TERMS AND CONDITIONS
1.1 These are the terms and conditions on and subject to which Beacon Capital Limited (“Beacon”) will provide the services described in the attached letter of engagement (“Engagement Letter”) to the person(s) to whom the letter is addressed (“Client”).
1.2 Where there is any conflict between the express terms of the Engagement Letter or any other engagement letter and these terms and conditions, the Engagement Letter will prevail.
2 In these terms and conditions, unless the context otherwise requires, the following terms have the following meanings:
“Associate” (1) Officers, directors and employees from time to time; and (2) Subsidiaries, any holding company and each of the subsidiaries of such holding company and each of their respective officers, directors, employees from time to time.
“Engagement” The services to be provided by Beacon for Client set out or referred to in the Engagement Letter, or as may be otherwise agreed between Beacon and Client from time to time.
3.1 Client undertakes that it will promptly provide or procure the provision to Beacon of all the information concerning the business and affairs of Client which is relevant to Beacon for the proper provision of services under the Engagement and all such further information as Beacon may reasonably request.
3.2 Where Client supplies information or documentation to Beacon or any of its Associates if it is for publication to third parties or for use by Beacon in verifying matter for publication to third parties or is or may be material in the context of any transaction or matter connected with the Engagement, Client undertakes that such information or documentation when taken as a whole and each statement of fact therein will be true, fair and accurate and not misleading, that every statement of opinion, intention or expectation therein will be honestly held and fairly based and that there will be no facts not disclosed therein which by their omission make any statement therein misleading. Client undertakes that if anything occurs within a reasonable time thereafter to render any such statement untrue, unfair or misleading, it will promptly notify, upon becoming aware of it, Beacon and take all such steps as Beacon may require to correct such statement.
Beacon’s advice, confidentiality and Data Protection
4.1 Client agrees that any advice rendered by Beacon is provided solely for the purpose of the Engagement and for Client’s benefit and may not be used or relied on for any other purpose without Beacon’s prior written consent.
4.2 Subject to paragraph 4.3, both Beacon and Client undertake to keep confidential any confidential information concerning the business, affairs, directors, employees or contractors of the other which comes into its possession during the Engagement and not to use any such information for any purpose other than that for which it was provided.
4.3 Client acknowledges and accepts that Beacon may be prohibited or that it may be inappropriate for Beacon to disclose certain information to Client by reason of law or duties of confidentiality owed to other persons.
4.4 All correspondence and papers in Beacon’s possession or control relating to the Engagement or the subject matter of the Engagement shall, subject to the foregoing provisions of this clause, be Beacon’s sole property, save for original contracts, share certificates and other original documents held to Client’s order.
4.5 In order to provide services, the subject matter of this Engagement, it is necessary for Beacon to collect and process certain data, some of which will comprise personal data. Accordingly, Beacon is a Data Controller as per the General Data Protection Regulation 2016/679 and the Data Protection Act 2018 (Personal Data Protection Legislation). Beacon sets out its Personal Data Protection Legislation obligations in its Data Protection Notice which is published on its website www.beaconcaptial.ie. The obligations set out in the Data Protection Notice are deemed to be incorporated into these terms and conditions of Engagement.
5 Client undertakes that it will not, and will use reasonable endeavours to procure that none of its Associates will, take any material step or action in relation to, or publish or procure or solicit the publication of, any document, statement or communication in connection with any transaction or matter connected with the Engagement without the prior consent of Beacon. If any such step or action is taken or document, statement or communication is published without the consent of Beacon or in such other circumstances as may reasonably be appropriate, Client acknowledges that Beacon shall be entitled to publish any documents, statements or communications as are reasonably necessary to protect Beacon’s interest or that of any of its Associates without liability.
6.1 Unless otherwise agreed in writing between Client and Beacon, Beacon shall only incur expenses on behalf of the Client further to written agreement in relation to same. Client shall, upon request by Beacon, reimburse to Beacon the amount of any such costs or expenses which Beacon may have paid on behalf of Client further to such written agreement.
7.1 Beacon is authorised by Client to do anything which is reasonably necessary either to carry out the Engagement (including acting as Client’s agent or through agents previously approved by Client, which may include Beacon’s Associates) or to comply with any applicable laws, rules, regulations, authorisations, consents or practice as may reasonably be appropriate. Client agrees to ratify and confirm everything lawfully done in the exercise of such discretion.
7.2 Beacon shall not be responsible for providing specialist advice in connection with those matters for which Client has agreed to provide or procure or would usually provide or procure such advice (for example, legal, regulatory, accounting or taxation matters) and shall not be liable in respect of any services or advice provided to Client by persons other than Beacon.
7.3 Beacon is entitled to assume that instructions have been properly authorised by Client if they are given or purport to be given by an individual or person who is or purports to be and is reasonably believed by Beacon to be a director, employee or authorised agent of Client.
8.1 Client warrants that (save as expressly disclosed to Beacon in writing) it has and undertakes that it shall maintain all necessary consents and authorisations for Beacon to carry out the Engagement and for the transaction(s) contemplated by the Engagement to be implemented in full.
8.2 Client warrants that it is not a ‘consumer’ as per the definition provided in S.I. No.142/2016 European Union (Consumer Credit Mortgage Agreement) Regulations 2016, namely that it is not a ‘natural person who is acting, in the course of a transaction to which the Regulations apply, for purposes outside his or her trade, business or profession’.
9 Client hereby irrevocably agrees with Beacon (for itself and as trustee for the benefit of the other Indemnified Persons mentioned below);
(a) to fully indemnify and hold harmless Beacon and each other Indemnified Person from and against any and all actions, claims, demands, proceedings, liabilities or judgements (collectively “claims”) and any and all losses, damages, costs, charges and expenses (collectively “losses”), of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or which are suffered or incurred by, Beacon or any other Indemnified Person and which relate to or arise from, directly or indirectly, the Engagement and Client will reimburse Beacon and any other Indemnified Person promptly on demand by Beacon or any such other Indemnified Person in full for all costs, charges and expenses (including legal fees) incurred in connection with investigating, preparing or defending any such claim, whether or not in connection with pending or threatened litigation in which Beacon or any other Indemnified Person is a party, provided that Client will not be responsible for any claims or losses to the extent that they are finally judicially determined to have arisen from the willful default or negligence of Beacon or of any such Indemnified Person;
(b) that Beacon shall keep Client regularly informed about and consult in good faith with Client as to the conduct of any claim;
(c) that no claim will be made by Client or any Associate of Client in respect of the Engagement, except as a result of Beacon’s willful default or negligence or breach of its obligations to Client under the Engagement, and neither Beacon nor any other Indemnified Person shall have any liability (whether direct or indirect in contract, tort or otherwise) to Client or any Associate of Client for or in connection with the Engagement except to the extent that they are finally judicially determined to have arisen from the willful default or negligence of Beacon or of any such Indemnified Person or breach of their obligations to Client under the Engagement;
(d) that references to “Indemnified Persons” are to Beacon and its Associates.
(e) that this paragraph 10 is in addition to any rights which Beacon or any other Indemnified Person may have at common law or otherwise including, but not limited to, any right of contribution.
10 The Engagement Letter and these terms and conditions set out the entire agreements and understanding between Client and Beacon in connection with the Engagement.
11 These terms and conditions are subject to change at any time by Beacon sending to Client a written notice describing the relevant change(s) and agreement by Client. Such change(s) will become effective on the date accepted by Client. No such change will affect any legal rights or obligations which may have previously accrued to or been incurred by Beacon or Client.
12 Each of the clauses, sections and sub-sections of the Terms and Conditions is severable and distinct from the others. If at any time such clause, sections or sub-sections is or becomes invalid, illegal or unenforceable, this will not affect the validity, enforceability and legality of any of the other clauses, sections and sub-sections of these Terms and Conditions.
13 No time or indulgence which Beacon may extend to the Client nor any waiver by Beacon of any condition of the Terms and Conditions shall affect its rights and powers thereunder or affect the Beacon’s ability to enforce that term or condition at any time in the future.
14 Any notice or consent under the Engagement Letter or these terms and conditions may be served or communicated by hand, post or email by Beacon or Client upon the other at their respective addresses given in the Engagement Letter or such other address as either may notify to the other by the same means.
Governing Law and Jurisdiction
15 The Engagement Letter and these terms and conditions shall be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to resolve any disputes arising out of or in connection therewith.