Terms & Conditions

We herewith set the terms and conditions that will govern the provision of professional services will be provided in favor of our Clients.

 

1.                   Scope of our Services

 

We will provide the services described in any Proposal we send to our Clients (our “Proposal” and our “Services”).

 

Our work will be based on information provided to us. The Services will be provided under the premise that all information provided by the Client is true, exact, relevant, necessary and not misleading, so we will not verify it, unless expressly agreed.

 

Unless otherwise expressly agreed, our Services consist of an obligation of means and not of results, to the extent that we cannot guarantee a favorable result in any procedure, dispute or negotiation, nor that our recommendations, interpretations, estimates, valuations, calculations or strategies will necessarily be accepted by third parties or by the authorities to which they are presented.

 

In case the Client requests or authorizes us to do so, or if by virtue of a governmental, administrative, judicial and/or arbitration order or requirement, the Provider must submit information related to the provision of Services and/or our personnel must appear as witness or render any type of statement or answer subpoenas within the framework of an investigation or administrative, police, judicial or arbitration process; The Client agrees to reimburse us for all expenses that we must incur for this purpose, as well as to recognize all the hours involved in the acquittal of said summoning and/or information request.

 

Unless otherwise expressly agreed, our Services have not been designed to identify, reveal or track any type of fraud, embezzlement, illegal activity or misrepresentation by the Client, its personnel or third parties. In this sense, the non-disclosure or discovery of said type of activities as part of the Services, even when they have existed or have been committed at the time of provision of the Services, will not entail any type of responsibility for the Provider.

 

Unless expressly agreed, our Services do not represent a manifestation or comprehensive analysis of the Client's legal and/or commercial problems but are limited to the scope of the Proposal.

 

Any Proposal and our Services do not constitute, nor may they be interpreted as part of an exclusivity agreement and, subject to the confidentiality obligations established in section 4, the Provider may provide any service to third parties without any limitation (including competitors, contractors or related entities), without requiring authorization, communication or prior treatment with the Client.

 

2.                   Deliverables

 

It will be considered as a “Deliverable”, any report, memo, file, presentation, contract, affidavit, procedure, evaluation and/or document, procedure or similar result that be presented to the Client as a final version, within the framework of the Services.

 

All preliminary comments and draft versions of the Deliverables will be considered as a work in progress, which may undergo variations, even substantial ones, before being issued as Deliverables. The Provider will not be responsible for any decision made on the basis of work in progress or preliminary documents.

 

The Client may not alter, add or remove any element, point of analysis or section of our Deliverables, nor reproduce them in whole or in part for purposes other than those indicated in any Proposal, nor eliminate or modify the elements that identify it as the Provider’s Deliverable. The Provider will not assume any obligation or responsibility for the consequences derived from Deliverables altered without our consent.

 

The Provider will provide the Services exclusively for the use and benefit of the Client. Our Services, materials and Deliverables may not be discussed, transmitted, displayed or disclosed to third parties without prior written permission from the Provider.

 

Notwithstanding, the Client may show and transfer the Deliverables or discuss information related to the Services with its related companies and/or entities, as well as with its external professional advisors who have need to know such information, as long as they accept that: (i) the Provider has provided the Services and prepared the Deliverables for the exclusive use and benefit of the Client, and that the Provider assumes no liability to third parties; and (ii) they will not disclose the Services or Deliverables to any third party without the Provider's prior written consent.

 

The Client will be responsible before the Provider for compliance with the stipulations described herein, as well as for any damage that its non-compliance may cause to the Provider or to third parties.

 

Our Services, the Provider Material and Deliverables, including any comments or queries resolved orally, must not be associated with, incorporated, referenced or cited in any financial statement or in any offering memorandum, prospectus, registration statement, public offering, loan or other arrangement, unless expressly agreed to by the Provider in advance and in writing.

 

3.                   Confidentiality, treatment and custody of the information

 

The Provider, individually and on behalf of its partners, workers and support personnel (the “Collaborators”), undertakes that all the information that has been delivered to us as part of the Services, whether verbal, written or in electronic files, will be treated as confidential and private, and will not be used for purposes other than those established in this document (hereinafter, the “Confidential Information”).

 

Notwithstanding the above, it will not be considered as Confidential Information that which:

 

a.                   Is or becomes public for reasons not attributable to the Provider.

b.                   Is lawfully known by the Provider before the Client has transmitted it.

c.                   Have disclosure authorization, in writing, from the Client.

d.                   It has been legally acquired by the Provider through a third party not subject to a confidentiality agreement or it would have been developed by the                            Provider independently.

e.                   It is required by a competent administrative, arbitration or judicial authority. In such a case, the Provider will inform the Client about the information                              request made, unless said communication has been prohibited by the authority, so that the Client may take legal actions it deems appropriate. the                              Provider will not suspend or delay the delivery of requested information unless mandated by a competent authority to do so.

 

The obligation of confidentiality will be maintained throughout the term of the contract, and for a period of two (2) years from the end of the Services. The responsibility of the Provider for the management of information and its custody is governed by the provisions of any Proposal.

 

In case the Services contemplate the use of resources and information systems of the Client or of third parties (such as the Clave SOL, bank access codes, electronic billing systems, databases or others), the Client agrees to create a secondary and exclusive access for the use of the Provider, which will have a username and password different from the main one, and which will not be shared with other service providers or used by their staff, under the Client's responsibility.

 

Said secondary username and password will be kept confidential under the terms of this clause, and its use will be limited to the execution of the Services. The password of the secondary user assigned to the Provider must be modified immediately upon receipt and periodically updated, in accordance with our information security policies.

 

Taking into account that the information systems of third parties unrelated to the Provider are subject to security conditions beyond our control, as well as to vulnerabilities inherent to their development, the Provider will not assume any responsibility with respect to unauthorized access, modifications or operations in said systems, or for damages caused by misuse.

 

4.                   The Provider’s Technology

 

It is expressly agreed that the Provider may offer high-quality advisory services through technological tools and standardized processes through virtual platforms (software, databases, portals, etc.) owned by the Provider (“the Provider’s Technology”). The Client acknowledges that the Provider’s Technology is and will remain at all times the exclusive property of the Provider.

 

The Client will retain ownership of any information or other content that is stored on the Provider’s Technology. However, the Provider will be entitled to retain a copy of said information for the purpose of providing the Services and/or for internal administrative compliance purposes. Said retention of information should not be understood as an information storage or hosting service provided by the Provider.

 

5.                   Processing of personal data

 

In accordance with the provisions of Law No. 29733 – Personal Data Protection Act and its Regulations, Supreme Decree No. 003-2013-JUS (together, the “Personal Data Law”), as well as the decisions that the National Authority for Personal Data Protection may take, the Client is informed and gives his free, prior, express and unequivocal consent to the Provider for the treatment and transfer of personal data, including sensitive data, of which he is the owner and/or responsible in accordance with the law, which will be transferred to the Data Bank that the Provider may have in Peru or abroad, as well as for the treatment of any other data that may be provided throughout any Proposal.

 

The treatment purposes for which the Provider will use the personal data provided are the following: (i) manage the commercial relationship with its clients, as well as manage complaints and claims that may arise, (ii) its processing by computer systems, (iii) activities related to quality, risk and customer administration and, (iv) comply with any requirement established by law or regulation.

 

Additionally, the Provider may provide the Client with information on the services provided by the Provider, as well as training activities, to the institutional contact email provided by the Client.

 

The Client declares to have the consent of its shareholders, legal representatives, staff, officials and related third parties for the collection, processing and storage of personal data that will be sent to the Provider for the execution of the Services. The treatment of said data will be conducted within the framework of the execution of this contract, for the purposes established herein, and said personal data of these third parties will be treated under the same standards, terms and conditions that are described in this document.

 

The Client authorizes the Provider to keep their data once the contractual relationship has ended, for compliance with the relevant legal obligations, and so that the Client can receive advertising information and commercial offers from the Provider within the limits established by law. The Client agrees to immediately notify the Provider of any request to exercise ARCO rights made by the owner of personal data. The Provider will make the necessary coordination with the Client, if applicable, and the latter will provide the necessary support to address the request of the owner of personal data.

 

The Provider informs that the exercises of rights of access, update, inclusion, rectification, deletion and opposition in the terms provided in the regulatory framework can be exercised in person at the Provider’s headquarters.

 

6.                   Communications and promotion of our Services

 

The Client accepts that, without the need for additional authorization, we may make use of their corporate or business name, trademarks, brands, logos or other rights registered by the Client, in order to include them in the list of our clients and other marketing materials, when it is necessary or convenient in public or private, national or international selection processes (proposals, contracts, contests, tenders, awards, etc.).

 

7.                   Nature of the Services

 

The relationship between the Provider and the Client is of a civil nature, and the provision of the Services is governed by the rules established in articles 1755 and following of the Peruvian Civil Code. In this sense, it is expressly agreed that this contract does not have the purpose or effect of establishing a labor relationship or of any kind between the Provider’s employees and the Client, for which reason it will be the exclusive responsibility of the Provider to comply with any labor or tax obligations related to our personnel, and the Client should not make any payment in favor of our employees.

 

The Provider may subcontract third parties for the provision of the Services, at our cost and risk. The Provider will be solely responsible for the execution of the Services before the Client.

 

8.                   Client Responsibilities

 

The Client is responsible for taking any and all administrative, commercial, legal, accounting and/or managerial decisions for their business and those that are necessary as part of the Services, including evaluating the suitability of our recommendations based on their needs, as well as maintaining its internal controls and monitoring ongoing activities. The Provider's consultancy and recommendations, in the form of an objective and transparent analysis and presentation, will constitute an input for the consideration and decision of the Client and will serve as a basis for them to evaluate the results of the Services and make their own determinations.

 

In this sense, it is clearly understood that the interpretation criteria applied by the Provider, as well as any conclusion we reach, are not binding on the Client nor do they replace their duty to make decisions based on their own evaluation and estimation of risks.

 

The Client expressly acknowledges that, in the event of any negotiation or formal procedure with the authorities or third parties as part of the Services, a senior manager or director will take an active role in the decisions. In this sense, the Provider will not replace or substitute management in the Client's decision-making, nor will it function as an agent or representative without having the proper authorization and instructions from the Client, and as long as this is possible in accordance with our risk policies and independence.

 

The Client will have the final decision and must provide their consent and approval on the start, continuation or end of any process or negotiation that is entrusted to us, after evaluating (i) the procedure to follow; (ii) the strategy to be implemented during it; (iii) the risks involved in the process; (iv) continuation in higher stages and instances and (v) the necessary resources for its execution.

 

9.                The Provider's responsibilities

 

Considering that our Services imply the provision of professional services and the resolution of technical problems of special difficulty, in accordance with the provisions of article 1762 of the Civil Code, the Provider will only assume responsibility towards the Client for direct damages that have been caused by duly accredited gross negligence or willful misconduct, and this may not exceed the total fee amount agreed in any Proposal. If Services are of continued execution, the responsibility may not exceed the equivalent of three (3) months of service. If Services are recurring but not of continued execution, the responsibility may not exceed the equivalent of three (3) times the average monthly Service, taking as reference the invoiced amounts during the last fiscal year of the date of the claim.

 

Neither party will be responsible for direct or indirect damages that arise from circumstances beyond their control, or that are not attributable to them. Likewise, neither Party will be liable to the other for breach of its obligations due to an act of God or force majeure.

 

The Client agrees to reimburse us, as well as hold the Provider harmless; for any liabilities, expenses or other costs that we could reasonably incur with respect to any claim, complaint or demand raised by a third party (whether due to contractual, tort or any other type of liability) that arises from or is related to the Services that are the subject of any Proposal, including the claim of workers or third parties linked to the Client against the Provider. This refund will not be applicable to the extent that it is finally determined that the claim of the third party in question originated from fraud or inexcusable fault on our part.

 

No subsidiary, company, entity or person related to the Client, even if they receive or in any way benefit from our Services, may direct any type of claim against the Provider or its personnel. The Client will be responsible for any action conducted by its related entities, as well as for any damage or harm that they may cause to the Provider.

 

10.                Termination, assignment and renewal

 

Either party may terminate this agreement without cause, by sending a notarial communication at least thirty (30) days prior to the date of effective termination of the Services.

 

In case of termination of this agreement, the Client agrees to pay for all the Services that are provided until the effective date of termination, as well as to reimburse us for the expenses incurred in them.

 

The Client may not assign any right or its contractual position in this agreement, without the prior written authorization of the Provider. In particular, the Client agrees that it will not assign or transfer, directly or indirectly, any right to claim or collect against the Provider to any third party.

 

Any modification and renewal of this agreement must be formalized in writing and signed by both parties.

 

11.                Anti-corruption clause

 

Notwithstanding any other provisions of any Proposal, the Provider reserves the right to terminate any contractual and commercial relationship with the Client, immediately and without any penalty for the Provider, in the case of the Client, its related companies (both in Peru and abroad), shareholders, partners, directors, managers, legal representatives, attorneys-in-fact, employees, dependents and/or related parties (the “Related Parties”); have committed, participated, incited and/or permitted, directly or indirectly, any kind of crime against the public administration or acts of corruption against State and/or private officials; have offered, promised to give or actually given any kind of money, goods, perks, gifts, favors or any other goods or assets that may constitute a bribe in order to obtain an illicit benefit or undue advantage in their own favor or in favor of third parties; and/or have participated in acts that constitute money laundering, financing of terrorism or illicit financing of political campaigns, in any of its modalities, whether in Peru or abroad.

 

Our right to terminate the contract extends to cases in which the Client and/or its Related Parties are subjected to or incorporated into any type of investigation or process at the police, the Attorney General’s office or political level for any of the acts detailed in the previous paragraph and/or if they have confessed or admitted to committing any of the aforementioned illegal acts, for their own benefit or that of third parties, before any justice enforcement authority in Peru or abroad, including before police institutions, the Attorney General's office or any other authority of the Government; regardless of the state of said investigation or process, the result of the same or the imposition or not of a sanction of a criminal, administrative, civil or any other nature.

 

The Provider will communicate its decision to the Client through a notary, constituting the date of receipt of the letter, the date of termination of this agreement. Termination in accordance with this section does not exempt the Client from the obligation to comply with the payment of all fees accrued on the date of effective termination of the Services, and the Provider reserves the right to initiate legal actions of civil, administrative, criminal or other nature against the Client and/or its Related Parties for any damage suffered as a result of their responsibility or involvement in any of the events indicated in the preceding paragraphs.

 

12.                Law and jurisdiction

 

This contract is governed by the laws of the Republic of Peru.

 

Any dispute valued in over the amount of US$ 20,000 (twenty thousand US dollars) will be resolved through legal arbitration in accordance with the rules of the American Chamber of Commerce of Peru (AMCHAM), which will be final and unappealable. The arbitral tribunal will be made up of three (3) people, lawyers by profession. Each of the parties will name one of the arbitrators within the terms established by the arbitration regulations, and these in turn will name the third party, who will preside over the court.

 

The arbitration will take place in the city of Lima, Peru, in Spanish and Peruvian arbitration laws and practices will be applicable as long as they are pertinent. The arbitral tribunal will be empowered to execute its awards and decisions, even by request to any judicial authority that is competent to do so. The costs of the arbitration process will be borne by the losing party, unless the arbitral tribunal provides that they be borne proportionally by each of the parties.

 

Each party expressly waives any challenge that may be filed against the arbitration award before Peruvian or foreign judges and taxpayers.

 

Any dispute that is valued under the amount of US$ 20,000 (twenty thousand US dollars) will be resolved by the jurisdiction of judges and tribunals of the Lima Cercado judicial district. The Parties renounce other jurisdictions that may correspond due to their domiciles.

 

The Party that initiates legal proceedings will consider what is agreed in this clause and will comply according to what corresponds regarding if the controversy will be resolved by arbitration or by the jurisdiction of judges and tribunals.

 

13.                Sanctions

 

The Client declares and guarantees that neither them nor their related companies, shareholders, intermediate entities, directors, legal representatives or final beneficiaries, are included or have been considered within the lists of persons and entities sanctioned by the Government of the United States, the United Kingdom, the European Union, the United Nations Security Council or others that may be applicable, nor are they subject to limitations on free trade or national or international contracting of services.

 

Failure to comply with the provisions of the previous paragraph will entitle the Provider to automatically terminate this contract, without any liability or obligation.

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