Except as modified by our letter of engagement, the following terms apply to the relationship between Broadhurst LLC and our clients. For greater certainty, in the event a conflict between the letter of engagement and these general terms and conditions, the former shall govern.
1. Fees for services rendered will be based on reasonable value of those services. Such fees will be based on our established hourly billing rates. The billing rate for each attorney or other staff members depends generally on that person’s expertise and experience. We reserve the right to amend our hourly rates from time to time. Fees and expenses will be billed monthly and are payable upon presentation. We reserve the right to defer providing additional services or to discontinue our representation if billed amounts are not paid when due. We shall not be liable for any loss or damage this may cause to you.
2. In addition to our fees, you will also pay all reasonable costs and expenses such as but not limited to photocopying, messengers and couriers, computerized research, word processing, printing and photocopying, scanning, travel, transcripts, translations, filing fees, searches, telephone charges, notary charges, barristers, experts and other consultants retained on your behalf and other similar costs and expenses. Certain of such items may be charged at a rate computed to cover our direct cost and overhead. Where significant or unusual third-party payments are required, we may forward the charge to you for direct payment or obtain advance funds from you to cover the cost. If we advance funds for you, they will be added to our invoice.
3. If we instruct external barristers or foreign lawyers on your behalf to provide a legal opinion, you agree we have the right to store a copy (in hard copy and/or electronic form) of that opinion without time limit in such a way that it is accessible within the firm for the purpose or reference and/or legal research. If we store the opinion, we will ensure that only employees and directors of Broadhurst LLC will be able to access it.
4. Although we may from time to time, at a client’s request and for the client’s convenience, furnish estimates of fees or costs that we anticipate will be incurred, these estimates are subject to unforeseen circumstances and are by their nature inexact. Estimates are not fixed fees or caps on our fees and are provided solely for the purposes of indicating to you the likely cost of our services. In the event the actual fees exceed the estimate, we will be entitled to recover the full amount of our fees from you.
5. It is impossible to provide any promise or guarantee about the outcome of your matters. Nothing in the accompanying engagement letter or these terms or any statements by our staff or lawyers constitutes a promise or guarantee. Any comments about the outcome of your matter are expressions of opinion only.
6. A client has the right at any time to terminate our services and representation by notice to the firm. Such termination does not relieve the client of the obligation to pay for all services rendered and expenses paid or incurred on behalf of the client prior to the date of such termination, or in connection with it. We reserve the right to terminate the engagement if, amongst other things, the client fails to honour the terms of the engagement, the client fails to cooperate or to follow our advice on a material matter, or any fact or circumstance which would or could, in our view, render our continuing representation unlawful or unethical. If we elect to terminate the engagement, the client will take all steps necessary to free us of any obligation to perform further services, including the execution of any documents necessary to complete our withdrawal, and we will be entitled to be paid for all services rendered and costs and expenses paid or incurred on behalf of the client to the date of termination.
7. Unless otherwise noted, our client for purposes of this representation is the person or entity to whom the accompanying engagement letter is addressed, and not any affiliates of such person or entity (that is, if you are a corporation or partnership, any parents, subsidiaries, employees, officers, directors, shareholder, or partners or such corporation or partnership or commonly owned partnership or corporations; or if you are a non-profit organization, any members, employees, officers or directors of the organization; if you are an association with members, any of your members; if you are an individual, your spouse any of your relatives or others whose interests may be affected by the representation). For conflict-of-interest purposes, we may represent another client with interests adverse to any such affiliate.
8. It is our policy that the attorney-client relationship is terminated upon completion of any services that we have been retained to perform. If you later retain us to perform further or additional services, our attorney-client relationship will be revived subject to these terms or engagement and may be supplemented or changed by agreement between us. After we close our files in respect to an engagement, we will not monitor or advise of subsequent changes in the law or circumstances that might have a bearing upon or impact a completed matter. If you would like ongoing advice with respect to a particular matter, arrangement must be specifically confirmed in writing by us and will involve additional charges. With respect to document retention, when our engagement on any matter is completed, we close our active files, return documents to the client, if requested by the client, and store the file for up to 6 years, after which time, unless different arrangements are made, we destroy our closed files.
9. We are obligated to keep and maintain sufficient due diligence to ensure that we are aware of the identity of our clients. If you refuse to provide such information or the information provided does not satisfy the applicable statutory requirements, we reserve the right to terminate the engagement. We are subject to legal requirements that require us to report knowledge or suspicions of money laundering to relevant authorities. In addition, it is an offence for us to prejudice any investigation by those authorities by notifying any person who may be the subject of suspicion, or any third party, that such a person is suspected of money laundering.
10. Please note that if we are engaged to bring or defend legal proceedings on your behalf you may be ordered to pay some or all of the costs of other parties to those proceedings. This can occur where your case is unsuccessful at trial, you withdraw or discontinue your claim or defence, or you make an interlocutory application that is unsuccessful or unsuccessfully resist such an application or in other circumstances and is entirely at the discretion of the judge hearing the matter. Irrespective of whether you are successful or unsuccessful in the proceedings you will be contractually liable for the payment of our fees and expenses.
11. If litigation is commenced or is underway and you are a prospective or current party to litigation, you will have an obligation to give discovery during those proceedings. This will involve you providing all documents and records, whether they support or damage your case, which are or have been in your possession, custody or power relating to the matters in question in the action. The obligation is a continuing one and documents and records coming into your possession must also be disclosed. You accordingly must preserve all such documents and records.
12. Broadhurst LLC is a limited liability company recognized under The Legal Practitioners (Incorporated Practice) Regulations (as revised). You agree that any claim of any kind arising out of or in connection with our representation either directly or indirectly or as a result any act or omission by us (whether within the scope of our representation or otherwise) shall be brought only against Broadhurst LLC and that no claim of whatsoever nature will be brought personally against any shareholder, member, director, partner, manager, employee or consultant of the firm. To the fullest extent that such agreement is enforceable, you agree that there is no assumption of a duty of care to you by any shareholder, member, director, partner, manager, employee or consultant of the firm and you may not bring any claim against any of the foregoing in relation to the services provided by Broadhurst LLC. You agree that, notwithstanding any other provision of these terms and conditions, any shareholder, member, director, partner, manager, employee or consultant of Broadhurst LLC is entitled to enforce this provision in their own right pursuant to the Contracts (Rights of Third Parties) Act in force in the Cayman Islands. The use of the word “Partner” or “Associate Partner” or similar is a description of a job title of an employee of Broadhurst LLC and does not signify a partnership or other legal relationship. Similarly, the use of the word “Broadhurst” or the “firm” in these general terms and conditions our engagement letter or otherwise is a reference to Broadhurst LLC.
13. Subject to these general terms and conditions, we shall procure that the standard of care which shall be exercised (to the exclusion of all other standards implied by law or otherwise, if any, to the utmost extent permitted by law) shall be that of a reasonably competent Cayman Islands lawyer practising in the Cayman Islands at the relevant time, and any arbitrator appointed pursuant to provision 17 below shall have regard only to such standard. In circumstances where, because of urgency or otherwise, we are not given specific and comprehensive written instructions or adequate time properly to consider the matter prior to giving our advice, we proceed only on the understanding that you recognise and agree that the standard of care which we are obliged to exercise to you shall be only that which is reasonable and appropriate to such circumstances.
14. We accept no responsibility or liability for any alleged error or omission in our advice save in respect of a final determination of professional negligence, applying the standard of care referred to above, and made against us in an arbitration brought pursuant to the provision 17 below or (subject to the provision 17 below) made by a court of the Cayman Islands
15. The aggregate liability of Broadhurst LLC in contract or in tort (including professional negligence) or under statute or otherwise, for any loss, liability or damage (including any costs and interest) suffered by you or any other person that might arise from or in connection with our engagement (including in respect to omission) shall be limited to a maximum amount of US$4 million (unless a different figure has been stated in your letter of engagement) or, in the case of matters in respect of which we have agreed that our fees will be fixed or capped, an amount not exceeding five times the aggregate total professional fees paid to us (the “Fixed Fee Cap”). If we act for multiple clients under the same engagement, a single liability cap of US$4 million or the Fixed Fee Cap (if applicable) in the aggregate will apply to be shared by all of the clients that engaged us. This is agreed as a reasonable limitation on our liability. Nothing in these general terms and conditions shall limit our liability to you for fraud or to the extent that under any applicable law or regulation liability may not be so limited.
16. You agree that if any part of any paragraph in the accompanying engagement letter or these terms is in any way unenforceable, invalid or illegal, it is to be read down (so far as possible) to be enforceable, valid and legal. If this is not possible, the paragraph (or offending part) is to be severed from the accompanying engagement letter and/or these terms, whichever is the case, without affecting the enforceability, validity or legality of the remaining paragraphs (or parts of those paragraphs) which will continue in full force and effect.
17. Our engagement and all business undertaken between you and us is governed by the laws of the Cayman Islands. All claims, disputes and controversies arising out of or in connection with our engagement (including claims of professional negligence) may, at the election of Broadhurst LLC, be subject to binding arbitration to be held on a confidential basis in the Cayman Islands and conducted before a retired judge or senior lawyer to be agreed upon between us, or in the absence of such agreement, appointed by the President of the Cayman Islands Law Society. The arbitration shall be conducted in English and in accordance with the London Court of International Arbitration Rules. The arbitrator’s award shall be final and binding and may be entered and enforced by any competent court. If court action (including any kind of claim, suit or proceeding) has been initiated by you against us at or prior to the time we elect to refer the issue to arbitration as provided for under these general terms and conditions, then it is agreed that such action shall be discontinued, unless any arbitrator appointed determines that we have waived the right to such a discontinuance by participating in the action without having raised, reserved or asserted our rights under this provision.
18. Subject to the provision 17 above, by instructing us you irrevocably agree that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with the letter of engagement or these general terms and conditions or the advice that we give and, for such purposes, you irrevocably submit to the exclusive jurisdiction of such courts. It is agreed that, notwithstanding the foregoing, we may, at our absolute discretion, commence debt recovery claims and actions against you in your jurisdiction of residence for any invoices that you fail to pay within the agreed payment period following repeated requests.
19. We are not advising you with respect to the letter of engagement or these general terms and conditions because we would have a conflict of interest in doing so. If you wish to receive such advice, you should consult independent legal advisors of your choice.
20. Any delay in enforcing any term of your letter of engagement or these general terms and conditions will not affect or restrict any of the rights and powers arising thereunder or hereunder. We will only be taken to have released our rights under our engagement letter and/or these general terms and conditions if we have confirmed such release in writing to you.