Terms of Engagement
These Terms of Engagement (“Terms of Engagement”) should be read together with our Engagement Letter (“Engagement Letter”). If and to the extent that the Terms of Engagement conflict with the Engagement Letter, the Engagement Letter shall prevail. From time to time, it may be necessary for us to amend or supersede these Terms of Engagement. In such circumstances, we shall notify you of the proposed changes and, unless we hear from you within 14 days of such notification, the new terms will come into effect from the end of that period.
Our advice is prepared solely for use by our client, as referred to in the Engagement Letter (“you”), and for the purposes associated with the engagement set out in the Engagement Letter, and any subsequent variation thereof (the “Engagement”).
Our advice should not be disclosed to any third party without our prior agreement. We accept no responsibility for any consequences arising from reliance upon our advice by any person other than you.
The Engagement is limited to the provision of legal services in Jamaica, Barbados and/or Belize (as the case may be). Our services will include advice on tax related issues arising out of the Engagement only to the extent requested and agreed with you, but not otherwise.
3. Conflicts of Interest
The Terms of Engagement are limited to the scope of work specified in the Engagement Letter and shall not be regarded as a general retainer. We will not act for any other client on a matter on which we are acting for you unless we have your express agreement to do so. You agree that we may otherwise act for any other client including on any matter in which you may have an interest, even if the interests of the other client are or may become adverse to your own, unless we conclude that it would be inappropriate for us to do so in the circumstances. Except where we have expressly agreed with you otherwise, we may also act generally for another client which is your competitor.
At inception of a new matter you shall provide satisfactory evidence of your identity. If we do not receive satisfactory evidence of your identity, we will not be able to act or continue to act on your behalf.
5. Instructions and Information
Unless instructed otherwise, we will assume that all of your employees, directors and officers who give us instructions are authorised to do so and that we may act on oral instructions. In order to carry out the Engagement effectively we require your full co-operation. You will provide us with any documents and information that we may need to complete the Engagement. Unless you state otherwise, you confirm that all documents and information provided to us are, to the best of your knowledge, complete and accurate and that we may rely upon them.
Unless instructed otherwise, we will assume that we may correspond with you by internet e-mail. You consent to our intercepting and monitoring communications between yourself and persons within the Firm, in order to ensure compliance with our internal rules and applicable legal requirements and to investigate matters brought to our attention.
We will render our bills to you on the basis set out in the Engagement Letter. These will constitute final bills for work done during the relevant period, and should be paid within 30 days. Photocopying and printing and other disbursements are charged at a rate appropriate to cover their cost and administration. A list of such charges is available on request. No separate charge is made for secretarial time.
Where we have given you an estimate of fees, it is understood that any estimate is only a guide. Further given that there are factors outside of our control which affect the level of costs, we give no guarantee that the final charge will not exceed any estimate of fees that has been provided to you.
We will charge for all of our time spent on the Engagement, including time spent attending meetings, travelling, reviewing and preparing papers, carrying out legal research, corresponding with you and with third parties, and making and receiving telephone calls.
Where we are obliged to charge GCT or other such taxes to our client in respect of services we perform, we will add the relevant tax to our charges and, where necessary, to our disbursements, at the rate from time to time in force. Any amount stated as an estimate, quote, hourly rate or other cost is exclusive of GCT or other such taxes which we might be obliged to charge.
Our fees are to be paid free of any withholding or deduction in respect of taxes or duties. If you are required by law to withhold or deduct tax, the amount of the bill is to be treated as increased to the extent necessary to ensure that we receive and retain a net sum equivalent to the amount of the bill.
Unless otherwise agreed upon, we may apply payments first to our own attorneys’ fees and costs of collection, second to our late charges, third to our invoiced fees, and finally to our invoiced disbursement charges.
For fees not paid within 30 days of the invoice date, it is agreed that we have the following rights, which may be exercised without further notification to you:
i. we may suspend or terminate our services to you and retain documents and papers belonging to you irrespective of the matter to which the work or documents and papers relates. In particular, in the event of a transaction-based piece of work such as a conveyance of a property or the purchase or sale of a company or business, we reserve the right to refuse to complete the transaction should you fail to duly settle your account; and
ii. we may add a late payment charge of 1.5% per month on unpaid balances computed from the invoice date.
Our election not to exercise all or any of the foregoing rights or not to require punctual performance of each provision of this agreement will not be construed as a waiver or relinquishment of our rights. We do not and cannot guarantee the outcome of any matter or particular results, and payment of our fees and disbursements is not conditioned on any particular outcome.
8. File Destruction Policy
When the firm has completed all the legal work necessary for your matter, we will close the file and return original documents to you. We will destroy the file thereafter unless you instruct us in writing within 7 days of this letter to keep your file longer. We reserve the right to store files related to your matter with a third party whose security arrangements are in our view appropriate. If we receive a request from you within six years after conclusion of the matter, we shall return any retained documents or property to which you are entitled.
9. Intellectual Property Rights
We will own copyright in any document prepared by us during the course of carrying out the Engagement.
We expect to apply the benefit of our past experience in acting for our clients. Therefore, subject always to our obligations of confidentiality and to any express requirement to the contrary, we may refer to or use documents or parts of documents prepared by us or by other advisers in the context of engagements for one client, when preparing documents for another client we may keep such documents in a confidential database.
10. Our Employees
You agree not to bring a claim against any of our employees personally. This clause shall not exclude or limit the liability of Marc Francis Ramsay & Co. or its partners for the acts or omissions of its employees performed under the firm’s supervision or within the scope of the employee’s contract of employment with the firm.
11. Assignment, Novation and Termination
If we merge with another firm or transfer our business to another entity (“Successor Entity’), our Engagement with you shall not automatically terminate by reason of such merger or transfer. You agree that the Successor Entity is automatically appointed by you so that continuity of service can be provided to you. Both the Successor Entity and you may rely on the Engagement Letter and these Terms of Engagement as setting out the continuing terms of Engagement. If such transfer requires some official action by you then you will take such steps as are necessary to enable continuity of our services.
Subject to the above paragraph, neither of us shall have the right to assign or transfer the benefit or burden of the Engagement without the written consent of the other.
You may terminate the Engagement by giving us notice in writing at any time.
Without derogating from any other right contained in these Terms of Engagement, including the right to suspend or terminate our services, we may decide to cease acting for you, but only after reasonable notice has been given and only for a good reason, e.g., if we are unable to obtain clear instructions on how we should proceed, if our bills are not paid when due, conflicts of interest or if you require us to act in a way which is contrary to our professional duties or our duties to the Court. If we terminate the Engagement, you will pay our outstanding costs and expenses, including those not yet billed.
Whether termination is by you or by us, we shall be entitled to retain your papers until our costs and expenses have been paid.
12. Force Majeure
We shall not be liable to you if we are unable to perform our services as a result of any cause beyond our reasonable control. In the event of any such occurrence affecting us, we shall notify you as soon as possible.
If any of the Terms of Engagement or the provisions in the Engagement Letter are declared void, illegal or otherwise unenforceable, the remainder shall survive unaffected.
14. Governing Law and Jurisdiction
The terms of the Engagement are to be governed by and construed in accordance with Jamaican law and any disputes arising in connection with the Engagement are to be subject to the exclusive jurisdiction of the Jamaican Courts.
Unless you expressly tell us otherwise you agree that we may disclose to third parties that you are or have been our client.
You agree that we may also disclose to third parties that we are acting or have acted for you in a matter if information about that matter is in the public domain or if you specifically consent to such disclosure.
16. Legal Service Provider
We provide strictly legal services to you in connection with this agreement. You are not relying on us for any services other than legal services, and we are specifically not providing any business, investment, insurance, or accounting advice or any investigation of the character or credit of persons with whom you may be dealing.
17. Identity of Client
You confirm that we are being engaged by you and not any of your subsidiaries, affiliates, equity holders, employees, members of your family, or other persons, unless we separately and explicitly undertake such representation. You also expressly confirm that we may be adverse to any entity in which you have an ownership interest and any of your affiliates, equity holders, employees, members of your family, or other persons in matters unrelated to our work for you.
18. Conflicts of Interest
On the basis of the information which you have provided to us, we have performed a search of our other clients to determine whether representing you might create a potential conflict of interest with any other clients. That check was done using your name and any other names you gave us. Please inform us immediately if you use other names or have affiliated companies that we should enter into our conflicts systems.
19. Cooperation/Reliance on Accurate Information
To enable us to represent you effectively, you will cooperate fully with us in your matter(s). You and your agents will fully and accurately disclose to us all facts and documents that may be relevant to a matter we undertake or which we may otherwise request. This information will form the basis of our legal advice.
20. Email Communication Disclaimer
You cannot assume that each email message copied or sent to one of our legal professionals was actually opened and read by him or her unless you receive a non-automated reply message indicating that he or she read the substance of your message.
21. Use of Technology
We use of technology to run a more efficient legal practice. This includes using cloud-based services to store documents and information about matters. You consent to having your information and documents stored on servers that are hosted by third parties outside of Jamaica, regardless of the extent to which we have control over the security of their servers. While we take reasonable steps to secure your data, including using secure passwords, however, you agree that we cannot be held responsible for any breaches of your privacy due to our use of third-party software or cloud-based services.
22. Additional Services
Our representation in any matter will cease on completion of our work on that matter unless you ask us to perform additional work that we agree to undertake. Performing additional services for you on the same or any other matter is subject to these terms and conditions, our concurrence and clearance of conflicts, if any. We are unable to assure you that matters for other clients will not conflict us out of additional matters you might later ask us to undertake.
22. Proceeds of Crime Act (POCA)
We are required to comply with POCA and the Regulations made there under and in particular to verify the identity and permanent address of all new Clients.
If you are an individual you will need to provide proof of identity such as your current passport, driver’s licence or national identification card, your date and place of birth and evidence of your current address. Companies, Trusts or other entities will need to provide Certificate of Incorporation/Trust Deed/Probate and the most up to date copy of the Articles of Incorporation (if applicable) together with the names and addresses of all Company Directors/Trustees/Other representatives; the representative from whom we take instructions will be required to provide proof of identity, date and place of birth, evidence of current address and authority to act.
You may also be requested to explain how you propose to finance a transaction and to provide verification the source of funds to finance the same.
Due to the money laundering regulations it is the Firm’s policy not to accept cash payments over US$1,000.00 (or the J$ equivalent thereof). Therefore if you are required to make a payment above this amount, please ensure that it is a cheque, bankers draft or electronic transfer from your account. We cannot and will not accept payments from third parties.
Under the provisions of POCA, we are required to make a report to the relevant authorities if at any time we become aware of or suspect (whether from you or any other person) the existence of the proceeds of crime in relation to any matter for which we have been approached to provide services or in respect of the provision by us of any services. Our obligation to make such a report will, in certain circumstances, override our duty of attorney/client confidentiality and we may not be permitted to inform you whether or not we have made, or might intend to make, such a report.
We may terminate the provision of any services to you, or be instructed to do so by the relevant authorities, if you fail to comply with your obligation to provide evidence of identity or we suspect that you or any other party connected with you or with the transaction is involved in activities proscribed by POCA.