1. INTRODUCTION
1.1. General Terms and Conditions
These general terms and conditions (the “General Terms and Conditions”) apply to the relationship between Bonn Steichen & Partners, a limited partnership under Luxembourg law, registered in the Luxembourg Trade and Companies Register under number B211933, with its registered office at 11, rue du Château d’Eau, L-3364 Leudelange, and listed on List V of the Luxembourg Bar (“BSP”), and its clients. Clients acknowledge and agree that BSP is the sole contracting party and that the Legal Services, as defined below, will be provided by its partners, associates, lawyers or employees acting exclusively on behalf of BSP.
By engaging BSP, in whatever form, including in particular by signing an Engagement Letter, by email or by any other means, clients agree to be bound by these General Terms and Conditions.
BSP reserves the right to amend or replace these General Terms and Conditions, in whole or in part, at any time.
In the event of any inconsistency between the provisions of these General Terms and Conditions and those of the Engagement Letter or any other specific agreement as agreed in writing between BSP and clients (including by email), the provisions of the latter shall prevail.
The Engagement Letter (or, where applicable, any other written document, including email correspondence) on the one hand, and these General Terms and Conditions on the other, together constitute the "Agreement".
1.2. Effective Date
The Agreement shall take effect on the earlier of the following dates: (i) the date of signature of the Engagement Letter or, where no Engagement Letter is entered into, the date of the written communication (including email) by which BSP is engaged, and (ii) the date on which the provision of all or part of the Legal Services commences.
2. LEGAL SERVICES
2.1. Legal Services
BSP undertakes to provide the Legal Services, as detailed in the Engagement Letter or in any other written document, including any email correspondence, (the "Legal Services") with all requisite diligence and skill, and in strict compliance with the professional conduct rules applicable to the legal profession.
BSP reserves the right to change, at any time, the composition of the team responsible for providing the Legal Services.
The provision of Legal Services by BSP is subject to the clients’ compliance with their obligations under Articles 3 and 10 of these General Terms and Conditions.
BSP is bound by professional secrecy and owes its clients a duty of advice and information.
BSP shall keep clients regularly informed of developments in the matter and the steps taken.
Any documentation, analysis or opinion provided under the Agreement is strictly for the clients’ use only and may not be disclosed or transferred to third parties without BSP’s prior written consent.
2.2. Oral legal opinions and draft legal opinions
Only final written legal opinions issued by BSP shall be binding on BSP, to the exclusion of any oral, informal or draft opinion. Should clients wish to rely on an oral legal opinion, they are invited to inform BSP so that BSP may, where appropriate, formalise such opinion in writing.
An opinion from BSP shall only be considered final and legally binding if it is signed by one of BSP’s partners and sent by post, fax or email, in PDF format in the case of a legal memorandum or legal opinion.
2.3. No Updating Obligation
The Legal Services are based exclusively on Luxembourg law in force at the date of their provision and are not subject to any obligation to be updated subsequently. BSP makes no commitment to inform the client of any subsequent changes (in particular changes in legislation or case law) relating to any matter covered by the Legal Services.
2.4. Communication
BSP will communicate with its clients by email, post, fax or telephone. Unless otherwise specified in writing, BSP’s communications will primarily be sent by email. It is the clients’ responsibility to ensure that communications to the email address provided are correct and sufficiently secure, as BSP cannot be held liable for any failure to receive, access or maintain confidentiality resulting from the use of that address.
3. CLIENTS’ OBLIGATIONS
Clients undertake to provide BSP, in a timely manner, with all information necessary to enable BSP to fulfil its obligations under Luxembourg law, the Agreement and these General Terms and Conditions.
In this regard, clients undertake in particular to:
- provide without delay all documents and information required to enable BSP to fulfil its obligations under the rules and regulations relating to the prevention of money laundering and terrorist financing; and
- provide BSP with all information and documents necessary for the performance of the Agreement, and inform BSP of any new developments or changes that may affect the file.
Clients remain solely responsible for the accuracy and completeness of all data, information and documentation provided to BSP.
4. FEES
4.1. Payment
Clients undertake to pay BSP’s fees for the Legal Services provided, as agreed in the Engagement Letter or in any other written agreement, including via email correspondence.
4.2. Hourly rates
BSP’s fees for the provision of Legal Services will be invoiced at the hourly rates set out in the Engagement Letter or in accordance with any other agreement previously agreed in writing between BSP and the clients.
BSP may amend the applicable hourly rates from time to time.
4.3. Basis of calculation
BSP’s fees are calculated on the basis of the time actually spent on the provision of Legal Services and take into account, where applicable, other relevant criteria, including the complexity of the matter, its degree of urgency, the inherent risks, the use of specific techniques, the know-how and research required, as well as the level of skills and expertise necessary to perform the Legal Services and, where applicable, the value of the proposed transaction. BSP’s fees may include time spent travelling for the purposes of the Legal Services which could not be used productively for other purposes.
4.4. Expenses and administrative charge
In addition to its fees, BSP will also charge a flat-rate administrative charge equivalent to 5% of the total fees, intended to cover administrative expenses incurred in connection with the provision of the Legal Services, including, in particular, document-processing, costs associated with the use of technological tools, communication costs and general administrative support.
Any additional expenses incurred on behalf of clients and eligible for reimbursement (such as, but not limited to, travel expenses, courier charges, translation costs, fees payable to external service providers and/or public authorities or public officials, costs of publication in official gazettes, notary fees, fees payable to the Trade and Companies Register, Luxembourg) will be invoiced separately and may be substantiated by appropriate documentation upon request.
4.5. Taxes
Clients also undertake to pay all taxes, levies, duties and deductions of any kind, including VAT, due in connection with the Legal Services. Clients undertake to pay the full amount of each invoice issued by BSP, without set-off or deduction, including any withholding or deduction. In the event that a withholding or any other deduction is required by law, the amount due by the client shall be increased so that BSP receives, after application of such withholding or deduction, a net amount equal to the amount that would have been due to it in the absence of such withholding or deduction.
4.6. Advance payment of fees
BSP may, at any time, request the payment of advances on fees, both in respect of Legal Services already provided and in respect of Legal Services to be provided.
In the event of failure to pay any advance invoice in full within fifteen (15) days of its date of issue, BSP reserves the right, without prejudice to its other rights and remedies, to immediately suspend the provision of all or part of the Legal Services until full payment of the sums due.
4.7. Invoices and payment
Invoices issued by BSP for Legal Services are payable within thirty (30) days of the date of issue. In the event of non-payment by the due date, BSP reserves the right to suspend or cease all future services. Any delay in payment exceeding thirty (30) days shall, as of right and without prior notice, give rise to the application of interest for late payment in accordance with Directive 2011/7/EU of 16 February 2011 on combating late payment in commercial transactions, as well as the Law of 18 April 2004, as amended, relating to payment periods and interest on late payments.
BSP is entitled to exercise a right of retention over all documents, files and work produced in any form whatsoever, until full payment of all sums due or payable.
5. CONFIDENTIALITY
5.1. Confidential Information
BSP and the clients undertake to use the other party’s confidential information exclusively in connection with the provision of Legal Services and not to disclose it to third parties, unless such disclosure is required by law, regulation or by a professional body or other competent authority to which BSP is subject.
5.2. Right of reference
Clients authorise BSP to refer to the Legal Services provided and related transactions for professional communication purposes, in particular to professional ranking guides and directories of law firms, on the understanding that BSP shall not disclose any confidential information protected by professional secrecy without the clients’ prior written consent.
5.3. Non-exclusivity
Clients acknowledge and agree that BSP may provide Legal Services to competitors or other parties whose interests may be adverse to those of clients, subject to BSP’s compliance with its confidentiality obligations towards clients and the ethical rules applicable to the legal profession.
6. USE OF ARTIFICIAL INTELLIGENCE TOOLS
In the course of providing Legal Services, BSP reserves the right to use technological tools, including artificial intelligence tools (the “AI Tools”), in order to optimise the quality, efficiency and speed of its services.
AI Tools may be used for the following purposes:
- legal and documentary research;
- document and data analysis;
- summarising and compiling documents;
- drafting and reviewing legal documents;
- the management and organisation of client files;
- any other purpose contributing to the improvement of the provision of Legal Services.
The use of AI Tools is carried out under the constant supervision and control of BSP’s lawyers. Any results generated by the AI Tools are subject to verification, validation and, where necessary, adaptation by a qualified lawyer before being communicated to clients or used in the context of Legal Services.
BSP remains fully liable for the Legal Services provided to clients, irrespective of the use of AI Tools. The use of such tools shall in no way limit or exclude BSP’s liability as defined in Article 9 of this Agreement.
The use of AI Tools shall be carried out in strict compliance with:
- the confidentiality obligations set out in Article 5 of these General Terms and Conditions;
- the professional secrecy to which BSP is subject in its capacity as a lawyer;
- the applicable regulations on the protection of personal data, in particular the GDPR (as defined in Article 8 of these General Terms and Conditions);
- the rules of professional conduct applicable to the legal profession in Luxembourg.
BSP undertakes to select AI Tools offering sufficient guarantees in terms of security, confidentiality and data protection. BSP ensures that the providers of these tools comply with the requirements of the GDPR and implement appropriate technical and organisational measures.
Clients acknowledge and accept that the use of AI Tools may involve the processing of their personal data and confidential information. Such processing is carried out exclusively for the purposes of providing Legal Services and under the conditions set out in Article 8 of this Agreement.
Clients have the right to object to the use of AI Tools for the processing of their case, provided they inform BSP in writing. In such cases, BSP undertakes not to use such tools for the Legal Services in question, on the understanding that this restriction may have an impact on the timescales and/or costs of service provision.
7. INTELLECTUAL PROPERTY RIGHTS
BSP shall retain the intellectual property rights to the legal opinions and all documents produced under the Agreement. Clients are granted a non-exclusive and non-transferable right to use these legal opinions and documents for their own purposes.
8. DATA PROTECTION
In accordance with the provisions of the data protection law applicable in the Grand Duchy of Luxembourg and Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("GDPR"), clients acknowledge and, where applicable, consent by appropriate means that BSP may collect, store and process, electronically or by other means, their personal data such as their contact details and identification data, financial information and any other personal data provided to BSP that enables BSP to fulfil its contractual obligations for the purposes of (i) providing Legal Services, including, where applicable, the use of technological tools such as artificial intelligence tools, (ii) processing communications received from clients, including telephone or email contacts, and responding to their queries, (iii) complying with its legal obligations, in particular to fulfil its obligations as a Luxembourg legal adviser in the context of anti-money laundering and market abuse regulations, (iv) to handle potential client complaints, (v) to maintain and manage BSP’s administrative management or client relationship management systems, including the use of external IT service providers, and (vi) to provide clients with information about BSP, its range of services, newsletters, communications, updates and invitations to its events.
BSP has implemented appropriate technical and organisational security measures to protect clients’ personal data against loss, misuse and unauthorised access.
Personal data may be shared with (i) BSP S.à r.l., the general partner and managing partner of Bonn, Steichen & Partners, (ii) any service provider to the extent necessary for the performance of its services and subject to appropriate safeguards put in place to comply with the requirements of the GDPR, (iii) certain authorities or similar institutions to the extent necessary for the performance of the Agreement or because this is required by law, or (iv) any public authority or court, in accordance with legal, judicial or other valid legal proceedings against BSP.
Recipients may be located within or outside the European Union, provided that, in the latter case, the country concerned ensures an adequate level of protection, or that such transfer is based on an adequacy decision, or that appropriate safeguards have been put in place, or, finally, that clients have consented to such a transfer.
Personal data will be retained for as long as required for the performance of the Legal Services and for as long as required or permitted by law. Where the processing of personal data is no longer necessary in the context of the Legal Services for which it was collected, the personal data will be deleted.
If the personal data processed by BSP is incorrect, incomplete or irrelevant, clients may request that it be rectified or deleted.
If clients have given their consent to the processing of their personal data, they may withdraw their consent.
Should you have any questions or queries regarding clients’ rights in relation to the protection of personal data or the way in which BSP processes their personal data, clients are invited to consult BSP’s privacy policy, available on its website (www.bsp.lu), or to contact BSP’s Data Protection Officer at the following address: dpo@bsp.lu.
9. LIABILITY
9.1 Principle
BSP is liable for any fault or negligence attributable to it in the performance of its obligations under the Agreement, in accordance with the provisions of the general law on professional civil liability applicable to lawyers.
BSP declares that it holds professional liability insurance covering the financial consequences of its professional liability, subject to the terms and limits set out in the said policy.
9.2. Exclusion and limitation of BSP’s liability
BSP shall not be held liable
- in the event of fault, negligence or breach attributable to clients, including in the event of the provision of incorrect, incomplete or late information;
- to compensate for or indemnify the following losses or damages: (i) any loss, alteration or corruption of data originating from clients’ systems; (ii) any loss of profits, turnover, goodwill, business opportunities, anticipated savings or lost earnings; or (iii) any indirect, consequential or immaterial loss, of whatever nature.
In any event, BSP’s total liability to clients, in respect of all heads of loss and including interest, is, except in the case of gross negligence or wilful misconduct on its part, strictly limited to the amount actually paid, where applicable, under BSP’s professional indemnity insurance policy in the matter in question, it being understood that if no such amount is paid, BSP’s aforementioned liability shall be limited to an amount equal to five (5) times the amount of the net fees actually received under the Agreement.
9.3. Action against BSP only
Any action, claim or proceedings, including those based on negligence, brought in connection with or arising out of the Legal Services may only be brought against BSP, which remains the clients’ sole contracting party.
No action may be brought directly against the partners, associates, employees or representatives of BSP, who act exclusively in their capacity as members or representatives of BSP.
9.4. Effects of third-party liability
In the event that BSP is held liable to clients under this Agreement and a third party is also liable for the same loss (excluding any loss resulting from contractual agreements between BSP and that third party), the compensation payable by BSP to clients shall be reduced in proportion to the share of liability attributable to that third party. In determining this share of liability, no account shall be taken of: (a) any contractual limitation or exclusion of the amount that such third party would be required to pay; nor (b) any impossibility of recovery from such third party, whatever the cause.
9.5. Involvement of third parties
Where possible, BSP will consult with clients in advance before engaging third parties in the provision of Legal Services. In any event, BSP undertakes to exercise reasonable care in the selection of such third parties. BSP shall not be held liable for the acts or omissions of such third parties. Clients expressly authorise BSP to accept, in their name and on their behalf, any limitation of liability agreed by such third parties in connection with their involvement.
10. ANTI-MONEY LAUNDERING AND COUNTER-TERRORIST FINANCING
In accordance with the applicable Luxembourg regulations on the prevention of money laundering and terrorist financing, BSP is required to identify its clients and obtain sufficient knowledge of them, in particular regarding their identity, their business activities, their beneficial owners and any legal entity involved in the transaction, their ownership and control structure, the purpose and objective of the transaction, the origin of the funds, and the nature of the funds likely to pass through BSP’s accounts, together with sufficient information regarding the identity of the beneficiary or creditor of such funds.
In this regard, clients undertake to provide BSP, immediately and upon first request, before BSP commences providing the Legal Services, and throughout the term of the Agreement, all identification documents, data and information necessary or useful relating in particular to their identity, their business, the subject matter and purpose of the transaction, the identity of the beneficial owners, the origin of the funds (including those of the beneficial owners), as well as any other documentation that BSP deems necessary in view of its legal and regulatory obligations.
The aforementioned regulations also require BSP to exercise constant vigilance with regard to its clients and, where applicable, to report any suspicious transaction or activity to the competent authorities, where BSP knows, suspects or has reasonable grounds to suspect that funds or assets are linked to money laundering or an underlying offence, including tax fraud.
In such a case, BSP’s legal obligation to report takes precedence over any obligation of confidentiality or professional secrecy, within the limits provided for by law. BSP shall not be held liable for any loss suffered by clients resulting from such a report or disclosure made in accordance with its legal obligations.
11. RULES ON REPORTING CROSS-BORDER ARRANGEMENTS: DAC6
Directive (EU) 2018/822 amending Directive 2011/16/EU as regards the automatic and mandatory exchange of information in the field of taxation in relation to reportable cross-border arrangements (the "DAC6 Directive"), as transposed by the Luxembourg Law of 25 March 2020 (the "DAC6 Law"), requires intermediaries and taxpayers to report arrangements that meet certain "markers". Information on these reportable arrangements collected by a Member State will be automatically exchanged with other Member States that may have an interest in the arrangements. These mandatory reporting rules came into force on 25 June 2018.
The DAC6 Directive covers arrangements relating to taxes of any kind (with the exception of VAT, customs duties and excise duties, as well as social security contributions) and meeting at least one of the identified hallmarks. For the purposes of the DAC6 Law, five categories of hallmarks are taken into account, which are divided into specific hallmarks relating to the principal benefit test, specific hallmarks relating to cross-border transactions, specific hallmarks concerning the automatic exchange of information and beneficial owners, and specific hallmarks concerning transfer pricing. The term ‘taxpayer’ refers to any person to whom a reportable cross-border arrangement is made available for the purpose of its implementation, who is prepared to implement such an arrangement, or who has implemented the first step thereof. Taxpayers who are not resident in any of the EU Member States may, in certain circumstances, be required to report a cross-border arrangement they have entered into.
For the purposes of the DAC6 Law, the term "intermediary" includes "any person who knows or could reasonably be expected to know that they have undertaken to provide, directly or through other persons, help, assistance or advice in relation to a reportable cross-border arrangement". This definition is not limited to lawyers and tax advisers and encompasses any lawyer or adviser who may be indirectly involved in a tax arrangement. Lawyers acting as intermediaries within the meaning of the DAC6 Law are, however, exempt from the reporting obligation due to their professional secrecy.
BSP, being bound by professional secrecy, is not required to report any cross-border arrangements directly to the Luxembourg tax authorities. Furthermore, BSP is not required to inform other intermediaries who are not its clients, in accordance with Circular No. 001/2022-2023 of the Luxembourg Bar Council.
In this context, if no other intermediaries are involved in the reportable arrangement, or if all intermediaries involved are bound by professional secrecy, BSP is legally obliged to inform the taxpayer concerned of their reporting obligations under the DAC6 Directive. If BSP considers that the transaction in which the client is involved falls within the scope of DAC6 and constitutes a reportable cross-border arrangement, BSP will comply with its legal obligations and the client will be informed by BSP of their obligation to report the arrangement. BSP shall not be held liable for any loss or damage arising, directly or indirectly, from the existence or fulfilment of a reporting obligation under DAC6.
12. RETENTION PERIOD
BSP retains its clients’ files for a period of ten (10) years following the completion of its engagement.
13. TERMINATION
13.1. Immediate termination
To the fullest extent permitted by applicable law, each party may immediately terminate this Agreement as of right (without formal notice or any other judicial or extrajudicial proceedings) by giving written notice to the other party in the following cases: (i) a material breach by the other party of any of its obligations under the Agreement, which has not been remedied within fourteen (14) days of receipt of written notice thereof, (ii) the inability of either party to meet its financial commitments or to settle its invoices within the agreed timeframes, or in the event of insolvency proceedings affecting that party, or (iii) where the performance of the Agreement (including its provisions relating to fees) is likely to contravene a legal or regulatory requirement.
13.2. 30 days’ notice
In all other cases, either party may terminate the Agreement by giving thirty (30) days’ written notice.
13.3. Fees payable upon termination
Clients undertake to pay BSP all fees and costs relating to the Legal Services provided up to the date on which the termination of the Agreement takes effect. Where a fixed fee has been agreed for the Legal Services, the clients undertake to pay BSP for the work carried out on the basis of time spent at the applicable hourly rates, up to the agreed fixed amount. Any success fee shall remain payable in accordance with the terms of the Engagement Letter or, where applicable, any other written agreement between the parties (including email correspondence). If, for legal or regulatory reasons, a success fee cannot be charged, the clients undertake to pay for the Legal Services provided on a time-spent basis, unless otherwise agreed in writing between the parties.
14. SETTLEMENT OF DISPUTES
14.1. Attempt at amicable settlement
In the event of a dispute relating to the Agreement or the Legal Services, the parties undertake to attempt to resolve it in good faith through discussion and negotiation before initiating any legal proceedings.
14.2. Governing Law and Jurisdiction
The Agreement is governed by Luxembourg law and falls within the exclusive jurisdiction of the courts of the judicial district of Luxembourg City.
15. GENERAL
15.1. Force majeure
Neither party shall be held liable for any failure to perform its obligations resulting from an event constituting a force majeure, as defined by Luxembourg law.
15.2. Entire Agreement
This Agreement constitutes the entire agreement between the parties in relation to the Legal Services. It supersedes any prior agreement, undertaking, statement or discussion, whether written or oral, relating to the same services.
15.3. Multiple clients
Where the clients consist of several natural and/or legal persons, their obligations are joint and several, and any act or omission by one of them shall be deemed to constitute an act or omission by all the clients.
15.4. No rights in favour of third parties
The Agreement does not confer any rights on third parties, who may neither rely on it nor seek its enforcement.