FISOGEST S.A.

GENERAL TERMS OF SALES

(Hereafter, the “General Terms & Conditions”)

 

1. Qualification and definition of a mission

These General Terms and Conditions are applicable to all service proposals, commercial and contractual relations, sales, engagement letters concluded between FISOGEST S.A., a public limited company, established and having its registered office at 681, rue de Neudorf, L-2220, Luxembourg, the Grand Duchy of Luxembourg (hereinafter “FISOGEST S.A.) and the Client, natural or legal person (hereinafter the “Client“) as well as all the missions accepted by the latter, excluding the missions of director/manager/auditor of Luxembourg companies.

The Client’s general conditions, if any, will in no way bind FISOGEST S.A.

For the execution of these General Conditions, FISOGEST S.A. and the Client are referred to below individually as a “Party” and collectively as the “Parties”.

The scope of FISOGEST S.A.’s assignment vis-à-vis the Client is limited to what is provided for in the engagement letter concluded by the Parties.

If circumstances render invalid or illegal one of the provisions of these General Terms and Conditions, the other provisions shall remain in force insofar as this is still possible.

2. Duration of an assignment

The missions are entrusted to FISOGEST S.A. by the Client for a period of one (1) year. They are renewable each year by tacit agreement, unless terminated by one of the Parties notified at least three (3) months before the anniversary date of the signature of these General Conditions, by registered letter with acknowledgment of receipt by post to the other Party or by hand-delivered letter countersigned by the other Party.

The Client may only interrupt the mission in progress after having informed FISOGEST S.A. according to one of the two forms specified above, giving notice of at least one (1) month and subject to paying the invoices, and, at where applicable, deposit invoices, accounts, statements, statements, expense reports (the “invoices”) of FISOGEST S.A. due for work already carried out up to the effective date of termination.

In the event of a breach by a Party of its obligations under the engagement letter, the other Party has the option of terminating the engagement letter with immediate effect, by registered letter with acknowledgment of receipt by post if the Party defaulter has not remedied the breach in question or if it cannot be remedied within thirty (30) days of receipt of a notification of this breach. In the event of gross negligence by the Client, FISOGEST S.A. may terminate the engagement letter with immediate effect without requesting rectification of the situation at the origin of the termination decision.

3. Fight against money laundering and the financing of terrorism (AML/FT)

The Client acknowledges that FISOGEST S.A. is subject to the laws and regulations relating to the fight against money laundering and the financing of terrorism and that it therefore has the obligation in particular to identify and verify the identity of its client(s), their legal/tax status and, where applicable, their beneficial owner(s), to obtain information on the purpose and nature of the business relationship, the origin of the funds and to carry out continuous monitoring of the business relationship.

The Client acknowledges that the laws and regulations mentioned above require FISOGEST S.A., under certain conditions, to report any suspicious activity to the competent Luxembourgish authorities. In the event that FISOGEST S.A has such a suspicion, its obligation to report to the competent authorities will prevail, notwithstanding any obligation of confidentiality. FISOGEST S.A. will not be responsible for any loss that may result from such disclosure to the competent authorities or the consequences thereof.

4. Obligations of FISOGEST S.A.

FISOGEST S.A. will carry out the mission entrusted to it in accordance with the laws, regulations and case law applicable in the Grand Duchy of Luxembourg.

FISOGEST S.A. will use and exercise reasonable skill, effort and care in performing its services. Under no circumstances will FISOGEST S.A. be bound by an obligation of result.

FISOGEST S.A. may be assisted by employees of its choice. It decides how and by whom the services described in the engagement letter are performed.

At the completion of its mission, FISOGEST S.A. returns the original documents entrusted to it by the Client for the execution of its mission, except application of the right of retention as provided for in article 9 of these General Conditions or when the Client asks FISOGEST S.A. to keep them. Once its mission has been accomplished, FISOGEST S.A. assumes no obligation to inform the Client of the possible occurrence of a modification of the legislation or regulations in force applicable to the mission, nor to inform the Client of the possible consequences of such a modification on the mission and its results.

5. Client Obligations

The Client refrains from any act likely to harm the financial situation, the independence, or the reputation of FISOGEST S.A., its affiliated companies, its directors, its employees or its shareholders.

This also applies to offers made to employees of FISOGEST S.A. to carry out assignments for their own account or to become employees of the Client.

The Client also undertakes:

• To make available to FISOGEST S.A., in due time, all data, documents and information, including the identification and quality(ies) of the contact person(s), necessary to the performance of its mission and compliance by FISOGEST S.A. with its legal and regulatory obligations, particularly with regard to the fight against money laundering and the financing of terrorism. FISOGEST S.A. must not verify the complete, correct and faithful nature of the documents and information transmitted by the Client to FISOGEST S.A. for the execution of the engagement letter ;
• To bring to the attention of FISOGEST S.A. any important or exceptional fact as well as any commitment likely to have any impact on the execution of the mission or its financial situation ;
• To confirm in writing, if FISOGEST S.A. so requests, that the documents, information and explanations provided are adequate and complete ;
• To take the measures in accordance with the legislation in force to preserve the original parts ;
• To take all measures to ensure the safeguarding of personal data in accordance with the General Data Protection Regulations (“GDPR”) and to guarantee their retention and inviolability (see point 11 and the latest version of our “Privacy Policy” available on our website).

Any mission reports and professional opinions drawn up by FISOGEST S.A. may not be communicated by the Client to third parties without the prior written consent of FISOGEST S.A., unless, however, the mission itself involves the authorization for the communication of these documents to specific third parties.

6. Liability of FISOGEST S.A.

Any event likely to have consequences in terms of liability on the part of FISOGEST S.A. must be brought to the attention of FISOGEST S.A. in writing and without delay.

The civil liability of FISOGEST S.A. can only be engaged vis-à-vis the Client because of the faulty execution of its mission and provided that the cause-and-effect relationship between the incriminated fault and the damage suffered is established judicially as a last resort. Compensation for indirect damage is excluded.

The Client undertakes to hold FISOGEST S.A. free and harmless from any action for liability brought against FISOGEST S.A. and from any condemnation in principal, interest and costs (including lawyer’s fees) obtained by a third party against FISOGEST S.A., unless they result from gross or intentional fault on the part of FISOGEST S.A. recognized by the courts as a last resort.

The Client will indemnify, reimburse and guarantee FISOGEST S.A. for all losses, damages, expenses or liabilities incurred by FISOGEST S.A. which would result from or be linked to a breach or ignorance by the Client or a complaint in this respect of any of the Client’s obligations arising from the engagement letter.

FISOGEST S.A. will consult the Client, as far as possible, before entrusting a mission to a third party (lawyer, civil law notary, auditor, accountant, expert, etc.) whose intervention would be required to enable it to provide its services or carry out the mission entrusted by the Client.

FISOGEST S.A. will in any event exercise prudence and diligence in the selection of these third parties.

FISOGEST S.A. will not, however, be liable for the actions of these third parties (and in particular for their actions and/or omissions). The Client also expressly authorizes FISOGEST S.A. to accept any limitation or exemption from liability clause included in the contract that FISOGEST S.A. may conclude with the third party on behalf of the Client.

7. Liability of the Client

Only the Client (if the Client is a natural person) or the Board of Directors, respectively the management of the company, otherwise any legal or management representative of the company (if the Client is a legal person) 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 to third parties. As such, it is the responsibility of any authorized agent of a company to sign the annual accounts (respectively the consolidated accounts) before presentation to the competent body for the approval of these accounts.

The Client is not exonerated from his/her/its liability if he/she/it gives FISOGEST S.A. power of attorney to represent him/her/ before the authorities or if he/she/it gives it a signature mandate.

8. Professional secrecy

FISOGEST S.A. is required:

• Professional secrecy:Article 458 of the Penal Code is applicable to FISOGEST S.A. and to the people who work for them.FISOGEST S.A. is, however, obliged to provide as complete a response and cooperation as possible to any legal request that law enforcement authorities address to them in the exercise of their powers. FISOGEST S.A. must inform, on its own initiative, the « Cellule de Renseignement Financier” (the “CRF”) of the Public Prosecutor’s Office at the Luxembourg District Court of any fact that could be an indication of money laundering or terrorist financing, in the cases provided for by law.If necessary, FISOGEST S.A. and its employees cannot communicate to the Client concerned or to third parties that they have transmitted information to the authorities or that an investigation is in progress.
• Obligation of discretion:Distinct from the previous obligation, as regards the information collected by FISOGEST S.A. and the distribution of the documents it has drawn up. These are sent to the Client himself/herself/itself, to the exclusion of any direct sending to a third party, except at the request of the Client having obtained the prior written agreement of FISOGEST S.A.

9. Invoices, deposit invoices, account statements, expense notes

For the services listed in the contract (or the engagement letter) and its appendices duly initialed and signed by the Client, FISOGEST S.A will issue invoices, and, where applicable, deposit invoices, account statements, expense notes (the “Invoice” or “Invoices”).

Specific external costs and costs relating to the interventions of third parties are in addition to the services of FISOGEST S.A.

The Client acknowledges that any service that is not expressly mentioned in the signed engagement letter or its annexes will be invoiced based on the hourly rates in force.

Unless agreed in writing and signed, all Invoices are payable as follows within thirty (30) days of their actual delivery to the Client (natural or legal person having the status of “merchant”).

Any Client complaint must be addressed in writing to FISOGEST S.A., within fifteen (15) calendar days following the effective delivery of the Invoice(s) as follows:

• Or, by e-mail to info@mgifisogest.lu ;
• Or, by fax to +352 26 44 18 64 ;
• Or, by registered letter with acknowledgment of receipt by post sent to the registered office of FISOGEST S.A. (see point 1.).

Any claim must highlight, with details, the disputed service(s) and amount(s).

Any Invoice(s) not disputed in accordance with the preceding paragraphs will be deemed to be “compliant and accepted”.

FISOGEST S.A. is entitled to claim legal interest for late payment, without a reminder being necessary, as soon as it has fulfilled its contractual, legal or regulatory obligations and has not received the amount due. on the due date (unless the debtor Client is not responsible for the delay) and in accordance with the points below:

• For debts resulting from “commercial transactions”: interest will be automatically payable at the end of the payment period of thirty (30) days as provided for above. The legal interest rate for late payment applicable to these trade receivables is based on the marginal reference rate published separately in memorial B at the beginning of each semester, increased by eight (8) percentage points ;
• For debts resulting from “transactions with a consumer”: interest will also be payable automatically at the end of the payment period of ninety (90) days as provided for above. The legal interest rate for late payment applicable to receivables resulting from a contract (or engagement letter) has been set since 2004 by Grand-Ducal Regulation based on the amended law of 18 April 2004 relating to payment deadlines and default interest.

FISOGEST S.A and the Client may, however, agree between themselves on a schedule setting the amounts to be paid in installments (at the written request of the debtor Client – in the above forms – and accepted in writing by FISOGEST S.A. In this case, if a payment is not paid on the due date, the interest and compensation provided for by Luxembourg law are calculated on the basis of the amounts due only.

When interest for late payment is due, FISOGEST S.A. is entitled to obtain from the Debtor Client, for receivables resulting from “commercial transactions”, the payment of an additional lump sum of forty Euros (€40). This lump sum is payable without a reminder being necessary.

FISOGEST S.A. is entitled to claim from the Debtor Client, in addition to the lump sum mentioned above, “reasonable compensation” for all other recovery costs in addition to said lump sum and incurred as a result of late payment of the latter. These costs may include, in particular, the expenses incurred to call on a lawyer, a bailiff or a debt collection company.

The Client, natural person, identified as “beneficial owner” will act as a client and will be fully responsible for the payment of all invoices issued on the basis of the engagement letter and in accordance with these General Conditions. In the event of a plurality of natural people identified as “beneficial owners”, the beneficial owners will be jointly and severally liable for all amounts due. If breaches should not cease after the Client has been given formal notice to remedy them by registered letter with acknowledgment of receipt by post, FISOGEST S.A. could then consider that the execution of this engagement letter has become impossible and note its resolution to the exclusive wrongs of the Client.

In the event of termination of this engagement letter by the Client, FISOGEST S.A. will be entitled to retain all the amounts already paid by the client and will be entitled to claim payment from the Client for the payment of invoices for the work already carried out, in current and future at the time of such termination. In addition, in the event of non-payment by the client, FISOGEST S.A. will reserve the right to suspend the execution of the mission and to exercise a right of retention on all files or documents submitted to it by the Client until full regularization of the invoice issued and transmitted, without this suspension giving the Client the right to any legal action or engaging the liability of

FISOGEST S.A. FISOGEST S.A. reserves the right to assign all or part of its receivables.

10. Impossibility of carrying out the mission (“Force Majeure”)

FISOGEST S.A. cannot be held responsible for delays or failure to perform its mission for reasons beyond its control and control, including in particular, the actions, omissions or lack of cooperation of the Client (including employees) and agents of the Client), the actions, omissions or non-cooperation of a third party, fire or other destructive event, natural disasters, pandemics, strikes or other industrial disputes, acts of violence or finally, any law, order or injunction emanating from a governmental or other authority.

When a mission of FISOGEST S.A. is suspended due to a case of force majeure, the deadlines for submitting the work will be extended for a period at least equal to that of the suspension of the mission. During the period of suspension, the provisions of articles 4, 5 and 9 of these General Conditions remain applicable.

11. Processing of personal data

FISOGEST S.A. and the Client undertake to comply with the legal and regulatory requirements in force with regard to the protection of personal data, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 relating to the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) (Annex 1).

12. Applicable law and competent courts

For all cases not provided for in these General Conditions as well as the specific conditions of the engagement letter and its annexes, the Parties refer exclusively to the laws, regulations and case law of the Grand Duchy of Luxembourg.

The nullity of one or the other clause above does not entail the nullity of these General Conditions as well as the specific conditions of the engagement letter and its appendices.

In such a case, the Parties (undertake to give to the invalid clauses the lawful interpretation as close as possible to their original provisions.

If a conflict cannot be settled amicably between the Parties, the interpretation and execution of these General Conditions as well as the specific conditions of the engagement letter and its annexes would be the exclusive competence of the courts of Luxembourg City.

13. Modification of the General Conditions

FISOGEST S.A. reserves the right to modify these General Conditions from time to time to reflect in particular legislative or regulatory changes, internal practices and to ensure that they are accurate, complete and up to date. The date of the most recent update will appear on our website. We therefore invite you to consult it regularly.

14. Entry into force of the General Conditions

These General Conditions are in force as of 26 June 2022 (last modifications).