Terms & Conditions

GENERAL TERMS AND CONDITIONS

Corporate Finance and valuation work by a COLLEGIUM member firm to a client pursuant to a letter incorporating these General Terms of Business and recording the engagement (“the Engagement Letter”).

Definitions:

The meanings of the following words and phrases which are widely used in these General Terms and Conditions shall be as set out below and shall apply wherever used in the Services Contract:

Services – the services to be delivered by us under the Engagement Letter.

COLLEGIUM or we (and derivatives) – the COLLEGIUM member firm contracting party as identified by our letterhead; it does not refer to the Holding and/or any other COLLEGIUM member firm.

You (and derivatives) – the addressee (or addressees) of the Engagement Letter, contracting with us.

Services Contract – these General Terms of Business (Europe) and the Engagement Letter, together with any documents or other terms applicable to the Services (“Additional Terms”) to which specific contractual reference is made in the Engagement Letter.

COLLEGIUM Persons – the COLLEGIUM contracting party, contracting with you, each and all of our partners, members, directors, employees and agents, as the case may be, together with any other body or entity controlled by us or owned by us (i.e., either a controlled party or sublicense) or COLLEGIUM or any other COLLEGIUM member firm and each and all of its partners, members, directors, employees and agents and “COLLEGIUM Person” shall mean any one of them.

Partners – Any COLLEGIUM Person having the title “partner” (whatever that COLLEGIUM Person’s legal status) or being a member of us where we are a partnership.

Local Law – the law of the territory in which we are based.

Other Beneficiaries – any and each person or organization identified in the Engagement Letter (other than you) as a beneficiary of the Services or any product thereof.

Our services and responsibilities:

1. The Engagement Letter shall set out the Services to be delivered by us and associated matters. These General Terms and Conditions shall be subject to variation if required in the Engagement Letter.
2. The Services shall be delivered with reasonable skill and care.
3. Where individuals to be involved in delivering the Services are named in the Engagement Letter, we shall use reasonable endeavours to ensure that they are so involved. We may substitute those identified for others of equal or similar skills.
4. We may acquire sensitive information concerning your business or affairs in the course of delivering the Services (“Confidential Information”). In relation to Confidential Information we shall comply with the confidentiality standards of our regulatory body and we shall adhere to the confidentiality restrictions imposed on us by any other authority with whose requirements we are bound to comply, as well as any obligations imposed on us by Local Law. We shall be entitled to comply with any requirement of Local Law, of our regulatory body or any other authority with whose requirements we are bound to comply to disclose Confidential Information. This clause shall not apply where Confidential Information properly enters the public domain or where required to be disclosed pursuant to applicable law, court order or subpoena. This clause shall not prohibit our disclosure of Confidential Information where we wish to disclose Confidential Information to our insurers or advisers in relation to professional indemnity matters, in which event we may do so in confidence only, or to other COLLEGIUM firms as required to perform the Services or pursuant to standard quality review procedures. In the performance of our work we may use computer software designed to facilitate the efficient management of data for the purposes of the delivery of the Services and to comply with our obligations under the Services Contract. A consequence of our use of such software is that data supplied by you pursuant to the Services Contract may be transferred to computer servers operated with appropriate controls on access under the authority of COLLEGIUM outside the territory in which we are based. For the purposes of marketing or publicizing or selling our services we may wish to disclose that we have performed work (including the Services) for you, in which event we may identify you by your name and we may indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
5. We may supply written advice or confirm oral advice in writing or deliver a final written report or make an oral presentation on completion of the Services. Prior to completion of the Services we may supply oral, draft or interim advice, reports or presentations but in such circumstances our written advice or our final written report shall take precedence. No reliance shall be placed by you on any draft or interim advice, report or presentation. Where you wish to rely on oral advice or presentations made on completion of the Services, you shall inform us and we shall supply documentary confirmation of the advice concerned.
6. We shall not be under any obligation in any circumstances to update any advice, report or any product of the Services, oral or written, for events occurring after the advice, report or product concerned has been issued in final form.
7. Any product of the Services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only and that save as may be required by law or by a competent regulatory authority (in which case you shall inform us in advance) it shall not be copied, referred to or disclosed, in whole (save for your own internal purposes) or in part, without our prior written consent. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the Services to your legal advisers for the purposes of your seeking advice in relation to matters to which the Services relate, provided that when doing so you inform them that:
   • disclosure by them (save for their own internal purposes) is not permitted without our prior written consent, and,
   • To the fullest extent permitted by Local Law we accept no responsibility or liability to them in connection with the Services.
8. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.

Intellectual property

1. We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form on payment of our Charges for any such product. For the purposes of delivering services to you or other clients, we and other COLLEGIUM Persons shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.

Our charges

1. We shall render invoices in respect of the Services comprising fees, outlays and taxes (including withholding taxes) thereon (where appropriate) (“our Charges”). Details of our Charges and any special payment terms shall be set out in the Engagement Letter. Our fees shall be based on the degree of responsibility of COLLEGIUM Persons involved in delivering the Services, their skill and time spent by them in performing them and the nature and complexity of them. Outlays will include both directly incurred costs and an amount, not to exceed 7.5% of the value of time, to cover incidental expenses which are not charged directly to the engagement. Our Charges may differ from estimates or quotations that may have been supplied, for example where additional fees and outlays arise from any delay as a result of failure to supply the information required to enable us to perform the Services.
2. In return for the delivery of the Services by us, you shall pay our Charges (without any right, to the fullest extent permitted by Local Law, of deduction or set-off), on presentation of our invoice or at such other time as may be specified in the Engagement Letter.
   • In case of default we may charge interest on any outstanding balances at a rate of 2% over the base rate of the European Central Bank (or on such other terms as may be specified by Local Law) (this rate applying after as well as before any court award or judgment in our favour in respect of outstanding balances),
   • If the Services Contract is terminated or suspended, we shall be entitled to payment for outlays incurred to that time and to payment of fees for work done, plus taxes thereon (where appropriate). Our fees for work done shall in this event be calculated by reference to our hourly rates at the time of performance of our work on the basis set out in clause 10,
   • Where there is more than one addressee of the Engagement Letter, unless provision is made in the Engagement Letter for payment of our Charges by one of you or by a third party, all of you shall each be fully liable separately to pay our Charges as well as being so liable together as a group and we shall be entitled to call upon any of you and all of you for payment in full.

Your responsibilities

1. Notwithstanding our duties and responsibilities in relation to the Services, you shall retain responsibility and accountability for:
   • the management, conduct and operation of your business and your affairs,
   • deciding on your use of, choosing to what extent you wish to rely on, or implementing advice or recommendations or other product of the Services supplied by us,
   • making any decision affecting the Services, any product of the Services, your interests or your affairs,
   • the delivery, achievement or realization of any benefits directly or indirectly related to the Services which require implementation by you
2. Where you require us or the nature of the Services is such that it is likely to be more efficient for us to perform work at your premises or using your computer systems or telephone networks, you shall ensure that all arrangements are made for access, security procedures, virus checks, facilities, licences or consents as may be required (without cost to us).

Information

1. To enable us to perform the Services, you shall supply promptly all information and assistance and all access to documentation in your possession, custody or under your control and to personnel under your control where required by us. You shall use your best endeavours to procure these supplies were not in your possession or custody or under your control. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services.
2. You shall supply information in response to our enquiries (if any) to enable us to comply with our responsibilities under Local Law to make disclosures to relevant authorities in respect of money laundering and any other criminal activity that we may encounter during performance of the Services and any such disclosures may include Confidential Information. 15. We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes (“an Authorised Person”).
3. We may communicate with you by electronic mail where an Authorised Person wishes us to do so, on the basis that in consenting to this method of communication you accept the inherent risks (including the security risks of interception of or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices) and that you shall perform virus checks.
4. We may receive information from you or from other sources in the course of delivering the Services. To the fullest extent permitted by Local Law we shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information relevant to the Services or other default relating to such information, whether on your part or that of the other information sources, unless detection of such fraud, misrepresentation, withholding or such other default is evident to us without further enquiry.

Knowledge or conflicts

1. In clauses 18 to 22 the following definitions shall apply:
   • “the Engagement Team” shall mean, collectively or individually, COLLEGIUM Persons (excluding corporate bodies, entities or firms) who is or are involved in delivering the Services,
   • “Other Collegium Person(s)” shall mean, collectively or individually, COLLEGIUM Persons who are not members of the Engagement Team,
   • “Barriers” shall mean safeguards designed to facilitate the protection of each client’s interests and may include (for example): separate teams, their geographical and operational separation and/or access controls over data, computer servers and electronic mail systems.
2. The Engagement Team shall not be required, expected or deemed to have knowledge of any information known to Other Collegium Persons which is not known to the Engagement Team.
3. The Engagement Team shall not be required to make use of or to disclose to you any information, whether known to them personally or known to Other COLLEGIUM Persons, which is confidential to another client.
4. COLLEGIUM Persons may be delivering services to, or be approached to deliver services to, another party or parties who has or have interests which compete or conflict with yours (a “Conflicting Party” or “Conflicting Parties”).
5. COLLEGIUM Persons are and shall remain free to deliver services to Conflicting Parties, except that where the interests of the Conflicting Party conflict with yours specifically and directly in relation to the subject matter of the Services:
   • the Engagement Team shall not deliver services to the Conflicting Party,
   • Other COLLEGIUM Persons may only deliver services to the Conflicting Party where appropriate Barriers are put in place. The effective operation of such Barriers shall constitute sufficient steps to avoid any real risk of a breach of our duty of confidence to you.

We seek to identify Conflicting Parties in the circumstances set out in this clause 22. If you know or become aware that a COLLEGIUM Person is advising or proposing to advise such a Conflicting Party, you shall inform us promptly.

Without limiting the general applicability of his clause, where Other COLLEGIUM Persons are asked to deliver services (the “Other Services”) to a Conflicting Party (whose existence may or may not be known to you) who is actually or potentially interested in acquiring the same or a similar interest in the subject matter of the transaction to which both the Other Services and the Services relate (for example, where you and the Conflicting Party are both interested in acquiring a company, asset or operation which has been put up for sale by auction), such Other COLLEGIUM Persons shall be entitled to deliver the Other Services to the Conflicting Party.

The Services Contract

1. The Services Contract sets out the entire agreement and understanding between us in connection with the Services. Any modifications or variations to the Services Contract must be in writing and signed by an authorised representative of each of us. In the event of any inconsistency between the Engagement Letter and any other elements of the Services Contract, the Engagement Letter shall prevail. In the event of any inconsistency between these General Terms of Business and Additional Terms that may apply, the Additional Terms shall prevail.

Circumstances beyond your or our control

1. Neither of us shall be in breach of our contractual obligations nor shall either of us incur any liability to the other if we or you are unable to comply with the Services Contract as a result of any cause beyond our or your reasonable control.

Waiver, assignment and sub-contractors

1. Failure by any one of us to exercise or enforce any rights available to us shall not amount to a waiver of any rights available to either of us.
2. Neither of us shall have the right to transfer to another party the benefit or burden of the Services Contract without the written consent of the other of us.
3. We shall have the right to appoint sub-contractors to assist us in delivering the Services but where any such sub-contractors are not COLLEGIUM Persons we shall inform you before doing so. Where we appoint sub-contractors under this clause, for all purposes in connection with the Services Contract their work shall be deemed to be part of the Services.

Limitations on our liability

In the following clauses 28 to 32 inclusive, we set out how our liability to you in connection with our Services may be excluded or limited or proportionate and we specify to whom you should direct any claims. These clauses may be varied in Additional Terms that may apply, in which case the Additional Terms will prevail.

1. Our liability in connection with the Services shall be limited, save as may be set out in any Additional Terms, in accordance with this clause.
   To the fullest extent permitted by Local Law and subject to clause 30 and clause 31 below:
   • the aggregate liability to you and to Other Beneficiaries of each and all COLLEGIUM Persons,
   • arising in any way and on any basis,
   • for any loss or damage suffered by you (or by any such other party) arising from or in connection with the Services,
   • However the loss or damage is caused, including our negligence but not our fraud or other deliberate breach of duty.

Shall be limited to the amount or on such alternative basis (if any) as may be specified in the Engagement Letter, or if no amount and no alternative basis are specified there, to the amount of 1,5 times the fees payable to us in accordance with the terms of the Engagement Letter on the basis set out in this clause.

1. Where there is more than one beneficiary of the Services (“Beneficiary”) the limitation on our liability agreed under this clause to each Beneficiary shall be apportioned by them amongst them. No Beneficiary shall dispute or challenge the validity, enforceability or operation of this clause on the ground that no such apportionment has been so agreed or on the ground that the agreed share of the limitation amount apportioned to any Beneficiary is unreasonably low. In this clause, “Beneficiary” shall include you and Other Beneficiaries.
2. Subject always to the aggregate limitation on our liability in clause 28 above and to the fullest extent permitted by Local Law, the liability of COLLEGIUM Persons shall be limited to that proportion of the total loss or damage, after taking into account your own contribution (if any) or the contribution (if any) of any Other Beneficiaries, which is fair and reasonable having regard to the extent of the responsibility of COLLEGIUM Persons for the loss or damage concerned and the extent of responsibility of any other party also liable or potentially liable to you or to Other Beneficiaries in respect of the same loss or damage.
3. We accept the benefit of the limitations in clause 28, 29 and 30 above on our own behalf and as agent for each and all other COLLEGIUM Persons who may be or might have been involved in delivering the Services.

Any clauses in the Services Contract operating or which may operate to exclude or limit our liability in any respects shall not operate to exclude or limit any liability which cannot under Local Law be excluded or limited.

1. You and Other Beneficiaries shall not bring any claim against any COLLEGIUM Person other than the COLLEGIUM contracting party in respect of loss or damage suffered by you or by Other Beneficiaries arising out of or in connection with the Services, unless under Local Law you are not permitted to bring a claim against us in our collective or corporate name. Where under Local Law this restriction is permitted, we shall not rely on it to limit or exclude the liability of the COLLEGIUM contracting party as a collective or corporate body for the acts or omissions of any other COLLEGIUM Person involved in delivering the Services.

Third parties

1. If you breach any of your obligations under the Services Contract and there is any claim made or threatened against us by a third party, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us which results from or arises from or is connected with any such breach and any such claim. If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time. In this clause “us” shall include all COLLEGIUM Persons and “you” shall include Other Beneficiaries.

Termination

1. Each of us can terminate the Services Contract or suspend its operation by giving 30 days’ prior notice in writing to the other at any time. Termination or suspension under this clause shall not affect any rights that may have been acquired by either of us before termination or suspension and all sums due to us calculated in accordance with clause 11.2 shall become payable in full when termination or suspension takes effect.
2. To the fullest extent permitted by Local Law the following clauses of these General Terms of Business (Europe) shall survive expiry or termination of the Services Contract: clauses 4, 5, 6, 7, 8, 9, 12, 17, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39.

Severability

1. Each clause or term of the Services Contract constitutes a separate and independent provision. If any of the provisions of the Services Contract are judged by any court or authority of competent jurisdiction to be void or unenforceable, to the fullest extent permitted by Local Law, the remaining provisions shall continue in full force and effect.

Capacity

1. You agree to and accept the provisions of the Services Contract on your own behalf and as agent for Other Beneficiaries. You shall take such steps as may be necessary to ensure that any Other Beneficiaries act on the basis that they are a party to the Services Contract, as if they had each signed a copy of the Engagement Letter and agreed to be bound by it. However, you alone shall be responsible for payment of our charges.
2. We accept your agreement to and acceptance of the terms of the Services Contract (save for clauses 28, 29 and 30 above) on our own behalf and as agent for each and all other COLLEGIUM Persons.

Law and jurisdiction

1. The Services Contract shall be subject to and governed by Local Law and all disputes arising from or under the Services Contract shall be subject to the exclusive jurisdiction of the local Law courts