The following standard terms and conditions of business apply to all engagements accepted by William Marshall & Co. All work carried out is subject to these terms except where changes are expressly agreed in writing.
1 Professional rules and practice guidelines
1.1 We will observe and act in accordance with the bye-laws, regulations, and code of ethics of the Institute of Financial Accountants (IFA) and accept instructions to act for you on this basis. In particular you give us authority to correct errors made by HM Revenue & Customs (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.
2 Applicable law
2.1 Our terms of business and engagement letters are governed by, and construed in accordance with, English Law. The Courts of England and Wales shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the terms of business or engagement letters and any matters arising from them. Each party irrevocably waives any right it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.
3 Client identification
3.1 Under the Money Laundering Regulations 2019, we are obliged to obtain evidence of identity for all clients. We may request from you sight of your passport or photo driving licence together with a recent personal utility bill. An online identity check may also be carried out. If we are not able to obtain satisfactory evidence of your identity and where applicable that of the beneficial owners, we will not be able to proceed with the engagement.
4 Money Laundering
4.1 We have a duty under section 330 of the Proceeds of Crime Act 2002 to report to the NCA (National Crime Agency) if we know, or have reasonable cause to suspect, that you, or anyone connected with your business, are or have been involved in money laundering. Failure on our part to make a report where we have knowledge or reasonable grounds for suspicion would constitute a criminal offence. The offence of money laundering is defined by section 340(11) of the Proceeds of Crime Act and includes the acquisition, possession, or involvement in arrangements for concealing the benefits of any activity that constitutes a criminal offence in the UK. This definition is very wide and would include tax evasion through deliberate understatement of income or overstatement of expenses or stocks; or deliberate failure to inform the tax authorities of known underpayments. We are obliged by law to report to NCA without your knowledge and consent and in fact we would commit the criminal offence of tipping off under section 333 of the Proceeds of Crime Act were we to inform you of any suspicions or that a report had been made. We are not required to undertake work for the sole purpose of identifying suspicions of money laundering. We shall fulfil our obligations under the Proceeds of Crime Act 2002 in accordance with the guidance published by our governing body, The Institute of Financial Accountants.
5 Other services and reliance on advice
5.1 We will be pleased to assist you generally in tax matters if you advise us in good time of any proposed transactions and request advice. We would, however, warn you that because tax rules change frequently you must ask us to review any advice already given if a transaction is delayed, or if an apparently similar transaction is to be undertaken.
5.2 It is our policy to confirm in writing advice upon which you may wish to rely. 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 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.
5.3 Although we are not authorised by the Financial Conduct Authority (FCA) to conduct investment business, we are licensed by our Institute (IFA) to provide certain limited investment advice that is incidental or complementary to, or arises out of, the professional services we are providing to you.
6 Client money
6.1 We may, from time to time, hold money on your behalf. Such 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 the Clients’ Money Regulations of our Institute (IFA).
6.2 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. Any such interest would be calculated using the prevailing rate for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
6.3 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 practise then we may pay those monies to a registered charity.
7 Fees and payment terms
7.1 Our fees are based upon the degree of responsibility and skill involved, the importance and value of the advice that we provide, the level of risk, and the time necessarily occupied on the work.
7.2 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.
7.3 Where 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.
7.4 Fees are due for payment on presentation of the invoice unless otherwise agreed. It is our normal practice to issue ‘Applications for Payment’ when dealing with continuous or recurring work. The payment terms for ‘Applications for Payment’ are the same as for invoiced fees. An invoice will be issued to you upon receipt of your payment.
7.5 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. Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel, or other professional fees.
7.6 All queries on fee accounts rendered by us must be raised in writing within 21 days of the account being issued. Any account received by you and not queried in writing within 21 days will be deemed to be accepted as a reasonable charge for the work done.
7.7 We reserve the right to charge interest on overdue accounts at the current rate under the late Payment of Commercial Debts (Interest) Act 1998.
7.8 We also reserve the right to terminate our engagement and cease acting for you on giving written notice if payment of any fees billed is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
7.9. If a client company 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.
8 Limitation of liability
8.1 We will provide our services with reasonable care and skill. Our liability to you is limited to losses, damages, costs, and expenses caused by our negligence or wilful default.
8.2 We will not be liable if such losses, penalties, surcharges, interest, or additional tax liabilities are due to the acts or omissions of any other person or due to the provision to us of incomplete, misleading, or false information or if they are due to a failure to act on our advice or a failure to provide us with relevant information.
8.3 We will not be liable to you for any delay or failure to perform our obligations under this engagement letter if the delay or failure is caused by circumstances outside our reasonable control.
8.4 We will not be responsible or liable for any loss, damage or expense incurred or sustained if information material to the service we are providing is withheld or concealed from us or misrepresented to us. This applies equally to fraudulent acts, misrepresentation, or wilful default on the part of any party to the transaction and their directors, officers, employees, agents. or advisers.
8.5 This exclusion shall not apply where such misrepresentation, withholding or concealment is or should (in carrying out the procedures which we have agreed to perform with reasonable care and skill) have been evident to us without further enquiry beyond that which it would have been reasonable for us to have carried out in the circumstances.
8.6 You agree to indemnify us and our agents in respect of any claim (including any claim for negligence) arising out of any unauthorised disclosure by you or by any person for whom you are responsible of our advice and opinions, whether in writing or otherwise. This indemnity will extend to the cost of defending any such claim, including payment at our usual rates for the time we spend in defending it.
8.7 Where the engagement letter specifies an aggregate limit of liability, then that sum shall be the maximum aggregate liability of this firm, its partners, agents, and employees to all persons to whom the engagement letter is addressed and also any other person that we have agreed with you may rely on our work. By signing the engagement letter, you agree that you have given proper consideration to this limit and accept that it is reasonable in all the circumstances. If you do not wish to accept it you should contact us to discuss it before signing the engagement letter.
8.8 You have agreed that you will not bring a claim of a kind that is included within the subject of the limit against any of our partners or employees; on a personal basis.
9 Retention of and access to records
9.1 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 acting on your behalf and will return any original documents to you following the preparation of your accounts and returns. Most documents and records relevant to your tax affairs are required by law to be retained 6 years from the end of the accounting period.
9.2 Whilst certain documents may legally belong to you, we intend to destroy correspondence and other papers that we store which are more than seven years old, other than documents which we consider to be of continuing significance. If you require retention of any document you must notify us of that fact in writing.
10 Conflicts of interest
10.1 You agree that we may reserve the right to act during this engagement for other clients whose interests are or may be adverse to yours, subject of course to the obligations of confidentiality referred to below. We confirm that we will notify you immediately should we become aware of any conflict of interest to which we are subject in relation to you. 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.
10.2 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. Where possible this will be done on the basis of your informed consent.
11 Internal disputes within a client
11.1 If we become aware of a dispute between the parties who own or are in some way involved in the ownership and management of 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 registered office or normal place of business for 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 or other governing body and take no further action until they have agreed the action to be taken.
12.1 We confirm that where you give us confidential information we shall at all times keep it confidential, except as required by law or as provided for in regulatory, ethical. or other professional pronouncements (such as by our insurers, or part of an external peer review) applicable to our engagement.
12.2 We may, on occasions, subcontract work on your affairs to other tax or accounting professionals. The subcontractors will be bound by our client confidentiality terms.
12.3 We reserve the right, for the purposes of promotional activity, training or for other business purpose, to mention that you are a client. As stated above we will not disclose any confidential information.
12.4 You hereby explicitly acknowledge and consent that we may make use of cloud computing services to store personal information and other data relating to you. We will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) to protect this personal information and other data from unauthorised disclosure. You, however, acknowledge and agree that it is impossible for us to guarantee the security of the personal information and other data with absolute certainty and that the use of cloud computing services may therefore entail certain risks. We shall only be responsible if it has finally judicially been determined that we did not take commercially reasonable measures to protect the personal information and other data from unauthorised disclosure.
12.5 You agree that it will be sufficient compliance with our duty of confidence for us to take such steps as we in good faith think fit to preserve confidential information both during and after the termination of this engagement.
13 Quality of service
13.1 We wish to provide a high quality of service which is both efficient and effective at all times. If at any time you would like to discuss with us how our service to you could be improved or if you are concerned with the service which you are receiving please let us know by telephoning our Managing Director / William Marshall.
13.2 We undertake to consider any comments carefully and promptly and to do all we can to explain the position to you. We undertake to do everything reasonable to resolve any problems and if you are still not satisfied you may, of course, take up matters with our Institute (IFA).
14 Limitation of third party rights
14.1 A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause does not affect any right or remedy of any person, which exists or is available otherwise than pursuant to that Act.
14.2 The advice, which we give you, is for your sole use and does not constitute advice to any third party to whom you may communicate it unless we have expressly agreed in the letter of engagement that a specified third party may rely on our work. We accept no responsibility to third parties, including any group company to whom the letter of engagement is not addressed for any aspect of our professional services or work that is made available to them.
15 The provision of services regulations 2009
15.1 In accordance with the disclosure requirements of the Provision of Services Regulations 2009, the details of our professional indemnity insurer (which changes from time to time) may be obtained from our Managing Director / William Marshall.
15.2 The territorial coverage of our policy 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 bought in any court in the United States of America or Canada.’
16 Electronic and other communication
16.1 Electronic communications are capable of non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties and therefore, we do not accept any responsibility for changes made to such communications after their despatch. It may, therefore, be inappropriate to rely on advice contained in an e-mail without obtaining written confirmation of it. As electronic communication is not totally secure, we do not accept responsibility for any errors or problems that may arise through the use of electronic communications and all risk connected with sending sensitive information relating to the entity are borne by you. If you do not agree to accept this risk (which will achieve greater efficiency and lower costs), you should notify us in writing that e-mail is not an acceptable means of communication, and we will communicate by paper mail, other than where electronic submission is mandatory.
16.2 It is the responsibility of the recipient to carry out a virus check on any e-mails and attachments received. However, we do use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through e-mails or electronic storage devices.
16.3 Any communication by us with you sent through the United Kingdom postal system is deemed to arrive at your postal address two working days after the day that the document was sent.
17 Data protection
17.1 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 General Data Protection Regulation ((EU) 2016/679); and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
17.2 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.
17.3 You shall only disclose client personal data to us where:
- 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 www.fawcetts.co.uk for this purpose);
- 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
- you have complied with the necessary requirements under the data protection legislation to enable you to do so.
17.4 Should you require any further details regarding our treatment of personal data, please contact our Privacy Controller.
17.5 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;
- in order to comply with our legal or regulatory obligations; and
- 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 www.fawcetts.co.uk) contains further details as to how we may process client personal data.
17.6 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 European Economic Area (EEA). We will only disclose client personal data to a third party (including a third party outside of the EEA) provided that the transfer is undertaken in compliance with the data protection legislation.
17.7 We shall maintain commercially reasonable and appropriate security measures, including administrative, physical, and technical safeguards, to protect against unauthorised or unlawful processing of the client personal data and against accidental loss or destruction of, or damage to, the client personal data.
17.8 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:
- we receive a request, complaint, or any adverse correspondence from or on behalf of a relevant data subject, to exercise their data subject rights under the data protection legislation or in respect of our processing of their personal data;
- 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 a supervisory authority as defined in the data protection legislation (for example in the UK, the Information Commissioner’s Officer); or
- 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.
17.9 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.
18.1 Should we withdraw from an engagement we will normally issue a disengagement letter to ensure that respective responsibilities of both parties are clear. This will also help in ensuring an efficient handover between professional advisers. Should we have no contact with you for a period in excess of one year we may issue a disengagement letter to your last known address and hence cease to act.
19 Termination of engagement
19.1 Each of us may terminate this 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.
19.2 In the event of termination of this 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.
19.3 On withdrawal from an engagement, our fees for work performed up to that date will be payable by you.