1.1. The Engagement Terms – In these terms of business:
Unless otherwise agreed, these terms of business supersede any other agreement or arrangement (whether written or oral) previously agreed between SOTERIA and the Client in relation to the Matter. In the case of a conflict between these terms of business and any other terms agreed with the Client, these terms of business will prevail.
1.2. The SOTERIA Team - SOTERIA will make reasonable efforts to ensure that those of its personnel notified to the Client are available to work for the Client on the Engagement. SOTERIA will endeavor to give the Client reasonable notice of any necessary change in such personnel and provide details of their proposed replacements.
1.3. Timetable - SOTERIA will make reasonable efforts to adhere to any timetable agreed in writing with the Client. For the avoidance of doubt, time is not of the essence to SOTERIA's performance of the Engagement, unless SOTERIA has expressly agreed otherwise in writing.
1.4. Reporting - SOTERIA will report to the Client with appropriate information on the progress of the Engagement as regularly as may be appropriate for the Engagement or as otherwise agreed with the Client. SOTERIA will send its reports to the Client at the address notified to SOTERIA by the Client from time to time.
1.5. SOTERIA Sub-Contractors - The Client agrees that SOTERIA may engage or use contractors, sub-contractors or other persons to provide the services for which it has been engaged by the Client.
1.6. Third Party Experts - Where the Client appoints third party experts in connection with the Engagement (a “Third Party Expert”), or requests SOTERIA to appoint such a Third Party Expert on its behalf, the Client hereby expressly authorizes SOTERIA to instruct, liaise and share information with any such Third Party Expert to the extent SOTERIA considers it reasonably necessary in connection with the Engagement.
2.1. Support - If SOTERIA is required to work at the Client’s or any third party premises, the Client will obtain all consents and / or approvals required for SOTERIA personnel to access such premises and shall ensure that SOTERIA’s personnel are provided with such facilities and equipment as are reasonably necessary to enable them to perform the Engagement efficiently and in safety.
2.2. Information - The Client will give SOTERIA all information, instructions and assistance reasonably necessary to enable SOTERIA to perform the Engagement and the Client will ensure that its appropriate personnel are available to SOTERIA for such purposes. The Client hereby acknowledges that SOTERIA will rely on such information, instructions and assistance when performing the Engagement.
2.3. Payment - The Client will pay SOTERIA’s fees, disbursements, expenses and applicable local taxes including value added tax (VAT) where appropriate (hereinafter "applicable taxes") in respect of the Engagement in accordance with clause 3 below or as otherwise agreed with the Client.
3.1. Method of Calculation - Unless otherwise agreed in writing, SOTERIA’s fees will be charged to the Client in accordance with SOTERIA's fee schedule current at the date of billing. Such fees may include, without limitation, time spent by such SOTERIA personnel in connection with the Engagement on travelling, attending meetings and interviews, research, investigation and forensics, working on and preparing reports and associated papers, correspondence and telephone calls. Such fees may be updated periodically in accordance with clause 3.6.
3.2. Disbursements - SOTERIA’s fees will exclude any fees payable by the Client for any Third-Party Experts which the Client agrees will, unless otherwise agreed, be payable directly by the Client to the relevant Third Party Expert. Upon receipt of an invoice, the Client agrees to pay all disbursements and expenses incurred by SOTERIA in connection with the Engagement including charges for travel, subsistence, accommodation and out of office or on site expenses such as telephone calls and photocopying on an at cost plus applicable taxes basis.
3.3. Estimates - Any estimate of fees or of the time likely to be involved in performing the Engagement will be given by SOTERIA as soon as reasonably possible following receipt by SOTERIA of the Client's initial instructions. Such estimate will be provided by SOTERIA in good faith for planning or other purposes only and, unless otherwise confirmed by SOTERIA the estimate will not be considered a fee cap or contractually binding on either party.
3.4. Payments on Account – SOTERIA reserves the right to require the Client to pay SOTERIA funds in advance on account of its fees and to enable SOTERIA to pay the disbursements and expenses described in clause 3.2 above (payable either in advance on account or periodically as they become due for payment). SOTERIA may apply such funds paid in advance generally to pay its fees, disbursements, and expenses for the Engagement upon delivery of its invoice or other written notification of its fees, disbursements and expenses to the Client. Further, SOTERIA may apply any such funds to the settlement of any fees due to SOTERIA in respect of the Engagement which remains outstanding beyond the due date for payment of such fees.
3.5. Taxes including VAT – Insofar as any fees, disbursements and expenses are liable to any applicable taxes which SOTERIA may be liable under applicable local law to pay or collect in respect of the Engagement, the Client agrees to pay all such taxes and reimburse SOTERIA accordingly upon receipt of SOTERIA's invoice in respect of such taxes.
3.6. Fee Changes – SOTERIA may vary its hourly rates as applicable from time to time including, without limitation, in the event of promotion of SOTERIA personnel or as a result of any periodic review of such rates by SOTERIA.
3.7. Billing – Unless otherwise agreed, SOTERIA normally renders interim invoices on a quarterly basis and a final invoice on completion of the Engagement. Each invoice will attach copies of invoices for any significant disbursements and expenses described in clause 3.2 above. Notwithstanding the foregoing, SOTERIA reserves the right to issue interim invoices on a more frequent or some other basis for work performed to date. Unless otherwise agreed, all SOTERIA's invoices will be addressed to the Client.
3.8. Payment - All SOTERIA's invoices (whether interim or final) are due for payment in full on receipt by the Client and the Client is liable for their payment to SOTERIA. If payment in full is not received by SOTERIA within 30 (thirty) days of the Client’s receipt of an invoice, SOTERIA will have the right, in addition to any statutory rights available to it, to suspend the provision of its services and / or to terminate its Engagement in accordance with clause 4.3.1 below and / or to exercise a lien in accordance with clause 4.4.2 below, regardless of whether the Engagement has been terminated or not.
If arrangements are made for a third party to pay any of SOTERIA’s fees or disbursements, the Client shall remain primarily responsible for the payment of any remaining fees or disbursements and any charges that SOTERIA may incur to the extent that the third party does not pay SOTERIA’s invoice in full, or SOTERIA is unable to accept payment from it.
3.9. Client Funds – Where SOTERIA receives funds from or for a Client, it shall hold such funds as agent of the Client. SOTERIA will retain any interest earned on such funds held on the Client’s behalf, unless otherwise agreed with the Client.
4.1. Duration – The Engagement will terminate when all amounts invoiced to the Client in connection with SOTERIA's Engagement have been received by SOTERIA, unless the Engagement is terminated earlier in accordance with clause 4.2 or 4.3 below.
4.2. The Client’s Right to Terminate – The Client may terminate the Engagement at any time by giving not less than 30 (thirty) days’ notice in writing to SOTERIA.
4.3. SOTERIA’s Right to Terminate – SOTERIA may terminate the Engagement immediately by giving written notice to the Client if:–
4.4. Costs and Lien – On termination of the Engagement for any reason:
5.1. Possible Termination – In circumstances where there is or may be a conflict of interest between SOTERIA and another party involved in the Matter, SOTERIA may be precluded from acting or may have to cease acting for the Client unless all parties involved in the Matter agree in writing that SOTERIA shall continue acting in connection with the Matter. SOTERIA will make every reasonable effort to identify any such conflict and advise the Client accordingly prior to accepting an Engagement or if identified subsequently, then immediately. In the event that SOTERIA subsequently discovers a conflict and is obliged to withdraw from acting for the Client, SOTERIA shall be entitled to invoice the Client and be paid in full by the Client for any fees, disbursements, expenses and applicable taxes incurred in the Engagement prior to such withdrawal. In the event that such conflict arises in respect of a Client (re)insured and a Client (re)insurer SOTERIA will offer to continue acting for the Client (re)insurer who will become solely responsible for payment of such prior fees, disbursements, expenses and applicable taxes.
5.2. Acting for Other Clients – SOTERIA will not be prevented or restricted by anything contained in these terms of business from acting for other clients in connection with the Matter, unless otherwise agreed in writing with the Client.
6.1. Skill and Care – SOTERIA will exercise reasonable care and skill in the performance of the Engagement. All other such warranties and representations, whether express or implied by law, are excluded to the extent permitted by law.
6.2. Limit of Liability – SOTERIA's liability to the Client in respect of any claim for breach of contract, negligence, breach of trust or statutory duty or any other claim made against SOTERIA or its personnel in connection with the Engagement is limited as follows:
6.3. Excluded Liability:Subject to the application of clauses 6.2.1 and 6.2.2 above SOTERIA shall have no liability for:-
6.4. Liability for Third Party Experts – SOTERIA will have no liability to the Client or any third party either for the instructing or performance of, or any opinions, statements, acts or omissions of, any Third Party Expert, nor in respect of its own opinions, statements, acts or omissions insofar as these depend upon, are based upon, are derived from or are a consequence of opinions, statements, acts or omissions of any such Third Party Expert. Further, SOTERIA makes no representation or recommendation to the Client as to any Third Party Expert’s experience, suitability or competence.
6.5. Liability of SOTERIA Personnel – The Client acknowledges that SOTERIA has an interest in limiting the liability of all its personnel involved in the Engagement. Accordingly, the Client agrees not to bring any claim of any kind in connection with the Engagement against any individual employee of SOTERIA, any person seconded to SOTERIA or any agent, correspondent, subcontractor or self-employed consultant engaged by SOTERIA (together "personnel").
6.6. Force Majeure – Neither SOTERIA nor the Client will be liable to the other for their failure to fulfil their respective obligations under these terms of business or the Engagement caused by circumstances outside their reasonable control.
6.7. Reasonableness – The Client agrees that the foregoing limitations and exclusions of SOTERIA's potential liability are reasonable based on:-
in connection with the Engagement. Should any limitation or provision contained in this clause 6 be held to be invalid under any applicable statute or rule of law, it shall only to that extent be deemed omitted from the terms of business and all other limitations and provisions of such terms shall remain in force.
6.8. Claims – If a claim is made against the Client as a result of, or in connection with, a liability incurred to, or a dispute with, any third party, SOTERIA will give the Client all reasonable facilities and co-operation to investigate such claim and will provide the Client with such information and assistance as the Client may reasonably require in connection with such claim, liability or dispute.
6.9. Indemnity – Unless the subject matter of the indemnity provided for by this clause 6.9 has been caused by SOTERIA’s breach of these terms of business, the Client undertakes to indemnify SOTERIA and keep it indemnified fully at all times against all liability that may arise from time to time, and against all claims, demands, actions, proceedings, damages, losses, costs and expenses which are made, brought or claimed against or incurred by SOTERIA in connection with the Engagement.
7.1. Compliance with Applicable Laws – Both parties will comply with all legal and regulatory requirements applicable to them and/or their activities in the jurisdictions in which they operate, including without limitation, any laws or regulations relating to financial crime, bribery and corruption, sanctions and anti-trust. Further, both parties shall maintain adequate policies and procedures to prevent breaches of any such applicable laws or regulations by their employees, representatives and agents.
7.2. Third Parties – The terms of business set out the rights and obligations of the Client and SOTERIA only. A person who is not a party to the Engagement between us has no right to enforce any term of this agreement.
7.3. Confidentiality – SOTERIA will keep confidential all information obtained from the Client, except insofar as SOTERIA is required by law, regulation, a court of competent jurisdiction or any regulatory or governmental authority to disclose such information. This clause does not apply to documents or information which SOTERIA obtains or develops independently of the Engagement or other work done for the Client, which it receives from a third party which as far as it is aware is not under a duty of confidentiality to the Client or which are already in the public domain.
7.4. Waiver and Amendment – No waiver of or amendment to any of these terms of business will be effective unless it is made or confirmed in writing and signed by both SOTERIA and the Client.
7.5. Soliciting Personnel – Without SOTERIA’s approval, the Client shall not, during the Engagement or within twelve months after its termination or expiry, offer employment to or otherwise solicit any SOTERIA personnel involved in the Matter.
7.6. Record Retention – SOTERIA will retain all records, files and papers including electronic records, to the extent technically and legally permissible, but excluding title deeds relating to the Matter and/or the Engagement in accordance with its obligations to do so as prescribed by the Laws of the United Arab Emirates or when such period is not prescribed by law for two years from the date of issuance of the final report.
7.7. E-mail and the Internet – SOTERIA and the Client recognize that e-mail transmissions and the Internet cannot be guaranteed as a 100% secure or error-free communications medium, as information may be intercepted, corrupted, lost, destroyed, arrive late, be incomplete, or contain viruses or other malware. SOTERIA monitors the contents of e-mails sent and received via its network for viruses or other malware and unauthorized use of email is controlled through access and delegation controls. E-mail messages sent to or from SOTERIA’s systems are not confidential to any named individual at SOTERIA and SOTERIA reserves the right to read them without prior notice. SOTERIA recommends that recipients should also check e-mail messages for viruses or other malware in accordance with good IT practice.
7.8. Software – All software programs used by SOTERIA, or made available to the Client by SOTERIA, in the course of the Engagement (including any modifications, enhancements or upgrades thereto) shall remain at all times the property of SOTERIA. To the extent that Client provides SOTERIA with access to any of its software programs in the course of the Engagement, these shall remain at all times the property of the Client.
7.9. Complaints Procedure – If the Client has any complaint to make about SOTERIA’s performance of the Engagement, the Client should first raise it with its primary SOTERIA contact and, if the complaint is still not resolved to the Client’s satisfaction, with SOTERIA’s General Manager who will investigate the complaint and seek to resolve it with the Client.
7.10. Governing Law and Jurisdiction – These terms of business (and any non-contractual obligations arising out of or in connection with them) will be governed by and interpreted in accordance with the laws of the United Arab Emirates and the parties to such terms agree that any unresolved dispute or difference arising in connection with these terms of business (and any non-contractual obligations arising out of or in connection with them) will be subject to the exclusive jurisdiction of the Courts of The United Arab Emirates