Worldwide: 如何幸免于反垄断/竞争调查中的黎明突袭和搜查令(英文版)

Last Updated: April 14 2016
Article by Paula W. Render and Prudence Smith

Antitrust and competition enforcement authorities increasingly are undertaking unannounced searches of premises to obtain evidence of possible competition law violations. Most commonly, these searches are being conducted at business premises, and therefore business managers need to know how to respond. Private residences, vessels, and motor vehicles also may be searched.

Failure to comply with the law when a search is conducted can lead to fines and even jail sentences for obstructing justice. The authorities' investigation of the international automobile parts cartel began in early 2010 with a series of raids on the Detroit offices of several auto parts companies. In 2012, an executive of one of these companies was sentenced to a year in prison—not for price-fixing, but for obstructing justice by destroying emails and other documents after learning of the raids. Even in jurisdictions where competition violations do not carry criminal liability, missteps during a dawn raid may increase the authorities' suspicions and lead them to suspect wrongdoing where they might otherwise have determined through their search that no infraction had occurred.

On the other hand, failure to exercise one's rights can lead to the loss of privilege and to a broader search and seizure than was authorized. In 2003, the European Commission carried out dawn raids on the United Kingdom premises of AkzoNobel Chemicals Ltd. and Akcros Chemicals Ltd. The Commission seized a number of documents that the companies claimed were privileged. The European Court of Justice eventually sided with the Commission. But the rules of privilege vary across the EU Member States, so the procedures for protecting potentially privileged documents must be carefully followed to avoid an unnecessary waiver.

To be better prepared, 10-point checklists for various jurisdictions are provided below. These may be helpful to prepare employees for the eventuality of a search. But when the authorities come knocking, it is time to call in experienced legal counsel.

AUSTRALIA

Here's a 10-step checklist on how to respond when officials from the Australian Competition and Consumer Commission ("ACCC") carry out a dawn raid at your premises under the civil regime and criminal regimes.

Civil Investigations at Business Premises

Step 1. Contact outside counsel immediately and ask that the search be delayed until outside counsel arrives on site—note that the ACCC is not required to do so, although it usually will, particularly if you are able to give them a reasonable estimate of how long they need to wait and assurances that there is no risk of evidence being destroyed, such as by asking staff to close their desks and computers and turn off any shredder. Escort the officials to a private meeting room and offer them an organizational chart and floor plan of the business. Identify locations where privileged material may be located, such as the legal department.

Step 2. Copy the ACCC's documentation. Take a copy of the officials' identification (identification cards are issued by the Chairman of the ACCC) and check the documentation authorizing the investigation (authorization or a warrant). Make a copy of each of those documents and email them to your outside counsel.

Step 3. Review the search warrant to (i) check that it is valid; (ii) check that it covers the company and premises; (iii) understand the scope and subject matter of the investigation (alleged infringements, relevant products/services, departments, geographical scope); (iv) understand the powers of the officials; (v) understand which ACCC inspector is responsible for exercising the search warrant; and (vii) identify the date, which is noted on the warrant, on which the warrant ceases to have effect.

Step 4. Provide instructions to employees. Issue an internal announcement to inform staff that there is an official inspection and provide guidance on how to behave appropriately (in particular, instruct not to destroy documents, not to leak news of the investigation (even to family members), and remind of the duty to cooperate). There are a number of criminal offenses that may be committed through failure to cooperate, and fines also may be applied.

Step 5. Organize staffing. Arrange for the internal team to have access to a separate meeting room from the ACCC officials. Arrange for members of the IT team to be available as their input will be needed; if IT support is outsourced, contact a senior person at the provider who can bypass the usual time-consuming protocols and helpdesk processes. Organize "shadowers" to follow each official at all times and brief them on the scope of the investigation and limits to the power of the officials to ensure that officials do not exceed their powers.

Step 6. Follow each official at all times. Inspectors have the power to take possession of original documents. However, officials cannot take copies or take possession of documents that are legally privileged, including legal advice from in-house counsel or from external counsel.

Step 7. Track and record all seized or produced documents. Take a written note of which rooms the officials visit; what desks, cupboards, files, computers they inspect; and whom they interview. Make a copy of all documents seized.

Step 8. Provide support to employees questioned on documents or interviewed by officials on questions relevant to the investigation. Officials may request oral explanations of documents that are within the scope of the investigation—make sure the information provided is complete and accurate but that the answers are concise and no additional information is volunteered. Make sure that legal counsel is present for questions and that the questions are recorded. If this is not possible, ensure that a contemporaneous note be made so that the interviewee is given a chance to check, and confirm the accuracy of the transcript. A person may not decline to answer a question on the basis that the answer may incriminate or expose that person to penalty.

Step 9. Before the officials leave, confirm you have followed these procedures. Make sure you have a copy of the documents as well as the officials' list of documents. Ask officials for their contact details and organize a point of contact at the company for future communications. Ask officials if they intend to come back and if so, at what time and whether they want cabinets or rooms to be sealed overnight if they are coming back the next day. Then ensure no one reopens the room/cabinet, including cleaners and security; only the officials may break a seal. Ask if officials intend to issue a press release.

Step 10. After the officials have left, record and review. Conduct debriefings with employees, conduct a post-investigation review, and determine next steps, including any potential leniency application and whether an internal investigation should be conducted. Organize internal and external communications strategy.

Civil Investigations at Domestic Premises

The ACCC officials may also enter and search domestic premises (e.g., homes of a company's directors, managers, or employees, as well as vessels or motor vehicles) where they have reasonable grounds to believe that evidence of a contravention is at the premises.

The precautions and advice set out above for a search of the company's premises should also be observed where inspections are conducted at domestic premises, as evidence obtained there can be used in the same manner as any evidence obtained from the company's offices. In particular, it is essential to:

Step 1. Contact outside counsel immediately and ask that the search be delayed until outside counsel arrives on site.

Step 2. Check the warrant.

Step 3. Be cooperative and do not obstruct the investigation. Identify rooms, such as a home office where the evidence in the warrant is likely to be found. Ensure that counsel is there at all times. The officials will have the same powers (enter and search, take copies and take possession of documents) and limitations (legal privilege) as for a search warrant at business premises.

Step 4. Track and record all seized or produced documents.

Step 5. After the officials have left, record and review.

Criminal Investigations

The ACCC also has the power to search any premises (business and non-businesses) when it is conducting an investigation into a criminal cartel. A criminal raid will be very different from a civil raid. It is likely to be much more aggressive as there is a much greater risk of obstruction allegations. The crucial difference is that individuals may be arrested and taken to a police station for questioning. In such case, the police will also be involved as only they have powers of arrest. On a practical note, this may mean that one or more key individuals with evidence cannot be accessed by the company during the criminal dawn raid, which will affect the company's ability to consider issues such as whether a leniency application is appropriate.

The inspectors will need a warrant and will have similar powers as when acting with a warrant under the civil regime—in particular, to enter and search premises—to require persons to answer questions, provide information, or produce documents. As such, the precautions and advice set out above for civil investigations should also be observed for inspections carried out under the criminal regime. However, additional precautions should be borne in mind and in particular whether separate legal representation may be required for certain individuals interviewed.

Search Warrants and the Right to Privacy

  • ACCC officers are not permitted to search premises unless they are issued a search warrant that authorizes them to enter and search those particular premises.
  • An ACCC officer who asks to search somewhere other than a business premises without a warrant must state that consent may be refused, and it is permissible to refuse such request to enter premises without a warrant.
  • There are no privacy protections preventing the ACCC from searching private premises. If an ACCC officer does produce a search warrant that authorizes entry into a private vehicle, vessel, storage unit, house, or other non-business premises, he is entitled to search the premises and seize material specified in the warrant.

EUROPEAN UNION

Here's a 10-step checklist on how to respond when officials of a competition authority (European Commission or national competition authority of an EU Member State) arrive at a company's premises.

Investigations at Business Premises

Step 1. Contact the manager, in-house counsel, and outside counsel immediately and ask that the search be delayed until at least one arrives on site—note that the officials are not required to do so, although they usually will. In the case of an inspection by the European Commission, the officials of the Commission may be assisted by officials of the relevant EU national competition authority. This does not mean, however, that national rules and procedures apply. Escort the officials to a private meeting room and offer them an organigram for the business.

Step 2. Copy the documentation. Take a copy of the officials' personal identification (staff cards) and check the documentation authorizing the investigation (authorization or search warrant). Make a copy of each of those documents and email/fax them to your in-house or outside counsel. Also hand a copy to the manager or in-house counsel (whoever arrives first).

Step 3. Depending on national legislation, a search warrant delivered by a judge may be required to carry out an on-the-spot inspection, in addition to a document from the competition authority itself describing the scope and purpose of the inspection. Review the authorization or warrant to: (i) check that it is valid; (ii) check that it covers the company and premises; (iii) understand the scope/subject matter of the investigation (alleged infringements, relevant products/services, departments, geographical scope); (iv) understand the powers of the officials; and (v) understand if the investigation is carried out by the European Commission or an EU national competition authority.

Step 4. Provide instructions to employees. Issue an internal announcement to inform staff that there is an official inspection and provide guidance on how to behave appropriately (in particular, instruct not to destroy documents, not to leak news of the investigation (even to family members), and remind of the duty to cooperate). Company personnel should not hinder the inspection in any way, except for the exercise of legitimate rights. The competition authority could fine the company for obstruction of the investigation. In case of doubt, any issue should be escalated to the Coordination Team (see Step 5).

Step 5. Organize staffing. A Coordination Team should be set up to coordinate the company's response to the inspection, composed of at least one member of senior management, a member of the legal department (if any), and an external competition lawyer (if the assistance of outside counsel was requested). Arrange for the Coordination Team to have access to a separate meeting room from the officials. Arrange for members of the IT team to be available as their input will be needed; if IT support is outsourced, contact a senior person at the provider who can bypass the usual time-consuming protocols and helpdesk processes. Organize "shadowers" to follow each official at all times and brief them on the scope of the investigation and limits to the power of the officials to ensure that officials do not exceed their powers. A "shadower" is either a company employee (ideally belonging to the company's legal department or at least having received special training for this purpose) or an external competition lawyer. This individual's task is to "shadow" the officials and note everything (within reason) the officials do and say, making sure that duplicate copies are made of all the documents or electronic files copied by the officials, that the officials respect the scope and purpose as designated in the authorization of the inspection, and that they do not read any documents or electronic files protected by professional legal privilege.

Step 6. Follow each inspector at all times to ensure that officials do not exceed their powers. Officials have the power to require the production of documents related to the subject matter of the investigation as defined in the authorizing documents and to take copies or extracts from relevant documents. Officials are not allowed to physically remove documents or electronic media from the company's premises and cannot take copies of documents that are (i) outside the scope of the investigation and/or (ii) legally privileged—advice from external counsel qualified at a bar within the EU and internal documents prepared for the specific purpose of requesting advice from such external counsel.

Step 7. Track and record all produced documents. Take a written note of which rooms the officials visit; what desks, cupboards, files, and computers they inspect; and to whom they speak. Make a copy of all documents copied.

Step 8. Answer questions to the best of your ability. The officials may also request oral explanations on the spot about facts or documents related to the subject matter of the investigation. Refusal to answer such questions, or providing incorrect or incomplete answers, puts the company at risk of fines for obstruction of the investigation. Company employees are therefore required to answer such questions to the best of their abilities. However, when asked such questions, company employees should keep their answers short and factual and not volunteer any information for which they have not been explicitly asked. They should not speculate or answer questions that are outside their area of competence.

The officials may also conduct interviews with employees to ask more wide-ranging questions about the subject matter of the investigation. Employees are not required to accept to be interviewed and have a right to assistance by counsel if they do. In such a situation, the Coordination Team should be consulted immediately, before the employee accepts to be interviewed. Where the answer to a question asked by an official is considered to be self-incriminating, the employee cannot be compelled to reply. If the officials make an audio or video recording of the interview, they should provide a copy of such recording to the company.

Step 9. Before the officials leave, confirm the position. Make sure you have a copy of the documents as well as the officials' list of documents and records of any interviews or oral explanations. Ask officials for their contact details and organize a point of contact at the company for future communications. Ask officials if they intend to come back and, if so, at what time and whether they want cabinets/rooms to be sealed overnight if they are coming back the next day. Ensure no one reopens the room/cabinet, including cleaners/security; only the officials may break a seal. Ask if officials intend to issue a press release.

Step 10. After the officials have left, record and review. Conduct debriefings with employees, conduct post-investigation review, and determine next-step strategy, including potential leniency application and whether an internal investigation should be conducted. Organize internal and external communications strategy.

Investigations at Domestic Premises

Officials, acting on behalf of the European Commission or another EU national competition authority, also have the power to enter and search domestic premises (e.g., homes of a company's directors, managers, or employees, as well as motor vehicles) where they have a reasonable suspicion that evidence that would support their case is being kept there.

The precautions and advice set out above for a search of the company's premises should also be observed where inspections are conducted at domestic premises, as evidence obtained there can be used in the same manner as any evidence obtained from the company's offices. In particular, it is essential to:

Step 1. Contact outside counsel immediately and ask that the search be delayed until outside counsel arrives on site.

Step 2. Check the warrant. Wherever the Authority wishes to enter domestic premises in relation to a competition investigation, a warrant from a national judge is required.

Step 3. Cooperate but ensure that the officials do not exceed their powers. Ensure that counsel is there at all times. The officials will have the same powers (enter and search, make copies and take possession of documents) and limitations (documents within scope of the investigation, legal privilege, and self-incrimination) as for a raid at business premises.

Step 4. Track and record all produced documents.

Step 5. After the officials have left, record and review.

UNITED KINGDOM

Here's a 10-step checklist on how to respond when officials from the UK Competition Markets Authority ("CMA") carry out a dawn raid at your premises under the civil regime and criminal regimes.

Civil Investigations at Business Premises

Step 1. Contact outside counsel immediately and ask that the search be delayed until outside counsel arrives on site—note that they are not required to do so, although they usually will. Escort the officials to a private meeting room and offer them an organigram of the business.

Step 2. Copy the documentation. Take a copy of the officials' personal identification (staff cards) and check the documentation authorizing the investigation (authorization or a warrant). Make a copy of each of those documents and email/fax them to your outside counsel.

Step 3. Review the authorization or warrant to: (i) check that it is valid; (ii) check that it covers the company and premises; (iii) understand the scope/subject matter of the investigation (alleged infringements, relevant products/services, departments, geographical scope); (iv) understand the powers of the officials (in a civil or criminal investigation, officials will need a warrant to enter domestic premises or to "seize and sift" documents); and (v) understand if the investigation is carried out by the CMA on its own or acting on behalf of the European Commission/another EU national competition authority. In the two latter cases, the CMA officials will be accompanied by officials from the European Commission or the relevant EU national competition authority.

Step 4. Provide instructions to employees. Issue an internal announcement to inform staff that there is an official inspection and provide guidance on how to behave appropriately (in particular, instruct not to destroy documents, not to leak news of the investigation (even to family members), and remind of the duty to cooperate). There are a number of criminal offenses that may be committed through failure to cooperate, and civil sanctions (fines) may also be applied.

Step 5. Organize staffing. Arrange for the internal team to have access to a separate meeting room from the CMA officials. Arrange for members of the IT team to be available as their input will be needed—if IT support is outsourced, contact a senior person at the provider who can bypass the usual, time consuming, protocols and helpdesk processes. Organize "shadowers" to follow each official at all times and brief them on the scope of the investigation and limits to the power of the officials to ensure that officials do not exceed their powers.

Step 6. Follow each official at all times to ensure that officials do not exceed their powers. Officials have the power to require the production of documents relevant to the investigation and to take copies or extracts from relevant documents. Where officials act under UK law and have a warrant, they can also, under certain conditions, take possession of the original documents ("seize and sift"). However, officials cannot make copies/take possession of documents that are (i) outside the scope of the investigation and (ii) legally privileged—unlike in EU investigations, advice from in-house counsel or from external counsel qualified at a bar outside the EU is privileged.

Step 7. Track and record all seized or produced documents. Take a written note of which rooms the officials visit; what desks, cupboards, files, and computers they inspect; and to whom they speak. Make a copy of all documents seized.

Step 8. Provide support to employees questioned on documents or interviewed by officials on questions relevant to the investigation. Officials may request oral explanations of documents that are within the scope of the investigation—make sure the information provided is complete and accurate but that the answers are kept concise and no additional information is volunteered. Upon giving written formal notice, CMA officials acting under UK law can also require any individual who has a connection with a business covered by the investigation to answer questions on any matter relevant to the investigation. Make sure that legal counsel is present for the interviews and that the interviews are recorded; if this is not possible, ensure that a contemporaneous note be made so that the interviewee is given a chance to check and confirm the accuracy of the transcript. Presence of legal counsel is essential to ensure that the employee is not required to answer questions if the answers might be self-incriminating.

Step 9. Before the officials leave, confirm the position. Make sure you have a copy of the documents as well as the officials' list of documents. Ask officials for their contact details and organize a point of contact at the company for future communications. Ask officials if they intend to come back and, if so, at what time and whether they want cabinets/rooms to be sealed overnight if they are coming back the next day. Ensure no one reopens the room/cabinet, including cleaners/security; only the officials may break a seal. Ask if officials intend to issue a press release.

Step 10. After the officials have left, record and review. Conduct debriefings with employees, conduct post investigation review, and determine next-step strategy, including potential leniency application and whether an internal investigation should be conducted. Organize internal and external communications strategy.

Civil Investigations at Domestic Premises

CMA officials, acting on their own or on behalf of the European Commission or another EU national competition authority, also have the power to enter and search domestic premises (e.g., homes of a company's directors, managers, or employees, as well as motor vehicles) where they have a reasonable suspicion that evidence that would support their case is being kept there.

The precautions and advice set out above for a search of the company's premises should also be observed where inspections are conducted at domestic premises, as evidence obtained there can be used in the same manner as any evidence obtained from the company's offices. In particular, it is essential to:

Step 1. Contact outside counsel immediately and ask that the search be delayed until outside counsel arrives on site.

Step 2. Check the warrant. Wherever the CMA wishes to enter domestic premises in relation to a competition investigation, a warrant is required.

Step 3. Cooperate but ensure that the officials do not exceed their powers. Ensure that counsel is there at all times. The CMA officials will have the same powers (enter and search, make copies and take possession of documents) and limitations (documents within scope of the investigation, legal privilege, and self-incrimination) as for a raid at business premises, with some exceptions Notably, they will not be able to seal the premises or books and records and cannot use their "seize and sift" powers (whereby the entire hard disk of the computer system, any mobile phone, or other electronic device can be seized if it is not practicable to search and separate out relevant items on the premises).

Step 4. Track and record all seized or produced documents.

Step 5. After the officials have left, record and review.

Criminal Investigations

In the UK, the CMA also has the power to search any premises (business and non-businesses) when it is conducting an investigation into a criminal cartel. A criminal raid will be very different from a civil raid, and it is likely to be much more aggressive as there is a much greater risk of obstruction allegations. The main crucial difference is that individuals may be arrested and taken to the police station for questioning. In such case, the police will also be involved as only they have powers of arrest. On a practical note, this may mean that one or more key individuals with evidence cannot be accessed by the company during the criminal dawn raid, which will affect the company's ability to consider issues such as whether a leniency application is appropriate.

The CMA officials will need a warrant and will have similar powers as when acting with a warrant under the civil regime, and in particular to enter and search premises, to require persons to answer questions, provide information, or produce documents. As such, the precautions and advice set out above for civil investigations should also be observed for inspections carried out under the criminal regime. However, additional precautions should be borne in mind and in particular whether separate legal representation may be required for certain individuals interviewed.

UNITED STATES

Here's a 10-step checklist regarding how to respond when a company is presented with a U.S. government search warrant—either criminal or civil investigations.

Step 1. Contact outside counsel immediately and request that the search be delayed until outside counsel arrives on site. When the government has a valid warrant, it has no obligation to wait for counsel's arrival, but they may agree. All interactions with the government should proceed through, or with the advice of, outside counsel. Any statements that employees make to the government may be attributed to the company.

Step 2. Gather basic information on (i) the purpose behind the search, (ii) the identity of the lead government agent, (iii) the names of other agents, (iv) the agency leading the investigation, and (v) the lead prosecutor.

Step 3. Provide instructions to employees. Instruct all nonessential employees to leave the premises, but admonish departing employees not to take any materials out of the office or destroy or delete any paper or electronic files while the search is being executed. Instruct all employees regarding their rights, including the right not to speak with government agents and the right to consult with company counsel prior to or during any interview.

Step 4. Connect outside counsel with the lead agent. Your outside criminal counsel should be conducting, or advising on, all communications with the government.

Step 5. Obtain and analyze the search warrant and any supplemental subpoena. Analyze any materials you are given to: (i) determine the terms and scope of the government's investigation, (ii) raise any defects in the warrant, and (iii) negotiate, if possible, an alternative method of production that will ensure no evidence will be lost or destroyed.

Step 6. Communicate key information about the government's investigation to all relevant internal players. Then, organize a unified, company-wide effort to address the investigation and prepare a coordinated public response. Work with outside counsel and/or a public relations firm to formulate a crisis management plan.

Step 7. Identify and protect any privileged, confidential, or trade secret materials that the agents have reviewed and seized. Inform agents of such materials and request that such documents be segregated and kept under seal until privilege disputes are resolved. Request the establishment of a separate "taint team" to review the protected materials.

Step 8. Track and inventory all seized or produced records. If possible, make copies of any materials that are necessary for ongoing business operations before the agents take them. If agents insist on taking documents critical for business operations, outside counsel should try to negotiate a speedy return of such materials.

Step 9. Conduct debriefings with employees and memorialize the government's search activities. Document these interactions under the attorney–client privilege and work-product doctrine, as well as actions and statements made by agents during the search. Determine whether an internal investigation should be conducted and whether it should be by outside counsel.

Step 10. Notify employees of document preservation obligations. Determine your company's status in the government's investigation. If your company appears to be the subject or target of the investigation, draft and distribute a document preservation notice internally.

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.

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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.

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