2.1 These terms and conditions (the “Terms” or “Terms and Conditions”) govern all contractual arrangements between Affinity Corporate Service (Middle East) Limited (“Affinity”) any Client (as defined below) who wishes to obtain Services (as defined below).
2.2 These Terms are divided into 15 sections, as follows:
Section 2 Introduction
Section 3 Definitions and Interpretation
Section 4 Basis of Contract
Section 5 Supply of Services
Section 6 Client’s Obligations
Section 7 Charges and Payment
Section 8 Intellectual Property Rights
Section 9 Limitation of Liability
Section 10 Termination
Section 11 Consequences of Termination
Section 12 Non-Solicitation
Section 13 General
Section 14 Notices
Section 15 Governing Law
Section 16 Dispute Reolution and Jurisdiction
2.3
3 DEFINITIONS AND INTERPRETATION
3.1 The following definitions (unless the context dictates otherwise) and rules of interpretation apply in these Terms and Conditions:
“Anti-Money Laundering (AML)” is a framework of regulations and practices aimed at preventing and detecting the concealment of illicitly acquired funds through financial transactions, ensuring the integrity of financial systems and hindering criminal activities;
“Charges” means the charges payable by the Client for the supply of the Services in accordance with clause 6;
“Client” means the person who purchases the Services from Affinity pursuant to the provisions of these Terms and Conditions;
“Client Default” has the meaning set out in clause 5.2;
“Contract” means the contract between Affinity and the Client for the supply of Services and includes these Terms and Conditions and the Proposal;
“DIFC” means the Dubai International Financial Centre;
“Expenses” means all those expenses reasonably incurred in undertaking the Services including (as the case may be) Government Expenses;
“Government Expenses” means all those expenses, charges, levies, fees and costs imposed by any governmental authority (including any free zone authority) in the jurisdiction in which the Services are being provided and which are to be paid on behalf of the Client in order for the Services to be provided;
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Know Your Client (KYC)” is a legislative and regulatory process that institutions and businesses follow to verify and understand the identity of their customers. It involves gathering information and documentation about individuals or entities to assess potential risks, prevent fraud, and comply with anti-money laundering regulations;
“Non-Solicitation” refers to a contractual provision where one party agrees not to actively seek or pursue business, customers, or employees from another party, typically for a specified duration and within a defined geographical area or industry;
“Order” means the Client’s request (being the Client’s written acceptance of the Proposal) for Affinity to proceed with undertaking the Services;
“Parties” means collectively the Client and Affinity and “party” means each individually;
“Proposal” means Affinity’s proposal setting out the Services to be provided (subject to these Terms and Conditions) and the costs and expenses associated with the same;
“Scope of Work” means the scope as set out in the Proposal;
“Services” means the services supplied by Affinity to the Client as set out in the Proposal’s Scope of Work and to be performed pursuant to the Terms and Conditions; and
“Terms and Conditions” / “Conditions” / “Terms” means these terms and conditions as amended from time to time in accordance with such terms.
3.2 Clause headings do not affect the interpretation of these Terms and Conditions.
3.3 References to clauses are to clauses of these Terms and Conditions.
3.4 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
3.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other.
3.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
3.7 Any words following the term “including” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding that term.
3.8 Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them.
3.9 A reference to a law is a reference to it as amended, extended or re-enacted from time to time.
3.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
4.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms and Conditions.
4.2 The Order shall only be deemed to be accepted when Affinity issues written acceptance or commences work on the Services (as the case may be) of the Order at which point and on which date the Contract shall come into existence.
4.3 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
4.4 Any quotation given by Affinity shall not constitute an offer, and is only valid for a period of [seven (7)] days from its date of issue.
5 SUPPLY OF SERVICES
5.1 Affinity shall supply the Services to the Client in accordance with the Scope of Work.
5.2 Affinity shall endeavour to meet any performance dates specified in the Proposal and Scope of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.3 The Parties acknowledge and accept that from time to time, regulations, rules, edicts or laws relevant to the provision of the Services change (without prior notice) and that consequentially such changes may require additional work, work to be redone or in certain circumstances prevent the Services or part thereof from being completed. The provisions of clause 4.4 shall apply where the Services need to be amended as a result of the foregoing. Where the Services are now impossible to perform, and no alternative is available the Parties shall consider the Contract frustrated and it be terminated pursuant to clause 9.
5.4 Affinity reserves the right (at its absolute discretion) to alter the Scope of Work if necessary to comply with any applicable law or regulatory requirement. Affinity shall (as soon as reasonably practicable) notify the Client in such an event.
5.5 Affinity warrants to the Client that the Services will be provided using reasonable care and skill.
5.6 At its absolute discretion and without the prior written notice of the Client, Affinity may subcontract the provision of any of the Services.
6 CLIENT’S OBLIGATIONS
6.1 The Client shall:
6.1.1 adhere to all KYC and AML requirement that Affinity requires the Client to meet in order for the Services to be provided;
6.1.2 ensure that any information and/or documentation it provides to Affinity is complete and accurate for the purposes of preparing its Proposal and Scope of Work;
6.1.3 co-operate on a timely manner with Affinity in all matters relating to the Services. Without affecting the generality of the foregoing, if the Client fails to provide instructions to proceed for a period of [three (3) months] such failure shall be deemed a material breach of these Terms and Conditions and the provisions of clause 9.4.1 shall apply. Where failure to provide instructions and/or information requested in a timely manner (including any failure to supply by a date stipulated by Affinity) causes the Services to be re-performed or Expenses to be incurred by Affinity, Affinity shall be entitled to charge and be reimbursed for the same; and
6.1.4 provide Affinity with such information and documents (as the case may be) as Affinity may reasonably require in order to supply the Services and ensure that such information is complete and accurate in all material respects.
6.2 If Affinity’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation pursuant to these Terms and Conditions (“Client Default”) without limiting or affecting any other right or remedy available to it, Affinity shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Affinity’s performance of any of its obligations.
7 CHARGES AND PAYMENT
7.1 All Charges and Expenses set out in the Proposal are exclusive of VAT.
7.2 All Governmental Expenses are estimates only. Such estimates are provided in good faith but are subject to change, without prior notice. All Governmental Expenses actually incurred shall be paid in full, as demonstrated by corresponding receipts.
7.3 All Government Expenses (including any advance or pre-payments as the case may be) shall be payable in accordance with the terms of the Payment Schedule.
7.4 All prepaid Government Expenses remaining, unspent, unclaimed or unrefunded for a period exceeding [six (6)] months after the finalisation of a Scope of Work will be forfeited.
7.5 Where a payment is made to Affinity using credit card or a payment gateway provider, the Client shall be solely liable for an administration fee levied by Affinity for such payment.
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Affinity.
9 LIMITATION OF LIABILITY
9.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence; and
fraud or fraudulent misrepresentation.
9.2 Affinity shall bear no liability whatsoever towards the Client for any of the following heads of loss that may incur as a consequence of its breach of its obligations under a Contract: 9.2.1 loss of profits; 9.2.2 loss of sales or business;
9.2.3 loss of agreements or contracts;
9.2.4 loss of anticipated savings;
9.2.5 loss of use or corruption of software, data or information;
9.2.6 loss of or damage to goodwill; and
9.2.7 indirect or consequential loss.
9.3 This clause 9, shall survive termination of the Contract.
TERMINATION
10.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 3 months written notice.
10.2 All annual Services will be renewed for a further twelve months unless written notice is received by Affinity within 3 months of renewal date. 10.3 No Objection Certificates (“NOC”): Should the client require an NOC in relation to the termination of any annual Service, Affinity retains the right to charge a fee equivalent to one year services fee.
10.4 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.4.1 the other party commits a material breach of any term of these Terms and Conditions and (if such a breach is remediable) fails to remedy that breach within [thirty (30)] days of that party being notified in writing to do so;
10.4.2 the other party becomes insolvent or bankrupt (as the case may be) or subject to any analogous procedure in the relevant jurisdiction in which it is incorporated and licensed to do business;
10.4.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
10.4.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
10.4.5 the provision of the Services has been frustrated pursuant to clause 4.3 or 5.3
10.5 Without affecting any other right or remedy available to it, Affinity may suspend the supply of Services under the Contract or any other contract between the Client and Affinity if:
10.6 the Client fails to pay the Affinity any amount due under the Contract; or
10.7 the Client fails to comply with its obligations pursuant to clause 5.1.
11 CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract the Client shall immediately pay to Affinity all of Affinity’s outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, Affinity shall submit an invoice, which shall be payable by the Client immediately on receipt.
11.2 On termination of the Contract for whatsoever reason all pre-paid Government Expenses and Charges shall be retained in full by Affinity and without any refund to the Client.
11.3 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12 NON-SOLICITATION
12.1 During the term of the engagement with Affinity and for a period of twelve months following the termination of services, the Client agrees not to directly or indirectly solicit, offer employment opportunities to, or engage in any recruitment activities with any employee, contractor, or staff.
12.2 The Client acknowledges and agrees that any attempt to solicit, recruit, or offer employment opportunities to Affinity employees, whether during the term of the engagement or within the specified post-termination period, constitutes a material breach of the terms, conditions, and contractual agreement between Affinity and the Client.
12.3 In the event of a breach of this non-solicitation clause, Affinity will be entitled to a claim of two times the employee in question’s annual salary as liquidated damages, to address and rectify the harm caused by the Client’s solicitation or recruitment efforts directed towards Affinity’s employees.
12.4 The Client acknowledges that any information related to Affinity’s employees, including but not limited to contact details, expertise, and employment history, is considered confidential and proprietary. The Client commits to treating such information with the utmost confidentiality and refrains from using it for any purpose other than the engagement with Affinity.
12 NON-SOLICITATION
12.5 The Client acknowledges that the non-solicitation clause is a material provision of the agreement and recognizes the value of Affinity’s employees to its business operations.
13 GENERAL
13.1 Costs: Each party must pay its own costs and expenses (including legal fees) of negotiating, preparing and executing the Contract.
13.2 Waiver
13.2.1 Any waiver of any right under these Terms and Conditions is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is written.
13.2.2 No failure to exercise or delay in exercising any right or remedy provided under these Terms and Conditions or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
13.2.3 No single or partial exercise of any right or remedy under these Terms and Conditions shall prevent or restrict the further exercise of that or any other right or remedy.
13.3 Assignment: The Client may not assign, transfer, novate or otherwise deal with any of its rights, benefits or obligations under this Contract without the prior written consent of Affinity, such consent to not be unreasonably withheld or delayed.
13.4 Survival: Any obligation of confidence under this Contract is independent and survives the termination of this Contract. Any other form which by its nature is intended to survive termination of this Contract survives termination of this Contract including clauses 1, 2, 3, 6, 7, 8, 10, 11, 12, 13, 14 and 15.
13.5 Entire Agreement: The provisions of the Proposal and these Terms and Conditions constitutes the entire agreement between the Parties in connection with its subject matter and supersedes and extinguishes all previous drafts, agreements, undertakings, representations, warranties and arrangements of any nature between the Parties in connection with the subject matter.
13.6 Severability
13.6.1 If any term or part of these Terms and Conditions is held to be invalid, illegal or unenforceable by any judicial or other competent authority, it may be severed from these Terms and Conditions and all other remaining terms or parts of these Terms and Conditions remain in full force and effect and will not in any way be impaired.
13.6.2 If any provision of these Terms and Conditions is held to be invalid or unenforceable but would be valid or enforceable if some parts of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
13.7 Amendments: These Terms and Conditions or the Proposal may only be amended, changed or modified in writing and signed by an authorised representative of the contracting Parties and specifically referencing the Terms and Conditions or the Proposal as being amended, changed or modified.
13.8 Independent Contractor: Nothing under the Contract is intended to create a partnership, joint venture or legal relationship of any kind between the Parties that would impose any liability upon one party for the act or failure to act of the other party, or to authorise either party to act as the agent for the other. Neither party shall have the authority to make representations, act in the name or on behalf of, or otherwise bind the other party, save where the Client grants any rights to Affinity under a power of attorney or corporate board resolution (as the case may be) necessary for the provision of the Services.
13.9 No Third Party Rights: This Agreement is for the benefit of and will be binding on the parties and their permitted successors and assigns. No other person will have any right or obligation under this Agreement.
13.10 Execution Warranties and Representations: Each party warrants and represents to the other that:
a. it has the full power, authority and legal right to execute, deliver and perform its obligations under the Contract;
b. the Contract has been duly executed and delivered by it and constitutes the legal, valid and binding obligations on it; and
c. these representations and warranties shall survive the expiration or termination of the Contract.
13.11 Set-Off: All amounts due under the Contract shall be paid in full without any set-off, counterclaim, or other deduction.
13.12 Non-Exclusive Remedies: The remedies provided in these Terms and Conditions are not intended to be exclusive and shall be cumulative and in addition to (and not in lieu of) any other rights or remedies that may be available to the Parties whether arising in contract, law, equity or otherwise for any breach of default of the terms of these Terms and Conditions. The election by a party of any remedy provided for under these Terms and Conditions or otherwise available to such party shall not preclude such party from pursuing any other remedies available to such party at law, in equity, by contract or otherwise.
13.13 Force Majeure: Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. No force majeure event shall permit any delay in making payment of any monies due to Affinity from the Client.
14 NOTICES
14.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand or pre-paid international express courier at its principal place of business specified in the Proposal or via email to the nominated email address.
14.2 Any notice or communication shall be deemed to have been received if delivered by hand or international express courier, on signature of a delivery receipt or receipt of an email notification.
14.3 Either party may from time to time change the address to which notice is given by sending notice of such change to the other party.
15 GOVERNING LAW
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of the DIFC.
16 DISPUTE RESOLUTION AND JURISDICTION
16.1 The Parties irrevocably agree that the courts of the DIFC shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
16.2 Any claim under AED 1,000,000 shall be referred to the DIFC Small Claims Tribunal.
Affinity Private Wealth is a trading name of Affinity Corporate Services (Middle East) Limited. Affinity Corporate Services (Middle East) Limited is registered with the Dubai Financial Services Authority as a DNFBP and is commercially licensed by the Dubai International Finance Centre as a Corporate Services Provider.