Clearwater’s Terms of Business for Trusts
Clearwater’s Terms of Business for Trusts
The following comprise the terms and conditions governing the relationships between (1) Clearwater Fiduciary Services Limited (“the Administrator”, and the expression “Indemnified Person” means the Administrator and each of its employees, agents, officers and servants from time to time) and (2) the Trustee(s) in their capacity as trustee of the relevant Trust to which the Administrator provides or is to provide services (“the Trust”) and (3) the Indemnor as primary obligor, all as more particularly described in the Letter to which these standard terms and conditions are attached (“the Letter”)
The services to be provided (“the Services”) are detailed in the Letter. The Letter and these Terms and Conditions constitute the exhaustive basis on which the Administrator is to provide the Services to the Trustee(s) (and together constitute “the Agreement”). The Indemnor gives the undertakings and indemnities set out herein in consideration for the Administrator agreeing to provide the Services to the Trustee(s).
1. The Administrator’s duties
- The Administrator is appointed to act by the Trustee(s) and its duties are owed solely to the Trustee(s) on the basis of these Terms and Conditions. The Administrator will provide the Services with the reasonable skill and care of a professional trust service provider in all cases as soon as reasonably practical.
- The Indemnor and the Trustee(s) agree that in connection with the provision of the Services the Administrator may instruct legal or other advisors from time to time on behalf of the Trustee(s), provided that such external engagement is permitted by the Trust Deed, and it is agreed by the Indemnor and the Trustee(s) that such costs shall be covered by the indemnity arrangements undertaken by the Indemnor and the Trustee(s) referred to herein.
2. The duties of the Trustee(s)
- The Trustee(s) hereby agree on demand to provide to the Administrator such information, records and financial statements as it considers necessary in order to ensure that the Trustee(s) comply with all applicable legislation and that any Trustee, Protector or Enforcer provided by it is thereby enabled to perform its duties to the standard imposed by all applicable legislation.
- In order to enable the Administrator to meet its legal and regulatory obligations in all jurisdictions in respect of the administration of the Trust, the Trustee(s) agree to keep it fully informed of any changes which may be material to the administration of the Trusts, including to the beneficiaries named in the Trust (whether such changes result from the addition of persons to a class of beneficiaries, changes in the law governing the Trust, or otherwise).
- The Trustee(s) undertake forthwith to inform the Administrator of any matters of which they have knowledge which might affect the Trustee(s) and/or the Administrator’s willingness to provide, or continue to provide, any of the Services or any matter that is material to the administration or affairs of the Trust.
3. Fees and invoicing arrangements
- A schedule of the Administrator’s scale of charges as at the date of the Letter is attached to the Letter. Subject to any contrary agreement in relation to annual or other periodic charges the Administrator shall be entitled to vary such scale of charges by not less than 45 days’ notice in writing to the Trustee(s) and the Indemnor. All fees and charges are exclusive of VAT and other applicable duties (if any), which shall be payable in addition to such fees and charges.
- The Company and the Owner, jointly and severally, agrees forthwith on demand to indemnify the Administrator in respect of all and any liabilities, costs or expenses incurred by the Administrator in the course of providing the Services described in the Letter, including in particular but without limitation any liability arising as a result of any notices services under US legislation. The Administrator will not be required to incur any expenses or make any payments in the course of providing the Services unless the Administrator has received sufficient funds in advance.
- Subject to clause 3.3, the Trustee(s) agree, to the maximum extent permissible under the terms of the Trust, and the governing law of the Trust, forthwith on demand to indemnify the Administrator in respect of all and any liabilities, costs or expenses incurred by the Administrator in the course of providing the Services.
- The indemnity contained in clauses 3.2 and 4.1 shall be limited to the greater of the value of the trust fund in the hands of the Trustee(s) for the time being and/or any indemnity available to the Trustee(s) in respect of the sums claimed.
- Fee notes (including disbursements incurred on behalf of the Trustee(s)) will be rendered to the Trustee(s) periodically. The Trustee(s) agree to pay and discharge all such invoices. The Indemnor as primary obligor agrees to pay and discharge any such invoice forthwith on demand in the event that it remains unpaid 30 days after the due day for payment.
- 3.5 The Administrator shall be entitled and is irrevocably authorised to withdraw funds from any moneys held on any client account by it on behalf of, or managed by it on behalf of, the Trustee(s) in order to discharge all and any fees and expenses payable hereunder.
- The Trustee and the Indemnor agree that the Administrator and its associated companies and their officers, agents and employees shall be entitled to retain any commission or fee which is paid or may become payable to them notwithstanding that such commission or fee is payable as a direct or indirect result of this appointment or any dealing with property which is or may become associated with the appointment hereunder. The Administrator shall advise the Trustee and the Indemnor if it becomes entitled to any such commission or fee.
4. Indemnity and Limitation of Liability
- To the extent permitted by law the Indemnor and the Trustee(s) (subject in the case of the Trustee(s) to clause 3.3, the terms of the Trust and the governing law of the Trust) jointly and severally undertake and agree to indemnify each Indemnified Person against all and any costs, claims, losses, expenses, damages and liabilities whatsoever (including without limitation legal costs and expenses) that may be incurred or suffered by any Indemnified Person however arising (other than by reason of a Wrongful Act on the part of any Indemnified Person) in connection with the provision of the Services or the performance of this Agreement and/or their duties (if applicable) as Trustee, Enforcer, Protector of the Trust. The Administrator accepts this indemnity for itself and as trustee for each Indemnified Person.
- The Administrator shall not be liable to the Owner or the Company in respect of anything done or omitted to be done by the Administrator under this Agreement.
5. Information and confidentiality
- Subject to the provisions of this clause, the Administrator agrees that where the Indemnor or the Trustee(s) provides to it confidential information it shall, subject to the provisions of this clause, use all reasonable endeavours to keep it confidential.
- Without prejudice to the said duty of confidentiality, the Administrator reserves the right to act for other clients including, for the avoidance of doubt, trustees.
- The Trustee(s) acknowledge that the Administrator is bound by regulatory and other obligations under the laws of the jurisdiction in which the services are provided and the jurisdiction under which the Trust is established or conducts its business and agree(s) that any action or inaction on the part of the Administrator as a result thereof shall not constitute a breach of the Administrator’s duties hereunder.
- Any report, letter, information or advice the Administrator gives to the Indemnor or the Trustee(s) during this engagement is given in confidence solely for the purpose of this engagement and is provided on condition that the Trustee(s) undertakes not to disclose the same, or any other confidential information made available to them by the Administrator without its prior written consent.
- The Trustee(s) and the Indemnor hereby irrevocably authorise the Administrator to make such disclosures as may in its absolute discretion be necessary in law or desirable, including without prejudice to the generality of the foregoing, the beneficiaries or potential beneficiaries of the Trust.
- The Administrator shall not in any event be required or obliged to take any action which it considers to be unlawful or improper or which may cause it or any Indemnified Person to incur any personal liability and the Indemnor and the Trustee(s) hereby agree that the Administrator shall not be liable for refusing to take any such action.
- Notwithstanding any provision hereof the Administrator shall be entitled and is irrevocably authorised to open and read all and any correspondence, letter, fax or other communication received at the address of the Administrator which is addressed to the Trustee(s), Enforcer or Protector of the Trusts.
6. Monies held by the Administrator
- Moneys held by the Administrator on behalf of the Trustee(s) for or in connection with the provision of the Services shall be held in a client account in trust for the Trustee(s) provided that for the avoidance of doubt moneys held which represent part of the corpus of the trust fund and which are not funds set aside for or in connection with the provision of the Services shall be held in a bank account in the name of the Trustee(s) in their capacity as Trustee(s) of the Trust and shall not be held in a trust account of the Administrator. The Trustee(s) and the Indemnor agree to indemnify and hold harmless the Administrator from all claims which derive from any ambiguity of instruction to the Administrator in this regard.
- The Administrator shall use all reasonable endeavours to procure that amounts held in client accounts are interest bearing, provided that no interest shall be payable in respect of balances not exceeding £10,000, and the Administrator shall provide details of such rates from time to time on request to the party entitled to the proceeds thereof.
- All interest earned on monies held in accordance with clause 6.2 hereof shall accrue for the sole benefit of the Trustee(s) in their capacity as Trustee(s) of the Trust.
- Any notice or other document to be served under this Agreement must be in writing and may be delivered by hand or sent by pre-paid letter post or facsimile transmission to the party to be served at that party’s address as set out in the Letter (or as varied from time to time by notice in writing in accordance herewith from time to time).
- The Trustee(s) and the Indemnor hereby authorises the Administrator to communicate with them by unencrypted electronic mail and agree that the Administrator shall have no liability for any loss or liability incurred by the Trustee(s) by reason of the use of electronic mail (whether arising from viruses or otherwise) and hereby release the Administrator from any such liability. The Administrator shall not be liable for any loss or damage caused by the transmission by it of an infected email.
8. Termination and Suspension of Services
- This Agreement may be terminated by the Administrator or the Trustee(s) giving 30 days written notice (or such shorter notice as the other parties may agree to accept) to the other party whereupon the Agreement and the obligations of the parties (save as set out in clauses 4 and 5 in respect of antecedent breaches) shall cease and terminate.
- This Agreement may be terminated with immediate effect by notice in writing by either the Trustee(s) or the Administrator in the event that:-
(a) any other party to this Agreement commits any material breach of its obligations under this agreement or under any other agreement between the parties; or
(b) any other party to this Agreement goes into liquidation (except for the purpose of a bona fide solvent amalgamation or re-organisation) or is declared bankrupt; or a bankruptcy petition is presented against him or a receiver or administrator is appointed in respect of it; or
(c) any encumbrancer takes possession of a material part of the property of any other party to this Agreement or execution is levied in respect of any such party’s assets; or
(d) anything analogous to any of the foregoing occurs in relation to any other party to this agreement under the law of any jurisdiction.
- The Administrator shall be entitled to terminate the Agreement with immediate effect by written notice to the Trustee(s) in the event that any legal proceedings are commenced against the Trustee(s) in their capacity as Trustee(s) of the Trusts (including any injunction or investigation proceedings).
- Termination shall be without prejudice to any rights or liabilities of any part either arising prior to termination or arising in respect of any act or omission occurring prior to termination.
- In the event of termination, the Administrator shall not be obliged to return all or any part of the fees and expenses paid to it hereunder (save for amounts paid on account of disbursements to be incurred).
- Upon the termination of this Agreement, the Administrator shall deliver to the Trustee(s) or to whom they may direct all books of account, correspondence and records relating to the affairs of the Trustee(s) which are the property of the Trustee(s) and which are in the Administrator’s possession.
- Where the Administrator is entitled to terminate this Agreement in accordance with Clause 8.2 the Administrator shall be entitled, without prejudice to such right to terminate, to suspend the provision of Services hereunder for such period and on such basis as it may determine and during such period the Administrator shall not have any duty to provide any Services hereunder.
- The Trustee(s) acknowledge that notwithstanding the right of the Administrator to terminate or suspend the provision of its Services in accordance herewith the Administrator (and/or its officers, agents and employees) may have continuing regulatory and/or fiduciary duties under applicable law. Accordingly, without prejudice to its rights, it is agreed that the Administrator shall be entitled (but not obliged) to continue to provide any of the Services so as to discharge such duties and shall be entitled to charge its applicable rate for the provision thereof and to take any appropriate legal steps having regard to the particular circumstances.
9. Entire Agreement
These Terms and Conditions and the Letter constitute the entire agreement between the parties in relation to the provision of services to the Trustee(s) in relation to the Trust and may only be varied by agreement in writing signed by or on behalf of the parties necessary to approve the variation (save that the fees chargeable hereunder shall be variable as stated in the fee schedule).
10. Trust Deed
In the event of any ambiguity or conflict arising between the terms of this Agreement and the document constituting the Trusts the document constituting the Trust shall prevail.
11. Third Parties
No term of this Agreement is intended for the benefit of any third party, and the parties do not intend that any term of this Agreement should be enforceable by a third party either under the Contracts (Rights of Third Parties) Act 2001 or otherwise.
12. Law and Jurisdiction
These Terms and Conditions and the Letter shall be governed by and construed in accordance with Isle of Man law and any dispute arising in respect thereof shall be subject to the jurisdiction of the High Court of Justice of the Isle of Man and the Trustee(s) hereby submit to the jurisdiction of the High Court of Justice of the Isle of Man.