The following terms shall have the meanings hereinafter assigned to them: “Agreement” means these present Terms and Conditions as well as any correspondence with the Client including any quote which regulates the provision of the Services by Euris to the Client/Entity.
“Client” means any physical or legal person accepting a quote and engaging Euris to provide Services, provided that in the case of legal persons, the term “Client” means the Entity, its promoters, shareholders and ultimate beneficial owners. The term “Client” shall also include, in the case of an individual, his heirs, personal representatives and assigns, and shall, in the case of more than one person, mean such persons jointly and severally and shall include the survivor or survivors of them and the heirs or personal representatives of each of them.
“Client Contact” means the person/s corresponding with Euris in relation to the Services.
“Personnel” means and includes the directors, other officers, employees, consultants, and staff of Euris and the partners and staff of its holding, subsidiary, associated and related companies, firms and entities and their successors in title.
“Entity” means and includes any corporation, company, partnership, association or other person to which Services are provided.
“Euris” means Euris Consult Limited (C29476) of Vaults 13-15, Valletta Waterfront, Floriana, FRN1914, and any subsidiary, associated and related companies, firms and entities and their successors in title as well as any other persons appointed by Euris to provide any of the Services.
“Services” includes those translation services as identified in the quote and any other act done or to be done or performed by Euris, the Personnel, or any service provider appointed under Clause 2.7 and “Service” means any such acts.
2. Rights, Obligations and Warranties of Client/Entity
2.1 All of the persons (whether physical or legal) included in the definition of Client are hereby jointly and severally bound with each other for the obligations of the Client or the Entity as contained herein without the benefit of discussion.
2.2 The Client guarantees the due payment of all fees, disbursements and expenses due to or incurred by Euris, or any service provider appointed in accordance with Clause 2.7 in connection with the Services. Such remuneration and expenses, if not paid by the Client or some other persons on behalf of the Entity, will be deducted from any funds of the Client or the Entity held by or otherwise under the control of Euris. There shall be no requirement that recourse be had to any assets of the Entity and/or any other person before any claim be enforced against the Client under such guarantee.
2.3 The Client undertakes to ensure that Euris be provided promptly with any information, explanation, assistance (including access to records, systems, premises and people) and/or documentation (herein referred to as Client Information) which Euris may require in order to be in a position to provide the Services, and shall make Euris aware of any records, systems, documentation or any other information whatsoever, that may be available to Euris in order to assist in the provision of the Services.
2.4 The Client shall ensure that all Client Information provided by the Client or on its behalf will be true, accurate and complete in all material respects. The Client shall further ensure that the provision of Client Information to Euris shall not infringe any intellectual property rights or other third-party rights. Euris shall have no obligation to verify any information provided to it by the Client, or by others on behalf of the Client; and the Client acknowledges that Euris is entitled to rely on such information, even if not verified.
2.5 The Client confirms, undertakes and covenantsthat instructions or requests or advice given to Euris will not contain any falsehood and shall at all times be accurate and if acted upon cannot give rise to any claims of whatever nature being made against Euris for such action.
2.6 For the avoidance of doubt, the Client and the Entity shall be jointly and severally liable in respect of any obligation and/or liability under this Agreement without the benefit of discussion.
2.7 Euris and/or its Personnel reserves the right to engage other professionals on behalf of the Client, including but not limited to third party translators and in so doing it is understood and acknowledged that Euris and/or its Personnel will continue to be responsible for the Services.
3. Rights, Obligations and Warranties of Euris
3.1. Euris shall provide the Client with the Services as defined herein as it believes appropriate in the context of this Agreement.
3.2. Eurisand/or its Personnel shall be entitled to remuneration in accordance with the approved quote, or on such other basis as may be agreed between the Client and Euris in respect of any Service, in addition to reimbursement of any expenses incurred by Euris and/or its Personnel in providing the Services. The Client acknowledges that certain fees may be capped up to a maximum number of hours / maximum number of words or pages and Euris’ standard hourly rates shall apply if such capping is exceeded.
3.3. All monies payable to Euris shall be paid to the invoicing entity or its billing agent within 30 days, and interest at a rate not exceeding that prescribed by law shall be charged on overdue amounts. Provided that, in the case of failure to pay any fees, costs and disbursements to Euris within the prescribed time-limit, Euris reserves the right to charge interest on outstanding amounts at the maximum rate permitted by law. Any invoices issued in terms of this Agreement and which are not contested within 30 days from the date on which they are issued, shall for all purposes of law, be deemed to be certain, liquidated and due.
3.4. Whether or not the matter proceeds to completion, Euris shall be entitled to charge the Client for the Services performed and all work-in-progress together with any costs and disbursements incurred, unless otherwise specifically agreed in writing by Euris.
3.5. Euris and/or its Personnel are authorised to act on instructions, requests or advice from the Client or any person Euris and/or its Personnel believe to be duly authorised in matters concerning the Client and its affairs. Such instructions, requests or advice may be communicated orally or in writing or by electronic means (including fax or electronic mail) or otherwise and with or without authentication and this shall be subject to the provisions of Clause 7 below.
3.6. Euris and/or its Personnel shall not incur any liability for or in respect of any instruction, request or advice purported to have been given but not received by them, nor shall they be liable for or in respect of any errors or ambiguity therein or for any lack of authority on the part of the person giving or making the same.
3.7. In the event that Euris has been unable to communicate with the Client, then subject as hereinafter provided, Euris may proceed in any one or more of the following ways: (i) take no further action on a particular matter; (ii) take no further action at all in relation to the Client; or (iii) utilise any assets of the Client in or towards the satisfaction of any such demand.
3.8. Clause 3.7 shall apply provided that Euris shall have given, or attempted to give, to the Client notice that the provisions of Clause 3.7 are being invoked and within the period stated in such notice the Client has not taken such action as shall therein be specified.
3.9. For the purposes of this Agreement, the inability to communicate with the Client shall be established by virtue of the fact that Euris and/or its Personnel shall have made three (3) consecutive attempts to communicate with the Client at any last known email address, telephone or mobile number or postal address, and received no useful reply within forty eight (48) hours from the last attempt.
3.10. Euris and/or its Personnel shall not be held responsible or be subject to any liability in respect of, or arising out of, any action or inaction which is in accordance with the provisions of Clause 3.7-3.10.
3.11. Euris shall not be required to update any deliverables provided to the Client, should any laws, regulations, directives or rules issued by regulatory bodies be issued subsequently and which would be applicable to the Services and would have affected the final deliverables.
4. Term & Termination
4.1. This Agreement shallapply to the Client immediately upon the Client accepting the quote and such acceptance shall be evidence of the Client’s confirmation ofEuris’ offer to provide the Services on the herein specified terms including the relevant fees. It is also agreed that the terms of this Agreement shall apply to all time (including time necessarily spent in setting up and scoping the engagement) spent by Eurisat any time prior to the signature of this Agreement.
4.2. Euris or the Client may terminate this Agreement or any particular Services, upon four (4) weeks prior written notice to the other. Euris shall be entitled to charge the Client for the Services performed and all work-in-progress together with any costs and disbursements incurred unless otherwise specifically agreed in writing by Euris. For the avoidance of doubt, the Client shall continue to be considered an active Client unless and until the Agreement is terminated in accordance with this Clause 4.
4.3. Without prejudice to the provisions of aforementioned clause, Euris may terminate this Agreement, or any particular Services, if Euris can no longer provide the Services in accordance with applicable law or its professional obligations or if the Client does not pay Euris’ fees, costs or disbursements or if the Client does not comply with a proper request to pay Euris a reasonable sum on account of Euris’ fees, costs and/or disbursements as agreed or fails to give Euris clear instructions, or if the Client fails to observe any of the terms, conditions and obligations herein stated.
4.4. On the cessation by Euris and/or its Personnel of the whole or any part of their Services and/or duties:
4.4.1. the Client undertake/s that all indemnities given by Client under this Agreement shall remain valid in the absence of fraud or gross negligence on the part of the party seeking to enforce the indemnity; and
4.4.2. Eurisand/or its Personnel shall be entitled to make such retentions and receive such indemnities as they may require in respect of any actual or contingent liabilities.
4.5. In the event that the Client decides to terminate the Services of Euris, a fee shall be levied in connection with the handing over of files to third parties, and any fees paid in advance shall not be reimbursed.
4.6. In the event that this Agreement is terminated under any of the provisions hereof, Euris’ obligations in terms of this Agreement in relation to the Services shall cease forthwith and Euris shall not be required to complete any work in progress undertaken prior to the termination becoming effective.
4.7. All confidentiality obligations assumed by Euris and the Client shall continue indefinitely following the termination of the Agreement. The other provisions of this Agreement that give either of the parties rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement, except for those cases where a legal term is expressly provided by law.
5. Indemnification and Limitation of Liability
5.1. The Client undertakes at all times to hold Euris and/or its Personnel and each of them harmless and to indemnify them against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise or accrue or be taken, commenced, made or sought from or against Eurisand/or its Personnel in connection with the Entity or arising from the provision of the Services or any of them. Provided that this indemnity will not extend to any actions, suits, proceedings, claims, demands, costs, expenses and liabilities which may arise or accrue or be taken, commenced, made or sought from or against any of Eurisand/or its Personnel in respect of any fraudulent or grossly negligent act or omission of such entity or person.
5.2. Provision of incorrect or incomplete information as provided for in Clauses 2.3 and 2.4 above to Euris, lack of co-operation by Client, its management, other personnel, consultants or agents and/or omission to provide Euris with the required information, explanations or documentation may, and probably will, result in Euris providing incorrect or incomplete Services. The Client accepts and declares that Euris and/or its Personnel shall not be responsible in any manner for any advice given by it on the basis of incorrect or incomplete information. Except in the case of a fraudulent act or omission, the joint and several liability of Euris and/or its Personnel under this Agreement shall be limited in the aggregate to the total of the fees paid during the preceding twelve months by the Client under Clause 2.2 for the Services.
5.3. Notwithstanding any other provision of these Terms and Conditions, the joint and several liability of Eurisand/or its Personnel, agents, sub-contractors or service providers under this Agreement shall be limited in the aggregate to the total of the fees paid during the preceding twelve months by the Client under Clause 2.2 for the Services.
5.4. The Client hereby declares that the exclusions and limitations of liability contained in this Agreement are fair and acceptable and the effects of such clauses shall not be subject to any reduction or abatement by the court, tribunal or any other competent authority.
5.5. If the Client becomes aware of any claim which may give rise to a liability at law in relation to the Services, the Client shall promptly give notice thereof to Euris in writing.
6. Applicable law and jurisdiction
This Agreement is made under and shall be governed by, the laws of Malta. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled before the Courts of Law in Malta or Gozo which courts shall have exclusive jurisdiction to hear and determine the matter. Provided that, in the case of a claim by Euris against any person, whether physical or otherwise, bound by this LoE such as the signatories hereof, or the shareholder/s and/or the beneficial owner/s of the Entity, Euris shall have the option to institute proceedings before the Courts of Law in the country of residence of each such person in lieu of instituting the said proceedings before the Courts of Law in Malta or Gozo and Euris shall further have the option to ask the Court of the chosen jurisdiction to apply the law of the country of residence of such person in lieu of the laws of Malta.
7. Use of Electronic Mail
During the course of the provision of the Services, Euris and/or its Personnel may receive or send communications by e-mail (including attachments to such e-mail) whether to the Client or to agents, sub-contractors and service providers. The Client recognises and accepts all risks associated with this method of communication including (but without limitation) lack of security, unreliability of delivery and possible loss of confidentiality and privilege. The Client acknowledges and agrees that Euris and/or its Personnel, agents, sub-contractors and service providers and Euris’ related companies and entities and their partners, directors and other officers, agents, personnel, sub-contractors and service providers shall not be held responsible or liable in respect of risks associated with the use of internet e-mail (including attachments to such e-mail). For the avoidance of doubt, this exclusion of liability shall apply in respect of any correspondence in any form (including electronic form) as well as any information or documentation relating to the Client held on Euris’s servers or servers belonging to any third parties, including, agents, sub-contractors and service providers and Euris’s related companies and entities which may be accessed by any other person or third party for any reason, including to disclose it to any person/s.
8. Intellectual Property Rights
8.1. Euris may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (herein referred to as the “Materials”) that it owns or licenses in providing the Services. Notwithstanding the delivery of any translations, Euris shall retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services) compiled in connection with the Services (but not Client Information contained in them).
8.2. Upon payment for the Services, the Client may use the translations as permitted under this Agreement.
10. Document Retention
10.1. The Client assumes responsibility for retention, management and disposal of the documentation that is produced, prepared, acquired or brought into being, whether in hard copy or intangible form, in the provision of the Services under the terms of this Agreement, and which is delivered to the Client, in terms of and in compliance with relevant laws and regulations or as required by specific professional standards as applicable. This obligation will be waived only if expressly requested by written instruction from the Client for Euris to act as custodian of such documentation on the Client’s behalf which is treated as a separate service.
10.2. Euris and/or its Personnel are discharged from any obligation to retain, manage and dispose of any documentation belonging to the Client which comes into the possession of Euris and/or its Personnel during the provision of the Services, or is entrusted to Euris and/or its Personnel under the terms of this Agreement, immediately upon remitting or copying such documentation to the Client.
10.3. Euris and/or its Personnel reserves the right to retain copies of such documentation which forms part of its working papers, subject to the duty of confidentiality set out elsewhere in this Agreement.
11.1. Euris may disclose the fact that the Client is a client. Euris may also disclose the fact that Euris is acting for the Client or has acted for the Client on a matter if information about that matter is in the public domain or the Client does not object beforehand to such disclosure.
11.2. Except as otherwise permitted in terms of Clause 11.1 above or otherwise in terms of this Agreement, no party may disclose to third parties the contents of any agreement between them or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Parties hereto may, however, disclose such information to the extent that the information:
11.2.1. is or becomes public other than through a breach of this Agreement;
11.2.2. is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information;
11.2.3. was known to the recipient at the time of disclosure or is thereafter created independently;
11.2.4. is disclosed as necessary to enforce the recipient’s rights under this Agreement; or
11.2.5. must be disclosed under applicable law, legal process or professional regulations.
11.3. Euris, including its Personnel, may disclose any confidential information received by it in terms of this Agreement if required and necessary in order to safeguard and/or enforce its/their interests.
12. Conflicts of Interest
12.1. Euris shall endeavour to ensure that none of its Personnel working on the Services are engaged in any business or professional activities which would give rise to a conflict of interest in relation to the Services required to be provided under this Agreement.
12.2. The Client agrees that Eurisand/or its Personnel may, subject to professional obligations, act for other clients, including the Client’s competitors.
13. Force Majeure
13.1. The failure of any party to fulfil any of its obligations under this Agreement shall not be considered to be a breach of, or default under this Agreement insofar as such inability arises from an event of Force Majeure, provided that the party affected by such an event:
13.1.1. has taken all reasonable alternative measures in order to carry out the terms and conditions of this Agreement and
13.1.2. has informed the other party as soon as possible about the occurrence of such an event.
13.2. For the purposes of this Agreement, ‘Force Majeure’ implies non-performance due to abnormal and unforeseeable circumstances beyond the control of the party invoking force majeure whose consequences could not have been avoided in spite of the exercise of all due care, which shall include but not be limited to industrial action, acts of God, terrorism, civil commotion, refusals to grant licences or permissions.
14.1. Any communications in respect of the Client/Entity shall be addressed to the Client Contact. Any change of address or in the Client Contact details shall be notified to Euris in writing at the earliest opportunity and until such time as Euris is notified of the change it shall not be responsible nor liable for any disclosure made to the existing Client Contact.
14.2. Both Euris and the Client must agree to modify, amend or supplement this Agreement.
14.3. The Parties agree that any additional documents annexed to this Agreement together with the preambles above, form an essential and integral part of this Agreement.
14.4. The Client confirms that the person confirmingthis Agreement on the Client’s behalf is expressly authorized to execute it and to bind the Client and any of its affiliates or others for whom Services are performed to the terms of this Agreement.
14.5. The Client shall not assign any of its rights, obligations and/or claims under this Agreement. Euris shall have the right to assign any or all of its rights, obligations and/or claims under this Agreement to any corporate or unincorporated body or association of persons acting as the successor of Euris. The Client shall accept the performance of this engagement by any such assignee in substitution for performance by Euris.
14.6. This Agreement constitutes the entire agreement between Euris and the Client as to the Services and the other matters it covers and supersedes any previous agreements, understandings and representations with respect thereto, whether oral or in writing, including any confidentiality agreements previously executed and related to the Services and/or the other matters covered by this Agreement.
14.7. The various provisions of this Agreement are severable and if any provision or part thereof of this Agreement shall be held to be invalid, null or unenforceable by any competent authority, then such invalidity, nullity or unenforceability shall not affect the validity or enforceability of the rest of this Agreement (including the remaining part of any provision).
14.8. All notices required in terms of this Agreement shall be in writing and shall be sent to the last known address by pre-paid registered mail (pre-paid registered international air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, by email to the last known email address followed with a copy by ordinary mail to the last known postal address, or by facsimile transmission to the last known facsimile number (provided that written confirmation of receipt is provided) with a copy by ordinary mail to the last known postal address, addressed as set forth in this Agreement or at such other email address / address as either party to this Agreement may have designated to the other party in accordance with the aforesaid procedure. All notices delivered by courier service shall be deemed to have been given upon delivery, those given by mail shall be deemed to be given on the business day following the sending thereof, those given by facsimile transmission shall be deemed to be given on the business day following transmission with written confirmed receipt, and all notices sent by pre-paid registered mail (or pre-paid registered international air mail if mailed internationally) shall be deemed to have been given ten (10) days after posting.
14.9. The titles of any clauses hereof shall not be referred to in the interpretation of the substantive provisions of this Agreement.
14.10. No failure or delay by a party to insist on the strict performance of any provisions of these terms and conditions, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of any of the provisions of these terms and conditions. The remedies provided in these terms and conditions are cumulative and not exclusive of the remedies provided by law.
14.11. Eurisand/or its Personnel shall provide the Services to the Client as an independent contractor and not as the Client’s employee, agent, partner or joint ventures. Neither the Client nor Euris shall have any right, power or authority to bind the other unless it is required for Eurisand/or its Personnel to provide any of the Services.
14.12. These terms and conditions shall apply in respect of all Services actually provided by Euris and/or its Personnel whether or not the Client shall have expressly accepted the provision of those Services.