, the liability of those persons or entities is joint and several. Each joint client irrevocably permits us to disclose to any other of the joint clients at any time any information which we would otherwise be prohibited from so disclosing by virtue of our duty of confidentiality. If any joint client ends this permission during the provision of the relevant services, or if a conflict of interest arises between joint clients, we may suspend or terminate the provision of the services related to that matter to one or more of the joint clients.
It is vital that you provide us with all relevant information to represent you and provide services to you and that all information provided is, to the best of your knowledge, complete, accurate and up to date, and is supplied as quickly as practicable. Please tell us of any subsequent changes to the information provided, as well as about any further information which might be relevant.
The services are provided to you and may not without our prior written consent be disclosed to any other party or be referred to in any public document or communication.
6. Conflicts of Interest
We take conflict issues seriously. We have procedures in place to ensure that conflict checks are carried out on every matter as soon as practicable so that, if an issue arises, it can be discussed with you and dealt with as soon as possible.
Our conflict procedures help us fulfil our professional obligations not to act for a client in a matter where there is an actual (or significant risk of a) conflict with:
- the interests of another client for whom we are already acting; or
- our interests.
If at any time you become aware of an actual or potential conflict of interest, please raise it with us immediately.
Subject to our professional duties, we will always seek to resolve any conflict issues in the most advantageous way to the clients concerned.
Where our professional rules allow, you agree that after termination of our retainer, we may act or continue to act for another client in circumstances where we hold information which is confidential to you and material to the engagement with that other client. We will not, however, disclose your confidential information to that other client.
7. Files and Documents
We store deeds and papers for clients, normally without charge. We also 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 based on the time we spend on reading papers, writing letters or providing other services necessary to comply with the instructions.
We may on occasion wish to put a document created while we are acting on your behalf on our legal know-how system. This is an intranet available only to us and helps us to provide you and our other clients with a better service. If you have any concerns about this, please let us know.
On completion of a matter and payment of any outstanding bills we shall return to you, on request, any documents lent to us by you for the purposes of the matter. Where we are acting for joint clients and one joint client asks us to transfer documents lent to us for the purposes of the matter, we will deliver them to, or to the order of, the joint client who delivered them to us.
We do not agree to retain files for any particular period of time but generally keep all files for a minimum period of 6 years. All files and papers held by us (other than deeds, wills and similar items you have asked us to keep in secure storage) may be preserved on microfilm or by other means of image processing or in electronic form. We reserve the right to destroy files without further reference to you 6 years after completion of a matter.
8. Future Instructions
This Retainer applies to all matters on which you instruct us, both present and future subject to our then current hourly rates, as amended and notified to you from time to time.
To the extent that the law imposes on us responsibility to any third parties, notwithstanding clause 3 above, our liability to them shall be limited in accordance with this clause 9 and clause 10 and a single aggregated limit as set out in this clause 9 shall be shared between such third parties and you. You warrant that you will take all reasonable, immediate and necessary steps to mitigate any loss that you suffer which you claim to have been caused by our act or omission and you must notify us immediately of any such claim. We will have no liability in the event of your failure to fully and promptly meet your obligations in such regard.
Any liability which might otherwise be implied or incorporated herein by reason of statute or common law or otherwise is hereby expressly excluded to the fullest extent permissible by law. Our liability to you (and, where applicable, to any third party) shall not exceed the maximum amount which may be payable by our insurer in relation to any claim that you may make or three times our professional fees charged in the matter, whichever is greater. This limit shall apply to any and all causes of action against us in respect of or arising from or in any way connected with our engagement by you. Where you instruct us on future matters, this clause shall also apply to each such future matter. Where instructions on any matter are from joint clients, a single aggregated limit will apply to be shared by such joint clients. Except as otherwise expressly stated in writing, we make no warranties of any kind or nature, whether express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose or use in connection with our engagement. We shall not be liable in any way for failure to perform our obligations under this engagement if the failure is due to causes outside our reasonable control. You hereby agree to indemnify us for all actions, suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against us or which may be incurred or become payable by us in respect of or arising out of us acting for you except in the case of our negligence, willful misconduct or fraud. We shall not be liable for any indirect or consequential damages.
The Retainer shall only apply to exclude or limit any liability to the extent permitted by law and nothing in the Retainer shall operate to exclude or limit any liability for fraud. Any provisions hereof intended to have continuing effect (including without limitation the liability provisions contained herein) shall survive and remain in full force and effect notwithstanding any termination of the Retainer.
10. Contribution Claims
Where in relation to any loss you have causes of action against us and against any third parties, we shall only be liable to you for our share of the responsibility. Nothing in this clause shall increase our liability beyond that set out in clause 9.
Please let us know if you have a preferred method of communication eg telephone, email or fax. Unless we hear from you, we will use whatever mode of communication appears appropriate in the circumstances.
All email messages sent to us will, if properly addressed, arrive on the terminal of the person to whom they are addressed. Please be aware of the following points:
- the firm is connected to the internet, but the exchange of email messages may be subject to delays outside of our control;
- the safe delivery of email via the internet should not be assumed;
- the confidentiality of email cannot be guaranteed.
Unless you ask us, we shall not be required to encrypt or password-protect any email or attachment sent by us.
We shall not be responsible for any loss or damage arising from the unauthorised interception, re-direction, copying or reading of emails including any attachments.
We shall not be responsible for the effect on any hardware or software (or any loss or damage arising from any such effect) of any emails or attachment which may be transmitted by us (except where this is caused by our negligence or wilful default).
12. Ceasing to Act
You may terminate the Retainer at any time (either generally or in respect of any particular matter or aspect of a matter) upon notice to the supervising partner which shall, if we so request, be confirmed in writing. No period of notice is necessary. We also reserve the right, upon reasonable notice, to terminate the Retainer. This will be confirmed to you in writing, if requested. Termination shall not affect accrued rights and liabilities and in particular our rights to any fees earned and disbursements incurred by us at the date of termination. Notwithstanding the aforesaid, in certain circumstances, we may be required to suspend or terminate the Retainer without giving any period of notice or reason therefor. Moreover, if you do not give us instructions within a reasonable period of our asking for them, do not pay promptly any request for money on account or do not pay an invoice within the due period or for any other reason in our complete discretion, we reserve the right to decline to act further. On termination of the Retainer we will submit an invoice to you to cover work performed and disbursements incurred in respect of the period up to the date of termination. Additionally, you will be liable for any fees and disbursements for work necessary in connection with transfer of the matter to another advisor of your choice and/or removing ourselves from the court record, as applicable.
For contentious matters, if we are on the record at Court as acting for you in any proceedings, consent of the Court may be required before we can be removed from the record and, to that extent, our right to terminate the Retainer may be restricted.
13. Rights and Remedies
The rights and remedies available to us by virtue of the Retainer are without prejudice to any other rights or remedies available to us. Any failure by us to exercise or delay by us in exercising a right or remedy provided by the Retainer or by law does not constitute a waiver of the right or remedy, or a waiver of other rights or remedies.
14. Confidentiality and Data Protection
Any information which we obtain as a result of acting for you will be treated in an entirely confidential manner, subject to applicable law. If, however, our engagement is not formalised then information disclosed to us will not be treated as confidential and will not restrict us from acting for another party in any matter or transaction in relation to which you may have discussed engaging us. You acknowledge that we act for other clients and you acknowledge that partners, consultants or staff of any members of SLA who do not carry out work on your behalf are not expected to nor are they to be regarded as having knowledge of your confidential information. Neither we nor you will be prevented from disclosing confidential information:
(a) which is or becomes public knowledge other than by a breach of an obligation of confidentiality by us; (b) which is or becomes known from other sources without restriction on disclosure; or (c) which is required to be disclosed by law or any professional or regulatory obligation.
You understand and accept that we may be required in certain circumstances to make reports to regulatory and law enforcement authorities, or to disclose documents or information or take other action, as a result of information received by us or matters which come to our attention during the course of our engagement. Where appropriate and permitted, we will advise you in advance of any action we may be required to take.
You acknowledge and agree that, subject always to our confidentiality obligations to you in these Terms, we may generate, collect, receive, transfer, disclose, process and store materials, data, information and content relating to you and/or your business, or its principals, affiliates, shareholders, directors, officers, employees and agents (“Information”) whether confidential or not, either in original format, on servers maintained by us within or outside of the Cayman Islands and/or in any other jurisdictions, including jurisdictions which may not have equivalent data protection requirements to the Cayman Islands.
In this regard, you explicitly consent to the transfer of all Information into and out of any such jurisdictions. You further acknowledge and agree that KSG may be obliged to retain such Information for a period of time after the termination of our engagement and may be requested, required or compelled to disclose such Information to third parties.
15. Fees, Client Account Funds
Our fees are normally based on the time spent dealing with a matter. Other factors may also be taken into account in accordance with the Cayman Islands Code Of Conduct, for example, complexity, value, importance to the client and urgency. We reserve the right to add an uplift to our hourly rates to take account of these other factors, and to make a charge for the use of our precedents and know-how. We are willing to provide services on an urgent basis, and will endeavour to make staff available outside normal hours if necessary. Please let us know if you would like to have someone on call either over specific periods or generally.
Time spent will include meetings with you (and perhaps others); any time spent travelling; considering, preparing and working on papers; file opening and compliance procedures; attending court; legal research; correspondence (including emails); preparing attendance notes; making and receiving telephone calls; and preparing and providing copies of documents for you after completion of a matter. We record time in six minute units. That means that if a fee earner working on a matter for you spends less than six minutes on your matter on one or more occasions, a full six minutes may be recorded for each occasion. Where applicable, our hourly rates are set out in your letter of engagement and vary according to the level of seniority and expertise of each adviser. The hourly rates are normally reviewed annually but we reserve the right to alter rates at other times. You will be notified of any changes to the rates. If you wish to cease instructing the firm as a result of any increase in rates, you are free to do so.
Although hourly rates are the norm, we aim to be flexible in our approach to charging and may have agreed with you an alternative charging method in your letter of engagement.
For matters not conducted by our Litigation Department, a miscellaneous disbursement equal to 5% of legal fees is charged to cover photocopying, printing, telephone and fax charges.
All invoices are to be paid within 30 days from the date of issue, failing which we reserve the right to suspend activity on the file and charge interest on the balance outstanding, at the applicable court rate in respect of the Retainer, or if there is no court rate imposed, at the rate of 12% per annum, from the date of the invoice to the date of payment. Our bills are due for payment on receipt without any deduction, set-off or counterclaim.
We may require you to make a payment to us on account of fees, disbursements and expenses at any time and on more than one occasion. The receipt of any such payment on account will be a condition of acting, or continuing to act, for you. Our total bill may be higher than the amount you have paid on account. Money paid on account which is not subsequently required for fees, disbursements and expenses will be refunded to you.
We will deposit any funds we hold for you in our general client account. You authorise us to apply such monies to pay your invoices as billed on any matter for you and we shall have a lien for lawyers’ fees and costs advanced on all or any property in our possession including without limitation any monies on account, escrow accounts, client accounts, documents, files and records in our possession.
Interest will only be paid to you on such sums if we are specifically requested by you to place the funds in a separate interest bearing account.
In the event that the bank at which our accounts are held or any clearing bank through which such monies may be transferred becomes insolvent or fails to pay any such amount held for you our responsibility to you shall be limited to the actual amount recovered from such bank in relation to such deposit. We shall not be liable for any loss of client monies held in escrow or any other form of economic loss to clients which occurs as a result of cybercrime activity which is outside our control, including without limitation unauthorised access of a client’s computer or computer network, electronic data interception or redirection causing misapplication of client funds or other related actions which may result in loss of client monies.
Subject to applicable law, we may seek, obtain, and divulge any information regarding you, your credit history and dealings with us to or from any credit reporting bureau, any financial institution and any employer. Such credit information may be used to create and maintain a credit report file on your credit history and credit account details with any credit reporting bureau, which may periodically receive credit updates from other financial institutions or creditors whom have extended credit to you and which may periodically divulge such credit information to members in good standing of such credit bureau. Subject to applicable law, overdue fees or other sums owing may be assigned to a credit bureau/collection bureau for collection and/or court proceedings may be taken in respect thereof in which case you will be liable for any collection fees, legal fees and/or court costs in relation thereto on an indemnity basis. All fees, costs and expenses payable to us shall be paid net of any taxes or surcharges.
For many transactions we are able to give estimates of the cost of completing the work. Estimates are not fixed fees or caps on our fees and are provided solely for the purpose of indicating to you the likely overall cost of our services. In the event that the actual fees that are chargeable on a time and expertise basis exceed the estimate, we shall be entitled to recover from you our fees in full.
Transactions are aborted or delayed for a variety of reasons beyond our control. Our fees are not conditional upon a transaction or other matter happening or not happening. We do not work on a contingency basis and in these circumstances we will charge for work done up to the time the transaction aborts or is delayed.
Your obligation to pay our fees and disbursements in litigious matters exists irrespective of the outcome of any proceedings or any order for costs which may be made. We should point out that even if you are successful in your litigation and you are entitled to the payment of your costs by another party it is unlikely that you will recover the full amount which you have been billed by us.
Although often for non-contentious matters we will usually submit an invoice at the completion of a transaction, unless we explicitly state otherwise, we reserve the right to submit invoices periodically (not more than monthly). Contentious matters will usually be billed monthly.
We reserve the right to stop working in relation to any matter where we have any outstanding invoice(s). In the event that we do stop working on any matter on the basis of unpaid fees, we shall not be liable for any loss or damage which this may cause to you.
We transact with our clients in both Cayman Islands Dollars (KYD) and United States Dollars (USD). Our engagement letters will express which currency we are engaging with you. Our bank exchanges payments as follows:
Payment in KYD to USD: 1KYD = 0.84USD
Payment in USD to KYD: 1USD = 0.82KYD
These are the rates at which we will convert payments received from you and payments due to you from funds held on trust when (1) we receive funds from you that require converted to pay fees and disbursements on your behalf, and (2) we are requested to pay funds held by us on trust to you in a different currency from that held by us.
16. Know Your Client Requirements
We are subject to legal requirements which require us to report knowledge or suspicions of money laundering to the relevant authorities. In addition, it is an offence for us to prejudice any investigation by those authorities by “tipping-off’ any person who may be the subject of suspicion, or any third party, that such a person is suspected of money laundering.
We are required by money laundering legislation and regulations to verify your identity and we can accept new instructions only on the basis that you can properly identify yourself to us and explain any transaction in which you are involved. If we do not receive or have sufficient evidence of identity and a proper explanation of the details and nature of a proposed transaction we will not be able to act or may have to terminate the Retainer.
The Retainer may be amended or added by us upon not less than thirty days’ notice of such amendment. In the case of these Terms, notice of amendment is given by posting the amended Terms on our website. Your continued use of our services following any such change shall be deemed and constitutes your acceptance of any amendments and you acknowledge and agree to be bound to the current version of these Terms at all times.
In these Terms unless there be something in the subject or context inconsistent with such construction:
(a) the singular shall include the plural and vice versa and words importing any gender shall include all genders; (b) words importing persons shall include companies or associations or bodies of persons whether corporate or unincorporated; (c) reference to laws or statutes are to laws and statutes applicable to the Retainer, unless otherwise noted, and include any revisions, statutory modifications and re-enactments thereof for them time being in force. If any provision of the Retainer or any agreement entered into pursuant hereto is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect: (i) the validity or enforceability in that jurisdiction of any other provision of this Retainer or such other agreement; or (ii) the validity or enforceability in other jurisdictions of that or any other You agree to comply with all applicable laws and to provide to us such documentation and information as we may require to comply with all applicable laws and regulations in force. You shall be responsible for compliance with and, if relevant, drawing our attention to any relevant requirements of the laws of other jurisdictions.
19. Jurisdiction and Applicable Law
The Retainer and all business undertaken between you and us is subject to Cayman Islands law and the exclusive jurisdiction of the Cayman Islands Courts for advice in respect of Cayman Islands matters, provided that we may sue in respect of outstanding fees, expenses, disbursements and other sums or obligations owing to us in any jurisdiction.