Definitions and interpretation
In these terms and conditions, the following terms have the following meanings:-
(a) “ICAEW” means the Institute of Chartered Accountants in England and Wales.
(b) “we” “us” “our” “the firm” means Ensors Accountants LLP, a limited liability partnership with registration number OC396130 whose registered office is at Connexions, 159 Princes Street, Ipswich, IP1 1QJ.
(c) “you” or “your” means you, our client.
(d) At Ensors Accountants LLP members are referred to as partners. Certain non-members may also be designated as partners from time to time and, accordingly, are also referred to as partners.
Our contract with you
These terms and conditions, and the terms of our engagement letter, set out the terms and conditions on which we are engaged by you to provide our professional services. Please ensure that you read these terms and the letter of engagement carefully.
These terms will become binding on you and us when you sign and return the letter of engagement or (if you do not sign the letter of engagement) by you continuing to instruct us after you have received the letter of engagement and these terms. At this point a contract will come into existence between you and us.
A person giving instructions on behalf of a company or organisation does so on the basis that they have the authority to give the instructions on its behalf and that it is financially able to meet its commitment to us. If either proves untrue the person giving the instructions is personally liable themselves.
If you want us to act only on the instruction of specified people you must let us know in writing. Otherwise we assume and you authorise us to assume that those representing you are duly authorised to give us information and instructions.
(a) Details of the firm’s professional registrations together with details of our professional indemnity insurer can be found below under The Provision of Services Regulations 2009.
(b) We will observe the bye-laws, regulations and ethical standards of the ICAEW and accept instructions to act for you on the basis that we will act in accordance with those standards. In particular, in respect of taxation matters, you give us 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.
(c) We cannot advise on any tax matters that are outside the jurisdiction of the UK tax authorities and therefore we will not be responsible for tax liabilities (and related interest, surcharges and penalties or their equivalents) which are imposed by authorities from outside the UK. Appropriate tax advice should be taken from local advisers in any other jurisdictions which may be relevant to your affairs.
(d) Communication between us is confidential and we shall take all reasonable steps to keep confidential your information except where we are required to disclose it by law, by a court or by regulatory bodies, by our insurers or as part of an external peer review. Unless we are authorised by you to disclose information on your behalf this undertaking will apply during and after this engagement.
(e) 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. 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.
(f) 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. In resolving a conflict we would be guided by the Code of Ethics of the ICAEW. We reserve the right to act for other clients whose interests are not the same as or are adverse to yours subject of course to the obligations of confidentiality referred to above.
Our fees are mainly computed on the basis of the time spent on your affairs by the partners and our staff, and on the levels of skill and responsibility and the importance and value of the advice that we provide, as well as the level of risk involved. Unless otherwise agreed before work commences on each occasion, our fees will be:-
(a) charged separately for each of the main classes of work;
(b) billed on account as the work progresses with a final bill on completion;
(c) due within 28 days of presentation, and at our discretion we reserve the right to charge interest at 1.5% per month (APR rate 19.6%) on any amount, unpaid or such higher rate as may be calculated (where applicable) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and
(d) abated by any remuneration we receive in connection with transactions we effect for you.
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.
When it is necessary for us to perform work outside the responsibilities set out in the earlier part of this letter, this will involve additional time being spent on your affairs and will therefore involve additional fees.
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.
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.
If it becomes necessary for us to withdraw from the engagement for any reason our fees for work performed up to that date will become payable by you.
If you do not pay any of our invoices on time, we reserve the right to terminate our engagement(s), or suspend all work which we are carrying out for you (whether or not relating to the work included within our unpaid invoice) and decline further instructions until our overdue invoice is settled in full. Please note that in the event of your failing to make any payment due to us when requested, we reserve the right to retain any money held for you to satisfy your liability to us.
In the event that this firm ceases to act in relation your affairs you agree to meet all reasonable costs of providing information to your new advisers. In particular you agree to meet these costs even where we are required by law to provide information to a successor firm.
Unless an exemption applies, VAT is added to our charges at the current rate. Figures quoted or estimated for our fees do not include the VAT.
As with other professional services firms, we are required to identify 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. Furthermore, we may make searches of appropriate databases in respect of you, and any other individuals or entities which may be relevant for AML identification purposes. We will not give any further notice that such database searches are to be carried out. If satisfactory evidence of your identity is not provided within a reasonable time, there may be circumstances in which we are not able to proceed with our work.
The provision of our services is a business in the regulated sector under the Proceeds of Crime Act 2002 and, as such, partners and staff are required to report all knowledge or suspicion, or reasonable grounds to know or suspect that a criminal offence giving rise to any direct or indirect benefit from criminal conduct has been committed, regardless of whether that offence has been committed by their client or a third party. If as part of our normal work we have knowledge or suspicion, or have reasonable grounds to know or suspect, that such offences have been committed we are required to make a report to the appropriate authority. In such circumstances we will not discuss such reports with you because of the restrictions imposed by law.
Limitation of liability
We will provide our professional services with reasonable care and skill. However, neither we nor our members, partners or employees are responsible for any losses penalties, surcharges, fines, interest or additional tax liabilities to the extent it arises from:-
(a) the supply by you or others of incorrect or incomplete information;
(b) your failure to comply with your obligations as set out in these term or the engagement letter;
(c) your or others’ failure to supply any appropriate information;
(d) your failure to act on our advice or respond promptly to communications from us or other relevant authorities.
You agree to hold harmless and indemnify us against any costs, expenses, losses or damages we suffer as a result of any misrepresentation, whether intentional or unintentional, supplied to us by you, your employees or agents, orally or in writing, in connection with our engagement.
You agree that you will not bring any claim in connection with services provided to you by the firm against any of our members, partners or employees on a personal basis, and that you may only claim against the firm in connection with any services provided to you by the firm.
Investment business services
If you need advice on investments during the course of our providing professional services to you, we may have to refer you to somebody who is authorised by the Financial Conduct Authority (“FCA”), as we are not.
We are not regulated by the Financial Conduct Authority and are not an authorised person for the purposes of the Financial Services and Markets Act 2000. Although we are not authorised by the FCA to conduct Investment Business, we are licensed by the ICAEW to undertake certain Investment Business activities where these are complementary to, or arise out of, the professional services we are providing to you.
In particular, we may:-
(a) advise you on investments generally, but not recommend a particular investment or type of investment;
(b) assist you in making arrangements for transactions in investments in certain circumstances;
(c) advise and assist you in transactions concerning shares or other securities not quoted on a recognised exchange; and
(d) manage investments or act as trustee where decisions to invest are taken on the advice of an authorised person.
We may also, on the understanding that shares or other securities are not publicly traded:-
(a) advise a Newco and existing or prospective shareholders in relation to exercising rights, taking benefits or share options valuation and methods;
(b) arrange any agreements in connection with the issue, sale or transfer of shares or other securities;
(c) arrange for the issue of new shares; and
(d) act as the addressee to receive confirmation of acceptance of offer documents, etc.
We are of the opinion that the work we are proposing to carry out for you is not a ‘Regulated Activity’.
In some circumstances we may refer you to a Permitted Third Party (PTP) for investment business, mortgages or general insurance business including life and pensions. Ensors will not take any responsibility for the services they provide and the PTP will treat you as their client for all the purposes of the rules of the Financial Conduct Authority.
Insurance Mediation Activities: Although we are not authorised by the FCA, we are included on the register maintained by the FCA so that we might 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 ICAEW. The register can be accessed via the FCA website at www.fca.gov.uk/register
If you are dissatisfied in any way with our services described in this section, you should follow the procedures set out in the ‘Help us to give you the right service’ section below. In the unlikely event that we cannot meet our liabilities to you, you may be able to claim compensation under the Chartered Accountants’ Compensation scheme.
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 the ICAEW. The selection of a bank where the client bank account will be opened is your responsibility. The bank selected must comply with the ICAEW’s Clients’ Money Regulations. If you do not specify a bank, we will open the client bank account at any of Cater Allen Limited, National Westminster Bank Plc, Barclays Bank Plc or Bank of Scotland Plc or any other bank of our choosing that complies with the Client’s Money Regulations of the ICAEW. Any compensation you are entitled to under the government’s Financial Services Compensation Scheme (“FSCS”) is currently limited to a set amount for individuals and small businesses so if you hold other personal monies in the same bank as client money is held with us the aggregate limit on your claim against each bank is that set amount set by the FSCS from time to time. Do bear in mind that some banks operate under several brands. The FCA will be able to tell you which banks use which brand names if you wish to check on your accounts. In the event of a bank failing, we will, unless otherwise instructed, disclose details of the funds we hold for you on client account to the FSCS. It is a matter for you to satisfy yourself as to the financial standing of those banks. In the absence of fraud or negligence on our part in the investment of funds we shall not be liable for any loss that you might incur on the failure of any such bank. Any amount that we have deposited on your behalf at a bank will be aggregated with any amount that you have deposited with such bank or banks directly, limiting your recovery under the FSCS.
In order to avoid an excessive amount of administration, interest will only be paid to you where the amount of interest that would be earned on the balances held on your behalf in any calendar year exceeds £25. Any such interest would be calculated using the prevailing rate applied by Barclays Bank plc for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
If the total sum of money held on your behalf exceeds £10,000 for a period of more than 30 days, or such sum is likely to be held for more than 30 days, then the money will be placed in a separate interest-bearing client bank account designated to you. All interest earned on such money will be paid to you. Subject to any tax legislation, interest will be paid gross.
In some circumstances introductory commissions may become payable to us in respect of introductions we make, in which case you will be notified in writing of the amount and terms of payment. We will account to you for the amount of such commission. You have the right to require us to remit the amounts of the commission to you and we may only deal with these amounts otherwise on your express consent.
If we obtain a tax repayment on your behalf we will forward this to you as soon as possible. If for any reason this is delayed and interest of more than £25 accrues then this will be paid to you.
Retention of and access to records
(a) During the course of our work we will collect information from you and others acting on your behalf and will return any original documents to you following the completion of our work, subject to any lien we may have over those documents (on which see below). You should retain these records for at least seven years from the end of the accounting year to which they relate.
Intellectual property rights
In this paragraph, the following terms have the following meanings:-
(a) “Intellectual Property Rights” means all copyright and related rights, moral rights, database rights and any other intellectual property rights, in each case whether registered or unregistered, and all similar or equivalent rights or forms of protection in any part of the world; and
(b) “Materials” means all reports, statements and other documents we prepare or provide for you in the course of our engagement.
All Intellectual Property Rights in the Materials, or otherwise arising out of or in connection with our engagement, shall be owned by us, save where the law specifically provides otherwise.
We grant you a non-exclusive, non-transferable licence to hold, use and disclose the Materials to the extent necessary for any purpose relating our engagement (the “Licence”).
If you do not pay any of our invoices on time:-
(a) we may terminate the Licence immediately upon giving you written notice; and
(b) you shall immediately on request return or destroy all physical copies of the Materials in your possession or control, and permanently delete any electronic copies in your possession or control.
We are not liable for any use of the Materials for any purpose other than that for which they were originally intended.
Either of us may terminate our engagement at any time on giving notice to the other. Our and your rights of termination are set out more fully in the engagement letter.
Without prejudice to the generality of the foregoing, we may terminate our engagement immediately in the event of:
(a) your insolvency, bankruptcy or other arrangement being reached with creditors;
(b) failure to pay our fees by the due dates;
(c) you being in breach of your obligations.
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.
Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments.
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 bear in return for greater efficiency and lower costs. 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.
Ensors is a limited liability partnership. In the event of the partnership converting to a traditional partnership or a company or any other entity (each a new “New Entity”), the contract between us, which incorporates these terms and conditions, will transfer to the New Entity and you agree that the performance by the New Entity of the contract will be in lieu of performance by Ensors, the limited liability partnership.
We are committed to ensuring the protection of the privacy and security of any personal data which we process. Further details are set out in our privacy notice which is available on our website, www.ensors.co.uk as amended from time to time.
You will only disclose personal data to us where you have provided the necessary information to the relevant data subjects regarding its use and you have a lawful basis 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.
When processing data on your behalf we will comply with the provisions of all applicable data protection legislation including 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.
We shall only process 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. Our privacy notice contains further details as to how we may process client personal data.
You have a right of access, under data protection legislation, to the personal data that we hold about you. For the purposes of the data protection legislation, the Data Controller in relation to personal data supplied both about and by you is Ensors Accountants LLP. Please address questions or communications regarding data protection to the practice manager at our Ipswich office or to email@example.com.
The engagement letter and these 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 non-exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it.
In the event of any conflict between our engagement letter with you and these terms the provisions of the engagement letter shall take precedence.
Severance and waiver
If any provision in these terms and conditions or any associated engagement letter, or its application, are found to be invalid, illegal or otherwise unenforceable in any respect, the validity, legality or enforceability of any other provisions shall not in any way be affected or impaired.
If we fail to insist that you perform any of your obligations under these terms or our engagement letter, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
Non solicitation of staff
You will not offer to employ or engage or otherwise endeavour to entice away from the firm, any employee, member or partner of the firm with whom you have had material dealings in connection with our engagement during the twelve months immediately prior to the first date of your offer or approach (except where the employee, member or partner responds directly to a general recruitment campaign). Should you breach this clause you undertake to pay us at least the cost incurred by us in recruiting a replacement employee, member or partner.
Ad hoc advice
During the course of the engagement we may provide you with ad hoc advice in respect matters related to your affairs e.g. VAT advice, corporation tax advice, personal tax advice and other tax advice more generally. Such advice will be provided in writing and subject to the terms of our existing engagement letter and these terms. We may, at our option, issue a separate engagement letter in respect of certain advice. Where appropriate, we will discuss and agree an additional fee for such work when it is commissioned by you.
Foreign Account Tax Compliance Act (FATCA)
You are responsible for informing us of information relating to your affairs which could give rise to a reporting requirement under FATCA. FATCA is a United States federal law that requires United States persons, including individuals who live outside the United States, to report their financial accounts held outside of the United States, and requires foreign financial institutions to report to the US Internal Revenue Service about their US clients.
To enable us to comply with our obligations under FATCA you authorise us to disclose your Global Intermediary Identification Number (GIIN) to relevant financial institutions and also to make the necessary reports and returns to HMRC in respect of FATCA.
Rights of third parties
The contract created by these terms and our engagement letter is a contract between you and us. Save as expressly set out above (Ensors’ status) no other person shall have any rights to enforce or have the benefit any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The Provision of Services Regulations 2009
We are registered to carry on audit work in the UK by ICAEW. Details of our audit registration can be viewed at www.auditregister.org.uk under reference number C004134497.
Mark Upton and David Scrivener are licenced to act as insolvency practitioners in the UK by the ICAEW. Details of their registration can be viewed at www.insolvencydirect.bis.gov.uk/fip1/
Our professional indemnity insurer is provided by a number of insurers. Our primary layer is Nexus Underwriting Limited on behalf of Allianz Global Corporate & Speciality who can be contacted via our brokers LONMAR Professions of Corn Exchange, 55 Mark Lane, London, EC3R 7NE. The territorial coverage is worldwide, including claims brought under United States and/or Canadian jurisdiction, subject to specific policy terms and conditions, as more fully defined in the policy wording.
Help Us To Give you the Right Service
If you would like to discuss with us how our service to you could be improved, or if you are unhappy with the service you are receiving, please let us know by contacting Malcolm McGready or Barry Gostling. Their contact details are:-
Malcolm McGready Tel: 01473 220022 Fax: 01473 214417 Email: firstname.lastname@example.org
Barry Gostling Tel: 01473 220022 Fax: 01473 214417 Email: email@example.com
We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns.