- SCOPE OF APPLICATION
1.1. These general terms and conditions (“General Conditions”) apply to all contacts
of FinAnalyse SàRL-S as soon as they enter into a contractual or tortious relationship
with FinAnalyse SàRL-S, thus becoming, in the sense of the General Conditions, a
client of FinAnalyse SàRL-S (hereinafter the “Client”, collectively “Clients”). The
General Conditions determine the basis on which FinAnalyse SàRL-S accepts
instructions, conducts its business, and more generally provides its services (the “
assignment(s)”) to Clients.
1.2. For the purpose of the General Terms and Conditions, FinAnalyse SàRL-S and the
Client are hereinafter individually and indistinctly referred to as a “Party” and
collectively as the “Parties”.
1.3. The General Conditions shall apply by priority to the relations between the Parties.
Any deviation from the General Conditions by the provisions of the Main Contract
concluded between FinAnalyse SàRL-S and the Client, of an engagement letter, or of
any other form of communication that could be considered as a contractual
commitment (the “Main Contract”) shall be express and shall be strictly
interpreted.
1.4. The content, terms and duration of FinAnalyse SàRL-S’s assignment s are limited to
what is provided for in the Main Contract and may only be modified, extended or
expanded with the written consent of FinAnalyse SàRL-S.
1.5. Should circumstances render one or more provisions of the General Terms and
Conditions invalid or illegal in whole or in part, the remaining provisions shall remain
in force to the extent that this is still possible.
2. DURATION OF AN ASSIGNMENT
2.1. If not provided for in the Main Contract, the Assignments entrusted to FinAnalyse
SàRL-S by the Client will be for a period of three months renewable by tacit
agreement.
2.2. Either Party may terminate any Assignment by registered letter with acknowledgment
of receipt sent to the other Party or by letter delivered by hand and countersigned
by the other Party at least one month before the quarterly anniversary date of the
start of the Assignment.
2.3. If the Client terminates the Assignment according to the previous article, he will be
obliged to pay the fees of FinAnalyse SàRL-S due for the work already done until the
effective date of the termination, increased by an indemnity equal to 25% of the
agreed fees for the whole Assignment, or in the absence of an agreed global amount,
35% of the fees already invoiced.
2.4. In the event of a breach by a Party of its obligations under the Main Contract; the
aggrieved Party shall notify it of such breach.
2.5. The aggrieved Party may terminate the Assignment with immediate effect, by
registered letter with acknowledgment of receipt, if the defaulting Party has not
remedied the breach in question or if it cannot be remedied within thirty days of
receipt of the notification of the breach.
2.6. In case of gross misconduct that makes it impossible for the Client to maintain a
professional relationship, FinAnalyse SàRL-S may terminate the Assignment with
immediate effect without requesting the regularization of the situation that led to the
decision to terminate.
3. FINANALYSE SÀRL-S
Duties of FinAnalyse SàRL-S:
3.1. FinAnalyse SàRL-S carries out its assignments
3.1.1. in accordance with applicable fundamental principles of ethics, conduct and
independence.
3.1.2. in compliance with the legal obligations incumbent upon it, particularly
concerning independence and the fight against money laundering and the financing of
terrorism.
3.1.3. unless otherwise expressly stipulated in the Letter of Engagement, FinAnalyse
SàRL-S shall be free to choose the place of performance of its services.
Jurisdiction and authorization
3.2. FinAnalyse SàRL-S has an establishment permit for the Grand Duchy of Luxembourg.
3.3. FinAnalyse SàRL-S is not a member of another regulated profession (lawyer,
accountant, auditor or other) (a “Regulated Profession”).
3.4. For the proper execution of its Assignments, FinAnalyse SàRL-S may be required to
give technical advice and provide general information. Nothing in these
communications shall be interpreted by FinAnalyse SàRL-S as falling within the scope
of competence of a Regulated Profession.
3.5. For instance, any information communicated concerning a regulation that may apply
to the Customer shall not be considered as legal advice concerning the applicability
of this regulation.
Liability
3.6. FinAnalyse SàRL-S contracts, because of the Assignment, an obligation of means and
not of result. See also Article 9.
Subcontracting
3.7. FinAnalyse SàRL-S may be assisted by subcontractors, collaborators and other service
providers of its choice (the “Subcontractors”) and shall decide how and by whom
the services described in the Main Contract are performed.
3.8. Such subcontracting shall only concern FinAnalyse SàRL-S and shall not create any
contractual relationship between the Client and the Subcontractor.
3.9. FinAnalyse SàRL-S can, at the Client’s request or if it deems it necessary, have a legal,
accounting, tax or regulatory point verified by a partner who is part of a Regulated
Profession (the “Partner”).
3.10. Such verification shall only concern FinAnalyse SàRL-S and shall not create any
contractual relationship between the Client and the Partner.
End of term
3.11. Upon completion of its Assignment, FinAnalyse SàRL-S returns the original
documents entrusted to it by the Client for the execution of its Assignment, except
for the application of the right of retention as provided for in Article 7 of these
General Conditions.
3.12. Once the Assignment is completed, FinAnalyse SàRL-S does not assume any obligation
to inform the Client of the possible occurrence of a change in the legislation or
regulations in force applicable to the Assignment, nor to inform the Client of the
possible consequences of such a change on the Assignment and its results.
CONFIDENTIALITY OF PROFESSIONAL INFORMATION
4.1. The representative of FinAnalyse SàRL-S is bound to professional secrecy in
accordance with article 458 of the Criminal Code.
5. FIGHT AGAINST MONEY LAUNDERING
5.1. FinAnalyse SàRL-S is required to provide the fullest possible response and
cooperation to any legal request made by law enforcement authorities in the exercise
of their powers.
5.2. FinAnalyse SàRL-S shall inform, on its own initiative, the Financial Intelligence Unit of
the Public Prosecutor’s Office at the District Court of Luxembourg of any fact that
could be an indication of money laundering or financing of terrorism, in the cases
provided for by the law.
5.3. If necessary, FinAnalyse SàRL-S and its employees may not communicate to the Client
concerned or third parties that they have passed on information to the authorities or
that an investigation is underway.
5.4. FinAnalyse SàRL-S has a duty of discretion, distinct from the previous obligation,
regarding the information collected and the dissemination of the documents it has
prepared. The latter is addressed to the Client himself, to the exclusion of any direct
sending to a third party, unless requested by the Client and also agreed by FinAnalyse
SàRL-S.
6. RESPONSIBILITY OF THE CUSTOMER :
6.1. Only the Client, a natural person or the managers of a company or its Board of
Directors, respectively the management of the company, if not any legal or
management representative of a company, are responsible for the financial
information relating to the activity of the natural person, the company or the
Company as presented to its owners or third parties. In this respect, it is the
responsibility of any authorized representative of a company to sign the annual
accounts (respectively the consolidated accounts) before they are presented to the
body competent to approve these accounts.
6.2. The Client can in no case give FinAnalyse SàRL-S a power of attorney to represent
him before the authorities or give him a signature mandate. FinAnalyse SàRL-S will
therefore never be responsible for any delay in filing or appeal, nor for any act that
may have resulted from such a mandate.
7. DUTIES OF THE CUSTOMER
7.1. The Client shall refrain from any action that may affect the independence of
FinAnalyse SàRL-S or its employees. This applies in particular to offers made to
employees of FinAnalyse SàRL-S to carry out assignments for their own account or
to become employees of the Client.
7.2. The Customer also undertakes to:
7.2.1. to make available to FinAnalyse SàRL-S, within the agreed deadlines, all the
documents, and information necessary for the execution of its Assignment and to
comply with its legal obligations, in particular about the fight against money laundering
and against the financing of terrorism; FinAnalyse SàRL-S does not have to verify the
completeness, correctness, and accuracy of the documents and information
transmitted by the Client to FinAnalyse SàRL-S for the execution of the Main
Contract;
7.2.2. To carry out the work incumbent upon it;
7.2.3. To inform FinAnalyse SàRL-S of any important or exceptional fact as well as any
commitment likely to have any impact on the execution of its Assignment or the
Client’s financial situation;
7.2.4. To confirm in writing, if requested by FinAnalyse SàRL-S, that the documents,
information and explanations provided are complete and adequate;
7.2.5. To take measures in accordance with the legislation in force to preserve the
original parts;
7.2.6. To take all measures to ensure the safeguarding of data and computer
processing and to guarantee their conservation and inviolability.
7.2.7. To give access to its premises to FinAnalyse SàRL-S for the execution of the
Assignments when necessary or agreed.
7.3. Any reports and professional opinions prepared by FinAnalyse SàRL-S may not, in
principle, be communicated by the Client to third parties without the written consent
of FinAnalyse SàRL-S, unless, however, the assignment itself implies the authorization
of the communication of these documents to specific third parties.
7.4. If, for any reason, the Client is not the direct beneficiary of the services of FinAnalyse
SàRL-S, the Client undertakes to and shall ensure that the direct beneficiary accepts
these General Conditions. This cause can only be waived by express reference to it.
8. FEES :
8.1. FinAnalyse SàRL-S receives from the Client fees freely agreed between the parties,
which are exclusive of any other remuneration, even indirect. FinAnalyse SàRL-S shall
be reimbursed for its travel expenses and disbursements.
8.2. The fees set per day will correspond to periods of eight (8) hours. In case of overtime,
FinAnalyse SàRL-S will have the possibility to deduct the duration of the overtime
from other days to be rendered or to invoice the overtime.
8.3. Provisions on fees may be periodically requested from the Client by FinAnalyse SàRL-
S.
8.4. In case of non-payment of the fees within the term of payment defined on the invoice,
FinAnalyse SàRL-S may:
8.4.1. Apply interest on overdue payments according to the following conditions,
8.4.2. Claiming a retention right on the documents given to him.
8.5. Unless otherwise agreed, payment shall be made within 15 days after receipt of the
invoice. Receipt of the invoice shall be deemed to have taken place on the second
working day following the date of issue. In the event of failure to pay within the time
limit, the invoices shall bear interest in accordance with the amended law of 18 April
2004 on payment periods and interest on arrears. In any case, the non-payment of
fees will allow FinAnalyse SàRL-S to exercise a right of retention on all files or
documents given to it by the Client. FinAnalyse SàRL-S may also claim compensation
for recovery costs according to the legal provisions in force.
9. LIABILITY OF FINANALYSE SÀRL-S
9.1. Any event that may have consequences for FinAnalyse SàRL-S in terms of liability
must be brought to the attention of FinAnalyse SàRL-S without delay by the Client.
The civil liability of FinAnalyse SàRL-S can only be incurred by the Client due to the
faulty execution of its assignment and provided that the causal relationship between
the fault and the damage suffered is established by the courts in the last instance. The
maximum amount of damages FinAnalyse SàRL-S may be required to pay to the Client
as compensation for all the prejudicial consequences incurred and established as a
result of a given Assignment shall be limited to twice the amount of the fees provided
for the performance of the Assignment in question unless the Client’s prejudice is the
immediate and direct consequence of intentional or gross misconduct committed by
FinAnalyse SàRL-S judicially recognized in the final instance. The compensation of
indirect damage is excluded.
9.2. The Client undertakes to indemnify and hold harmless FinAnalyse SàRL-S from any
liability action brought against FinAnalyse SàRL-S and from any award of principal,
interest, and costs (including attorneys’ fees) obtained by a third party against
FinAnalyse SàRL-S, unless they result from gross negligence or willful misconduct of
FinAnalyse SàRL-S judicially recognized in the final instance. The Client shall indemnify
and hold FinAnalyse SàRL-S harmless for any loss, damage, expense or liability
incurred by FinAnalyse SàRL-S arising out of or in connection with any breach or
disregard by the Client of any of the Client’s obligations under Assignment.
10. IMPOSSIBILITY TO PERFORM THE ASSIGNMENT / FORCE
MAJEURE
10.1. FinAnalyse SàRL-S shall not be liable for any delay or failure to perform its
Assignment, for reasons beyond its control, including, but not limited to, the actions,
omissions, or failure to cooperate of the Client (including the Client’s employees and
agents), the actions, omissions or failure to cooperate of any third party, fire or other
destructive events, natural disasters, epidemics, strikes or other industrial disputes,
acts of violence, or any law, order or injunction of any governmental or other
authority.
10.2. When a FinAnalyse SàRL-S Assignment is suspended due to a case of force majeure,
the deadlines for the delivery of the work will be extended for a period equal to that
of the suspension of the Assignment. During the period of suspension, the provisions
of articles 6, 7 and 8 of these General Conditions remain applicable.
11. HANDLING OF PERSONAL DATA
11.1. For the execution of its Assignment, FinAnalyse SàRL-S uses the personal data
provided by the Client as defined by Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the protection of individuals with
regard to the processing of personal data in order to carry out its assignment in its
capacity as a processor within the meaning of the European Data Protection
Regulation (2016/679) and manage its relationship with the Client. The Customer
hereby consents to the processing of personal data relating to it for the performance
of the Main Contract and undertakes to ensure that its employees consent to the
processing of personal data relating to them including, without limitation, their
collection, recording, storage, transfer in any form or support.
11.2. FinAnalyse SàRL-S is committed to protect this personal data, to ensure its
confidentiality and to process it only in the context of the execution of the
Assignment and the management of its relationship with the Client.
11.3. FinAnalyse SàRL-S shall take all necessary technical and organizational measures to
ensure the protection of the processed data against accidental or unlawful
destruction, accidental loss, alteration, unauthorized disclosure or access, as well as
against any other form of unlawful processing. FinAnalyse SàRL-S reserves the right
to use other subcontractors. In this case, FinAnalyse SàRL-S will inform the Client in
advance in order to obtain his written authorization.
11.4. Based on the risks of invasion of privacy as well as the state of the art and the costs
associated with their implementation, FinAnalyse SàRL-S has taken all reasonable
security measures to:
11.4.1. Prevent unauthorized persons from gaining access to the facilities used
for data processing (control at the entrance to the facilities);
11.4.2. Prevent data supports from being read, copied, modified or moved by
an unauthorized person (control of supports);
11.4.3. Prevent the unauthorized input of any data into the information system,
as well as the unauthorized access, modification or deletion of stored data (memory
control, etc.);
11.4.4. Prevent the use of data processing systems by unauthorized persons by
means of data transmission facilities (use control);
11.4.5. Ensure that, for the use of an automated data processing system,
authorized persons can only access the data for which they are responsible (access
control),
11.4.6. Guarantee that the identity of third parties to whom data may be
transmitted by transmission facilities can be verified and ascertained (control of
transmission);
11.4.7. Ensure that the identity of persons having access to the information
system can be verified and ascertained after the fact (control of the entrance to the
system);
11.4.8. Prevent unauthorized reading, copying, modification, or deletion of data
during data communication and transport of data carriers (transportation control);
11.4.9. Back up data by making backup copies (availability control).
11.5. FinAnalyse SàRL-S ensures compliance with these measures.
11.6. FinAnalyse SàRL-S shall notify the client of any personal data breach after becoming
aware of it. This notification must be accompanied by any useful documentation to
allow the Client, if necessary, to notify the breach to the competent supervisory
authority.
11.7. The obligation of confidentiality arising from this article shall not prevent FinAnalyse
SàRL-S from disclosing any information if such information is required or permitted
under applicable legal or professional rules, in particular in the context of disciplinary,
civil, commercial or criminal proceedings, or in the context of legislation relating to
the fight against money laundering and against the financing of terrorism.
11.8. The Client and its employees may at any time exercise with FinAnalyse SàRL-S a right
of access to personal data for modification, rectification, updating of their personal
data and have a right to object to their processing in accordance with applicable legal
provisions.
11.9. The personal data provided by the Client in the context of his relationship with
FinAnalyse SàRL-S may be used by FinAnalyse SàRL-S for direct marketing purposes
to inform the Client about these activities, services, unless the person concerned
objects to the processing of his personal data in accordance with the provisions of
Article 21 of the GDPR.
11.10. The data collected is kept for as long as necessary for the purposes specified in the
engagement letter or permitted by law. For data processed exclusively for the
purpose of commercial prospecting and promotions, the retention period is three (3)
years from the end of the relationship with the Client. At the end of the relationship
between FinAnalyse SàRL-S and the Client, FinAnalyse SàRL-S undertakes, at the
Client’s request, to return the personal data to the subcontractor designated by the
latter.
12. DIGITAL SECURITY IN THE TRANSMISSION OF DOCUMENTS
12.1. Within the framework of the Main Contract signed by the Client and unless expressly
stated by the Client, documents or information may be transmitted not only by mail
or fax, but also in electronic format, by e-mail. Electronic transmissions may give rise
to technical incidents (including infection by viruses, worms etc..) for which neither
the Client nor FinAnalyse SàRL-S can be held responsible.
13. APPLICABLE LAW AND COMPETENT JURISDICTION
13.1. These general term and conditions as well as the special terms and conditions of the
Main Contract and its annexes are subject to Luxembourg law.
13.2. Any disputes that may arise between FinAnalyse SàRL-S and the Client in connection
with the execution of the Main Contract shall be submitted to the Luxembourg
courts.
14. ACCEPTATION DES CONDITIONS
14.1. The Customer declares that he has read the General Conditions and accepts them
expressly and without reservation in all their contents.
14.2. The signatory confirms that he/she has the authority to bind the Client to accept the
General Conditions or that he/she undertakes to obtain their ratification by the Client
before the beginning of the Assignment.