Appriffy Service Agreement & Guidelines
These Terms and Conditions form part of an Agreement between the Manager and the Client and any Company in relation to the provision of the Services and any limitations or exclusions of the liability of the Manager and any indemnities in favour of the Manager shall also benefit and be enforceable by the Manager’s directors, officers, employees and agents pursuant to the Contracts (Rights of Third Parties).
In this Agreement the “Company” means the entity (including but not limited to a Company incorporated under the Companies Acts, a foreign company or similar body, or collection of such entities provided or administered by the Manager for the Client at the request of or on behalf of the Client. Where it is subsequently necessary or where the Manager is requested to provide services not expressly outlined and agreed between the Client, the Company and the Manager at the outset, this Agreement (including any amendments hereto) will also apply in respect thereof.
In this Agreement, unless there is something in the subject or context inconsistent with such construction:
The Client and the Company hereby acknowledge that the Manager is not a tax or legal advisor and has not provided tax or legal advice in respect of the Client or the Company or the provision of any Services. Further, all parties acknowledge that the Manager takes no responsibility for tax and/or legal aspects of the affairs of the Client or the Company except to the extent expressly agreed in writing. The Client confirms and agrees that the necessary tax and other professional advice has been or will be sought in all relevant jurisdictions (including but not limited to the Isle of Man). In relation to the establishment, provision, operation, conduct and on-going use of the Company and the provision of the Services, the Client and/or the Company will promptly supply details of that advice to the Manager insofar as it affects the Company, the provision of any Services, the Manager or any tax reporting requirements arising on the Manager. Save as agreed in writing the Manager is not responsible for advising the Client in relation to any matter.
The Client and the Company agree that in connection with the provision of the Services the Manager may subcontract the performance of its obligations and in particular in connection with the supply of any Corporate Services and may instruct legal and other advisors from time to time on behalf of the Company. The Manager shall remain liable for the due performance of such obligations subject to the indemnity and limitation of liability arrangements referred to herein.
The Client and the Company give the undertakings and indemnities set out herein in consideration for the Manager agreeing to provide the Services to the Company. The Client and the Company hereby undertake, confirm, guarantee and covenant the following:
From time to time the Manager may request certain information, whether in accordance with its own policies or “Know Your Client” regulations. In such cases, the Client and the Company agree to disclose to the Manager upon request any and all information concerning itself or the Company or its business, and to provide on demand such information, records, documents and financial statements as the Manager considers necessary in order to ensure that the Manager, the Client and the Company comply with all applicable policies, legislation and regulations, and that officers provided by the Manager are able to perform their duties satisfactorily and to the standard imposed by all applicable legislation.
The Client and the Company agree that all information disclosed or to be disclosed to the Manager is or will be true, accurate and not misleading in any material respect. The Manager will rely on, and may not independently verify, the accuracy and completeness of the information supplied to it. The Client and the Company are responsible for informing the Manager of any changes to the information originally presented to it and the Client and the Company hereby agree to keep the Manager fully informed of any changes or information which may be material to the establishment and administration of the Company.
The Client and the Company undertake forthwith to inform the Manager of any other matters that might affect the Company and/or the Manager’s ability or willingness to provide, or continue to provide, any of the Services or any matter that is material to the management or affairs of the Company or the provision of the Services.
The Client and Company agree that where appropriate or necessary, insurance cover will be instituted in respect of the Client and the Company and its or their assets and that all related costs will be discharged and/or indemnified by the Company or by the Client as guarantor for the Company or on its own account.
The Client irrevocably agrees that the Manager can (but shall not in any event be obliged to) rely on communications received from him in determining what steps it is required to take in providing the Services.
Where applicable in connection with the supply of any Corporate Services the Company shall comply with statutory requirements in respect of preparation and presentation of financial statements (and audit where necessary) and the Client agrees to provide full assistance to ensure compliance with statutory requirements.
The Client and the Company agree to provide the Manager with full contact details including addresses, facsimile and telephone numbers, mobile telephone numbers and email addresses in order to facilitate contact at all times, and further the Client and the Company agree to inform the Manager of any changes which may occur from time to time in their contact details.
In connection with the supply of any Corporate Services and where the Company shall on an on going basis and in any event promptly upon being requested to do so provide to the Manager all documents and information in its power or possession relating to the Company’s affairs which in the Manager’s opinion are reasonably necessary or desirable to enable the Manager to provide the Service.
The Manager is appointed to act by Client or as the case may be the Company and its duties are owed solely to the Client or as the case may be Company on the basis of these Terms and Conditions. The Manager will provide the Services (or such other Services as may be agreed in writing between the Company and the Manager) with the reasonable skill and care of a professional manager of e-Gaming companies in relation to the Management Services it provides and of a corporate service provider in relation to any Corporate Services it provides and in all cases in a reasonably timely manner. Time shall not be of the essence of the performance of these Services.
The Manager shall answer enquiries over the telephone or in meetings, on an informal basis. As these oral answers may involve an immediate answer to a matter in respect of which the Manager has not received full and accurate information, the Manager shall have no liability to the Company or the Client in contract or tort (including negligence) for its oral answers.
Any draft letters or reports the Manager might provide will not constitute its definitive opinion or conclusions, which will be contained solely in a final written format.
The fees referred to in Company Act are in accordance with the Manager’s scale of charges as at the date of the Agreement. Subject to any contrary agreement in writing in relation to annual or other periodic charges the Manager shall be entitled to vary such scale of charges by not less than 30 days notice. All fees and charges are exclusive of GST and other applicable duties (if any), which shall be payable in addition to such fees and charges. All expenses and disbursements incurred (subject to the provisions of this Agreement) by the Manager for or on behalf of the Client or the Company will be re-charged at cost and the Manager will, on request, supply copies of the relevant receipts or other details.
Fees are payable at the times and in the manner stated in Company Act. All amounts invoiced by the Manager by way of fees, expenses, disbursements or other charges are payable on despatch of the invoice, in pounds sterling and in cleared funds. The timeliness of payments is of the essence in this Agreement.
The Manager’s fees will, where appropriate, reflect time spent and such factors as complexity, monetary values and specialist input, and will take into account urgency and inherent risks and the use of techniques, expertise, research and know-how developed by the Manager.
The Client and the Company agree forthwith on demand to indemnify the Manager in respect of all and any liabilities, costs or expenses incurred by the Manager in the course of providing the Services. The Manager will not be required to incur any expenses or make any payments in the course of providing the Services unless the Manager has received sufficient funds in advance.
The Manager shall be entitled and is irrevocably authorised to withdraw funds from any moneys held by it on behalf of, or any account managed by it on behalf of, the Client and/or the Company in order to discharge all and any fees and expenses payable hereunder.
Unless otherwise agreed all discounts and commissions obtained by the Manager in providing the Services shall be credited to the Client or the Company except in relation to such organisations for whom the Manager acts as a commercial agent as from time to time notified to the Client in writing.
Any fee estimate provided by the Manager will be given in good faith but will be subject to the stated caveats and assumptions and to any factors outside the Manager’s control and is not contractually binding. The Manager will give prior notification to the Company and to the Client if it reasonably becomes apparent that the estimate is likely to be materially exceeded.
Any queries concerning an invoice should be raised within 30 days of the invoice date with any undisputed amounts remaining paid by the due date. Without prejudice to any other of its rights, in the event of late payment of any fees, disbursements, costs or expenses (including any amounts payable in advance) the Manager reserves the right to exercise in its discretion either or both of the following remedies namely to suspend the provision of Services and to charge interest on amounts overdue for a period in excess of 30 days at a rate which is 2% over LIBOR.
Monies held by the Manager on behalf of the Company and/or the Client may be held in a clients’ account in trust for the Company or the Client as the case may be PROVIDED THAT for the avoidance of doubt the Company acknowledges that any money held in the Company’s bank account shall not be held in a trust account. Save for its wilful default, the Manager accepts no liability to the Client or the Company for any loss suffered by reason of the insolvency of any bank or building society with whom such an account is held.
The Client and the Company jointly and severally undertake and agree to indemnify the Manager against all and any costs, claims, losses, expenses, damages and liabilities whatsoever (including without limitation legal costs and expenses on a full indemnity basis) that may be incurred or suffered by the Manager howsoever arising, directly or indirectly, (other than by reason of fraud or dishonesty on the part of the Manager) in connection with the provision of the Services or the performance of this Agreement and in connection with the provision of any such Services the performance of the duties of any the Manager’s directors, officers, employees and agents as officers of the Company.
Without prejudice to any other of the provisions of this Agreement, the Manager shall be under no liability (whether in contract, tort (including negligence and breach of statutory duty) or otherwise howsoever) to the Client or the Company for any loss, damage, delay or expense of whatsoever nature and howsoever arising during the performance of or in connection with this Agreement UNLESS the same is proved to have resulted directly from the gross negligence of the Manager in which case the Manager’s liability for each incident or series of incidents giving rise to a claim. PROVIDED that the foregoing provisions shall not apply to death or personal injury resulting from the Company’s negligence or to any liability arising from fraud on the part of the Manager.
Notwithstanding anything to the contrary in this Agreement, the Manager shall not be liable for the acts or omissions of the consultants or contractors of any e-Gaming entity, even if such acts or omissions are grossly negligent, except only to the extent that they are proved to have resulted from a breach of an express obligation of the Manager relating to the supply of the Services in which case its liability shall be limited in accordance with the terms of the preceding clause 8.2.1.
The Manager shall have no liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever under or in connection with this Agreement for any indirect or consequential loss suffered by the Client or the Company, including but not limited to wasted time or expenditure, loss of profit, enjoyment, revenue, business or expected savings or goodwill.
The Manager shall not be liable for any loss sustained by the Client or the Company as a result of any loss, delay, misdelivery or error in transmission of any letter, e-mail, facsimile transmission or other electronic communication or if any document accepted by the Manager shall later prove to have been forged or otherwise defective or erroneous in any respect PROVIDED THAT this provision shall not apply to any such loss arising as a result of fraud on the part of the Manager.
The Manager shall not be liable for any delay or other failure to perform any Services as a result of any cause beyond the Manager’s control and the time for performance shall be extended by the period of any such delay.
The Manager agrees that where the Client or the Company gives it confidential information subject as stated herein it shall use all reasonable endeavours to keep it confidential.
Without prejudice to this said duty of confidentiality, the Manager reserves the right to act for other clients (including competitors of the Client and/or Company).
The Client and the Company acknowledge and agree that in certain circumstances the Manager or its agents or employees may be obliged to give evidence to courts, tribunals or inquiries and to disclose information to authorities or other third parties in relation to the Client and/or the Company, and agree that the Manager shall be entitled to recover all costs in respect thereof (either from the Company or the Client acting as guarantor, as outlined below).
The Client and the Company acknowledge that the Manager is bound by regulatory and other obligations under law of the jurisdiction in which the Services are provided and the jurisdiction of incorporation of the Company and agree that any action or inaction on the part of the Manager as a result thereof shall not constitute a breach of the Manager’s duties hereunder.
Any report, letter, information or advice the Manager gives to the Client during this engagement is given in confidence solely for the purpose of this engagement and is provided on condition that the Client undertakes not to disclose the same, or any other confidential information made available to the Client by the Manager without its prior written consent.
The Manager 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 to incur any liability and the Company and the Client agree that the Manager shall not be liable for refusing to take any such action.
Notwithstanding any provision hereof the Manager shall be entitled and is irrevocably authorised to open and read all and any correspondence, letter, fax or other communication received by the Company and/or it on behalf of the Company or the Client.
All documents (whether on paper, computer disk or electronic) prepared by the Manager in the fulfilment of its duties are owned by the Manager including, without limitation, notes of meetings, correspondence and reports as prepared from time to time. Documents prepared by the Manager are solely for the use of those to whom they are addressed to be used only for the purposes for which they are delivered. The Manager accepts no liability or responsibility to any third party to whom the documents are shown or into whose hands they may come.
The Manager owns all the intellectual property rights in all systems, techniques, methodologies, ideas, concepts, information and know-how developed during the performance of its duties including without limitation, any copyright. The Manager shall be free to use any systems, techniques, methodologies, ideas, concepts, information or know-how it may develop or use in the performance of its duties under the Agreement for other clients subject to not being in breach of any duty of confidentiality.
Where in connection with the provision of the Services it is necessary or desirable in the opinion of the Manager for it to consult with other providers of services appointed by the Client, the Company or the Manager, the Client, or as the case may be, the Company represents and warrants that the Manager and such other providers of services may disclose to one another and use or permit the use of information supplied by the Client or, as the case may be, the Company for the purpose of such consultations.
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, facsimile or electronic transmission to the party to be served at that party’s address as set out in this Agreement (or as varied from time to time by notice in writing in accordance herewith from time to time).
The Company and the Client hereby authorise the Manager to communicate with them by unencrypted electronic mail and agree that the Manager shall have no liability for any loss or liability incurred by the Client or the Company by reason of the use of electronic mail (whether arising from viruses or otherwise) and hereby release the Manager from any such liability. The Manager shall not be liable for any loss or damage caused by the transmission by it of an infected email.
The terms of this engagement shall be binding upon and ensure for the benefit of the successors of the parties but shall not be assignable in whole or in part by any party without the prior written consent of the other or others of them PROVIDED THAT the Manager shall be entitled to assign its rights and liabilities hereunder by not less than 30 days (or in the case of Corporate Services supplied in connection with Company Act) notice to the Company and the Client.
With the exception of any variation to the fees in accordance with clause 6.1 of this Agreement, the Manager hereby reserves the right to give three months’ written notice of any intention on its part to vary or supersede any other terms of this Agreement.
This Agreement may be terminated with immediate effect by notice in writing by the Manager to the Client in the event that:-
and all and any obligation of the Manager to provide all or any of the Services shall thereupon terminate.
This Agreement may be terminated with immediate effect by notice in writing by the Client to the Manager in the event of the occurrence of any of the circumstances referred to in clause 12.2.1 (b)-(d) affecting the Manager.
In any case where the Manager is entitled to terminate this Agreement hereunder the Manager 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 Manager shall not have any duty to provide any Services hereunder but such suspension shall not affect the obligation of the Client or as the case may be the Company to continue to fulfil its or their duties pursuant to this Agreement.
Where in connection with the supply of any Corporate Services the Manager has arranged for individuals to act as officers of the Company, it reserves the right to recommend to such individuals that they resign these positions where the Services of the Manager are to be terminated.
This Agreement may be terminated by the Manager giving written notice to the Client and the Company or by the Client giving written notice to Manager. The duration of such notice shall be 30 days or such shorter notice as the party to be notified may agree to accept whereupon this Agreement and the obligations of the parties shall cease and terminate.
Termination shall be without prejudice to any rights or liabilities of any party either arising prior to termination or arising in respect of any act or omission occurring prior to termination.
In the event of termination, the Manager 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).
In the event of termination the Manager, the Company and the Client shall each arrange that all such acts are done as may be necessary to give effect to the termination of all Services and the termination of the Agreement and where this Agreement includes the supply of Corporate Services the Client shall within 30 days of the date of termination procure the appointment of a successor Manager and replacement officers and the Manager shall, subject to payment of all amounts due to it, co-operate with the Client in relation to such appointments.
Upon the termination of this Agreement, the Manager shall deliver to the Client or as the case may be the Company or to whom either of them may direct all books of account, correspondence and records supplied in connection with or arising from the provision of the Services which are the property of the Client or as the case may be the Company and which are in the Manager’s possession; subject to prior payment of all amounts due to the Manager.
The Client or as the case may be the Company acknowledges that where this Agreement includes the supply of Corporate Services notwithstanding the right of the Manager to terminate or suspend its Services in accordance herewith the Manager (and/or its officers, agents and employees) may have continuing regulatory/fiduciary duties under applicable law. Accordingly, without prejudice to its rights, it is agreed that the Manager shall be entitled (but not obliged) to continue to provide Services so as to discharge such duties and shall be entitled to charge its applicable rate for the provision thereof and without prejudice to the generality hereof the Manager reserves the right to cause the Company (if any) to be dissolved in accordance with applicable law in such circumstances.
Except as expressly provided in this Agreement 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) Companies Act or otherwise.
The Manager will seek to ensure that levels of service are satisfactory at all times. In the event that the Client or Company is dissatisfied with the level of service, a written complaint should be sent to the Board of Directors of the Manager (or a representative of the Manager from time to time appointed by them for that purpose) at its registered office. The Manager undertakes to look into any complaint promptly and to do everything reasonable to resolve it to the satisfaction of all parties involved.
This Agreement 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 Isle of Man courts and the Company and the Client hereby submit to the jurisdiction of the Isle of Man courts.
(in accordance with Rule 3.7 of the Financial Services Rule Book)
A client bank account is a bank account held by, and in the name of the Manager (“us” or “we”) in which we will hold your money on trust for you while it remains in the accounts. All money held in a client account is referred to as client money.
A client bank account is specially created by us for the purposes of holding your money and the money of other clients. The client bank account is segregated from any other bank account in our name holding money which is our money.
All client bank accounts are held at recognised banks. A recognised bank is a bank which holds a licence issued by the Financial Supervision Commission of the Isle of Man for deposit taking or is authorised under the law of another acceptable country or territory to carry on activities corresponding to deposit taking (see rule 3.2 of the Financial Services Rule Book for the full definition).
In relation to fiduciary services, please note that an account in the name of the Trust or in the name of the Trustees of the Trust, is not a client bank account. It is mandated to the Trustees of the Trust and the Company or the Trustee is the legal owner of the money held in that account. As the money in these accounts is not classed as client money the details relating to pooling of money in client bank accounts (as detailed below) do not apply.
There are different types of client bank account. The main difference between the types of client bank account is what happens in the event of a bank failure (i.e. where, as a result of the failure, the client money held by us is insufficient to pay the claims of all clients).
It is therefore important that you understand the risks associated with the different types of client bank account and ensure that we are made aware of your preferences (if any) in this regard.
A general client bank account usually holds money of several clients. The money may be held at one bank or the money may be in multiple bank accounts spread across several banks.
In the event of a default of a bank where we have a general client bank account, client monies held in all of our general client bank accounts will be pooled (even if money is held in more than one bank). In this situation, each client who has money in the general client bank account will lose an equal proportion of their money, whether or not the bank your client money is held with is in default. This loss will be adjusted by any compensation arrangements in place.
A specified client bank account is a client bank account where —
A specified client bank account is intended to hold client money in a bank selected by you and by other clients. The account will be segregated from any other account holding client money. It will have the word “specified” (or an appropriate abbreviation) in its title.
If your money is held in a specified client bank account and the bank at which that money is held goes into default, the monies will not be pooled with client money held in any other client bank account and you could potentially lose the total amount held at the bank (subject to any compensation arrangements in place). Under the liquidation, or any compensation scheme in place at that time, you may be entitled to claim against the money in the specified client bank account. However, you would not be entitled to claim against any other client bank account (at that or any other bank) in respect of that money.
On the other hand, if your money is held in a specified client bank account at a bank other than the bank which is in default, your money will not be pooled with client money held in any other client bank account (at that or any other bank) and so in the event of default of another bank you would not lose any of your money.
If you want your money to be held in a specified client bank account, you must ask us to open one for you. You may select the bank at which it is opened or, if you would prefer, we may select a bank for you.