Standard Terms and Conditions (MyFormations)

Standard Terms and Conditions (MyFormations)

Terms and Conditions

This page, together with the documents referred to on it, contains the terms and conditions on which we supply any of the Services (as defined below) listed on our portal ("our portal") to you (the "terms").

Where we process any Personal Data (as defined in the data processing addendum (the "Data Processing Addendum") in relation to the supply of the Services, the terms of the Data Processing Addendum shall apply.

Please read these terms and the Data Processing Addendum carefully before ordering any Services from our portal. You should understand that by ordering any of our Services using our portal, you agree to be bound by these terms and the Data Processing Addendum and that they apply to each company that you incorporate using our portal.

We may revise the terms and Data Processing Addendum at any time. You are expected to check this page and the Data Processing Addendum from time to time to take notice of any changes we made, as they will be binding on you when you order our Services.

1

DEFINITIONS

1.1

In the terms unless the context otherwise requires:

"Commencement Date" means the date that a Contract is formed;

"Company" means the company in relation to which Services will be or are being provided by us;

"Confirmation" means an email from us to you confirming acceptance of your offer for purchase of the Services;

"Contract" means the contract between us and you in relation to the Company, formed in accordance with clause 2, incorporating these terms and a satisfactorily completed Order Form;

"Fees" means the fees as entered on the Order Form and our latest published prices for the Services ordered by you during the contract term and any further fees outlined in these terms and to be paid by you to us;

"Order Form" means the form provided by us on our portal and completed by you in ordering the Services;

"Services" means the incorporation of the Company; the provision of a suitably qualified person to act as the Company’s registered agent; and the use of an address in the relevant jurisdiction as the Company’s registered office, as more specifically detailed on our portal and Order Form;

"we" means Vistra (Hong Kong) Limited, a company registered in Hong Kong under company number 0871344 having a Trust or Company Service Provider license number TC004146 and with its registered office at 19/F, Lee Garden One, 33 Hysan Avenue, Causeway Bay, Hong Kong, and where the context so requires any group company which we use to provide the Services, and "our" and "us" shall be construed accordingly; and

"you" means the individual or professional intermediary engaging us to provide the Services in relation to the Company.

1.2

Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.

1.3

References to any statute shall include references to such statute as it may after the date of the terms from time to time be amended, supplemented or re-enacted.

1.4

Any reference to a clause shall be deemed to be a reference to a clause of the terms.

1.5

The headings in the terms are inserted for convenience only and shall not affect its construction.

1.6

The words "including", "included" and "include(s)" are not to be treated as words of limitation.

2

HOW A CONTRACT FOR THE PURCHASE OF SERVICES IS FORMED

2.1

After placing an order for Services, by completing the Order Form, submitting it to us using our portal and confirming that the details entered are correct, you will receive an email from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer from you to us to buy Services. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you a Confirmation. The Contract between us will only be formed when we send you the Confirmation.

2.2

Any alteration or addition to the details of the Order Form will require the completion of a new Order Form unless otherwise agreed in writing by us.

3

OUR OBLIGATIONS IN RESPECT OF OUR PORTAL

3.1

We will use reasonable endeavours to make available to you at all times the portal, however it is not practicable to provide such a service uninterrupted, secure or free of faults and we do not undertake to do so. We shall not, in any event, be liable for interruptions of the Services when caused by the down-time of our portal.

3.2

We may:

(a)

temporarily suspend for the purpose of repair, maintenance or improvement, part or all of those Services reliant upon our portal generally without notice;

(b)

give or update instructions regarding the use of the Services, which in our reasonable opinion is necessary to maintain or improve the quality of the Services and any such instructions shall whilst they are in force, be deemed to form part of the Contract; and

(c)

vary the technical specification of our portal for operational reasons.

 

We undertake to use reasonable endeavours to restore the Services as soon as practicable after any such suspension.

3.3

Any data, information or material generated, stored, transmitted or used in connection with or via the portal may be irretrievably lost or damaged in the event of a fault, suspension or termination of the Services. It is your sole responsibility to back-up all such data, information or material.

4

OUR OBLIGATIONS IN RESPECT OF THE PROVISION OF SERVICES

4.1

We undertake to perform the Services with reasonable care and skill in accordance with all applicable law and with generally recognised commercial practices and standards in the industry for similar services.

4.2

We will use reasonable endeavours to adhere to any dates proposed by either us or you for the provision of Services, however any such date is to be treated as an estimate only and we accept no liability for failure to meet such dates.

4.3

Where we are not incorporated in the jurisdiction in which the Company is to be incorporated, we shall procure that a group company, that holds the necessary consents, licences or permits to provide the Services in that jurisdiction, provides the Services. This will mean that such group company incorporates the Company, acts as registered agent of the Company and will provide the registered office address of the Company. We shall pay the fees of such group company on your behalf and recharge them to you along with our own fees incurred in providing the Services.

4.4

Neither we, nor any of our group companies appointed as registered agent of a Company, will assume any responsibilities, other than those set out on our portal or in our Order Form, which are by custom or statute associated with the office of registered agent.

4.5

Where the jurisdiction in which the Company is to be incorporated permits a director(s) to be appointed and the first shareholder(s) issued shares after incorporation, and you do not provide us with the details of that director(s) and shareholder(s) within the applicable time-period, we may, at our discretion, in order to ensure that the Company is not in default of local law, appoint a first director of the Company and issue a share(s) to one of our group companies. We shall charge for these services at our rates in force at the relevant time. We shall explain those rates to you at that time.

4.6

While we may assist you in obtaining tax advice, we will not provide formal tax advice of any nature

5

YOUR OBLIGATIONS

5.1

In entering into a Contract you represent, undertake and warrant that:

(a)

you have authority from the proposed directors and shareholders of the Company to instruct us to provide the Services;

(b)

you have notified us of the proposed nature of the business of the Company and, so far as you are aware, the business activities of the Company in each jurisdiction in which it operates will be lawful;

(c)

you have made the proposed directors and shareholders of the Company aware of these terms and the Data Processing Addendum and, in particular, the limitations on our liability and those people have accepted these terms and the Data Processing Addendum; and

(d)

you shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.

6

INSTRUCTIONS

6.1

You shall at all times provide us promptly and accurately with all such instructions, information and documents as will be necessary or required by us to provide the Services competently or to comply with any law or regulation applicable to you, the Company or to us when providing the Services.

6.2

Electronic communication carries with it the risk of inadvertent misdirection or non-delivery. You, as recipient, are responsible for carrying out a virus check on attachments. Internet communications may be corrupted, and we accept no responsibility for changes to such communications after their despatch. It may therefore be advisable to get written confirmation of advice provided by email. We do not accept responsibility for any errors or problems that arise through the use of the internet, and you must accept all risks connected with sending commercially sensitive information relating to you or your business or the business of the Company. If you do not accept this risk you should notify us in writing that email is not acceptable to you.

6.3

If any instructions are unclear or contradictory, we will refuse to act on those instructions until any ambiguity is resolved to our reasonable satisfaction.

6.4

We shall be entitled to disregard or refuse to act on any instruction which we reasonably believe to be unlawful in any jurisdiction to which we, you or the Company are subject without being liable to you or the Company.

6.5

You acknowledge and accept that, as the Company’s registered agent, we may be required by law to act upon the instructions of the Company or its shareholders. Any such instruction given to us shall override any contradictory instruction which you may give us.

7

COMMENCEMENT AND MINIMUM PERIOD OF SERVICE

7.1

The Services shall be provided in respect of the Company from the Commencement Date for a minimum period of twelve months. After that the Contract shall continue from year to year until terminated in accordance with clause 9.

8

FEES AND PAYMENT

8.1

Fees payable by you for the Services shall be in accordance with the scale of Fees published from time to time by us on our portal. Upon incorporation of the Company you shall pay, if so agreed and applicable, procure that the Company pays our fees in your place. Fees are exclusive of value added tax, sales tax or other similar taxes which shall, if applicable, be paid additionally by you or the Company (as the case may be) at the rate prescribed by law.

8.2

We shall invoice for these Fees annually in advance. In addition, we will invoice periodically for:

(a)

any filing, registration or tax exemption fee or fine which is payable to keep the Company in good standing; and

(b)

any disbursements, outlays and out of pocket expenses incurred by us in providing the Services.

8.3

If you ask us to provide any other services, we shall charge for these services at our rates in force at the relevant time. We shall explain those rates to you at that time. We normally require payment in advance before undertaking any additional services.

8.4

Payment may be:

(a)

online by credit card (in the event that your order is not accepted, a full refund will be made to the relevant credit card); or

(b)

due 30 days from the date of invoice (where we have agreed credit terms with you).

8.5

If the provision of any of the Services is terminated for any reason, or does not otherwise proceed to its conclusion, we shall not be required to refund all or any part of the annual or any other Fee

8.6

We shall have the right, without giving notice to you, to increase our Fees at any time provided that they are not increased by more than 10 per cent.

8.7

We reserve the right to charge for costs and expenses incurred in recovering late payments, and to charge a late penalty interest rate equivalent to local standards effective from the due date

9

TERMINATION

9.1

This Contract may be terminated by either party in relation to the Company, at any time:

(a)

by giving not less than 30 days’ written notice to the other; or

(b)

with immediate effect if one of us commits a material breach of its obligations under this Contract and, where the breach is capable of remedy, fails to remedy such breach within 30 days of receiving notice in writing from the other to so remedy.

9.2

In addition, we may terminate this Contract in relation to the Company, by written notice with immediate effect if:

(a)

notwithstanding clause 9.1(b), any sum due to us is not paid on its due date (whether due in accordance with this Contact or otherwise);

(b)

you or the Company are unable to pay your or its debts as they fall due, a receiver, administrator or trustee in bankruptcy is appointed over or in relation to your or the Company’s assets or a resolution is passed or an order made for your or the Company’s winding up (or an event occurs within the jurisdiction of the country in which you or the Company are situated which has a similar effect to any of these);

(c)

any legal proceedings are threatened or commenced against you or the Company;

(d)

the actions or identity of you, the Company or any person connected with you or the Company have caused or are likely, in our opinion, to cause us or any of our group companies to be in breach of any law or regulation or to incur any liability in any country or jurisdiction whatsoever or to damage in any way our reputation or the reputation of any of our group companies; or

(e)

any information, assurance or warranty given to us by you or the Company, whether in this Contract or otherwise, is found to be incorrect, insufficient or misleading in any material respect.

9.3

The failure to terminate this Contact when any of the events set out in clauses 9.1 or 9.2 occurs shall not prevent the termination of this Contract at any future time so long as the relevant circumstances subsist at that time.

10

CONSEQUENCES OF TERMINATION

10.1

On termination of this Contract, we shall:

(a)

immediately cease to provide the Services to you in relation to the Company and be under no further obligation to maintain the good standing of the Company or to undertake any further actions for the Company save as expressly provided for in this clause 10;

(b)

procure that any person provided by us as registered agent shall resign from office in accordance with the law applicable in the relevant jurisdiction;

(c)

be under no further obligation to receive or forward any correspondence for the Company and may, at our discretion and without incurring any liability, destroy or return correspondence to sender and notify any official registry that the Company may no longer be contacted at our address; and

(d)

transfer any documentation of the relevant Company held by us on your behalf to the person that, within 7 days of the termination date, you specify to us in writing and, if you do not so specify, to you or the Company.

10.2

On termination of this Contract, we shall be entitled to immediately block your access to our portal.

10.3

On termination of the provision of the Services you shall promptly:

(a)

procure that the Company appoints a replacement registered agent and so notify us;

(b)

procure that the Company arranges an alternative address as the Company’s registered office;

(c)

procure that the Company takes reasonable steps to notify all the persons to whom our address was given that the Company may no longer be contacted at our address;

(d)

within 7 days of the termination date, notify us of the name and address of the person to whom any documentation held by us on your behalf and on behalf of the Company should be sent; and

(e)

ensure that any other steps are taken to give prompt effect to these changes.

10.3

We shall not be liable in any way to you, the Company or any other person for any loss or damage whatsoever arising directly or indirectly from the termination of this Agreement, the resultant withdrawal of Services or the exercise of our powers pursuant to clauses 10.1 and 10.2.

10.4

Termination of this Agreement is without prejudice to any rights or obligations outstanding or accrued at that date and to the continuing effect of those provisions of this Agreement which are expressly or by implication provided to come into effect on, or to continue in effect after, termination.

11

CONFIDENTIALITY

11.1

We shall keep confidential your and the Company’s affairs except and to the extent that:

(a)

the disclosure is made to you or the Company or to a person whom we reasonably believe to be your or the Company’s professional adviser or authorised by you or the Company to act on your or the Company’s behalf;

(b)

disclosure is required by law or regulation or any securities exchange or regulatory or governmental body to which we or any group company is subject wherever situated;

(c)

we consider it necessary to disclose the information to our professional advisers or any of our group companies provided that we do so on terms protecting the information;

(d)

disclosure is necessary to provide the Services, to collect our fees or to defend or commence litigation;

(e)

the information has come into the public domain through no fault of ours or was disclosed to us without any obligation of non-disclosure; or

(f)

consent is given by you or the Company or on your or its behalf in writing to the disclosure

11.2

Where confidential information is also Personal Data and we are processing such Personal Data on the Company’s behalf, the terms of the Data Processing Addendum shall also apply.

12

DUE DILIGENCE

12.1

In certain circumstances, we are required by applicable anti-money laundering law to obtain information and documentation to identify and verify you, the Company and certain persons connected with you and the Company. If you fail to supply any due diligence information or documentation that we have requested we may, without any liability, be unable to provide the Services to you in respect of the Company.

13

CUSTOMER SERVICES

13.1

If you are unhappy with any aspect of our service in providing the Services, please contact your local account manager. Any complaints will be dealt with sympathetically and we will work with you to reach a satisfactory conclusion.

14

LIABILITY

14.1

Except in respect of claims for death or personal injury resulting from negligence or as otherwise prohibited by law, our liability and the liability of any of our group of companies for loss or damage in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of our Services under this Contract shall not exceed 20 times our annual Fee.

14.2

Save as precluded by law, we shall not be liable for any of the following: any indirect loss or damage; consequential loss or damage; costs, expenses or other claims for consequential compensation whatsoever (howsoever caused); loss of revenue; loss of profit or anticipated profit; loss of business and business interruption; depletion of goodwill; which arise out of or in connection with the provision of our Services or this Contract.

14.3

We will not be liable or responsible for:

(a)

any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by the impossibility of the use of public or private telecommunications networks; or

(b)

interruptions to the flow of data to or from the internet; or

(c)

the acts or omission of any Companies Registry.

15

INDEMNITY

15.1

You undertake to fully and effectively:

(a)

indemnify us, any group company which we use to provide the Services and our employees from and against any liability incurred by any of us which arises from any of the following: (i) from or as a result of the provision of the Services, or from these terms; (ii) any act or omission relating to the provision of the Services or any other work carried out by any of us at your request, other than any liability arising out of our or our group company’s gross negligence, wilful default or fraud; or (iii) any failure by you to comply with your obligations arising out of this Contract; and

(b)

indemnify us against any costs, charges and expenses suffered or incurred in enforcing the terms of this Contract.

16

DATA PROTECTION

16.1

Each party acknowledges that it may be a Data Controller and a Data Processor in respect of the same Personal Data, depending on the purposes for which it is processed. The Data Processing Addendum shall set out where we are acting as a Data Processor and defined terms from that Data Processing Addendum used in this clause 16 will have the meaning set out in the Data Processing Addendum.

16.2

Where both parties are acting as Data Controller with respect to the Personal Data, both parties agree that the Personal Data transferred by one party (the "Transferor") to the other party (the "Recipient") will be transferred in accordance with Data Protection Legislation (as defined in the Data Processing Addendum), including:

(a)

by ensuring that all fair processing notices have been given to (and, as applicable, consents obtained from) the Data Subjects of that Personal Data to allow each party to use the Personal Data in the manner envisaged by these terms;

(b)

the Transferor is not subject to any prohibition or restriction which would prevent or restrict it from disclosing or transferring the Personal Data to the Recipient (or other parties, as applicable) in the manner contemplated by these terms; and

(c)

the Personal Data is accurate and up-to-date at the date it is shared under these terms

16.3

Both parties further agree:

(a)

to implement and maintain throughout the term of these terms all appropriate technical and organisational measures against unauthorised, unlawful or unintended processing, use of, access to, or theft of the Personal Data and against loss or destruction of or damage to, the Personal Data (and such measures will, as a minimum, meet the requirements of Data Protection Legislation); and

(b)

to ensure that access to Personal Data held by it is limited to: (i) those individuals who need access to the Personal Data; (ii) such part or parts of the Personal Data as is necessary for the performance of those individuals' authorised duties; and (iii) those individuals who have received appropriate training to process the Personal Data in accordance with these terms.

17

CONFLICT OF INTEREST

17.1

We reserve the right during the term of the Contract to deliver services to other clients whose interests might compete with yours or are or may be adverse to yours, subject to clause 11. We confirm that we will notify you immediately should we become aware of any conflict of interest involving us and affecting you.

18

BRIBERY AND CORRUPTION

18.1

You warrant that you will not engage and will not knowingly permit the Company to engage in any activity, practice or conduct which would constitute an offence under the Prevention of Bribery Ordinance (Cap. 201) if such activity, practice or conduct had been carried out in the Hong Kong Special Administrative Region of the People’s Republic of China.

19

TAX EVASION

19.1

You warrant that you will not utilise any service provided to you under the Contract to criminally evade paying true tax liabilities and will not knowingly permit the Company to engage in any activity, practice or conduct which would constitute an offence under applicable law.

20

QUALITY CONTROL

20.1

As part of our ongoing commitment to providing a quality service, our files are periodically reviewed by an independent regulatory or quality control body. These reviewers are highly experienced and professional people and, of course, are bound by the same rules for confidentiality as us and our employees.

21

CONSUMERS

21.1

Our products and services are not intended for sale to or use by a consumer as defined under the Sale of Goods Ordinance (Cap. 26) or the Supply of Services (Implied Terms) Ordinance (Cap. 457). You undertake that you are not a consumer as so defined.

22

NOTICES

22.1

Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing on the Order Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting, or if sent by airmail requiring signature on delivery shall be deemed to be served five days following the date of posting.

23

CONTRACTS (RIGHTS OF THIRD PARTIES) ORDINANCE (CAP. 623)

23.1

Only someone who is a party to this Contract has the right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) to enforce any of its terms. This clause does not affect any right or remedy that exists independently of this Ordinance

24

WAIVER

24.1

If we fail, at any time during the term of a Contract, to insist on strict performance of any of your obligations under the Contract or any of these terms, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

24.2

A waiver by us of any default shall not constitute a waiver of any subsequent default.

24.3

No waiver by us of any of these terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 22.

25

SEVERABILITY

25.1

If any of these terms or any provisions of a Contract are determined by any competent binding authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

26

ENTIRE AGREEMENT

26.1

These terms, the Data Processing Addendum and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.

26.2

We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, statement, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms or the Data Processing Addendum.

27

CHANGES TO THESE TERMS

27.1

We reserve the right to make changes to these terms or the Data Processing Addendum from time to time.

28

LAW AND JURISDICTION

28.1

These terms, the Data Processing Addendum, the Order Form and all other documents, agreements and application forms into which these terms are incorporated (where there is no proper law clause set out in such document) shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China and you and us agree to submit to the exclusive jurisdiction of the courts of Hong Kong Special Administrative Region of the People’s Republic of China.