Terms and Conditions

1.       Preamble

a) The following terms and conditions (the “Terms and Conditions”) will apply to the provision of services by GSK to you, except to the extent they are inconsistent with anything agreed between you and us in writing at any time.

b) The present Terms and Conditions, as amended from time to time, govern our engagement and set out the basis on which GSK accepts instructions from you.

c) The Terms and Conditions may be amended from time to time at GSK’s sole discretion and the latest version of the Terms and Conditions, which can be consulted and/or downloaded on the GSK website, shall prevail.

d) By instructing GSK, you agree to be bound by these Terms and Conditions and confirm having read them and that each condition hereunder can be considered as separately agreed between GSK and you.

2.       Definitions

a) For the purpose of these Terms and Conditions, the following definitions shall apply:

References to “you” are to the body corporate itself (not including individual executives or owners or beneficial owners of the body corporate except with our written specific consent) or other natural or legal person originally instructing us in relation to a Transaction or such other body corporate or other natural or legal person as you and we agree will be treated as a client for the purposes of the Transaction.

References to “we”, “us”, “GSK”, “GSK Luxembourg” or “Firm” are to GSK Stockmann S.A (a Luxembourg law governed public limited company (société par actions) admitted to the Luxembourg bar (list V), registered with the Luxembourg Register of Commerce and Companies under number B205326 and having its registered seat at 44, avenue John F. Kennedy, L-1855 Luxembourg, Grand-Duchy of Luxembourg).

Each matter in respect of which we provide advice, representation or services (“Services”) to you is, for the purposes of these Terms and Conditions, a “Transaction”.

3.      Scope of our engagement

a) The scope of our engagement in relation to each Transaction will be as agreed between you and us from time to time.

b) Our advice will be based on our understanding of the relevant statutes, case law and practice as at the time it is given. Any subsequent changes in law and practice may therefore affect its conclusions. Unless we have expressly agreed with you to do so, we will be under no obligation to update our advice for any subsequent changes in the law or practice.

c) During our work on a Transaction, we may provide to you drafts of documents produced by us, such as letters of advice or reports, for your review. You cannot rely on a draft until its contents have been finalised and confirmed to you in writing even if we do not provide you with a final version of the advice or report. Multiple copies and versions of finalised documents may exist in different media. In the case of any discrepancy, a signed copy or a signed off copy is definitive.

d) We will treat you as our client for professional purposes and we are authorised to take instructions from you and any other person whom we reasonably believe to have been authorised by you to give instructions to us. Our duties are to you alone as our client and do not extend to your holding company, subsidiaries, directors, employees, shareholders or affiliated companies or other third parties except with our written consent.

e) Unless we otherwise agree in writing, our engagement by you and for you creates rights and obligations only between you and us and no other person may rely on advice which we give to you and no such other person is intended to be protected by our obligations and services to you or may enforce any term of our engagement by virtue of any applicable law. Except with our consent or as required by applicable law, you shall not disclose our advice to any other person.

4.       Instructions

a) GSK relies on you to give GSK timely written instructions. GSK does not accept any liability if you do not provide clear and complete instructions early enough for GSK to act within the time limits set by you and/or any administrative or judicial authority whatsoever. GSK does not accept any liability for any misunderstanding or misinterpretation of oral instructions, or for the absence of any written confirmation thereof, GSK being authorised to ignore any instruction being contrary to Luxembourg law or the ethical rules of the Luxembourg Bar Association.

b) You undertake promptly to provide GSK with all information, assistance and materials that GSK may request from time to time to facilitate the proper and timely performance of the Services.

c) You warrant the accuracy, completeness and reliability of the information, data and documents provided to GSK, and that you obtained it validly, even if they have come from third parties.

d) You authorise us to complete and sign in your name such documentation as is necessary or desirable to carry out your lawful instructions, and will on first request, provide in a timely manner, any requisite signed form(s) of authorisation. You agree to indemnify GSK in respect of all costs, claims, demands and expenses that may result from exercise of the authority given by this paragraph.

5.       Conflict of interest

a) Before accepting any mandate, GSK will make reasonable verifications that there is no conflict of interest that prevents GSK from acting for you.

b) If a conflict arises while GSK acts for you, we will contact you to mitigate the issue.

c) If you are, or become aware of, a possible conflict, please raise it immediately with your GSK contact responsible for the Transaction or any other partner of the Firm. If a conflict of this nature arises, you agree it will be up to us, taking account of all applicable rules, best practice, your and the other client’s interests and wishes, to decide whether we should act for both parties, for one or for neither. Except where otherwise agreed with you, if you have not instructed us on a particular matter, we may accept an engagement in relation to that matter from another client, where applicable rules allow.

d) Whilst you will have our full loyalty with respect to the Transaction and Services we render to you, under certain circumstances we are able to carry out parallel mandates for one or more clients for a same or closely related matter for which we shall use separate teams and seek your prior approval. Furthermore, it is possible that other clients may ask us to represent them in matters not related to the Transaction and Services we render to you, but in which you or any related entity are involved as another party. By accepting these Terms and Conditions you agree that in these instances we shall retain the ability to take such matters for all of our clients even if they operate in the same lines of business as you do.

e) If our engagement is terminated, you agree that we may take on other roles in relation to the Transaction in accordance with applicable rules and subject to protecting your confidential information. To the extent permitted by applicable rules and law, we will deem the engagement to be terminated if any of the following occurs: (i) you inform us or we otherwise reasonably reach the conclusion that you are no longer actively pursuing the Transaction; (ii) there has been a material reduction in the scope of our engagement on the Transaction; (iii) our engagement is otherwise terminated in accordance with these Terms and Conditions; or (iv) we have not undertaken any work for you in relation to the Transaction for a period of 45 days.

6.       Communications

a) We will communicate with you by e-mail, post, fax or telephone. Unless you notify us otherwise in writing, we will assume that you are satisfied for us to communicate by these means, although we cannot guarantee the security or confidentiality of such communications.

b) GSK points out and you are aware that electronic communication involves risks with regard to confidentiality, security and documentation of the communication, e.g. through possible spying on the data by unauthorised third parties. You declare to be aware of these risks and agree that GSK uses electronic communication. You are obliged to inform GSK immediately if electronic communication or a certain type of electronic communication is to be excluded in individual cases. At your request and after separate consultation with you, electronic communication can also be set up and take place in encrypted form or communication can take place in another manner.

c) GSK shall not be liable to you if electronic communication is disrupted for reasons beyond GSK’s reasonable control.

d) Our advice will be final and binding only when it is signed by one of our partners and delivered to you by post, fax or PDF-scan.

7.       Billing and payment terms, expenses and costs

a) Our invoices represent the fees for our Services together with other expenses and costs incurred during the period covered by the invoice. Invoices will be addressed to you. Invoices will be delivered upon the closing of our engagement for you or on account from time to time. Our bills are due and shall be settled within 10 calendar days upon issuance, save if otherwise stated on our bill. If a bill is not paid on time, we shall attempt to resolve any billing disputes in a fair manner, but we reserve the right to decline to act further and charge you interest at the rate set by law.

b) In addition to our fees, we charge for expenditures and out-of-pocket expenses if incurred on your behalf, including but not limited to, travel expenses, translation, third party fees, etc. All expenses will be billed at actual cost without any mark-up. All expenses will be itemized on our invoices. Receipts will be available upon request.

c) Matter related administrative costs, such as office supply, printing and telephone charges, administrative work, courier, registered mail, online research and corporate searches at a trade register, local taxi transport, are not included in our hourly rates and are charged at a flat amount of 5 % of our net fees.

8.       Records and confidentiality

a) We are entitled to retain all your papers and documents until all fees, expenses and costs due or accrued have been discharged. We will hold on file all original documents and save an electronic copy of the documents and emails relating to each Transaction (except for any of your papers that you asked to be returned to you) for a period of ten (10) years. After this period, we may destroy your file and delete all electronic data related to each Transaction.

b) We acknowledge that all information and data provided to us is confidential and/or proprietary and thus, will be generally subject to non-disclosure unless you have consented for us or where we are required by law to disclose that information. However, you agree that we may disclose such information to our professional advisers and insurers if necessary. We also reserve the right to refer to the Transaction for marketing purposes to the extent the existence and nature of the Transaction are in the public domain.

c) Insofar as GSK commissions external service providers, such as external translators, as subcontractors in the course of processing the Services and in this respect passes on information about the Transaction to the third party, you hereby agree to this disclosure and releases GSK from its duty of confidentiality as a lawyer. The same applies if GSK has to pass on information about the contractual relationship to its financial loss liability insurance or to its advisors (in particular its auditors). GSK shall inform the respective recipient of the information of the lawyer’s duty of confidentiality and oblige him to maintain confidentiality to the corresponding extent.

9.       Data Protection

You hereby authorise and empower us to collect, store and process your personal data in Luxembourg or other EU Member States as deemed necessary by us to enable us to provide the services required and to comply with our legal obligations. We undertake not to transfer your personal data to any third parties, except if required by law or authorised by you. You have a right upon written request (including e-mail) to us to access your personal data and may ask for a rectification where such data is inaccurate or incomplete. You have a right to object to the use of your personal data. We will keep your personal data for as long as required for the provision of our Services to you, subject to the legal period of limitation.

10.       Anti-money laundering, Know-Your-Customer and mandatory disclosure rules

a) The Luxembourg anti-money laundering and know-your-customer regulations impose obligations on us to obtain sufficient knowledge of clients, their identity, their business and the origin of funds that may pass through our accounts. Where beneficial ownership is involved, we will need to identify the individual who beneficially owns or controls the client on whose behalf the transaction is being conducted. Even if you are an existing client and we have already established your identity and address, we may need to update our records by requiring further evidence. In order to allow us to comply with these obligations, you agree to provide us with the information required for the identification measures.

b) Moreover, the rules also require us, under certain conditions, to report any suspicious activity where we know or suspect that money or property is the subject of money laundering. In the event that we have any such suspicion, our obligation to report to the authorities will prevail. This legal duty overrides any duty of secrecy that we owe you as our client. In the event that we have a suspicion of money laundering we reserve the right to withdraw from acting for you.

c) We are further obliged to inform you in case the Engagement or our advice in connection therewith falls within the scope of a reportable cross-border arrangement (the “Mandatory Disclosure Rules”).

d) Only upon receipt of a written request from you and for the purpose of providing you with assistance for the compliance with your own reporting obligations under the Mandatory Disclosure Rules, we are authorised to lift our duty of professional secrecy and streamline the communication with the Luxembourg tax authorities. Any such service will be considered to be within the scope of the applicable hourly billing rates being applied to the Services.

e) We are not liable for any loss arising as a result of any disclosure to the relevant authorities or the termination of our mandate resulting therefrom.

11.       Limitation of liability

a) GSK’s liability for any damage arising out of the Services rendered to you shall be limited to EUR 10 million for the Transaction. However, liability shall only be limited in accordance with sentence 1 insofar as insurance cover exists for the Services causing the damage under GSK’s professional liability insurance and insofar as the sum insured under GSK’s professional liability insurance covers at least the amount of EUR 10 million. The limitation of liability also applies to third parties who are covered by the scope of protection of the engagement between you and GSK.

b) GSK warrants that it has professional liability insurance with coverage of at least EUR 10 million and that it will maintain such professional liability insurance at all times for the duration of the Transaction. Insofar as damage has been caused exclusively by GSK Stockmann Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB (“GSK Germany”), GSK Germany shall be exclusively liable for the corresponding damage. If damage is caused exclusively by GSK Luxembourg, GSK Luxembourg shall be exclusively liable for the corresponding damage. Insofar as damage has not been caused exclusively by GSK Germany or GSK Luxembourg, GSK Germany and GSK Luxembourg shall be liable as joint and several debtors.

c) You are aware that GSK is a public limited company under Luxembourg law. Liability for the legal services provided by GSK is therefore generally limited to the company assets of GSK. GSK is liable for all legal services provided by its partners, lawyers and employees and no natural person has assumed or will assume any personal liability for the legal services provided under this mandate.

d) The limitation of liability under these Terms and Conditions do not cover claims based on intent or fraudulent misrepresentation or gross negligence on the part of GSK. GSK’s liability for injury to life, limb or health shall also remain unlimited. The limitation of liability also does not apply to tortious claims you would raise against GSK.

e) If extended liability is desired, additional insurance for a higher liability sum can be taken out at your instruction and expense.

f) GSK shall only be liable for the correctness and timeliness of the provision of any services by third-party service providers (e.g. translation agencies, couriers) or for the correctness of their fees and expenses in connection with matters for which the you have commissioned us under a Transaction. Otherwise, GSK assumes no responsibility and no liability, even if direct contractual relationships between you and a third-party service provider are established through the mediation of GSK. GSK shall not commission any subcontractors without your prior consent.

g) Several claims relating to one Transaction shall be deemed one claim.

12.       Formulae, algorithms, spreadsheets, models and numerical data

You will be responsible for ensuring that all formulae, algorithms, spreadsheets, models or numerical data included in documents have been accurately recorded, meet your objectives and are free of error. Unless expressly agreed as part of our engagement, we will have no duty to assess, evaluate or advise upon, and will have no responsibility for, information or other material (including translations, formulae, algorithms, spreadsheets, models or numerical data): (i) received from you, your other advisers or third parties, for incorporation in any documents prepared by us; or (ii) which are included in documents prepared by you, your advisers or third parties

13.       Termination

a) You instruct us separately in relation to each Transaction: you do not engage us on a permanent basis. You may terminate our engagement at any time. We will cease acting on a Transaction only with good reason (such as where you do not pay an interim bill, you become insolvent, a conflict of interest arises or in any of the circumstances as set out in paragraph 5.e) above or where continuing to work on the Transaction may breach a law or regulation or have an adverse effect on our reputation) in accordance with applicable rules.

b) Unless terminated earlier or we agree otherwise, our engagement on each Transaction will terminate upon dispatch of our final bill. In each case, you remain responsible for our fees and expenses for work done up to the point of termination.

14.       Severability

a) Any provision in these Terms and Conditions that is prohibited or unenforceable shall, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof.

b) You accept that such a provision will be automatically replaced by a legally valid and binding provision being the closest possible to the invalid provision, subject to the sole notification thereof by GSK either by email or under any other form.

15.       Headings

The paragraph headings used in these Terms and Conditions are for convenience of reference only and shall not affect the construction of these Terms and Conditions.

16.       Governing law and jurisdiction

These Terms and Conditions and any services provided to you by the Firm, including any non-contractual obligations arising out of or in connection with it, shall be governed by, and construed in accordance with the laws of Luxembourg under formal exclusion of any provision of Luxembourg international private law and subject to the exclusive jurisdiction of the courts of Luxembourg-City.

Any claim that is not brought before the competent court within five years starting at the date of the completion of a matter or an instruction shall be prescribed by lapse of time.

Terms & Conditions April 2024

© GSK Stockmann 2024