PROCESS AGENT LIMITED
GENERAL TERMS AND CONDITIONS
1.1 In these General Terms and Conditions (the “Terms and Conditions“):
(a) capitalised words have the meanings set out below. If not defined below, capitalised words have the meaning given to them in the Appointment Letter;
(b) unless expressly stated to the contrary in these Terms and Conditions, references to “days”, “months” and “years” are to calendar days, months and years;
(c) the following terms shall have the following meaning:
“Agreement” means each legal agreement set out in the schedule to the Appointment Letter;
“Appointer“, “you” or “your” means the person who is party to one or more Agreements;
“Appointer’s Agent” means the person who acts as agent, legal adviser or otherwise on behalf of the Appointer for purposes of the Appointment;
“Appointment Documents” means the Appointment Letter and these Terms and Conditions including any schedules or appendices thereto;
“Appointment” means the appointment of PAL under the Appointment Documents as the Appointer’s Process Agent;
“Appointment Letter” means the letter (including any schedule thereto) issued by PAL confirming it will act as Process Agent for the Appointer in respect of the Agreement(s);
“Authorised Person” means each person nominated as such by the Instructing Party in the Instruction Form or identified by you to us in writing from time to time;
“Business Day” means a day which is not a Saturday or a Sunday and on which banks are open for business in London;
“Expiry Date” means the expiry date set out next to each Agreement in the Appointment Letter;
“Fee” means, in respect of the Appointment, each fee set out in the Schedule to these Terms and Conditions as at the time of issuance of the Appointment Letter or as otherwise agreed in writing between you and us or between your agents or advisers and us;
“Instructing Party” means the Appointer or the Appointer’s Agent;
“Instruction Documents” means the Instruction Form and, following the issuance of the Appointment Letter, any written instruction received by us from your Authorised Person(s);
“Instruction Form” means the form completed by the Instructing Party (either online or otherwise) in order to request the Services;
“Master Agreement” means any standardised form of master agreement produced by the International Derivatives and Swaps Association or other industry association or body including, but not limited to, ISDA Master Agreements, Master Repurchase Agreement, Global Master Repurchase Agreements, Master Securities Loan Agreements, Master Securities Forward Transaction Agreements, EFET Master Agreements and Grid Trade Association Master Agreements;
“Open Ended Master Agreement Appointment” means an Appointment in respect of any Master Agreement where such Appointment does not have a fixed term;
“PAL“, “we“, “our“ or “us” means Process Agent Limited, a limited liability company registered in England and Wales with registered number 10710790 and registered office at Kemp House, 152-160 City Road, London EC1V 2NX, United Kingdom;
“Person” means any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
“Personal Data” means, in relation to each user of the Site (as defined in the Use of Website Terms and Conditions), any information that directly or indirectly or in connection with other information (including any personal identification number) allows for the identification or identifiability of a natural person;
“Proceedings” means any claim brought by a party to an Agreement against the Appointer(s) and issued out of any court or tribunal in England and Wales or in relation to any arbitration in England and Wales;
“Process Agent” means an agent for Service of Process;
“Pounds Sterling” or “£” or “GBP” means the lawful currency of the United Kingdom from time to time;
“Sanctions” means any sanctions imposed by any agency or regulatory authority of the United Nations, the United States of America, the United Kingdom and/or the European Union (or any member state thereof);
“Service Contact Party” means the person specified as such by the Instructing Party in the Instruction Form whom we will contact in the event we accept Service of Process on the Appointer’s behalf;
“Service of Process” means service of Proceedings upon the Appointer in respect of an Agreement;
“Services” means the service provided by PAL when acting as the Appointer’s Process Agent in respect of one or more Agreement(s); and
“Use of Website Terms and Conditions” means the terms and conditions set out in PAL’s Use of Website’s Terms and Conditions.
1.2 In the event of any conflict between these Terms and Conditions and the Appointment Letter, the Appointment Letter shall prevail.
2. Authority and Instructions
2.1 In connection with each Appointment, you agree that we are entitled to act on behalf of the Appointer upon instructions given or purported to be given by it or any person authorised on its behalf without further enquiry as to the genuineness, authority or identity of the person giving or purporting to give such instructions.
2.2 We will only act as the Appointer’s Process Agent and, notwithstanding anything to the contrary in any Agreement, we will not act in any other capacity nor role. For the avoidance of doubt, we shall not be bound by or be deemed to have accepted any term or condition any Agreement unless we have given our prior written consent;
2.3 In relation to any instruction given (or purported to be given) to us in the Instruction Form, we shall not accept nor act upon any instruction received by us from anyone other than the Instructing Party.
2.4 In relation to any instruction given (or purported to be given) to us after the Appointment, we shall not accept nor act upon any instruction received by us from anyone other than an Authorised Person.
2.5 We reserve the right to refuse to act upon any instruction (a) which is or which we consider to be (in our discretion) unreasonable and/or (b) which is or which we have reasonable grounds to believe is fraudulent or unlawful. If we refuse to act upon any instruction, we will notify you as soon as reasonably practicable of our refusal.
3. Service of Process
3.1 As soon as reasonably practicable after Service of Process, we will notify the Service Contact Party by e-mail of the relevant Proceedings. Such notice will include an electronic copy of the Claim Form and Particulars of Claim (or equivalent documents) but will exclude any appendices or attachments thereto and any other documents served on you as at the date of the Claim Form and Particulars of Claim and thereafter (the “Notice of Proceedings”).
3.2 We will then ask for the Service Contact Party’s instructions in respect of delivery of the original documents referred to in the Notice of Proceedings to you and/or your legal advisers.
3.3 In the event that (a) we are unable to contact the Service Contact Party using the contact details provided to us in the Instruction Documents, or (b) we receive no acknowledgement nor response from the Service Contact Party following our attempt to contact such party using the contact details provided to us in the Instruction Documents, we shall use reasonable endeavours to contact the Service Contact Party using any other contact details of the Service Contact Party we may be aware of but expressly exclude any liability or responsibility for failure to contact the Service Contract Party by means other than those set out in the Instruction Documents. In the event of paragraph (a) or (b) above, our attempt to contact the Service Contact Party using the contact details provided to us in the Instruction Documents shall discharge us fully from all our obligations under the Appointment.
3.4 Our sending of the Notice of Proceedings and dispatching of the original Claim Form and/or Particulars of Claim served on us according to the Service Contact Party’s instructions will discharge us fully from all our obligations under the Appointment. Once the Notice of Proceedings and the original documents referred to in the Notice of Proceedings are dispatched to you (a) we shall have no obligation nor responsibility to ensure actual receipt of the documents by you or any of your agents or legal advisers; and (b) we shall have no further obligation nor responsibility to you in respect of the Service of Process of documents in relation to the original Proceedings which are in addition to the documents referred to in the Notice of Proceedings.
3.5 In the event we send you a Notice of Proceedings, you agree to pay all administrative fees incurred by us in connection with the receipt and dispatch of any hard copy documents in respect of the Proceedings including (but not limited to) notarial fees, costs of postage, duties and courier costs.
4.1 Our Appointment in respect of each Agreement shall cease on the Expiry Date unless you and we have agreed an extension. Any such extension shall be agreed in writing and evidenced by the issue by us of an invoice specifying the extension period and additional Fees.
4.2 We shall be entitled to terminate the Appointment and all our obligations under the Appointment Documents with immediate effect by notifying you if:
(a) you fail to pay the full amount of any invoice for any Appointment within thirty (30) days of its issuance by us;
(b) you fail to comply with any of the terms of the Appointment Documents or breach any representation made by you under the Appointment Documents;
(c) you breach any provisions of clause 7 (Information) and/or clause 8 (Representations) of these Terms and Conditions; and/or
(d) you breach any provision of clauses 4 (Copyright and Licence), 5 (Site Visitors and Users’ Conduct) and/or 6 (Rules About You Linking to Our Site) of the PAL’s Use of Website’s Terms and Conditions.
4.3 We shall be entitled to terminate with immediate effect and without notice the Appointment together with our outstanding obligations under the Appointment Document if it becomes or it is likely to become illegal for us to continue to provide the Services to you or you (or any agency, government or state that exercises control over you) are or become subject to Sanctions or the country in which you are incorporated or established is or becomes subject to Sanctions.
4.4 You may terminate the Appointment and your obligations under the Appointment Documents at your discretion and without cause by giving us not less than two (2) months’ prior written notice.
4.5 We may terminate the Appointment and our responsibilities under the Appointment Documents at our discretion and without cause by giving you not less than two (2) months’ prior written notice.
(a) we terminate the Appointment under clause 4.2, clause 4.3 and/or clause 4.5 above; or
(b) you terminate the Appointment under clause 4.4 above,
you shall not be entitled to any refund of any amount already paid in respect of each terminated Appointment.
4.7 Termination or expiry of the Appointment will, in all cases be subject to clause 12 (Survival) below.
5.1 In consideration of our agreement to be appointed as your Process Agent pursuant to the Appointment Letter, you agree to pay our Fees within thirty (30) days following the date of issuance of our invoice.
5.2 All payments of our Fees to be made under the Appointment Documents shall be:
(a) paid in the currency of the invoice and in immediately available, freely transferable cleared funds and, unless payment has been made by credit or debit card, to such account(s) with such bank(s) as we notify to you;
(b) made without any deduction or withholding for or on account of tax (a “Tax Deduction“) unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required; and
(c) exclusive of any value added tax or similar charge (“VAT“). If VAT is chargeable, you shall also and at the same time as payment of our fees, pay to us of an amount equal to the amount of the VAT.
6. Limitation of Liability and Indemnity
6.1 You agree that we shall not have any liability (whether direct or indirect, in contract or tort or otherwise) to you for or in connection with any Appointment except for any cost, expense, loss or liability incurred by you that is in each case finally judicially determined to have resulted directly from our gross negligence or wilful misconduct, in which case our total liability shall be limited to an amount which is no more than five (5) times the Fees paid by you for such Appointment.
6.2 Notwithstanding clause 6.1 above (a) we shall not be responsible nor have any liability to you or anyone else for consequential losses, damages, loss of profits or indirect losses or damages; nor (b) we shall not be responsible nor have any liability to you or anyone else for ensuring that the Service Contact Party and/or any Authorised Person is/are aware of their respective nomination pursuant to the Instruction Documents.
6.3 You agree that you shall, within five (5) Business Days of a demand by us, indemnify us and hold us harmless (and our officers, directors, employees, shareholders and agents) from and against any and all losses, liabilities, damages, claims, demands, expenses and costs (including, without limitation, all reasonable administrative and legal costs, penalties, interests, VAT and any other tax) incurred, suffered by or awarded against us in connection with or arising from our Services in relation to the Appointment (including, without limitation, acting or refusing to act upon any instruction (given to us by the Instructing Party or an Authorised Person) which is or which we consider to be (in our discretion) unreasonable and/or which is or which we have reasonable grounds to believe is fraudulent or unlawful). For the avoidance of doubt, this indemnity shall cover, without limitation, any error in any instruction given to us by the Instructing Party or an Authorised Person in the Instruction Documents.
6.4 If our Appointment terminates pursuant to clause 4.2 or clause 4.3 above, we may take such action as we deem appropriate including, without limitation, (a) terminating our Services, (b) starting proceedings against you for reimbursement of all costs (including, but not limited to, reasonable administrative and legal costs) resulting from a breach on an indemnity basis and (c) disclosure of such information to law enforcement authorities as we deem necessary or as required by applicable laws and regulations.
6.5 In the event of an early termination of an Appointment pursuant to clause 4.2 or clause 4.3 above, you agree that you shall, within five (5) Business Days of a demand by us, indemnify and hold us harmless (and our officers, directors, employees, shareholders and agents) from and against any and all losses, liabilities, damages, claims, demands, expenses and costs (including but not limited to any reasonable administrative and legal costs, penalties, interests, VAT and any other tax) incurred, suffered by or awarded against us (and our officers, directors, employees, shareholders and agents) directly or indirectly resulting from or relating to any matter in relation to or arising from any breach and/or termination of these Terms and Conditions on your part or your failure to comply with any applicable laws and regulations in connection with our Appointment.
7.1 For each Appointment, the Instructing Party acknowledges, agrees and confirms that:
(a) the Appointment Documents, each instruction given to us and the obligations created under each of them are binding upon the Appointer and, in respect of this clause 7 (Information) and clause 8 (Representations) below, the Appointer’s Agent;
(b) each of the Agreements is governed under English law and that we will only act as your Process Agent in respect of Agreements that are governed under English law;
(c) any information which you provide in the Instruction Documents or thereafter from time to time is complete, accurate and not misleading;
(d) to the extent permitted by law, no other duty or obligation on our part will apply to, or be implied into, the relationship between you and us;
(e) it will promptly notify us (quoting the reference number specified in the Appointment Letter) of any change to any of Authorised Persons or to the Service Contact Party information in the schedule to the Appointment Letter. Any change to this information will only take effect once we have confirmed such change in writing;
(f) it will promptly notify us (quoting the reference number specified in the Appointment Letter) of any change in or amendment to any of the Agreements which purports to modify the duration of such Agreement(s), the Appointer’s legal entities which are party(ies) to the Agreement(s), the terms and conditions relating to the appointment of PAL as Process Agent and/or any other material change which, in the Instructing Party’s reasonable opinion, is likely to affect PAL’s Services;
(g) we may ask you to provide us with certain information to enable us to comply with all Sanctions and applicable money laundering laws and regulations. You agree to provide us promptly with all information requested by us and to confirm that such information is complete, accurate and not misleading; and
(h) to the extent the Service Contact Party and/or any Authorised Person is/are not the same person as the Instructing Party, the Instructing Party agrees to make the Service Contact Party and/or such Authorised Person(s) aware (i) that they have been nominated as Service Contact Party and/or Authorised Person(s) (as relevant) pursuant to the Appointment and (ii) of the terms and conditions set out in the Appointment Documents.
7.2 If you are an Appointer’s Agent, you acknowledge and agree that we do not owe you any duty in respect of the Appointment and that our obligations in respect of the Appointment are only owed to the Appointer.
8.1 For each Appointment, the Appointer and (if applicable) the Appointer’s Agent each represents and warrants to us on the date of the Appointment Letter and, in respect of sub-clauses 8.1(a) to 8.1(d) below, on each date on which we are given an instruction in relation to the Appointment that:
(a) the Appointer is a party to the Agreement(s);
(b) it has full capacity and authority to accept and be bound by the relevant terms and obligations set out in the Appointment Documents;
(c) each Authorised Person has been and remains duly authorised by the Appointer;
(d) it is not subject to Sanctions, or owned or controlled by an agency of or entity that is the subject of Sanctions, nor is the country in which it is incorporated or established subject to Sanctions; and
(e) there is (i) no event of default or potential event of default that has occurred and is continuing in relation to any Agreement, (ii) no ongoing dispute between the Appointer and any other party to the Agreement(s), and/or (iii) as far as the Appointer is aware, no litigation is ongoing or contemplated against the Appointer in connection with any Agreement.
8.2 If, as at the date of the Appointment, there is a breach of the representation made to us in sub-clause 8.1(e), such breach shall be automatically waived by us provided that (a) the existence or occurrence of any of the events listed in clause 8.1(e) has been disclosed to us in writing prior to the time of such Appointment and (b) we have confirmed in writing our agreement to act as your Process Agent in relation to such Appointment.
9.1 We acknowledge and agree that each Agreement is confidential and, subject to clause 9.2 below, we shall not disclose any Agreement (including its existence or contents) to any other person without your prior consent except to (if a different person from you) the Service Contact Party, the Appointer’s Agent, Authorised Person(s) and any other person you specifically notify us in writing should be made aware of our Appointment in relation to the Agreement(s).
9.2 We shall be permitted to disclose the existence of the Appointment and the existence and contents of the Agreement(s):
(a) as required by law or by any applicable governmental or other regulatory authority or in order to perform our legal and regulatory obligations under the Appointment Documents;
(b) for the purposes of performing our Services in relation to an Appointment, to our employees or professional advisers who have been made aware of and agree to be bound by the obligations under this clause 9 or who are in any event subject to confidentiality obligations as a matter of law and/or professional practice;
(c) to any intending assignee of the rights and interests of PAL under the Appointment Documents or to a person intending to acquire an interest in PAL provided that such intending assignee or acquirer agrees to treat the existence of the Appointment and the Agreements as confidential; or
(d) to any bank or other financial institution to the extent required for the financing of PAL’s business activities provided that such bank or financial institution agrees to treat the existence of the Appointment and the Agreements as confidential.
9.3 We shall be permitted to disclose and share your Personal Data with selected third parties, including (without limitation):
(a) in the event that we sell or buy or contemplate the sale or purchase of any business or assets, in which case we may disclose your Personal Data to one or more prospective seller or buyer of such business or assets, provided that such third party(ies) agree to be bound by obligations of confidentiality in respect of such Personal Data;
(b) if PAL or substantially all of its assets are acquired by a third party, in which case Personal Data held by us about our customers and users of our Site will be one of the transferred assets; and
(c) if we are under a duty to disclose or share your Personal Data in order to comply with any legal and/or regulatory obligation (including, without limitation, the UK Money Laundering Regulations 2007), or in order to enforce or apply any of our Process Agent Documents and/or any other agreements between you and us, or to protect the rights, property or safety of PAL, our customers or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction.
10.1 Our address for service of notices or other communications is our registered office at Kemp House, 152-160 City Road, London EC1V 2NX, United Kingdom and our email address is email@example.com. In the event any of these addresses changes, we agree to give you not less than two (2) weeks’ prior written notice of such change.
10.2 Any notice between you and us shall be given in writing (including electronically but excluding the use of fax) using the contact details provided in the Instruction Documents or PAL’s contact details as set out in clause 10.1 above, as applicable.
10.3 A written notice shall be deemed to have been received:
(a) if delivered by hand, on the Business Day of delivery or on the first Business Day after the date of delivery if delivered on a day which is not a Business Day;
(b) if sent by first class post, on the second business day after the day of posting or if sent from one country to another, on the fifth Business Day after the day of posting;
(c) if sent by email and a valid email delivery report confirming good receipt is generated, on the day of transmission if sent before 1800 hours GMT on a Business Day or otherwise on the first following Business Day after transmission.
11. Entire Agreement, No Waiver, Amendments, etc
11.1 The Appointment Documents constitute the entire agreement between us in relation to the Appointment and supersede any previous agreement, whether express or implied, regarding the Appointment. In particular, nothing in any Agreement shall be taken to override any of the terms set out in the Appointment Documents and we shall not be deemed to have notice of any provision of any of the Agreements.
11.2 Nothing in any Appointment Documents shall require us to provide any service referred to in the Money Laundering Regulations 2007, and specifically we do not provide any of the services set out in Section 3.10 of those regulations.
11.3 No failure to exercise, nor any delay by us in exercising any right or remedy under the Appointment Documents will operate as a waiver of any such right or remedy or constitute an election to affirm the Appointment Documents. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under the Appointment Documents.
11.4 The terms of the Appointment Documents and your obligations under these may only be amended or modified with our prior written consent.
11.5 No person other than PAL and the Appointer shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any terms under the Appointment Documents.
11.6 PAL may assign any of its rights and/or transfer any of its obligations to any person in respect of any Appointment upon notice to you but without your prior consent provided that the assignee is demonstrably capable of fulfilling PAL’s obligations under the Appointment(s).
Clauses 4 (Termination), 5 (Payments), 6 (Limitation of Liability and Indemnity), 9 (Confidentiality) and 14 (Governing Law and Jurisdiction) inclusive shall survive and continue after any termination under clause 4 (Termination) above.
13. Additional Conditions for Open Ended Master Agreement Appointments
Notwithstanding the foregoing, the following conditions shall apply to each Open Ended Master Agreement Appointment:
13.1 the Appointer shall, following a written request by PAL, inform PAL promptly whether any Agreement set out in the schedule to the Appointment Letter has expired or been terminated early;
13.2 if the Appointer does not provide the information requested by PAL under clause 13.1 above in a timely manner then the Appointer agrees that PAL may request the same information from the relevant Master Agreement counterparty and the Appointer hereby consents to the counterparty disclosing such information to PAL;
13.3 PAL’s right to request information under clauses 13.1 and 13.2 above may be exercised on an annual basis; and
13.4 upon a written request from PAL, the Appointer shall promptly disclose whether any Agreement connected with an Open Ended Master Agreement Appointment has been executed as a deed. If the Appointer fails to respond to PAL’s written request, PAL shall have the right to deem that none of the Agreements connected with an Open Ended Master Agreement Appointment have been executed as a deed.
14. Governing Law and Jurisdiction
You agree that:
14.1 the Process Agent Documents and any non-contractual obligations arising out of or in connection with the Process Agent Documents are governed by English law;
14.2 the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with the Process Agent Documents including a dispute relating to any non-contractual obligation arising out of or in connection with the Process Agent Documents; and
14.3 the courts of England are the most appropriate and convenient courts to settle any such dispute.
Please note that we have a separate fee structure for Appointments in respect of Open Ended Master Agreements. Please contact us so we can discuss your requirements.
|(per Appointer)||(Fees in £)|
|Number of Agreements per Transaction|
|No of years of Appointment||1||2 or more|
The cost for each additional year after 10 years is £75. The maximum duration of appointment we can accept is 25 years.
In this Fee Schedule, “Transaction” means the main transaction in respect of which there are one or more Agreements to be signed. For example, in a project finance Transaction or a real estate finance Transaction, there may be a loan agreement and an intercreditor agreement. For a trading structured Transaction, there may be an ISDA master agreement and a parent company guarantee.
Discount for Additional Appointers
We offer a fifty per cent (50%) discount for each additional Appointer PROVIDED THAT:
- the Appointment is in respect of the same Transaction as the main Appointer;
- the additional Appointer(s) share the same Service Contact Party (i.e. the person we will contact in the event we are served) and the same Authorised Person(s) (i.e. the person(s) who is/are authorised to give us instructions after we are appointed) as the main Appointer; and
- our invoice for providing the Services is for the same person as the main Appointer or, if payment is to be made by credit or debit card, the payment will be made by the same person who will pay for the main Appointer.
if, in respect of a Transaction, Company X is the main Appointer and has signed a Loan Agreement and an Intercreditor Agreement, the cost for a three (3) year appointment will be £350. If certain of Company X’s subsidiaries, Company Y and Company Z, are also parties to the Intercreditor Agreement they can both be added as additional Appointers for the same three (3) year Appointment for a cost of £250 giving a total cost of £600.
if, in respect of a Transaction, Company X is the main Appointer and has signed a Loan Agreement, a Debenture Agreement and a Subordination Agreement, the cost for a seven (7) year appointment will be £650. If certain of Company X’s subsidiaries, Company A, Company B and Company C, are also parties to the Debenture Agreement and the Subordination Agreement they can each be added as additional Appointers for the same seven (7) year appointment for a cost of £325 each giving a total cost of £1,625.
Amendments to the Appointment Letter
If, after an Appointment, you need to amend the Appointment Letter’s details and require us to issue a new letter confirming our Appointment, there will be an additional charge of fifty pounds (£50).
Hard copies of the Appointment Letter
Hard copies of the Appointment Letter cost five pounds (£5) each.