GENERAL TERMS AND CONDITIONS

These Standard Terms and Conditions (the “Standard Terms and Conditions”) are applicable to all professional services provided by Kinship Law Partners, S.L.P. and are additional to any specific agreement entered into between Kinship Law Partners, S.L.P. and the Client (the “Engagement Letter”), which shall prevail over this document in the event of any discrepancy between the two.

 

1. DEFINITIONS

 

In this document the following terms have the following meaning: (i) “Kinship” means Kinship Law Partners, S.L.P., a professional services firm domiciled at Calle Génova, 27, 28004 Madrid and holding employer identification number B67682781; (ii) “Client” is the intended recipient of the Engagement Letter, and (ii) “Services” are the professional services under the Engagement Letter.

 

2. SCOPE OF APPLICATION

 

The Parties to the legal relationship governing the provision of Services are Kinship and the Client. Such Services shall be understood to be provided solely and exclusively to the Client and may not be assigned by the Client to third parties or used by persons other than the Client, without the prior express written authorization of Kinship.

 

The holder of the legal relationship with the Client is Kinship, on which are conferred all of the rights and obligations specific to the performance of the professional activity, regardless of the participation of the specific professionals and employees through whom the Services are provided. Kinship accepts full liability with respect to the Services provided in its name by Kinship’s professionals or employees.

 

3. SERVICES

 

Kinship shall provide the Client with the Services specified in the Engagement Letter issued for each specific engagement or case. Any amendment to the Engagement Letter shall be agreed on by Kinship and the Client and placed on written record.

 

Any decision regarding the performance, monitoring or implementation of any advisory services, counseling, opinions, or recommendations provided by Kinship within the context of the Services is at the exclusive discretion of the Client, which adopts such decision at its responsibility.

 

4. PARTNER RESPONSIBLE FOR THE CLIENT AND TEAM

 

The management and responsibility for each matter or Client corresponds to a Partner, who will be in charge of informing the Client of the progress of the work entrusted. The Partner in charge shall deal with any questions the Client may have regarding the organization and quality of the services provided.

 

The proposal for services and fees shall identify the Partner in charge and indicate which professionals will be involved in the task entrusted. The Partner in charge may, if requested by the Client, or if it is necessary or convenient for the best provision of the service, modify the assignment of professionals, informing the Client immediately.

 

5. INVOLVEMENT OF OTHER PROFESSIONALS UNRELATED TO KINSHIP

 

In the event of the participation of firms not belonging to Kinship (the “External Professionals”), unless expressly provided otherwise: (i) the involvement of Kinship in the case in question shall be limited to activities for coordination of and contact with the External Professionals; (ii) the professional services relationship shall be established directly between the Client and each of the External Professionals; (iii) Kinship’s fees shall be independent of those of the External Professionals; and Kinship shall assume no liability whatsoever for any advisory services provided to the Client by the External Professionals.

 

6. WORK TEAM

 

Without prejudice to the Proposal specifying, where applicable, the professionals or employees assigned to the Client or the matter in question, Kinship may, where it considers it appropriate or necessary in view of the needs of the Client or the matter, replace any of them or modify the number of professionals or employees assigned to the Client or the matter.

 

7. QUALITY OBLIGATION AND DEFENSE OF THE INTERESTS OF THE CLIENT

 

Kinship and its professionals undertake to defend the Client’s interests to the best of their ability, even in opposition to their own interests, those of a colleague or those of the profession in general.

 

The professional responsible for the matter shall act independently and shall not be obliged to accept or follow instructions from the Client that may affect his or her professional judgement.

 

8. INFORMATION, DOCUMENTATION AND CONFIDENTIALITY

 

Kinship shall request from the Client all the information and documentation that, in its opinion, is required for the proper and efficient provision of the Services. The information and documentation shall be sent by the Client to Kinship by the means deemed most appropriate. The Client represents and warrants that it is duly authorized and empowered to send the documentation and information it provides to Kinship and shall hold Kinship harmless from and against any third- party claim due to access to the information or documentation sent by the Client or at its request.

 

Kinship shall not be liable under any circumstances for any consequences that may arise for the Client because of having sent Kinship any inaccurate, untruthful, or incomplete information or documentation.

 

Kinship undertakes to safeguard the confidentiality of all the information and documentation received from the Client that is not in the public domain and may only disclose such information and documentation with the authorization of the Client or by order of any administrative or court authority or an authority authorized for such purpose. Where Kinship subcontracts word processing, translation, photocopying or other services to providers, it shall safeguard the confidentiality of the Client’s information and documentation by obliging the relevant providers to maintain confidentiality.

 

Kinship’s duty of confidentiality with respect to the information and documentation received from the Client shall not be applicable in respect of the representatives and contact persons of the Client itself or of other professional advisers of the Client participating in the same engagement.

 

On termination of the provision of Services, Kinship shall return to the Client all such original documentation as may be in its possession in relation to such Services or the specific case to which the Services refer, subject to prior notification from the Client of the terms on which such return is to be carried out.

 

The Client authorizes kinship to retain a copy of any information and documentation provided by the Client in relation to the provision of the Services for as long as it deems appropriate subject to Kinship’s duty of confidentiality. Kinship does not accept any obligation whatsoever to retain such copies for a specific period of time and may destroy its files without requiring any authorization whatsoever.

 

9. COMMUNICATIONS

 

The Client accepts unencrypted e-mails and the Clio legal software platform as a valid means for the flow and exchange of documentation and information and, in general, as a channel of communication with Kinship for the provision of the Services. The Client exempts Kinship from any liability for the interception of or access to e-mails by unauthorized persons, as well as from any damage or losses that may be caused to the Client as a result of computer viruses, network failures or similar circumstances, unless such circumstance is attributable to Kinship.

 

By mutual agreement and with respect to any predefined documents or information of particular materiality or sensitivity that so require, the parties may establish additional security measures and procedures for the sending and exchange of information and documentation.

 

10. PROFESSIONAL FEES

 

The fees for the provision of the Services to the Client shall be those established in the Engagement Letter, in line with the quantification methods established therein.

 

Unless specified otherwise, the estimated or budgeted fees are  net of VAT (Value Added Tax) and any other applicable indirect taxes, which shall be included in the invoice as separate items.

 

The fees and expenses must be settled even where the transaction or case to which the Services refer is not completed successfully.

 

The Client’s obligation to pay the fees and expenses to Kinship is separate from any right to which the Client may  be entitled with respect to third parties in relation to the Services provided.

 

Any retainers paid or deposits made by the Client shall be assigned by Kinship to pay amounts on behalf of the Client. The Client expressly authorizes kinship, subject to prior notice to the Client, to use the retainer paid or deposit made by the Client to pay any such amount as may be owed to Kinship in respect of fees or expenses, where such amount is due and payable.

 

In the case of advance payments or payments on account made by the Client in accordance with the Proposal, if, for any reason, upon termination of the Services there is a surplus in favour of the Client, Kinship shall immediately refund the same, in accordance with the Client’s instructions to that effect.

 

11. EXPENSES AND PAYMENTS COMMISSIONED BY CLIENT

 

The amount of fees does not include reasonable expenses that Kinship may incur in the provision of the Services, which shall be reimbursed by the Client.

 

External expenses that are a consequence of the work entrusted – such as, for example: trips, travelling, couriers, stays, meals, translations, external collaborators, creation of databases or computer files of documentation relating to the case, etc.- shall be detailed in the same invoice of professional fees or in another specific invoice.

 

The internal expenses generated by the development of the work entrusted -such as photocopies, bindings, faxes, telephone, videoconferences, mail, etc.-, shall be invoiced separately from the professional fees, in the same bill or in another specific one. For these purposes, expenses generated in periods other than those in which fees are invoiced may be added.

 

The supplements or payments commissioned by the Client -such as: notaries, registers, solicitors, court or other fees, investigators, managers, advertisements in the press and official gazettes, taxes- which are accrued for a specific job, may be met by Kinship after obtaining the corresponding provision of funds.

 

All expenses and supplies are (where required by law) subject to VAT, which is payable by the Client.

 

12. BILLING AND PAYMENT

 

Invoicing of professional fees and expenses incurred is carried out on a monthly basis within the first 15 calendar days of each month.

 

The professional shall inform the Client of the content and amount of the invoice before issuing the final invoice. The Client may, in any case, express any objections or considerations regarding the invoice, its content or its amount.

 

If the Client requests the provision of Services for companies under its control or for any other third parties, or in other cases in which the legal costs are borne by third parties, Kinship shall invoice the indicated entity directly, although the Client shall be liable for the payment of any amount not paid when due.

 

Unless the parties expressly agree otherwise, the invoices issued by Kinship shall be payable on demand.

 

Any objection on the part of the Client in relation to an invoice must be sent to the Kinship partner in charge of the engagement as soon as possible and, in such case, the portion of the invoice in relation to which there is no objection shall be payable.

 

In the event of the failure to pay an invoice, Kinship, upon giving written notice and pursuant to the professional regulations and code of ethics governing its activity, may suspend any Services provided to the Client, without such circumstance entitling the Client to make any claim or complaint for such suspension or for any such damage as may derive from such suspension. For as long as such situation of non-payment is maintained and also subject to the provisions of the governing professional regulations or code of ethics, Kinship may exercise the right to retain any such documents of the Client as may have been prepared by or with the participation of Kinship that may be in its possession at such time.

 

In accordance with the law, Kinship reserves the right to charge interest for late payment in the event of non-payment or unjustified delay.

 

Invoices shall be paid in the currency stated therein, unless otherwise agreed in advance with the Client. Kinship reserves the right to request payment of any costs incurred in converting the payment into this currency.

 

13. CONFLICTS OF INTEREST

 

Kinship provides services to a significant number of clients, both Spanish and foreign, in a very broad range of specialized fields and areas. Kinship has in place internal procedures to check and confirm potential conflicts of interest. Nonetheless, where the Client is aware of any circumstance that may, in its opinion, give rise to a situation of conflict of interest, it must notify Kinship immediately. Moreover, Kinship shall immediately inform the Client where it becomes aware of any conflicts of interest that may arise due to any circumstance, whether anticipated or not.

 

Kinship may act on behalf of any third party (even in the event that the interests of such third party are contrary to the interests of the Client, whether in or out of court), provided such services refer to cases or matters that bear no relation to the matters engaged by the Client from Kinship (and even where this may entail acting against the Client itself or against any other entity in which it has an interest), without there being any conflict of interest in such circumstance preventing Kinship from accepting and performing such engagements in favor of third parties, except in those cases in which, pursuant to the professional regulations or code of ethics governing Kinship’s activity, this proves impossible.

 

14. STATUTORY COMPLIANCE

 

Pursuant to the legislation in force on anti-money laundering and financing terrorism, Kinship is subject to obligations to check the identity of the Client and its operations and activities. The Client undertakes to provide Kinship, completely and accurately, with all such information as may be necessary and required of it for such purposes (both from the Client itself and, as the case may be, from its shareholders, investors, directors, related persons, etc.) and expressly authorizes Kinship to take any steps towards confirmation that it deems appropriate in such connection. Where it fails to obtain the necessary information, Kinship shall be unable to provide the Services to the Client, without such circumstance giving rise to any type of liability for Kinship.

 

Kinship is also subject, on the terms as laid down by law, to the obligation to notify the Enforcement Service of the Anti-Money Laundering and Monetary Infringements Commission (SEPBLAC) of any fact or operation, even on a purely tentative basis, in relation to which there is any indication or certainty that it is related to money laundering or the financing of terrorism, and must refrain from performing any operation where such circumstances come to light. Kinship shall not be liable to the Client for any such damage or loss as may be suffered by the Client as the result of kinship’s compliance with such statutory obligations.

 

In accordance with the provisions of Council Directive (EU) 2018/822 of 25 May 2018 (the “Directive”) and the applicable transposing legislation in the corresponding jurisdiction, Kinship may be obliged, when its actions may be classed as those of a “tax intermediary” and the exemptions provided for in the Directive and the transposing legislation do not apply, to report to the Spanish tax authorities or those of any other EU Member State in which Kinship is established any cross-border transactions that contain any of the hallmarks set out in the Annex to the Directive. This obligation takes effect from June 25, 2018.

 

15. TERMINATION

 

The Client may deem the provision of Services to have been terminated at any time, without any need to plead any grounds in such connection.

 

Subject to compliance with the professional regulations or code of ethics regulating its activity, Kinship may terminate the provision of Services in progress (or reject the management of one or more specific cases) at any time, with reasonable advance notice, due to loss of trust, ethical reasons, breach by the Client of the applicable legislation, or reasons of any other kind.

 

The Client shall at all times be obliged to pay the fees and expenses accrued to Kinship up to the date of termination of the Services.

 

On termination of the provision of the Service, Kinship shall be under no obligation to provide any additional service or furnish the Client with updated versions of the information, opinions, recommendations, counseling, or advisory services provided due to changes to the legislation or facts subsequent to that termination.

 

Unless Kinship and the Client agree otherwise, any access by the Client to the website (extranet) of the Service, in addition to the use of any connectivity computer programs licensed for such purposes and the sending of newsletters, round-ups and other commercial communications between the Client and Kinship, shall cease on the date of termination of the Services.

 

16. LIABILITY

 

kinship accepts full liability for the Services provided in its name by other Kinship entities or by professionals or employees belonging to Kinship, be they partners, employees or consultants.

 

Kinship shall be liable to the Client for any such damage or loss as may be caused to the Client for reasons attributable to Kinship or its professionals or employees as a result of the willful misconduct or gross negligence of any of them. Other than in the above cases, the extent of Kinship’s liability shall be governed by the terms of the relevant Engagement Letter. Under no circumstance shall Kinship be liable for any damage deriving from or caused, in whole or in part, by misrepresentation, concealment or any other conduct on the part of the Client that may be willful or negligent, or not performed in conformity with the principles of good faith, or for breaches arising for reasons outside of its reasonable control.

 

Kinship’s liability shall be limited to direct damage (excluding therefore loss of profit, loss of business or reputational damage) actually caused to the Client.

 

Kinship’s liability to the Client in relation to the Services is subject to a written claim sent by the Client, determining in sufficient detail the nature of the claim and the amount claimed, within not more than three (3) years from the date of termination of the provision of the Services, other than in the event of willful misconduct, in which case the statute of limitations shall apply.

 

Kinship’s potential liability shall arise solely with respect to the Client. Kinship shall not be liable for any such damage as may be caused to third parties as the result of any use the Client may make of the Services outside their intended purpose, unless such use has been expressly authorized by Kinship, in which case Kinship’s liability shall be brought into line with the terms and conditions agreed on for such purpose.

 

The Client undertakes not to induce any third party to file a claim against other Kinship entities or against Kinship professionals or employees in relation to the services.

 

In the event of a claim by the Client against Kinship on any ground, where External Professionals or other persons or entities unrelated to kinship act in the engagement Services and may be held liable, Kinship’s proportional liability to the Client may not be increased as a result of: (i) an agreement with another liable person limiting or exempting their liability; or (ii) the inability to obtain indemnification from another liable person.

 

Under no circumstances shall Kinship be deemed exempt from liability for acts or omissions where relief from liability is not available pursuant to the applicable laws or provisions, nor may it be reduced below the relevant minimum amount per claim (with respect to which liability exists) pursuant to the applicable legislation.

 

17. PERSONAL DATA PROTECTION

 

If you are the representative of a legal entity client we shall process your data based on the legitimate interest in keeping in contact with the entity you represent. If you are a self-employed worker or natural person we shall process your data on the basis of our contractual relationship in order to provide the services requested. You may exercise your rights of access, rectification, erasure, restriction of processing and objection at any time by contacting the Company at the following address privacy@kinshiplaw.com. We shall not disclose your personal data to any third parties unless there is a legal obligation to do so, we expressly inform you accordingly, and it is necessary in order to provide the services. The Company’s service providers that have to access your data to provide these services may access your personal data.

 

In the event that Kinship needs to access personal data controlled by the client as part of the services subject-matter of this Engagement Letter, the indications made in this clause shall apply. The client, as controller of the personal data, makes available to Kinship the identifying particulars of its employees, clients, service providers and/or contact persons. The provision of services by Kinship implies the performance of the necessary processing to provide the service, such as collection, recording, structuring, alteration, storage, retrieval, consultation, dissemination, combination, alignment, restriction, erasure, destruction or any other resulting from the services indicated in the Engagement Letter.

 

Kinship states that: – It has sufficient technical capacity to fulfill its obligations resulting from the provision of services in relation to personal data protection legislation and it can give an undertaking, to the extent required by the provision of the services, to comply with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”). It shall maintain the secrecy and confidentiality of any personal data controlled by the client to which it shall have access and shall process them solely on behalf of the client. It shall use said data solely in order to provide the services and, shall not use them or apply them in any way that exceeds such purpose. Should the client request any type of processing that exceeds the provision of the service, it shall set it out in writing through the relevant instructions. – It shall not disclose to third parties, not even for their storage, any data to which it has access by virtue of the provision of the services, or any preparations, evaluations or similar processes it may carry out with said data, nor shall it duplicate or reproduce some or all of the information, results or relationships regarding such data, save where legally required to do so. – It shall make available to the client, at the client’s request, all information necessary to evidence the fulfilment of its obligations, and for the performance of any audits or inspections carried out by the client, or any other auditor on its behalf. – It has appointed a data protection officer whose contact details are as follows: privacy@kinshiplaw.com. – The persons in Kinship who are authorized to process personal data, expressly undertake in writing to respect the confidentiality and to comply with the relevant security measures. Kinship shall provide the necessary training in personal data protection to the authorized persons. – It shall provide the necessary support to the client in performing impact assessments and prior consultations to the supervisory authority, where applicable and reasonably necessary. – In the event that Kinship considers that complying with a particular instruction given by the client could involve the breach of data protection legislation, it may suspend the application of the corresponding instruction while it waits for a decision by the client in relation to the withdrawal, correction or confirmation of the instruction. Should the client decide not to modify the instruction, even against kinship’s recommendations, the client shall hold Kinship harmless from any penalty or claim that may arise as a result of the application of the instruction that violates data protection legislation. – On completion of the services and at the client’s request, it shall return the personal data to which it has had access, as well as any documents or media on which such data are recorded. In such event, the costs of returning the data may be charged to the client. In particular, Kinship undertakes to return: (i) any data included in the filing systems controlled by the client that the client may have made available to Kinship as a result of the provision of the services; (ii) any data generated (where applicable) as a result of the processing by Kinship of the data controlled by the client; and (iii) all media or documents on which any such data are recorded. – As data processor, it shall notify without delay and in all cases within a maximum of 24 hours, via email, of any suspected or confirmed incident relating to protection of the data, any data processing that may be considered unlawful or unauthorized, any loss, destruction or damage to personal data within the area of responsibility of Kinship (caused by Kinship, its personnel, agents or subcontractors) and of any incident that may be considered a personal data breach, together with all relevant information in order to document and communicate the incident to the authorities or affected data subjects. Also, It shall also assist the client, in the event of a personal data breach, in order to ensure compliance with the obligations to notify a personal data breach in accordance with the GDPR (in particular, articles 33 and 34 GDPR) and with any other applicable rules that may amend or supplement it or which may be enacted in the future. – It shall assist the client when asked to do so by means of a reasonable request, providing the information and/or documents required by the client to adequately respond to any request to exercise the rights of access, rectification, erasure, objection, restriction of processing and/or portability it may receive from data subjects, all within reasonable time periods. – Where Kinship directly receives a request to exercise the rights of access, rectification, erasure, objection, restriction of processing and/or portability from the data subject, it undertakes to immediately convey such request to the client so that the client can respond to the request by the legally established deadline. – It shall not outsource the services to any third parties unless they are logistics, technology or systems services that Kinship requires in order to provide its services correctly. Where Kinship needs to outsource any data processing, it shall inform the client of the services and processing it intends to outsource, the identity of the subcontractor and its contact details. This notice must be served by Kinship as soon as possible. – It shall keep a written record of all categories of processing activities carried out by virtue of the Contract. – It shall not carry out international transfers of the personal data controlled by the client to which it has access, unless it obtains prior written authorization from the client or they are duly regulated. – It shall have a general description of the technical and organizational security measures relating to: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) the process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. – It has implemented all technical and organizational security measures applicable in accordance with the provisions of the GDPR (in particular, without limitation, article 32 thereof). The security measures applicable to the services are those indicated above and, in particular, those established in the ISO-27001 certification. The security measures may be updated if it is compulsory to do so under any rules that may be enacted in the future. Should this affect the cost of the services engaged, the parties shall agree on the appropriate measures to resolve the situation.

 

18. INTELLECTUAL PROPERTY RIGHTS

 

The intellectual property rights in the documentation created and in the original ideas conceived by reason of the provision of the Services shall be held by Kinship.

 

The Client may utilize, exclusively for its own use, all the documentation created by Kinship by reason of the provision of the Services, and may not distribute such documentation or provide access thereto to other persons other than the Client, without the express prior written consent of Kinship.

 

19. ENTIRE AGREEMENT

 

These Standard Terms and Conditions replace and render null and void any earlier agreement between the Client and Kinship. Unless provided otherwise by the Client and Kinship, these terms and conditions represent the entire agreement reached by the parties in relation to the professional services engaged, and shall generally be supplemented by one or more Engagement Letters which, among other elements, shall include the specific services to be provided, the team responsible for doing so and the relevant fees.

 

Unless provided otherwise, these Standard Terms and Conditions shall apply to any future engagement made by the Client to Kinship.

 

Kinship shall not be obliged to commence the provision of the Services until it has received for its files the acceptance of the proposal, with reference to these General Conditions, and payment of the fees associated with the acceptance of the Proposal on the terms agreed in the Proposal. The sending of any instructions to kinship from the Client shall be construed as a tacit acceptance of these Standard Terms and Conditions.

 

Should it be determined that any of these terms and conditions are null and void, none of the remaining terms and conditions shall be affected thereby, and they shall remain fully in force.

 

20. GOVERNING LAW. JURISDICTION

 

The relationship between the Client and Kinship is expressly subject to Spanish law.

 

In order to hear any such disputes or claims as may arise over the interpretation or performance of the legal relationship between the Client and Kinship, the two parties, with an express waiver of any other jurisdiction to which they may be entitled and notwithstanding the mandatory provisions on jurisdiction, voluntarily submit to the Courts and Tribunals of Madrid.