ENGAGEMENT FOR SERVICES – OUR GENERAL TERMS AND CONDITIONS
This Appendix sets out our general terms and conditions.
Although these Terms and Conditions are prompted by the Services set out in Appendix I, they shall apply, as a separate agreement, in respect of each matter on which you instruct us. Where you control any company or companies or are a member of a group of companies, they shall apply to instructions from each of those companies.
Unless otherwise agreed in our engagement letter, our work will commence when we receive implicit or explicit acceptance of this letter. Except as stated in that letter we will not be responsible for periods before that date.
For the avoidance of doubt, should we start work on the Services with your prior knowledge, this agreement will commence immediately thereon.
You confirm that you have all the necessary powers and have obtained all the necessary authorisations, consents and approvals to enable you to enter into this engagement letter in a valid and lawful manner.
Under the Consumer Contracts Regulations 2013, if you are instructing us as an individual, you have the right to cancel this agreement without providing a reason for your decision or incurring any liability within the relevant cancellation period. The cancellation period will expire after 14 calendar days from the date on which you receive this letter. In order to exercise your right to cancel you should notify us of your decision within the cancellation period. You can do this using the cancellation form attached or by making a clear statement setting out your decision. The contract and any obligations of both parties to the contract will come to an immediate end. If, within 14 calendar days, you have given us express permission to commence work on your matter, we will reserve the right to render a bill.
AUTHORISATION AND REGISTRATION
We are a partnership, formed under the Partnership Act 1890. We are registered by the Institute of Chartered Accountants in England and Wales to carry out audit work and licensed by them to carry out reserved legal activity of non-contentious probate in England and Wales.
Details about our audit registration can be viewed at www.auditregister.org.uk and www.cro.ie/auditors, and details of our probate accreditation can be viewed at www.icaew.com/probate, all under reference number C005355424.
Where we undertake audit work, we are required to follow the Audit Regulations and Guidance, this can be viewed at https://www.icaew.com/membership/regulations-standards-and-guidance.
PROFESSIONAL RULES AND STATUTORY OBLIGATIONS
We will observe and act in accordance with the bye-laws, regulations, code of ethics, standards and guidance of the Institute of Chartered Accountants in England and Wales and will accept instructions to act for you on this basis. The requirements are available on-line at www.icaew.com/regulations-standards-and-guidance and the FRC’s Ethical Standards for auditors can be found at www.frc.org.uk/auditors/audit-assurance/standards-and-guidance.
We will not be liable for any loss, damage or cost arising from our compliance with statutory or regulatory obligations.
FEES AND PAYMENT TERMS
It is our policy initially to issue a request for payment of our fees and to issue a receipted VAT invoice once payment is received. Our request for payment will be due for payment within 30 days. We reserve the right not to undertake further work on your behalf if we do not receive payment of our fees in accordance with these terms. In the event of non-payment we shall be entitled to charge interest at the rate set by law. We may use any money we, or our related companies, may hold on your behalf as payment (whether in whole or in part) of any sum that you owe us under this agreement. We will, however, advise you in writing before taking such action.
If we need to do work involving responsibilities in addition to those set out in our engagement letter, we will advise you in advance. Such work will involve additional fees.
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 that will be the case.
Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees.
To ensure that the VAT status of our services is classified correctly you will provide us with such evidence (e.g. proof of registration for VAT) as we may request for this purpose. You will indemnify us for any interest, penalties or legal costs as a result of any information on your VAT status not being correct.
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.
We shall not be obliged to accept any payment in relation to any matter other than in the form of a cheque drawn on a UK Bank account of yours or of an appropriate third party acceptable to us, or by bank transfer confirmed by our bank to be from such an account. In exceptional circumstances we may in our absolute discretion agree to accept payment by some other method. Under no circumstances will we be obliged to accept payments from third parties who are not, in our view, properly involved with the relevant matter. We shall have no liability for any delay to your Services or other consequences arising from any non-compliance by you with these provisions.
If you do not accept that an invoiced fee is fair and reasonable you must notify us within 21 days of receipt, failing which you will be deemed to have accepted that payment is due
Our duty of care is to you as our client, not to any third party, unless we have agreed in writing to accept a duty to the third party. If you ask us to take instructions on your behalf from a third party then until you notify us in writing to the contrary, we will be entitled to act on any instructions given by that third party as if they were given by you; and you will indemnify us against any claim that the third party was not entitled to act or give instructions on your behalf or that we were not entitled to act on any such instructions.
We agree to use any information concerning your affairs only in relation to the Services. We agree not to disclose, and to take such steps as we, in good faith, think fit to preserve the confidentiality of any confidential information held in connection with the Services. This is, however, subject to applicable legal, regulatory or professional disclosure requirements relevant to the Services.
As part of the performance of the Services, we may take specialist advice from, or otherwise use the services of, a third party. Additionally, our files may be independently reviewed for quality control purposes. In each case, we may disclose information concerning you and/or your business to such third parties provided that they have agreed to maintain as confidential any information we give to them.
Unless required by law or regulation, we shall be under no obligation to disclose to you or take into consideration any fact, thing or matter the disclosure of which would or might be a breach of confidence or breach of duty to any other person.
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 information given to us by you both, both during and after engagement. These may include taking the same or similar steps we take in respect of the confidentiality of our own information.
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 maintain independence and confidentiality. Safeguards may include measures such as separate teams, physical separation of teams and separate arrangements for storage of, or access to, information.
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.
If you have made a public announcement about work we have undertaken for you, or if it otherwise comes into the public domain (other than by our default), we may make public our involvement, unless you expressly prohibit such disclosure. We will seek your permission if we wish to publicise other work we have done for you.
We may, in certain circumstances, have a right or a duty to disclose certain matters arising in the course of our professional work to relevant authorities under the Proceeds of Crime Act 2002, the Financial Services and Markets Act 2000 or other legislation without informing you of such disclosure. You agree that such disclosure will not amount to a breach of the confidentiality provisions above and you will have no claim against us in respect of anything we may do in good faith with a view to meeting our obligations in respect of any legislation in force from time to time.
If we put you in touch with any third party (whether in connection with the Services or otherwise), we do so on the basis that we are not acting as their agent or representative. You should satisfy yourself that any person referred to you adequately meets your requirements. We shall use reasonable care in selecting any such person, but we shall not be liable for their advice, opinions or the information supplied by them or for the payment of their fees or expenses and, in particular, we do not accept responsibility for any act or omission (including any negligence) on their part. Such third party may be an associate or a related company.
Refer to “Investment Business Services (Including Insurance Mediation Services) & Referrals” below for introductions to Permitted Third Parties.
Unless you instruct us otherwise we may, where appropriate use electronic mail (e-mail) or other electronic means to communicate with you and/or other parties with whom we are in touch in connection with the Services. With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However electronic communication is not totally secure and we cannot be held responsible for damage or loss caused by viruses nor for communications which are corrupted or altered after despatch. Nor can we accept any liability for problems or accidental errors relating to this means of communication especially in relation to commercially sensitive material. These are risks you must agree to bear in return for greater efficiency. If you do not wish to accept these risks please let us know and we will communicate by paper mail, other than where electronic submission is mandatory.
Any communication by us with you sent through the post system is deemed to arrive at your postal address two working days after the day that the document was sent to you.
You agree we may contact you without your express permission where we need to do so to provide you with a proper service. We shall of course comply with any restrictions of which you notify us in writing.
HELPING US TO GIVE YOU THE BEST SERVICE
We are confident that we provide a high quality of service. However, if you are dissatisfied with the service you have received from us or have any query or concern about our work or would like to discuss with us how our service could be improved, please do not hesitate to let us know by first taking it up with the partner who is responsible for handling your affairs. If that does not resolve the problem to your satisfaction or you would prefer not to speak with that person, please take it up with Carolyn Hazard, our Compliance Partner. We undertake to look into any complaint carefully and promptly and to explain the position to you clearly. If for any reason we are unable to resolve the problem with you then you may subsequently contact the Institute of Chartered Accountants in England & Wales.
INVESTMENT BUSINESS SERVICES (INCLUDING INSURANCE MEDIATION SERVICES) & REFERRALS
HW Fisher & Company and its related companies are not authorised by the Financial Conduct Authority (FCA) to conduct investment business services. We are licensed by the Institute of Chartered Accountants in England and Wales to provide certain investment services which are complementary to or arise out of the professional services we are providing to you.
In particular, we may:
- advise you on investments generally, but not recommend a particular investment or type of investment;
- refer you to a Permitted Third Party (PTP) (an independent firm authorised by the FCA) and assist you in instructing the PTP;
- assist you and the PTP during the course of any advice given by that party comment on, or explain, the advice received (but not make alternative recommendations) and assist you in any documentation.
If, during the provision of professional services to you, you need advice on investments we may refer you to a person authorised by the FCA. Any such referral will be made with a view to your receiving independent advice or the independent exercise of discretion, in relation to investments generally.
Any work performed for you by the PTP will be conducted under separate terms of business. The PTP will issue you with his own terms and conditions, will be remunerated separately for his services and will take full responsibility for any services and advice provided and for compliance with the requirements of the Financial Services and Markets Act 2000 and of the FCA.
We may refer you to CBF Wealth Management Limited, financial advisers who promote Close Brothers Asset Management Investment Products. CBF Wealth Management Limited are classed as providing restricted advice.
HW Fisher & Company has a financial interest in these companies but they operate as completely separate businesses to our practice.
HW Fisher & Company will not receive a commission for this introduction.
Any advice given is governed by the FCA rules and regulations and indemnity insurance, which meets all the requirements laid down by the FCA, is provided.
If, as a result of advice given by us or in connection with our involvement, you require us to effect a transaction, we shall require a written statement of your instructions. If it is outside our licence, we will immediately notify you.
As already noted, we are not authorised by the FCA. However, HW Fisher & Company & HW Fisher & Company Limited are included on the register maintained by the FCA so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Institute of Chartered Accountants in England and Wales. The register can be accessed via the Financial Conduct Authority website at https://register.fca.org.uk/.
We do not have any holding (direct or indirect) representing more than 10% of the voting rights or of the capital in any undertaking that carries on insurance business: nor does any such undertaking have a holding of more than 10% of our voting rights or of our capital.
In the unlikely event that we cannot meet a liability to you arising from our undertaking investment business activities as a firm licensed by the Institute as a Designated Professional Body, you may be able to claim compensation under the Chartered Accountants’ Compensation Scheme.
If we receive commission or other benefits for introductions to other professionals or for transactions we arrange for you, we will account to you for that benefit. The value of such benefit will be notified to you and will be deducted from current and future fees otherwise chargeable to you.
We may hold or receive money on your behalf only if agreed with us in advance. If you deposit money direct with our bank, we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds.
Monies held on your behalf will be held in trust in a client bank account that is segregated from the firm’s funds. The account will be operated, and all funds dealt with, in accordance with the Clients’ Money Regulations of the Institute of Chartered Accountants in England and Wales (the Regulations).
Client monies will normally be held in our general clients’ bank account. No interest shall be payable to you in respect of monies so held. However, such monies may be transferred to a designated account where it is considered appropriate, where required by the Regulations, or as a result of specific instructions to that effect being received. To avoid excessive administration, interest will be paid to you only where the amount earned on the balances in designated client accounts held on your behalf exceeds GBP 25.00 in any 12 month period. Subject to any tax legislation requirements, interest will be paid gross.
We will return monies held on your behalf promptly as soon as there is no longer a 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, then we may pay those monies to a registered charity.
You agree to provide us in a timely manner with all documents and information we may need to complete the Services and, unless stated otherwise, you confirm that the documents and information provided are correct and accurate.
Insofar as 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.
We shall have the exclusive copyright in any letters, papers or other documents prepared by us during the course of carrying out the Services, save where the law specifically provides otherwise.
There may be occasions where you wish us to comment on the commercial aspects of legal documents. We will not be involved in their drafting or preparation as we consider this is the responsibility of lawyers. Whilst every care will be taken in the advice we give you in relation to any document, such advice and/or comments should not be taken as definitive. We cannot accept any liability or responsibility for any loss or damage suffered as a result of any defect in the drafting or preparation of any document or the completion of any mechanics adopted to give effect to it.
Personal information supplied to us or others processing personal data on our behalf, will be processed in accordance with the provisions of the Data Protection Act 1998 (as amended and updated from time to time). In order to carry out the Services and for related purposes such as updating and enhancing our client records, keeping you informed of the activities carried out by us, analysis for management purposes and statutory returns, legal and regulatory compliance and crime prevention we may obtain, process, use and disclose personal data about you.
We will notify you within 5 working days if an individual asks for copies of their personal data, makes a complaint about the processing of personal data or serves a notice from a relevant Data Protection Authority. You and we will consult and cooperate with each other when responding to any such request, complaint or notice.
In the conduct of our professional services we may need to collect and use personal information about (i) you or your partners, your company, your trustees, your clients/customers or your family and (ii) your or their employees, agents or contractors. You confirm that you will comply with any obligations that you may have under the Data Protection Act 1998 when providing us with this personal information and that you are lawfully permitted to share such information with us. You shall be responsible for any loss or damage suffered by us as a result of your failure to comply with the Data Protection Act 1998.
In order to ensure that the advice and services provided to you, whether by us or others processing personal data on our behalf, are appropriate to your needs, you agree that information held by us may be shared with our associates and related companies.
We may use contact details provided by you to send you information about us and our services. If you do not wish to receive this information you should write to us at email@example.com and/or contact the person with whom you normally deal.
In providing the Services under this agreement, we may transfer personal data outside the European Economic Area (the EEA). You understand that the data protection legislation outside the EEA may not give you an equivalent level of protection for the processing of personal data as that provided by the data protection legislation inside the EEA. You consent to such transfers unless you indicate otherwise by agreeing any separate limit on the circulation of such data in writing with us.
REPORTS AND ADVICE
You shall place no reliance on any reports or advice issued by us in draft, since such drafts are subject to revision and other factors that may result in them being substantially different from any final report or advice issued.
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.
Our advice, reports and letters are confidential and are prepared only for you, as our client, and may not be used, reproduced or circulated, whether in whole or in part, for any other purpose, without our prior written consent. Under no circumstances, regardless of consent, will we assume any responsibility to any third party to whom disclosure may be made and you agree to indemnify us in respect of any claim against us, including the costs of defending such a claim, arising out of any disclosure whether by you or anyone engaged by you.
HMRC are moving most of their services online. This means that most returns including accounts, tax returns, PAYE, CIS and VAT returns are now made electronically via the HMRC website. Unless you instruct us otherwise in writing, we will assume you consent to online submissions and where possible submit your returns electronically.
For most of these online submissions, we rely on third party software providers as well as HMRC software, to ensure that the returns are compatible with HMRC requirements and are delivered in a timely manner. We accept no liability for penalties incurred for late submission of returns due to the failure of either HMRC or a third party software.
CONFLICTS OF INTEREST AND INDEPENDENCE
We reserve the right at any time during or after our engagement with you to deliver services to other clients whose interests might compete with yours or are or may be adverse to yours subject to the obligations of confidentiality set out above.
We will disclose any material conflict of interest to you when it comes to our notice unless we are unable to do so due to confidentiality restrictions. If a conflict of interest should arise, either between two or more of our clients, or in the provision of multiple services to a single client and it is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests, we will adopt those safeguards. In resolving the conflict, we would be guided by the ICAEW ‘s Code of Ethics.
During and after our engagement, you agree that we reserve the right to act for other clients whose interests may compete with or be adverse to yours, subject of course, to our obligations of confidentiality and the safeguards set out in the paragraph on Confidentiality above.
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. If this arises, we will inform you as soon as reasonably practicable and we will endeavour to minimise any inconvenience to you.
INTERNAL DISPUTE WITHIN A CLIENT
If we become aware of a dispute between the parties who own or are in some way involved in the ownership and management of the business, 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/ the LLP and take no further action until the board/partnership/LLP has agreed the action to be taken.
If, arising out of the Services, any claim shall be brought against us or we shall be joined in any proceedings (other than in respect of any actual or alleged liability on our part for any professional negligence or any breach of any contract with you or any breach of any duty owed by us to you) you agree to indemnify us against any loss (including all reasonable costs and expenses) which we may suffer in connection with any such claim or proceedings. Where two or more clients instruct us in respect of the same matter, each client shall be and remain jointly and severally liable to us.
In accordance with the disclosure requirements of the Services Regulations 2009, our leading professional indemnity insurer is Markel International Insurance Company Limited, of The Markel Building, 49 Leadenhall Street, London EC3A 2EA. The territorial coverage is worldwide.
RIGHTS OF THIRD PARTIES
Persons who are not party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this engagement. Such limitation does not affect any right or remedy of any person that exists or is available otherwise than pursuant to that Act.
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.
CLIENT IDENTIFICATION AND VERIFICATION
In common with other professional services firms, we are required to identify and verify the identity of our clients for the purposes of the UK anti-money laundering 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. We may use electronic data sources to help us with the verification. Such checks leave a different footprint to credit checks on electronic files.
Please note that we are unable to provide the Services until we have satisfactorily completed our client identification and verification procedures.
CHANGES IN STATUS
You shall notify us within 14 calendar days of any changes to your circumstances which we should reasonably be made aware of, including (i) changes of name, address, telephone or fax numbers or e-mail address (ii) (where you are a company, a group of companies or a trust) ownership changes and changes in directors or trustees and (iii) if you go into administration, receivership or liquidation or make any arrangement with your creditors.
If any provision of our engagement letter, schedule of services or standard terms of business is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that or any other jurisdiction of the rest of that provision or of any other provision of our engagement letter.
Our engagement letter, the schedule of services and standard terms of business comprises the whole agreement between us relating to the Services and supersedes any previous letter of engagement relating to the same matter.
In the event of any conflict between these terms of business and our engagement letter or schedules, the relevant provision in the engagement letter or schedules will take precedence.
We shall not be responsible for any failure on our part to perform any of our obligations under our engagement letter arising as a result of matters beyond our reasonable control, including (without limitation) any act of God, fire, riot, war, terrorism, civil commotion, act of state or government, prevention from or hindrance in obtaining any materials, energy or other supplies, or any labour dispute.
GOVERNING LAW AND JURISDICTION
Each party agrees that our engagement letter, the schedule of services marked as “Appendix I” and our general terms and conditions of business marked as “Appendix II” 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 our engagement letter, the schedule of services or general terms and conditions of business and any matter arising from or under, or related to any of these documents. Each party irrevocably waives any right it may have to object to any action being brought in the English Courts (including, but not exhaustively, by way of argument that the English Courts are an inconvenient forum), or to claim that the English Courts do not have jurisdiction.
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 any advice is given.
We may transfer all or any of our rights and obligations under this engagement either to another appropriately authorised member of the group or to another person that succeeds to our business.
We will only assist with implementation of our advice if specifically instructed in writing.
We shall not be treated as having notice, for the purposes of our responsibilities, of information provided to members of our firm other than those engaged on specific assignments.
We may change the Terms and Conditions in this engagement by giving notice to you. For major changes, we will give at least four weeks’ notice unless any relevant law or regulation requires otherwise. Minor changes will be notified on our website.
Our engagement letter and standard terms shall remain in force until cancelled or superseded by agreement between us in writing. Either of us may terminate our engagement hereunder at any time by giving written notice to the other. Termination will not affect our rights of remuneration, indemnification or any contractual provision intended to survive termination or any other accrued rights.
In the event of termination of this engagement, 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.
Notwithstanding termination for any reason, we shall be entitled to retain one copy of any documents that we require in order to maintain a professional record of the Services we have provided.
Upon termination, you will pay forthwith upon request all fees and expenses due in respect of the Services provided up to the date of termination, together with our reasonable costs and expenses incurred in connection with the termination of our appointment.
If you are instructing us as an individual, additional statutory safeguards may apply. You may cancel your instructions by telephoning, emailing or otherwise contacting the appropriate fee earning partner, or by sending us a completed Cancellation Form enclosed with this engagement letter. Notwithstanding this, if you have asked us to start work and you subsequently cancel your instructions, you acknowledge and agree that we will be entitled to charge our fees for the work performed, plus any expenses incurred on your behalf, up to the date on which you cancel in accordance with the terms set out in this engagement letter.
Should we resign or be requested to resign we will normally issue a disengagement letter to ensure that our respective responsibilities are clear. Should we have no contact with you for a period of two years or more we may issue to your last known address a disengagement letter and hence cease to act.
RETENTION OF PAPERS
During the course of our work we may collect information from you and others relevant to the Services. We will return any original documents to you if requested. Whilst certain documents may legally belong to you we may destroy correspondence and other papers that we store, electronically or otherwise, which are more than seven years old. You must tell us if you require the return or retention of any specific documents for a longer period.
You may have a legal responsibility to retain documents and records relevant to the Services, for example for tax purposes, for specified periods as required by law. You are responsible for complying with any such record retention requirements.
January 2018 version