Canada: Bumping Foreign Affiliate Shares Under The February 27, 2004 Proposals

The February 27, 2004 foreign affiliate proposals present a number of interesting issues for an acquiror of a Canadian target company that owns foreign affiliate shares, particularly where the acquisition is structured to preserve the availability of the tax cost "bump" under paragraphs 88(1)(c) and (d) of the Income Tax Act (Canada)1. This article first briefly reviews the limitation in proposed paragraph 88(1)(d.4) (including the modified proposal) that would erode the bump room in respect of foreign affiliate shares where prior dividends have been deductible under section 113. It then examines the surplus and deficit reset rules in proposed Regulations 5905(5.1) and (5.2) that will be relevant where the acquiror applies the tax cost bump to foreign affiliate shares. Finally, the article discusses the possibility of achieving a tax cost bump of foreign affiliate shares under the paragraph 111(4)(e) election without losing historical underlying surplus balances.

88(1)(d.4) Bump Room Limitation

As originally proposed, paragraph 88(1)(d.4) would have reduced the bump room available in respect of the shares of any top-tier foreign affiliate of the Canadian target company, to the extent that any historical dividends had been paid by the foreign affiliate that were deductible under section 113, except to the extent such dividends were paid out of exempt and taxable surplus arising after the acquisition of control.

The proposed mechanic to achieve this result involves a deemed addition to "cost amount" for purposes of the first of the two overall bump limitations in subparagraph 88(1)(d)(ii). That provision limits the amount of the available bump designation in respect of a particular non-depreciable capital property of the target to the amount by which the fair market value of that property, at the time the acquiror acquired control of the target, exceeds the cost amount to the target of that property immediately before the winding-up or vertical amalgamation of the target into the acquiror. In other words, subparagraph 88(1)(d)(ii) ensures that the cost of non-depreciable capital property of the target distributed to the acquiror on the winding-up or vertical amalgamation is not bumped above its fair market value at the time of the acquisition of control.

Proposed paragraph 88(1)(d.4), as worded in the February 27, 2004 draft legislation package, would add to "cost amount" in subparagraph 88(1)(d)(ii) in respect of shares of a particular foreign affiliate for which a bump designation is made, the amount of all historic section 113 dividends received on shares of that foreign affiliate, except to the extent the dividends were paid out of exempt or taxable surplus arising after the acquisition of control of the target. The effect of adding all prior section 113 dividends to "cost amount" is to reduce the amount that can be designated under paragraph 88(1)(d) in respect of the shares of the particular foreign affiliate. With a reduced designation amount allowed for purposes of paragraph 88(1)(d) by virtue of the paragraph 88(1)(d.4) deemed addition to "cost amount", the acquiror's cost of the foreign affiliate shares under paragraph 88(1)(c) may be bumped only by this reduced amount, and not up to the full fair market value of the foreign affiliate shares at the time of the acquisition of control.

This appears to have been an unintentionally overbroad limitation on the bump room. Why should all dividends paid by a foreign affiliate before the acquisition of control of the target erode the available bump room in respect of the shares of that foreign affiliate? It is only post-acquisition of control foreign affiliate dividends paid out of pre-acquisition of control surplus balances that potentially allow a "double dip" of surplus and basis attributes. The bump effectively treats an acquiror as if it had directly purchased the toptier subsidiaries of the target, by allowing the acquiror to take its tax cost in the shares of the target that disappear on the winding-up or vertical amalgamation, and "push down" that disappearing tax cost to the shares of top-tier target subsidiaries (and other nondepreciable capital property). Where those top-tier target subsidiaries are foreign affiliates, arguably the correct result under the bump is the result that would be obtained had the foreign affiliate been purchased by the acquiror directly – namely full fair market value tax cost (a full bump), but with surplus balances commencing only with the acquisition of control time when the foreign subsidiary first became a foreign affiliate of the acquiror. The proposed surplus reset rules in Regulations 5905(5.1) and (5.2) deal appropriately with the latter point and are discussed below. But the bump limitation in proposed 88(1)(d.4), insofar as the bump room is reduced by pre-acquisition of control dividends, is unwarranted.

Recognizing this, on May 9, 2005, Finance proposed modifications to the version of paragraph 88(1)(d.4) originally released.2 In the modified version, there will be an addition to the "cost amount" in subparagraph 88(1)(d)(ii) in respect of shares of a foreign affiliate of target (and a corresponding reduction of bump room in respect of those shares) only to the extent the foreign affiliate paid dividends after the acquisition of control of target that were deductible under paragraphs 113(1)(a) or (b) and were paid out of exempt and taxable surplus earned before the acquisition of control of target. The effect will be to disregard historical pre-acquisition of control dividends paid by the foreign affiliate, and allow a full bump of foreign affiliate shares up to their fair market value at the time the acquiror acquires control of target, just as if the acquiror had purchased the foreign affiliate shares directly.

Regulation 5905(5.1) and (5.2) Surplus/Deficit Reset

As noted above, the surplus and deficit reset rules in proposed Regulations 5905(5.1) and (5.2) work together with proposed paragraph 88(1)(d.4) (as proposed to be modified) so that after a bump of top-tier foreign affiliate shares, the acquiror enjoys the same tax attributes as if the foreign affiliate shares had been purchased directly. Arguably, the correct result from a tax policy perspective is that upon a tax cost bump under paragraphs 88(1)(c) and (d), historical exempt and taxable surplus balances generated prior to the acquisition of control should effectively be converted into pre-acquisition surplus (i.e., surplus balances should be reset to nil). This is because upon a direct purchase of the foreign affiliate shares, the "exempt surplus" and "taxable surplus" balances of the foreign affiliate in respect of the acquiror (as each is defined in Regulation 5907(1)) includes earnings and transactions only in respect of the period beginning with the first day of the taxation year of the foreign affiliate in which it last became a foreign affiliate of the acquiror. While the transition tax year timing difference is acknowledged, as a general matter, in a direct purchase of foreign affiliate shares the acquiror would not benefit from historical surplus, but rather only from surpluses generated from the time of the acquisition of control onwards.

Prior to the release of proposed Regulations 5905(5.1) and (5.2), upon a tax cost bump of foreign affiliate shares owned by target carried out by either a winding-up of target into the acquiror under subsection 88(1) or a vertical amalgamation of target and acquiror under subsection 87(11), the post-bump "opening exempt surplus", "opening exempt deficit", "opening taxable surplus", "opening taxable deficit" and "opening underlying foreign tax" of the foreign affiliate in respect of the acquiror under Regulation 5905(5)(d) to (h) would be determined effectively by pooling or adding the respective balances of the foreign affiliate in respect of each of the target and the acquiror as they existed immediately before the winding-up or vertical amalgamation. In the bump context, the foreign affiliate would have surplus balances only in respect of the target, and accordingly the post-bump opening surplus balances of the foreign affiliate in respect of the acquiror would effectively be equal to the pre-bump surplus balances of the foreign affiliate in respect of the target. In other words, the historical surplus balances of the foreign affiliate in respect of the target would carry over and be preserved in respect of the acquiror following the bump in the tax cost of the shares acquired by the acquiror. Thereafter, the acquiror could have accessed historical pre-acquisition of control retained earnings of the foreign affiliate through dividends paid out of its preserved surplus balances, without reducing the bumped tax cost of the foreign affiliate shares as would ordinarily be the case with true "pre-acquisition surplus" dividends.

The anomaly in Regulation 5905(5) that permitted this "double dip" of tax attributes in a winding-up or vertical amalgamation resulting in a paragraph 88(1)(c) and (d) tax cost bump of the foreign affiliate shares is corrected by the mechanic proposed in Regulations 5905(5.1) and (5.2). These rules are proposed to apply in respect of amalgamations that occur, and windings-up that begin, after December 20, 2002.3

The February 27, 2004 version of proposed Regulation 5905(5.1) applies to any vertical amalgamation under subsection 87(11) where there has been a designation of a bump amount under paragraph 88(1)(d) in respect of shares of a foreign affiliate owned by the target and thereby acquired by the acquiror, and sets out several specific rules for purposes of applying the surplus carryover rules in Regulation 5905(5)(d) to (h).

Proposed Regulation 5905(5.2) is an analogous rule applicable to any winding-up under subsection 88(1) where there has been a designation of a bump amount under paragraph 88(1)(d) in respect of shares of a foreign affiliate owned by the target and acquired by the acquiror by virtue of the winding-up. Under both proposed Regulations, the amounts of the exempt surplus or exempt deficit, taxable surplus or taxable deficit, and underlying foreign tax of the top-tier foreign affiliate in respect of the target and the acquiror are all deemed to be nil immediately before the vertical amalgamation or winding-up (5905(5.1)(a) and (5.2)(a)); similarly, all such balances of each lower-tier foreign affiliate in which the top-tier foreign affiliate has an equity percentage, in respect of the target, are also deemed to be nil immediately before the vertical amalgamation or winding-up (5905(5.1)(b) and (5.2)(b)). The exceptions to these surplus reset rules for the top-tier and each underlying foreign affiliate are contained in Regulations 5905(5.1)(c) and (5.2)(c), which effectively deem the acquiror to have held the shares of the top-tier foreign affiliate during the period from the acquisition of control of the target until the vertical amalgamation or winding-up, thereby allowing the acquiror to benefit from all relevant surplus balances generated from the time it acquired control of target.

The effect of these rules is to override the surplus carryover rules in Regulation 5905(5) and preclude the acquiror from accessing historical, pre-acquisition of control surplus balances in the top-tier foreign affiliate of target, and all underlying foreign affiliates, where the acquiror completes a winding-up or vertical amalgamation of target and bumps the tax cost of the top-tier foreign affiliate shares under paragraphs 88(1)(c) and (d). Unlike the December 20, 2002 version, the current proposed Regulations do not attempt to calibrate the surplus reset based on the amount of the bump of the top-tier foreign affiliate shares – thus, any positive designated amount under paragraph 88(1)(d) in respect of the top-tier foreign affiliate shares, even of a nominal amount, will engage the proposed surplus and deficit reset rules in Regulations 5905(5.1) and (5.2). This could work to the acquiror’s advantage where the target’s foreign affiliates have historical deficits on a consolidated basis. Of course, this would work to the acquiror’s disadvantage where there are significantly positive surplus balances that could be lost as a result of the bump.

111(4)(e) Bump

The alternative method of bumping the tax cost of top-tier foreign affiliate shares of the target company pursuant to a designation under paragraph 111(4)(e) remains unaffected under the February 27, 2004 proposals.

Paragraph 111(4)(e) allows the target corporation, in its return for its taxation year that ends immediately before the acquisition of control by acquiror, to designate a deemed disposition of its appreciated capital property (which could include shares of a top-tier foreign affiliate) for proceeds of disposition at any designated amount between the target’s adjusted cost base of the property and its fair market value at the time immediately before the acquisition of control. This enables the target to utilize its capital loss carryforward balances, including capital losses triggered by virtue of the mandatory write down of adjusted cost base under paragraph 111(4)(c), as well as non-capital losses, to shelter the capital gains resulting from an election under paragraph 111(4)(e). Such capital loss balances would otherwise expire and be unavailable to target or its successor after the acquisition of control by virtue of paragraph 111(4)(a), and non-capital losses would be restricted under subsection 111(5). Paragraph 111(4)(e) thus permits the target to convert pre-acquisition of control capital losses that can be used only before the acquisition of control, and restricted non-capital losses, into adjusted cost base of designated capital properties that are deemed reacquired at the bumped cost amount.

Where the acquiror’s acquisition strategy includes use of the paragraph 88(1)(c) and (d) tax cost bump, designations under paragraph 111(4)(e) are generally not made. This is because the effect of bumping the adjusted cost base of target’s capital properties immediately before the acquisition of control under paragraph 111(4)(e) is simply to reduce the available bump room that can subsequently be designated under paragraph 88(1)(d). Specifically, the starting point in determining the aggregate bump room is the acquiror’s adjusted cost base of its target shares (the 88(1)(b)(ii) amount) less the total cost of all of the target’s property and cash on hand, immediately before the winding-up or vertical amalgamation (the 88(1)(d)(i) amount). A bump in the cost of target’s capital property under paragraph 111(4)(e) merely reduces the potential amount of the bump of the target’s non-depreciable capital property under paragraph 88(1)(d). The acquiror cannot make full use of both potential bump provisions.

However, in the case of top-tier foreign affiliate shares held directly by the target, a tax cost bump under paragraph 111(4)(e) may now in some circumstances provide better results than a bump under paragraphs 88(1)(c) and (d). Whereas a paragraph 88(1)(d) bump designation in respect of particular foreign affiliate shares will reset all relevant historical surplus balances to nil pursuant to proposed Regulations 5905(5.1) and (5.2), a paragraph 111(4)(e) designation to step up the tax cost of the foreign affiliate shares does not appear to result in a loss of historical surplus balances. 4 Regardless whether the acquiror continues to hold the bumped foreign affiliate shares indirectly through the target (in which case the affiliate continues to be a foreign affiliate in respect of the target and no provision grinds or resets the affiliate’s historical surplus balances in respect of target), or whether the acquiror causes a winding-up or vertical amalgamation of the target into the acquiror in order to access the paragraph 88(1)(c) and (d) bump in respect of other non-depreciable capital properties of target (but makes no paragraph 88(1)(d) designation in respect of the particular top-tier foreign affiliate shares, in which case the regular surplus continuity rules in Regulation 5905(5) apply without the restrictions in proposed Regulations 5905(5.1) and (5.2)), there is no provision that specifically grinds or resets the historical surplus balances of the foreign affiliate in respect of the target following a paragraph 111(4)(e) designation.5

Is the apparent preservation of historical surplus balances following a paragraph 111(4)(e) tax cost bump of foreign affiliate shares a technical deficiency, or an appropriate result from a tax policy perspective? The principal purpose of the paragraph 111(4)(e) designation is to provide relief from the rules that preclude the carry forward of capital losses of target, and restrict the carry forward of non-capital losses of target, following an acquisition of control of target. It effectively allows the acquiror to preserve the target losses that would otherwise be lost or restricted, by converting them into other tax attributes in the form of adjusted cost base of target's capital properties. Thus when the acquiror utilizes a paragraph 111(4)(e) tax cost bump, no additional tax attributes are created – the bumped tax cost arises as a consequence of triggering capital gains that are sheltered with, and thereby reduce, target's capital and non-capital loss attributes. In contrast, the paragraph 88(1)(d) bump may be viewed as placing the acquiror in the same position as if the target foreign affiliate shares had been purchased directly, in which case it is appropriate for historical surplus balances to be reset to nil as at the acquisition of control time and be treated effectively as pre-acquisition surplus. Arguably the paragraph 111(4)(e) tax cost bump does not allow a "double dip" of surplus and basis tax attributes, because the basis bump is effectively "purchased" at the cost of utilizing tax attributes in the target.

Conclusion -- Bump Strategy Trade-Offs and Opportunities

The February 27, 2004 foreign affiliate proposals have dramatically changed the factors that must be considered when determining the bump strategy for an acquiror of a target corporation with foreign affiliates.

Proposed Regulations 5905(5.1) and (5.2) now provide a trade-off between utilizing the paragraph 88(1)(c) and (d) tax cost bump in respect of top-tier foreign affiliate shares, and losing all historical pre-acquisition of control surplus balances in that top-tier foreign affiliate and all of its underlying foreign affiliates. On the other hand, there is now the potential opportunity to erase all historical pre-acquisition of control deficit balances in the relevant foreign affiliate group, simply by making a nominal designation under paragraph 88(1)(d) in respect of the top-tier foreign affiliate shares held by the target and allowing the surplus and deficit reset rules in proposed Regulations 5905(5.1) or (5.2) to apply.

In situations where the surplus reset consequences of a paragraph 88(1)(d) tax cost bump of top-tier foreign affiliate shares are determined to be undesirable, it may be appropriate for the acquiror to utilize a paragraph 111(4)(e) designation to increase the adjusted cost base of the foreign affiliate shares without losing the benefit of historical surplus balances. This strategy may be especially useful where the target has pre-acquisition of control capital loss carryforwards, or non-capital losses which may be restricted under subsection 111(5) following the acquisition of control for which there is no better use. In these circumstances, the acquiror could proceed with a winding-up or vertical amalgamation of target into the acquiror in order to utilize the paragraph 88(1)(c) and (d) tax cost bump in respect of other non-depreciable capital properties of the target, but could make no designation under paragraph 88(1)(d) in respect of the particular top-tier foreign affiliate shares where there are large historical surplus balances to be preserved, and instead could utilize the paragraph 111(4)(e) designation to achieve a tax cost bump of the top-tier foreign affiliate shares in that alternative manner. Although the paragraph 111(4)(e) designation would erode the paragraph 88(1)(d) bump room that may be utilized in respect of the other non-depreciable capital properties, this may nonetheless be advantageous in order to preserve the historical surplus balances in the particular foreign affiliate group.

These strategic considerations underscore the principal implication of the February 27, 2004 proposals as they affect the tax cost bump of foreign affiliate shares. It is now critical to have an understanding of the historical surplus and deficit balances in the target’s foreign affiliates, before making a paragraph 88(1)(d) designation to bump the tax cost of the shares of any of the target’s top-tier foreign affiliates.

1 RSC 1985, c. 1 (5th Supp.), as amended (the "Act"). Unless otherwise indicated, all statutory references in this article are to the Act or the Regulations thereunder, and to the draft legislative proposals to amend the Act and Regulations released by Finance on February 27, 2004.

2 This description of the modifications to proposed paragraph 88(1)(d.4) being considered by Finance is based on the summary circulated by Wallace Conway of Finance to participants at the May 9, 2005 International Tax Seminar of the International Fiscal Association held in Toronto.

3 The December 20, 2002 effective date is presumably based on the fact that the original foreign affiliate technical amendments released that day contained prior proposed versions of Regulations 5905(5.1) and (5.2).

4 While there is no existing or proposed rule that appears to specifically preclude the continuity of surplus balances following a paragraph 111(4)(e) designation, there are several possible technical questions resulting from the deemed disposition and re-acquisition of the designated foreign affiliate shares. Could it be said that the foreign corporation ceases to be a foreign affiliate of the target and then again becomes a foreign affiliate upon the deemed re-acquisition of the shares? If so, does the relevant holding period for determining the "exempt surplus" and "taxable surplus" balances of the foreign affiliate in respect of the target (as defined in Regulation 5907(1)) begin on the re-acquisition of the designated foreign affiliate shares? Further, could it be said that target does not deal with itself at arm's length so that Regulation 5905(5)(a) could apply to the deemed disposition and re-acquisition of the shares by the target and provide an explicit carryover of the foreign affiliate's surplus balances?

5 One might also consider the effect of a paragraph 111(4)(e) designation to create a capital gain for target in respect of its top-tier foreign affiliate shares, followed by an election under section 93(1) to deem all or a portion of the proceeds of disposition to have been received as a dividend on the foreign affiliate shares, and not to have been received as proceeds of disposition. This potentially could result in utilization of the historical surplus balances in the top-tier foreign affiliate and all underlying foreign affiliates, computed on a consolidated basis under the new rules in proposed Regulation 5902, in order to step up the tax cost of the target's top-tier foreign affiliate shares prior to the acquisition of control time, rather than carrying forward the historical surplus balances as described above. However, proposed subparagraph 93(1)(a)(ii) deems the elected amount not to have been received as proceeds of disposition for purposes of the Act, and paragraph 111(4)(e) deems the designated top-tier foreign affiliate shares to have been reacquired by target at a cost equal to the proceeds of disposition thereof. This would appear to preclude the possibility of a basis step-up using the historical surplus balances in a paragraph 111(4)(e) designation combined with a subsection 93(1) election, because it does not appear that the deemed dividend amount would be added to the target's tax cost. This expected result may be contrasted with a "negative basis" deemed disposition of shares that results under subsection 40(3). A subsection 93(1) election made in respect of a subsection 40(3) capital gain is expressly contemplated in paragraph 93(1)(b) and the increase in the adjusted cost base of the shares under paragraph 53(1)(a) is specifically provided for.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions