Terms of Business for Consultancy Services
These Terms of Business (the “Terms of Business”) shall apply to services upon the client’s acceptance of either an engagement letter or the payment of the invoice related to the services. Unless otherwise expressly provided in the engagement letter (the “engagement letter” or “service agreement” or “agreement”), any uncertainty or contradiction between the engagement letter and the Terms of Business shall be resolved in favour of the latter.
1 Preamble
Services mean any services to be provided to the Client by Osmia Consulting as contemplated in the agreement.
The Client and Osmia Consulting are hereafter referred to as the “Parties” and each individually as a “Party”.
Words in the singular include the plural and vice versa. The words “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the meaning of the words preceding and/or following those terms.
Any clause in these Terms of Business must be read and interpreted so as to comply with applicable Luxembourg laws relating to professional secrecy and confidentiality.
In these Terms of Business, unless otherwise specified or the context otherwise requires, a reference to a person includes a reference to governments, foundations, individuals, legal entities, firms, partnerships, companies, corporations, associations and organizations (in each case irrespective of whether or not they have a separate legal personality).
Any words in capital letters not defined in these Terms of Business are defined under the agreement.
2 Deliverables
2.1
Deliverables are the materials which are defined in the engagement letter and created by Osmia Consulting. Each deliverable shall be deemed accepted by the client if, withing ten (10) days of delivery, the client has not provided Osmia Consulting with a written notice specifically identifying any non-conformity of such deliverable with the engagement letter.
2.2
During the term of the agreed service, Osmia Consulting may i) prepare preliminary draft project materials, documents, organize meetings and take minutes, ii) answer questions (the “Draft Deliverable”). These Draft Deliverables do not constitute final views and the client should neither act nor refrain from acting based on such drafts until they have been issued in their final form and sent as deliverables, as defined under 2.1.
2.3
Each Party shall keep the intellectual property of the methodologies and know-how owned by them before they are used within the framework of the agreed services. Unless otherwise provided in the engagement letter, upon full payment of the fees and subject to any restriction applicable to any third-party right, Osmia Consulting shall grant the client non-exclusive and non-transferable rights to the use of the deliverables for the client’s internal purposes, excluding any marketing right.
2.4
The deliverables are for the client’s internal purposes only and cannot be disclosed to any third party except to:
Any entity/person i) directly or indirectly controlling the client or controlled a) by the client or b) by an entity/person controlling the client (the “Client’s entities”) and/or identified by name to Osmia Consulting by the client as its professional advisor and which/who is strictly required to acquaint themselves with the deliverables, or ii) to which/whom the disclosure is required by Luxembourg law, is allowed in the engagement letter or the deliverables themselves, or otherwise expressly agreed in advance by Osmia Consulting in writing (together the “Recipients”) provided that the Recipients first agree that Osmia Consulting accepts no duty or liability to them and that no onward disclosure may be made, or
Tax authorities or intermediaries within the meaning of the Council Directive amending Directive 2011/16/EU as regards to mandatory exchange of information in the field of taxation in relation to reportable cross-border arrangements (commonly referred to as DAC6). The client shall provide Osmia Consulting with the name and details of such intermediaries to which a deliverable was disclosed.
In any event, the deliverables may only be used for the purposes stated in the engagement letter and can be neither modified nor abridged, either partially or totally, without Osmia Consulting prior written approval. Under no circumstances may Osmia Consulting be held liable to third parties, including the Recipients, tax authorities, intermediaries, and the stakeholders (the “Third Parties”) who may have access to the deliverables.
3 Roles and obligations of the Parties
3.1
Osmia Consulting shall provide services on a best effort basis with adequate skill and care. For this purpose, Osmia Consulting will rely on all information, documents and personal data provided to it during services to the client, its employees, subcontractors, providers and/or third parties involved in, or having an impact on, services (the “Stakeholders”). Before making all necessary and sufficient client information available, the client shall verify that it is accurate, complete, and comprehensive as well as lawfully provided and shall maintain appropriate back-up. Should Osmia Consulting be involved in the performance of other services, Osmia Consulting will not be deemed to use information from such other services as part of the service agreement with the client.
3.2
Unless otherwise agreed in writing by the Parties, services are provided in accordance with Osmia Consulting’s understanding of current Luxembourg law, regulations and professional standards and the practices of the Luxembourg authorities that are specifically applicable to them at the date on which services are performed. Therefore, they are not intended to consider any foreign or international practice or rule, including for instance those relating to distortion of competition or state aid, neither are they designed to anticipate any changes related thereto, which may affect services in the future. Any other explicit or implied warranty, such as hidden defects, or undisturbed and future benefits, is excluded. Similarly, Osmia Consulting provides no explicit or implied warranty that the client’s needs and objectives will be met.
3.3
Should Osmia Consulting be declared in breach of its obligations under the service agreement, Osmia Consulting shall remedy proportionally the direct damage suffered by the client in direct connection with such breach only. Such damage shall not include liability for hypothetical, consequential and incidental damages, for lost business, data or profits or for damages to the client’s image or reputation. In any case, Osmia Consulting shall be liable for all damages combined, on any ground, except in the case of proven gross negligence or fraud, to a maximum of three times the fees received for the affected deliverable, or one hundred thousand euros, whichever is lower. This limit applies to all damages combined and excludes taxes and expenses. The client agrees that Osmia Consulting may not be held liable for any breach or fault by the client and/or the Third Parties. The client will do its utmost to minimize any damage it may suffer.
3.4
Osmia Consulting shall only make commitments towards the client and services are not for the benefit of any Third Party. The client agrees to reimburse Osmia Consulting, its employees and agents and all Osmia Consulting’s related entities, its employees and agents for damages, settlements, losses and expenses (including legal fees) relating to all actions, proceedings and claims brought or threatened by a Third Party in connection with the services, their use and/or disclosure.
3.5
The client has specific obligations to precisely define its requirements and constraints, to provide Osmia Consulting with (and/or give Osmia Consulting access to) all up-to-date information in the requested format, to notify Osmia Consulting without delay of any event which may have an impact on the performance of the service agreement, to cooperate with Osmia Consulting and to make sure all Stakeholders cooperate with Osmia Consulting, to meet assigned deadlines and to make sure the Stakeholders meet the deadlines, to accept the deliverables and/or draft deliverables, to obtain the rights and/or authorizations required for the purposes of the service agreement and to make available to Osmia Consulting, free of charge, the resources that Osmia Consulting may reasonably require to perform the services.
3.6
Osmia Consulting is bound by the principles of ethics and independence applicable in Luxembourg to internal auditors. To that extent, Osmia Consulting applies acceptance and continuance procedures (the “Procedures”) including anti-money laundering, anti-bribery and counterterrorist financing. To this end, the client is required to i) assist Osmia Consulting beforehand in identifying (with relevant documentation) its beneficial owners and managers; ii) represent that its activities, products and services, and those of the client’s entities are not directly or indirectly prohibited or restricted by any applicable regulation; iii) represent and warrant that it complies with its obligations (regulatory, tax and others) in countries in which it operates; and iv) inform Osmia Consulting immediately of any changes hereto or facts that must be brought to Osmia Consulting attention in this regard. Any delay or failure by the client in doing so may result in services and/or the service agreement being delayed or cancelled at no cost and liability by Osmia Consulting. When an Osmia Consulting related entity wishes to rely on the Procedures applied to the client, the client hereby explicitly instructs Osmia Consulting to allow and facilitate such reliance, including by sharing any relevant client information. Should the Procedures lead to Osmia Consulting or a Osmia Consulting related entity being precluded from performing services or any component thereof, Osmia Consulting reserves the right to immediately either modify or terminate the service agreement. The client shall also notify Osmia Consulting of any perceived or potential conflict of interest in arrangements in place if such a conflict materializes or threatens to occur. If the client is an issuer of financial instruments, as defined, y the EU Market Abuse Regulation, Osmia Consulting may be considered a potential insider, depending on the circumstances. In such cases, Osmia Consulting shall, on behalf of and under the responsibility of the client, draw up a list of Osmia Consulting’s employees potentially affected. For its part, the client shall provide Osmia Consulting with the information considered as inside information.
4 Fees and payments
4.1
The estimated amount of fees to be received by Osmia Consulting is subject to the prerequisites and assumptions defined in the service agreement and/or in deliverables, including compliance by the client and/or the Stakeholders with their obligations (e.g. deadlines, cooperation, approval), to any contractual amendment of request for specific resources by the client and/or to any factor outside Osmia Consulting’s control (the “Fee basis”). Any change to the Fee basis will result in Osmia Consulting revising its fees accordingly, after notifying the client thereof. Similarly, Osmia Consulting reserves the right to review its rates, which are used as a basis for invoicing according to the positive variations of the national Sliding scale of wages (échelle mobile des salaires) (available at www.statistiques.publi.lu). The reference index rate applicable to the service agreement shall be the one in force at the Effective Date (see below) and the applied index rate, the one in force at the invoice date.
4.2
The client shall reimburse Osmia Consulting for any reasonable travel, accommodation, subsistence, administrative and communication expenses. In addition, Osmia Consulting shall invoice the client for engagement-related administrative expenses, such as those relating to supervisory authorities and regulatory requirements, which are currently estimated at 4.5% of every fee.
4.3
Depending on the circumstances, Osmia Consulting will either invoice the client periodically or according to the progress of the services. Osmia Consulting reserves the right to ask for the payment of advance fees. Queries concerning invoices should be raised with Osmia Consulting within fifteen (15) days of the invoice date. Otherwise, invoices shall be deemed accepted. If only part of an invoice is disputed, the undisputed part of the invoice shall be paid, as described above.
5 Confidentiality and personal data
5.1
Osmia Consulting shall adopt professional secrecy and maintain strict confidentiality regarding all information obtained while performing its engagements. To enable Osmia Consulting to fulfil its engagements, especially regarding other Osmia Consulting entities or in the client’s interests in the broad sense, the client consents to Osmia Consulting sharing certain information pertaining to it, but not including the details of the services.
5.2
The client must keep confidential any information, regardless of its nature, form or medium, related to Osmia Consulting, its subcontractors and suppliers. This includes commercial, financial, technical, methodological or any other information, which is received or created while performing the service agreement and which is not public information.
5.3
Osmia Consulting will necessarily process information relating to identified or identifiable natural persons (the “Data Subject”) that is provided directly or indirectly by the client and/or the Stakeholders. The conditions and modalities regarding this data processing, including the rights of the Data Subjects, can be found on the following website: www.osmia.consulting
6 Commencement and termination of the service agreement
6.1
The service agreement shall be effective from the date (the “Effective Date”) and for the period set out in the engagement letter. If the engagement letter is entered into for an indefinite period, either Party may terminate it by giving thirty (30) days written notice to the other Party.
6.2
In the event of a material breach of its obligations by either Party, which is not remedied within thirty (30) days of notification, the other Party may terminate the service agreement automatically.
6.3
In all instances of termination, the client shall pay proportionally to Osmia Consulting the fees relating to all services performed, together with the expenses incurred by Osmia Consulting up to the effective date of the termination. The client shall also pay any reasonable expenses arising out of the early termination of the service agreement, except in the event that the termination of the agreement is solely attributable to Osmia Consulting’s exclusive material breach.
7 Resources
7.1
Osmia Consulting shall be solely liable for the competence and availability of the resources it assigns to perform the services. It reserves the right to subcontract all or part of the services, to use specialist, secure third-party systems and/or technological solutions tailored to the Osmia Consulting’s line of business (including on the Internet), or to rely on the skills of external experts (together the “Experts”). The client expressly acknowledges this capability of Osmia Consulting and consents to the relevant information concerning it being disclosed to such Experts.
8 Miscellaneous
8.1
Osmia Consulting is knowledgeable of the legal and regulatory environment applicable to services in Luxembourg, and performs services based on its expertise, market practice and experience. However, Osmia Consulting does not provide legal advice. Should the client, at any stage, need a legal opinion on any issue in relation to the services, the client must seek legal advice.
8.2
Unless otherwise instructed by the client, any person requesting services shall be considered to be authorized to bind the client.
8.3
If a Party does not avail itself of a right to which it is entitled, this shall not be construed as a waiver of any of the provisions of the service agreement.
8.4
Each Party undertakes to use available up-to-date virus protection software and other adequate customary procedures to secure its IT environment, whether internal or outsources, and to protect the other Party’s data. However, each Party agrees that neither this environment nor the electronic transmission of information can be guaranteed to be fully secure and consequently acknowledges that data may be hacked, intercepted, corrupted or otherwise unsafe to use. Each Party therefore confirms the acceptance of such risks.
8.5
The notifications or notice periods provided under the engagement letter are considered calendar days. Notifications or notices shall be made in writing and shall be effective either once they have been served personally or five (5) days after the sending of a registered letter with acknowledgement of receipt to the address specified in the engagement letter or to any other address notified beforehand in writing by either Party. In the event of a dispute, the client shall address its notification to the office of Osmia Consulting.
8.6
The engagement letter, including all amendments thereto and any attached document, constitutes the entire agreement between the Parties relating to the services. The engagement letter replaces and supersedes any previous proposal, correspondence, general terms and conditions of the client and any agreement or understanding, whether in writing or not, for the provision of services. Any text which is crossed out or added by hand shall be initialed by both Parties in order to be valid.
8.7
In the event that the entity which signs the engagement letter (the “Signatory”) is acting as duly authorized representative of one or several client entity(ies), or of one or several entity(ies) for which it handles operational management (the “Represented Client”), the engagement letter shall constitute separate bilateral contracts between Osmia Consulting and each Represented Client. To this end, the Signatory confirms that i) each Represented Client has the same non-conflicting interest in the performance of the service, ii) each Represented Client expressly waives its right to have its own personal original, and (iii) the Signatory shall provide each Represented Client with a full copy of the engagement letter. The Signatory represents and warrants that the Represented Client, for which the Signatory stands surety, each agrees with the entire provisions of the engagement letter. Should a Represented Client not comply with, or breach the engagement letter, the Signatory shall cause and maintain full compliance by such Represented Client with its entire obligations.
9 Governing Law and jurisdiction
9.1
The engagement letter and any related non-contractual obligations shall be governed and interpreted exclusively in accordance with the laws of Luxembourg without giving effect to a conflict of low rules. The courts of Luxembourg City shall have exclusive jurisdiction to settle any dispute, controversy or claim which may arise out of, or in connection with, the engagement letter or its performance, non-performance, termination or invalidity if the matter cannot be solved amicably.
Version: 12/2024