1.0 Engagement
1.1 These terms of business shall apply to all engagements undertaken by Elsby & Co. Unless otherwise expressly agreed in writing between the parties, all services shall be provided in accordance with these terms.
1.2 We will not accept responsibility if you act on advice previously given by us without first confirming with us that the advice is still valid in light of any change in the law or in your circumstances. We will accept no liability for losses arising from changes in the law, or the interpretation thereof, that occur after the date on which the advice is given.
2.0 Client identification
2.1 As with other professional services firms, we are required to identify our clients for the purposes of applicable anti-money laundering, counter-terrorist financing and other relevant legislation. We may request from you, and retain, such information and documentation as we require for these purposes and/or make searches of appropriate databases. If we are not able to obtain satisfactory evidence of your identity, we will not be able to proceed with the engagement.
2.2 We are under no duty, nor do we accept any responsibility to any other party than you as our client.
2.3 If you undertake business that requires you to be supervised by an appropriate supervisory authority to follow anti-money laundering regulations including if you accept or make a high value cash payments of €10,000 or more (or equivalent in any currency) in exchanges for goods, you should inform us.
2.4 Any personal data received from you to comply with our obligations under The Money Laundering, Terrorist Financing and Transfer for Funds (Information on Payer) Regulations 2017 (MLR 2017) will be processed only for the purposes of preventing money laundering or terrorist financing. No other use will be made of this personal data unless use of the data is permitted by or under enactment other than the MLR 2017, or we have obtained the consent of the data subject to the proposed use of the data.
3.0 Client money – Elsby & Co Ltd
3.1 We may, from time to time, hold money on your behalf. The money will be held in trust in a client bank account, which is segregated from the firm’s funds. The account will be operated, and all funds dealt with, in accordance with ICAEW’s Clients’ Money Regulations.
3.2 All client monies will be held in an interest-bearing account. To avoid excessive administration, interest will only be paid to you where the amount earned on the balances held on your behalf in any calendar year exceeds £25.00. If the total sum of money held on your behalf is enough to give rise to a significant amount of interest or is likely to do so, we will put the money in a designated interest-bearing client bank account and pay the interest to you. Subject to any tax legislation, interest will be paid gross.
3.3 We will return monies held on your behalf promptly as soon as there is no longer any reason to retain those funds. If any funds remain in our client account that are unclaimed and the client to which they relate has remained untraced for five years or we as a firm cease to practice, then we may pay those monies to a registered charity.
4.0 DPB (Investment Business)
4.1 The ICAEW Code of Ethics requires that we tell you about our relationship with EWM FP Ltd. We do not receive introductory commission from EWM FP Ltd, but rather the Directors of Elsby & Co receive a share in the profits of EWM FP Ltd. You consent to the Directors of Elsby & Co retaining their share of any profits from any business undertaken on your behalf by EWM FP Ltd.
5.0 Commissions or other benefits
5.1 In some circumstances we may receive commissions or other benefits for introductions to other professionals or in respect of transactions which we arrange for you. If this happens, we will notify you in writing of the amount and terms of payment and receipt of any such commissions or benefits. The fees you would otherwise pay will not be reduced by the amount of the commissions or benefits. You agree that we or our associates, can retain the commission or other benefits without being liable to account to you for any such amounts.
6.0 Help us to give you the best service
6.1 We are committed to providing you with a high quality service that is both efficient and effective. If, at any point you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know by contacting Claire Emery – Claire.emery@elsbyandco.co.uk
6.2 We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If we do not answer your complaint to your satisfaction, you may, of course, take up the matter with our professional body, ICAEW.
7.0 Confidentiality
7.1 We shall keep confidential all information of a confidential nature relating to your affairs, business, finances, transactions and other matters that is disclosed to us or otherwise comes to our attention in the course of this engagement (“Confidential Information”). This obligation shall apply at all times during and after the termination or expiry of this engagement, and shall extend to our employees, agents and any persons engaged by us in connection with the provision of our services. We shall not disclose Confidential Information to any third party without your prior written authorisation, except: (a) as required by applicable law, regulation or court order; (b) as provided for in regulatory, ethical or other professional pronouncements applicable to us or our engagement; or (c) to the extent reasonably necessary for the performance of our obligations under this engagement, subject always to appropriate confidentiality safeguards being in place.
7.2 You agree that, if we act for other clients who are or who become your competitors, to comply with our duty of confidentiality it will be sufficient for us to take such steps as we think appropriate to preserve the confidentiality of your Confidential Information, both during and after this engagement. These may include taking the same or similar steps as we take in respect of the confidentiality of our own information.
7.3 In addition, if we act for other clients whose interests are or may be adverse to yours, we will manage the conflict by implementing additional safeguards to preserve the confidentiality of your Confidential Information. Safeguards may include measures such as separate teams, physical separation of teams, and separate arrangements for storage of, and access to, Confidential Information.
7.4 You agree that the effective implementation of such steps or safeguards as described above will provide adequate measures to avoid any real risk of confidentiality being impaired.
7.5 We may, on occasions, subcontract work to other tax or accounting professionals. Such subcontractors shall be bound by confidentiality obligations no less onerous than those set out in clause 7.1 in respect of your Confidential Information.
7.6 We will inform you of the proposed use of a subcontractor before they commence work, except where your data will not be transferred out of our systems and the subcontractor is bound by confidentiality terms equivalent to an employee.
7.7 If we use external or cloud based systems, we will ensure the confidentiality of your Confidential Information is maintained.
7.8 We reserve the right, for the purpose of promotional activity, training or for other business purposes, to mention that you are a client. For the avoidance of doubt, no Confidential Information shall be disclosed in connection with any such use.
8.0 Conflicts of interest
8.1 We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client unless we are unable to do so because of our confidentiality obligations. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. Where conflicts are identified which cannot be managed in a way that protects your interests then we regret that we will be unable to provide further services. We shall not be liable for any loss, damage or expense arising from or in connection with our ceasing to act in such circumstances.
8.2 If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests then we will adopt those safeguards. In resolving the conflict, we would be guided by ICAEW’s Code of Ethics, which can be viewed at icaew.com/en/membership/regulations-standards-and-guidance/ethics. During and after our engagement, you agree that we reserve the right to act for other clients whose interests are or may compete with or be adverse to yours, subject, of course, to our obligations of confidentiality and the safeguards set out in the clause on confidentiality above.
9.0 Data protection
9.1 In this clause , the following definitions shall apply:
‘Client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
‘Data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the GDPR and any applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation.
‘GDPR’ means the UK General Data Protection Regulation, being the EU General Data Protection Regulation (EU) 2016/679 as retained in UK law and amended from time to time; and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
9.2 We shall each be considered an independent data controller in relation to the client personal data. Each of us will comply with all requirements and obligations applicable to us under the data protection legislation in respect of the client personal data.
9.3 You shall only disclose client personal data to us where:
(i) you have provided the necessary information to the relevant data subjects regarding its use (and you may use or refer to our privacy notice available at for this
Privacy Northants | Elsby & Co (elsbyandco.co.uk) for this purpose);
(ii) you have a lawful basis upon which to do so, which, in the absence of any other lawful basis, shall be with the relevant data subject’s consent; and
(iii) you have complied with the necessary requirements under the data protection legislation to enable you to do so.
9.4 Should you require any further details regarding our treatment of personal data, please contact Leona Bateman Partner.
9.5 We shall only process the client personal data:
- in order to provide our services to you and perform any other obligations in accordance with our engagement with you.
- to comply with our legal or regulatory obligations; and
(iii) where it is necessary for the purposes of our legitimate interests and those interests are not overridden by the data subjects’ own privacy rights. Our privacy notice (available at Privacy Northants | Elsby & Co (elsbyandco.co.uk)contains further details as to how we may process client personal data.
9.6 For the purpose of providing our services to you, pursuant to our engagement letter, we may disclose the client personal data to our regulatory bodies or other third parties (for example, our professional advisors or service providers). The third parties to whom we disclose such personal data may be located outside of the United Kingdom. We will only disclose client personal data to a third party located outside of the United Kingdom where appropriate safeguards are in place in accordance with the data protection legislation.
9.7 We may disclose the client personal data to other third parties in the context of a possible sale, merger, restructuring or financing of or investment in our business. In this event we will: (a) notify you in writing in advance of any such disclosure, to the extent we are legally permitted to do so; (b) take appropriate measures to ensure that the security of the client personal data continues to be ensured in accordance with data protection legislation; and (c) ensure that any prospective purchaser or successor is bound by obligations of confidentiality no less onerous than those set out in this agreement. If a change happens to our business, then the new owners may use the client personal data in the same way as set out in these terms, provided that you shall be entitled to object to such continued processing and, where you do so, we or the new owners shall cease processing your client personal data as soon as reasonably practicable, subject to any overriding legal or regulatory obligations.
9.8 We shall maintain appropriate technical and organisational measures in accordance with the data protection legislation to protect against unauthorised or unlawful processing of the client personal data and against accidental loss, destruction or damage to the client personal data.
9.9 In respect of the client personal data, provided that we are legally permitted to do so, we shall promptly notify you in the event that:
(a) we receive a request, from or on behalf of a relevant data subject, to exercise their data subject rights under the data protection legislation or a complaint or any adverse correspondence in respect of our processing of their personal data;
- b) we are served with an information, enforcement or assessment notice (or any similar notices), or receive any other material communication in respect of our processing of the client personal data from the Information Commissioner’s Office or any other supervisory authority); or
- c) we reasonably believe that there has been any incident which resulted in the accidental or unauthorised access to, or destruction, loss, unauthorised disclosure, or alteration of, the client personal data.
9.10 Upon the reasonable request of the other, we shall each co-operate with the other and take such reasonable commercial steps or provide such information as is necessary to enable each of us to comply with the data protection legislation in respect of the services provided to you in accordance with our engagement letter with you in relation to those services.
9.11 We shall not retain client personal data for longer than is necessary for the purposes for which it was collected and processed, having regard to our legal, regulatory and professional obligations. Upon termination or expiry of our engagement with you, we shall, at your written request, either return or securely delete or destroy all client personal data in our possession or control, save to the extent that we are required by applicable law, regulation or professional standards to retain any such data, in which case we shall notify you of the data retained and the legal basis for such retention. Any client personal data so retained shall continue to be subject to the provisions of this clause 9.
10.0 File Sharing Service
10.1 We will provide all clients with access to a file sharing service to allow for secure and encrypted exchange in accordance with UK legislation.
10.2 We shall maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful access to data in our file sharing service.
10.3 Our file sharing service is used for the transfer of documents and data, relating to the account services we provide to you, between ourselves and yourselves only. Since it is not a storage facility, we reserve the right to remove data which you send to us once it has been downloaded by ourselves onto our secure internal systems and software. We also reserve the right to remove data transferred from ourselves to yourselves (e.g. payroll information, accounts and tax returns) once they are more than 2 accounting periods old.
10.4 If you decide to stop using our services, we will disable all user access to our file sharing service.
11.0 Fees and payment terms
11.1 Our fees may depend not only upon the time spent on your affairs but also on the level of skill and responsibility and the importance and value of the advice that we provide, as well as the level of risk. An annual inflationary increase will be built into the fee level.
11.2 If we provide you with an estimate of our fees for any specific work, then the estimate will not be contractually binding unless we explicitly state that will be the case. For the avoidance of doubt, any estimate of fees provided by us shall not constitute a cap or upper limit on the fees payable by you unless specified in accordance with clause 11.5 below. You shall remain liable for all fees, charges and disbursements in respect of work actually undertaken by us on your behalf, including where such fees exceed any estimate previously provided.
11.3 If you instruct us for additional work beyond the original scope of work, we will endeavour to provide you with a further estimate of those fees either orally or in writing (including email). We reserve the right to rely in your acceptance of those fees if given orally or in writing (including email).
11.4 If requested we may indicate a fixed fee for the provision of specific services or an indicative range of fees for a particular assignment. It is not our practice to identify fixed fees for more than a year ahead as such fee quotes need to be reviewed in the light of events. If it becomes apparent to us, due to unforeseen circumstances, that a fee quote is inadequate, we reserve the right to notify you of a revised figure or range and to seek your agreement thereto.
11.5 You may request that we cap our fees at a specified amount. Any such fee cap will only take effect once we have confirmed the cap to you in writing, setting out the amount of the cap and the scope of work to which it applies. We may agree to vary or withdraw a fee cap at any time at our discretion, but will inform you of such a change.
11.6 In some cases, you may be entitled to assistance with your professional fees, particularly in relation to any investigation into your tax affairs by HMRC. Assistance may be provided through insurance policies you hold or via membership of a professional or trade body. Other than where such insurance was arranged through us you will need to advise us of any such insurance cover that you have. You will remain liable for our fees regardless of whether all or part are liable to be paid by your insurers.
11.7 We will bill at appropriate intervals during the course of the year and our invoices are due for payment within 14 days of issue. Our fees are exclusive of VAT which will be added where it is chargeable. Any disbursements we incur on your behalf and expenses incurred in the course of carrying out our work for you will be added to our invoices where appropriate.
11.8 Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees whether or not we have instructed that third party on your behalf. If these costs are incurred to fulfil our engagement, such necessary additional charges may be payable by you. We will invoice you for those costs and payment will be due in accordance with this agreement.
11.9 It is our normal practice to ask clients to pay by monthly direct debit and to periodically adjust the monthly payment by reference to actual billings. The monthly direct debit will be contribution towards your fees with a final annual invoice to settle any outstanding balances.
11.10 We reserve the right to charge default interest on late paid invoices at the rate of 8% above bank base rates under the Late Payment of Commercial Debts (Interest) Act 1998 and to charge a £25 monthly admin fee for each month the debt is overdue. We also reserve the right to suspend our services or to cease to act for you having given written notice, if payment of any fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
11.11 If you do not accept that an invoiced fee is fair and reasonable you must notify us within 14 days of receipt, failing which you will be deemed to have accepted that payment is due.
11.12 If it is necessary to instruct a solicitor or legal representative to recover outstanding fees, then such costs are added to the debt and payable on an indemnity basis.
11.13 If a client company, trust or other entity is unable or unwilling to settle our fees, we reserve the right to seek payment from the individual (or parent company) giving us instructions on behalf of the client and we shall be entitled to enforce any sums due against the Group Company or individual nominated to act for you.
11.14 Cloud Accounting System Subscriptions – If client’s subscriptions are paid and re charged via Elsby & Co we will need a month’s notice to cancel the subscription.
11.15 We reserve the right to withhold any materials, documents, reports or submission of accounts and/or tax returns until full payment is received for services rendered.
11.16 If you are due to leave us and your new accountant has contacted us to request professional clearance, we will not release the information until all work has been billed and all fees have been paid.
11.17 Where we reasonably believe, in our absolute discretion, that you are experiencing or are likely to experience financial deterioration, we may at any time request that you provide such security, guarantees or other assurances in respect of our fees and any sums due or to become due to us as we consider appropriate. Such requests may include, without limitation, personal guarantees from directors, charges over assets, deposits on account of fees, or any other form of security we deem necessary.
11.18 In the event that you fail to provide the security, guarantees or other assurances requested pursuant to clause 11.17 within fourteen (14) days of our written request (or such other period as we may specify), we reserve the right, at our absolute discretion, to suspend the provision of all or any part of our services with immediate effect and/or to terminate this engagement upon written notice to you. Any such suspension or termination shall be without prejudice to any fees or other sums due to us at the date of suspension or termination, and we shall not be liable for any loss, damage or consequence arising from such suspension or termination.
11.19 We reserve the right, at our absolute discretion and at any time, to require you to make payments on account of fees and disbursements which we estimate will become due in respect of work to be undertaken on your behalf. Such payments on account may be requested before we commence work or at any stage during the course of an engagement, and may be required in respect of anticipated fees, disbursements, third-party costs or any other charges likely to be incurred in connection with the services we provide to you.
11.20 Any payments on account received by us shall be held by us and applied against our invoices as and when rendered. We shall not be obliged to commence or continue any work on your behalf until the requested payment on account has been received in cleared funds. Payments on account are not an estimate or cap on our total fees and we reserve the right to request further payments on account as the engagement progresses. Any balance remaining after all outstanding fees and disbursements have been settled shall be refunded to you promptly.
11.21 In the event that you fail to make a payment on account within fourteen (14) days of our written request (or such shorter period as we may reasonably specify having regard to the urgency of the work), we reserve the right, at our absolute discretion, to suspend the provision of all or any part of our services with immediate effect and/or to decline to commence any new work on your behalf until such payment is received. Any such suspension shall be without prejudice to any fees or other sums due to us at the date of suspension, and we shall not be liable for any loss, damage, penalty, surcharge, interest or other consequence arising directly or indirectly from such suspension or from our declining to commence work.
11.22 We reserve the right to increase our fees and/or hourly rates upon giving you not less than thirty (30) days’ written notice, provided that any such increase shall be reasonable having regard to factors including (without limitation) prevailing rates of inflation, increases in our operating costs, changes in the complexity or scope of the services, and market rates for comparable professional services. The written notice shall specify the revised fees and/or hourly rates and the reasons for the increase. If you do not agree to the revised fees and/or hourly rates, you must notify us in writing within the thirty (30) day notice period, setting out the grounds for your objection, and we shall use reasonable endeavours to agree revised terms with you. If we are unable to reach agreement within a further fourteen (14) days following receipt of your objection, either party may terminate this engagement upon not less than twenty-one (21) days’ written notice, and the fees and/or hourly rates in effect immediately prior to the proposed increase shall continue to apply until the effective date of such termination. Any agreed fee and/or hourly rate increase shall apply to all work undertaken on or after the effective date of the increase, including work in progress at that date.
11.23 We shall be entitled, without prior notice to you, to set off any amounts owed by you to us (whether or not yet invoiced and whether arising under this engagement or any other engagement between us) against any amounts which we may owe to you. The exercise of such right of set-off shall be without prejudice to any other rights or remedies available to us.
12.0 Implementation
12.1 We will only assist with implementation of our advice if specifically instructed and agreed in writing.
13.0 Intellectual property rights and use of our name
13.1 We will retain all intellectual property rights in any document prepared by us during the course of carrying out the engagement except where the law specifically states otherwise.
13.2 You are not permitted to use our name in any statement or document you may issue unless our prior written consent has been obtained. The only exception to this restriction would be statements or documents that, in accordance with applicable law, are to be made public.
13.3 Any documents, reports or other materials we provide to you are provided solely for the purposes of the engagement and may not be reproduced, distributed or used for any other purpose without our prior written consent. Nothing in this agreement shall operate to transfer or assign any intellectual property rights to you.
14.0 Interpretation
14.1 If any provision of our engagement letter or terms of business is held to be void, then that provision will be deemed not to form part of this contract. In the event of any conflict between these terms of business and the engagement letter or appendices, the relevant provision in the engagement letter or schedules will take precedence.
15.0 Internal disputes within a client
15.1 If we become aware of a dispute between the parties who own or are in some way involved in the ownership and management of a business who have engaged us to act for them, it should be noted that our client is the business and we would not provide information or services to one party without the express knowledge and permission of all parties. Unless otherwise agreed by all parties we will continue to supply information to the normal place of business for the attention of the directors/proprietors. If conflicting advice, information or instructions are received from different directors/principals in the business we will refer the matter back to the board of directors/the partnership and take no further action until the board/partnership has agreed the action to be taken.
16.0 Investment advice – referral to a Permitted Third Party (PTP)
16.1 Should you require advice on investment business which we are unable to give as we are not authorised by the Financial Conduct Authority or the Institute of Chartered Accountants of England and Wales to conduct investment business, we can introduce you to a suitable PTP authorised by the Financial Conduct Authority.
16.2 The PTP will issue you with their own terms and conditions letter, will be remunerated separately for their services and will take full responsibility for compliance with the requirements of the Financial Services and Markets Act 2000. We will act as introducers but would be pleased to comment on, or explain any advice received and if required attend any meetings with you.
16.3 We will receive commission which is based on a % of the commission received by the PTP, and of which they will advise you directly. We will inform you when any commission is received. You consent to our retaining such amounts and we shall not be required to account to you for them.
16.4 To enable us to provide you with a proper service, there may be occasions when we will need to contact you without your express permission concerning investment business matters. For example, it may be in your interests to sell a particular investment, and we would wish to inform you of this. We may therefore contact you in such circumstances. We shall, of course, comply with any restrictions you may wish to impose which you notify to us in writing.
17.0 Tax Planning Risks
17.1 All tax planning, like any business decision, can carry a risk. Involvement in some of the more advanced tax strategies can involve a significant degree of risk. Depending upon the strategy you may need to consider taking legal, taxation and financial advice.
Before making any decision whether to undertake planning or not you should consider the potential risks, which include, but are not limited to, the following:
- The details of the strategy have been prepared on the basis of the current tax legislation and HMRC (HM Revenue & Customs) practice, concessions and If these or tax rates change, then the changes may be applied retrospectively. Such changes could have an effect on the proposed planning.
- The tax benefits outlined may cease to apply if your circumstances change, such as you become non-resident or ordinarily resident for tax purposes in the UK.
- HMRC has the right to enquire into tax returns submitted and covered by the proposed planning.
- HMRC may challenge Counsel’s Opinion obtained in respect of the proposed tax planning. In the event of a successful challenge by HMRC you may lose your entitlement to the tax relief and be liable for penalties and interest on any tax relief previously received.
- Your tax position depends upon your own particular circumstances, and there is no guarantee that HMRC will agree that the tax relief proposed will be applicable in your circumstances.
- If the appropriate paperwork is completed incorrectly or not submitted on a timely basis then this could have a detrimental effect on the proposed planning.
- Where we act as an introducer to any tax planning/consultancy services we accept no responsibility for any matters arising from the referral to the scheme product provider.
18.0 Lien
18.1 Insofar as we are permitted to do so by law or professional guidelines, we reserve the right to exercise a lien over all funds, documents and records in our possession relating to all engagements for you until all outstanding fees and disbursements are paid in full.
19.0 Limitation of third party rights
19.1 The advice and information we provide to you as part of our service is for your sole use and not for any third party to whom you may communicate it unless we have expressly agreed in the engagement letter that a specified third party may rely on our work. We accept no responsibility to third parties, including any group company to whom the engagement letter is not addressed, for any advice, information or material produced as part of our work for you which you make available to them. A party to this agreement is the only person who has the right to enforce any of its terms and no rights or benefits are conferred on any third party under the Contracts (Rights of Third Parties) Act 1999.
20.0 Period of engagement and termination
20.1 Unless otherwise agreed in our engagement letter, our work will begin when we receive your signed or electronic acceptance of that letter, or when we commence work on your behalf following your instructions in accordance with the engagement letter, whichever is earlier. Except as stated in that letter we will not be responsible for periods before that date. The terms of business applicable to this engagement may be varied, amended or replaced during the course of the engagement in accordance with clause 30.6.
20.2 Each of us may terminate our agreement by giving not less than 21 days’ notice in writing to the other party except where you fail to cooperate with us or we have reason to believe that you have provided us, or HMRC, with misleading information, in which case we may terminate this agreement immediately. Termination will be without prejudice to any rights that may have accrued to either of us prior to termination.
20.3 We reserve the right to terminate the engagement between us with immediate effect in the event of: (a) your insolvency, bankruptcy or other arrangement being reached with creditors; (b) an independence issue or change in the law which means we can no longer act; (c) failure to pay our fees by the due dates; (d) either party being in breach of their obligations if this is not corrected within 30 days of being asked to do so; (e) your involvement in any activity, conduct or matter which, in our reasonable opinion, has brought or is likely to bring our firm, its reputation or its standing into disrepute; (f) the commencement of any criminal investigation or proceedings against you, or your conviction for any criminal offence (other than a minor road traffic offence), where in our reasonable opinion such investigation, proceedings or conviction may adversely affect our professional standing or our ability to act for you; (g) any regulatory investigation, disciplinary action or sanction being commenced or imposed against you by any relevant authority; or (h) a material breakdown in the mutual trust and confidence necessary for the continuation of the professional relationship between us.
20.4 In the event of termination of our contract, we will endeavour to agree with you the arrangements for the completion of work in progress at that time, unless we are required for legal or regulatory reasons to cease work immediately. In that event, we shall not be required to carry out further work and shall not be responsible or liable for any consequences arising from termination. For the avoidance of doubt, all work undertaken by us during any handover or completion period following notice of termination, including but not limited to the finalisation of work in progress, the preparation and transfer of records, and any other transitional or ancillary services, shall remain chargeable at our standard rates and shall be invoiced to you in accordance with the fee and payment provisions of this agreement.
21.0 Disengagement
21.1 If we terminate this engagement or you terminate this engagement, we will normally issue a disengagement letter to your last known address to ensure that our respective responsibilities are clear and thereafter cease to act.
22.0 Professional rules and statutory obligations
22.1 We will observe and act in accordance with the bye-laws, regulations and code of ethics of the Institute of Chartered Accountants in England and Wales and will accept instructions to act for you on this basis. In particular you give us the authority to correct errors made by HMRC where we become aware of them. We will not be liable for any loss, damage or cost arising from our compliance with statutory or regulatory obligations. The requirements are available on the internet at www.icaew.com/en/members/regulations-standards-and-guidance. In accordance with the disclosure requirements of the Provision of Services Regulations 2009, our professional indemnity insurer is Burns & Wilcox Limited, One Minster Court, Mincing Lane, London, EC3R 7AA. The territorial coverage is worldwide excluding professional business carried out from an office in the United States of America or Canada and excludes any action for a claim brought in any court in the United States of America or Canada.
23.0 Quality control
23.1 As part of our on-going commitment to providing a quality service, our files are periodically reviewed by an independent regulatory or quality control body. These reviewers are highly experienced and professional people and, of course, are bound by the same rules for confidentiality as our principals and staff.
23.2 When dealing with HMRC on your behalf we are required to be honest and to take reasonable care to ensure that your returns are correct. To enable us to do this, you are required to be honest with us and to provide us with all necessary information in a timely manner. For more information about ‘Your Charter’ for your dealings with HMRC, visit www.gov.uk/government/publications/your-charter. To the best of our abilities, we will ensure that HMRC meet their side of the Charter in their dealings with you.
23.3 We may record telephone calls and other communications between us for quality assurance, training and regulatory compliance purposes. By agreeing to these terms of business, you consent to such recording. We will retain any such recordings in accordance with our data retention policies and in compliance with applicable data protection legislation. If you do not wish your calls to be recorded, you must notify us in writing, in which case we will use reasonable endeavours to ensure that your calls are not recorded, although we cannot guarantee this in all circumstances.
24.0 Reliance on advice
24.1 We will endeavour to record all advice on important matters in writing. Advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral advice (for example during the course of a meeting or a telephone conversation) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.
25.0 Retention of papers
25.1 You have a legal responsibility to retain documents and records relevant to your financial affairs. During the course of our work, we may collect information from you and others relevant to your tax and financial affairs. We will return any original documents to you. Documents and records relevant to your tax affairs are required by law to be retained as follows:
Individuals, trustees and partnerships:
- with trading or rental income: 5 years and 10 months after the end of the tax year;
- otherwise: 22 months after the end of the tax year;
Companies, Limited liability Partnerships, and other corporate entities:
- 6 years from the end of the accounting period;
25.2 We may destroy correspondence and other papers that we store electronically or otherwise that are more than seven years old, except documents we think may be of continuing significance.
26.0 Timing of our services
26.1 If you provide us with all information and explanations on a timely basis in accordance with our requirements, we will plan to undertake the work within a reasonable period of time to meet any regulatory deadlines. However, failure to complete our services before any such regulatory deadline would not, of itself, mean that we are liable for any penalty or additional costs arising.
27.0 Limitation of liability
27.1 We will provide services as outlined in this letter with reasonable care and skill. Our liability to you is limited to losses, damages, costs and expenses caused by our negligence or wilful default. However, to the fullest extent permitted by law, we will not be responsible or liable for any losses, penalties, surcharges, interest or additional tax liabilities where you or others supply incorrect or incomplete information or fail to supply any appropriate information or where you fail to act on our advice or respond promptly to communications from us or the tax authorities.
27.2 You will not hold us (our principals, director and staff) responsible, to the fullest extent permitted by law, for any loss suffered by you arising from any misrepresentation (intentional or unintentional) supplied to us orally or in writing in connection with this agreement. You have agreed that you will not bring any claim in connection with services we provide to you against any of our partners or employees personally.
27.3 Our work is not, unless there is a legal or regulatory requirement, to be made available to third parties without our written permission and we will accept no responsibility or liability to third parties for any aspect of our professional services or work that is made available to them.
27.4 We shall not in any circumstances be liable to you for: (a) loss of profit; (b) loss of revenue; (c) loss of goodwill; (d) loss of anticipated savings; (e) loss of business or business opportunity; or (f) any indirect, special or consequential loss or damage, in each case however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
Our liability to you in connection with this agreement is limited to the proportion of loss or damage (including interest or costs) suffered by you which is just and equitable, having regard to the extent of your own responsibility and the contribution of any other person to the loss or damage regardless of any contractual or other limitation of their liability and/or their ability to pay and/or limitation defences available to them.
Our total aggregate liability to you in connection with this agreement, whether arising in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall in no event exceed £1,500,000.00 (1.5 million pounds) immediately preceding the date on which the claim arises. This cap on our aggregate liability shall apply to all claims arising under or in connection with this engagement, whether brought individually or in aggregate.
27.5 We shall not be liable for any loss, damage or expense arising from an inaccuracy, incompleteness, or other defect in any information, document or explanation supplied to us by you or on your behalf.
27.6 We shall not be liable for any delay or failure to perform our obligations under this agreement if such delay or failure results from events, circumstances or causes beyond our reasonable control, including but not limited to: natural disasters; epidemics or pandemics; war, terrorism or armed conflict; government actions, sanctions or restrictions; failure or disruption of utilities, telecommunications or third-party technology services; cyber-attacks or data breaches; labour disputes or industrial action; or changes in law or regulation. If such circumstances continue for more than sixty (60) days, we may terminate this engagement on written notice to you without liability for any loss arising from such termination.
27.7 We can only limit our liability to the extent the law allows. We cannot limit our liability for death or personal injury caused by our negligence.
27.8 If services are supplied or provided by any third party, including any third-party software, platform, application, cloud-based service or other technology used in the delivery of our services, and regardless of whether we have recommended that third party to you and/or we have engaged that third party on your behalf, we do not accept any responsibility or liability for the performance, acts or omissions of that third party, nor for any failure, error, defect, interruption, unavailability, security breach, data loss or corruption arising in connection with such third-party services or products. We do not give any warranty, guarantee or other representation as to the suitability, availability, reliability or quality of such services or products. You acknowledge that the performance and availability of third-party products and services are outside our control and that your use of them may be subject to the terms and conditions of the relevant third-party provider. Where applicable, we may, at the request of you assign to you the benefit of any warranty, guarantee or representation given by the third party.
27.9 You shall indemnify us and keep us indemnified against all losses, liabilities, damages, costs, claims, demands, actions, proceedings and expenses (including reasonable legal fees and disbursements) which we may suffer or incur arising out of or in connection with: (a) any breach by you of your obligations under this engagement; (b) any inaccurate, incomplete, misleading or fraudulent information, documentation or explanation provided to us by you or on your behalf; (c) any failure by you to act upon our advice or to respond to our communications or those of any relevant authority within the timescales required; or (d) any claim made against us by a third party arising from or in connection with our services to you, but in each case only to the extent that such loss, liability, damage, cost, claim, demand, action, proceeding or expense arises directly from any act, omission or default on your part and, where we have contributed to the loss or damage, only to the extent of your proportionate share of responsibility. This indemnity shall not apply to the extent that any such loss, liability, damage, cost, claim, demand, action, proceeding or expense arises from or is attributable to our own fraud, dishonesty, wilful default or gross negligence. We shall take all reasonable steps to mitigate any loss, liability, damage, cost or expense in respect of which we seek to rely on this indemnity. We shall give you prompt written notice of any claim or threatened claim to which this indemnity may apply, providing reasonable details of the claim, and shall give you a reasonable opportunity to participate in the defence of any such claim at your own cost. This indemnity shall survive the termination of this engagement.
27.10 You shall at all times take all reasonable steps to mitigate any loss, damage, cost or expense which you may suffer or incur arising out of or in connection with any matter for which you seek to bring a claim against us. We shall not be liable for any loss, damage, cost or expense to the extent that such loss, damage, cost or expense could have been avoided or reduced had you taken reasonable steps to mitigate the same. The burden of demonstrating that reasonable steps to mitigate were not available or were not reasonably practicable shall rest with you.
28.0 Data Storage outside the United Kingdon and/or EEA
28.1 In the course of providing our services to you, we may utilise cloud-based software and third-party platforms (including, without limitation, Xero) which may store data on servers located outside of the United Kingdom and/or the European Economic Area (EEA). Details of the third-party platforms we use and their respective data privacy policies are set out in Schedule 14 or will be notified to you in writing. By entering into a contract with any such third-party provider, you consent to the terms and conditions of that provider insofar as they relate to the management and storage of your data. By instructing us to manage and, where necessary, amend your data held on such platforms, you authorise us to place data on servers located outside of the United Kingdom and/or the EEA.
29.0 Changes in the law, in practice or in public policy
29.1 We will not accept responsibility if you act on advice given by us on an earlier occasion without first confirming with us that the advice is still valid in the light of any change in the law, practice, public policy or in your circumstances.
29.2 We will accept no liability for losses arising from changes in the law (or the interpretation thereof), practice or public policy that are first published after the date on which the advice is given.
30.0 Miscellaneous
30.1 This engagement letter, the schedules of services and these terms of business constitute the entire agreement between us in relation to the services to be provided and supersede all prior negotiations, representations, undertakings and agreements (whether written or oral) relating to the subject matter hereof, save for: (a) any prior engagement letters which are expressly stated to remain in force; (b) any separate data privacy documentation issued by us in connection with the services, which shall continue in full force and effect and shall be deemed to form part of the overall contractual arrangements between us; and (c) any variation, amendment or replacement of these terms of business made in accordance with clause 30.6, which shall take effect as provided therein. You acknowledge that in entering into this agreement you have not relied on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Nothing in this clause shall limit or exclude liability for fraud or fraudulent misrepresentation.
30.2 No failure or delay by us in exercising any right, power or remedy under this agreement shall operate as a waiver of that right, power or remedy, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. Our rights and remedies under this agreement are cumulative and are not exclusive of any rights or remedies provided by law.
30.3 We may assign, transfer, novate, subcontract or otherwise dispose of any or all of our rights and obligations under this agreement to any successor firm, entity or practice, whether by way of merger, acquisition, reorganisation or otherwise, without your prior consent. Where commercially practicable, we shall give you prior written notice of any such assignment or transfer. In the event of any such assignment or transfer, you shall be entitled to terminate this agreement by giving written notice. You shall not assign, transfer, novate, subcontract or otherwise dispose of any of your rights or obligations under this agreement without our prior written consent, such consent not to be unreasonably withheld.
30.4 The following provisions shall survive the termination or expiry of this engagement howsoever arising and shall continue in full force and effect: confidentiality (clause 7), data protection (clause 9), fees and payment terms (clause 11), intellectual property rights and use of our name (clause 13), lien (clause 18), limitation of liability (clause 27), the client indemnity, and any other provision which by its nature or context is intended to survive termination. For the avoidance of doubt, any variation of these terms of business effected in accordance with clause 30.6 prior to termination shall remain in full force and effect following termination. Termination of this engagement shall not affect any rights, obligations or liabilities of either party that have accrued prior to the date of termination.
30.5 We may, in the course of providing our services to you, use artificial intelligence, machine learning, automated tools and other technology-assisted processes to support the delivery of our work, including but not limited to data analysis, document review, research, calculations and the preparation of reports and returns. You consent to the use of such tools in connection with the services we provide to you. We shall ensure that appropriate safeguards are in place to maintain the confidentiality and security of your data when using such tools, and we shall remain responsible for the professional quality of the services we deliver to you. The use of such tools shall not diminish or otherwise affect our professional obligations to you under this agreement or under applicable professional and regulatory standards.
30.6 We reserve the right to vary, amend or replace these terms of business (in whole or in part) at any time by giving you not less than thirty (30) days’ written notice of the proposed changes. Such notice shall be accompanied by a copy of the revised terms of business (or a summary of the material changes) and shall specify the date on which the revised terms are to take effect. If you do not agree to the revised terms, you must notify us in writing within the thirty (30) day notice period, in which case either party may terminate this engagement upon not less than twenty-one (21) days’ written notice, and the terms in effect immediately prior to the proposed variation shall continue to apply until the effective date of such termination. If you do not notify us of your objection within the thirty (30) day notice period, or if you continue to instruct us or accept our services on or after the date on which the revised terms are stated to take effect, you shall be deemed to have accepted the revised terms of business, which shall thereupon supersede and replace the previous terms in their entirety (or to the extent specified in the notice). For the avoidance of doubt, any such variation shall not affect any rights, obligations or liabilities that have accrued prior to the date on which the revised terms take effect.
- Our engagement letter, the schedules of services, and our standard terms and conditions of business are governed by and should be construed in accordance with English law. Each party agrees that the courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it on any basis. Each party irrevocably waives any right to object to any action being brought in those Courts, to claim that the action has been brought in an inappropriate forum, or to claim that those Courts do not have jurisdiction.
31 Instructions
31.1 Unless we are advised otherwise, we will assume that whoever provides instructions to us have the actual authority to do so and we may rely on such information given by that person.
31.2 Your quote or statement of work outline the scope of work that we have agreed to carry out for you under the relevant services as set out in the engagement letter. The scope of work may be extended or varied in accordance with subsequent instructions given by you either orally or in writing (including email). Any new instructions with the those services that result in a new quote or statement of work shall be treated as additional to, or running concurrently with, the existing scope of work, and shall not replace or supersede any previous quote or statement of work unless expressly stated in writing.
31.3 Notwithstanding any agreed scope of work, we reserve the right to vary, extend or amend the scope of the services to be provided under this engagement where we reasonably consider it necessary to do so, including but not limited to circumstances arising from: (a) changes in applicable legislation, regulation, or HMRC practice, guidance or interpretation; (b) changes in applicable accounting standards or professional requirements; (c) an increase in the complexity of your affairs or the work required beyond that which was reasonably foreseeable at the date of the relevant quote or statement of work; or (d) any act, omission or change in your circumstances which materially affects the nature or extent of the work to be undertaken. Where we exercise our right to vary the scope of services under this clause, we shall notify you of the variation and any consequential adjustment to our fees as soon as reasonably practicable. If you continue to instruct us or accept our services following such notification, you shall be deemed to have accepted the varied scope and any revised fees. This clause is without prejudice to our rights under clauses 11.3, 11.4 and 11.22.