Terms and Conditions
The following standard terms of business apply to all engagements accepted by Johnsons. All work carried out is subject to these terms except where changes are expressly agreed in writing.
1. Professional rules and statutory obligations
1.1 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. We will not be liable for any loss, damage or cost arising from our compliance with statutory or regulatory obligations. Copies of these requirements are available in our offices.
1.2 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 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.
1.3 We will inform you if we become aware of any conflict of interest in our relationship with you. We reserve the right to provide services for other clients whose interests are not the same as yours.
2. Investment advice
2.1 Investment business is regulated by the Financial Services and Markets Act 2000. If during the provision of professional services to you, you need advice on investments (including insurances), we may have to refer you to someone who is authorised by the Financial Services Authority, as we are not. We are licensed by the Institute of Chartered Accountants in England and Wales to provide certain investment services that are complementary to, or arise out of, the professional services we provide to you.
3. Commissions or other benefits
3.1 In some circumstances we may receive commissions or other benefits for introductions to other professionals or transactions we arrange for you, in which case you will be notified in writing of the amount, the terms of payment and receipt of any such commissions or benefits. You consent to such commissions or other benefits being retained by us without our being liable to account to you for any such amounts.
4. Client money
4.1 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 The Institute of Chartered Accountants in England & Wales.
4.2 To avoid excessive 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 £50. Any such interest would be calculated using the prevailing rate applied by Barclays Bank for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
4.3 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 5 years or we as a firm cease to practise then we may pay those monies to a registered charity.
5. Fees and payment terms
5.1 Unless otherwise agreed in writing, our fees are computed on the basis of time spent on your affairs by the principals and our staff, and 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. Reasonable disbursements represent travel, accommodation and other expenses incurred in dealing with your affairs are charged in addition to these fees.
5.2 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 this will be the case.
5.3 Where requested, we may indicate a fixed or percentage 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.
5.4 It is our normal practice to ask clients to pay a proportion of their fee on a monthly standing order and to periodically adjust the monthly payment by reference to actual billings.
5.5 Our terms relating to payment of invoice (and not covered by standing orders) are upon presentation of invoice. Interest and compensation for recovery costs may be charged on all invoices outstanding for over 30 days at the rate stated on the invoice, which is currently 2% above the Barclays Bank inter bank rate. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
5.6 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.
5.7 If a client company is unable or unwilling to settle our fees we reserve the right to seek payment from the individual giving us instructions on behalf of the client and we shall be entitled to enforce any sums due against the individual nominated to act for you.
6. Retention of client records
6.1 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. You should retain these records for 6 years from the end of the accounting year to which they relate.
6.2 Whilst certain documents may legally belong to you, we may destroy correspondence and other papers that we store electronically or otherwise that are more than 6 years old, except documents which we think may be of continuing significance. You must tell us if you wish us to keep any document for any longer period. We reserve the right to charge a fee for handling and storing any such documents.
7. Quality control
7.1 As part of our ongoing 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 of confidentiality as our principals and staff.
8. Reliance on advice
8.1 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.
9. Complaints
9.1 We are committed to providing you with a high quality service that is both efficient and effective. However, should there be any cause for complaint in relation to any aspect of our service, please contact Stuart Thomson. We agree to look into any complaint carefully and promptly and do everything reasonable to put it right. If you are still not satisfied you can refer your complaint to our professional body, the Institute of Chartered Accountants in England and Wales.
10. Applicable law
10.1 This engagement letter is governed by, and construed in accordance with English law. 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. 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.
11. Electronic and other communication
11.1 Unless you instruct us otherwise we may 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.
11.2 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 email 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.
11.3 Any communication by us with you sent through the post is deemed to arrive at your postal address 2 working days after it was sent.
12. Data protection
12.1 To enable us to discharge the services agreed under our engagement, and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance, we may obtain, use, process and disclose personal data about you / your business / company / partnership / its officers and employees and shareholders. We confirm when processing data on your behalf that we will comply with the relevant provisions of applicable data protection legislation. You will also ensure that any disclosure of personal data to us complies with such legislation. If you supply us with any personal data or confidential information you shall ensure you have full informed consent to pass it to us and will fully indemnify and hold us harmless if you do not have such consent and that causes us loss. If you are supplying us with personal data on the basis of a power of attorney for anyone you must produce to us an original or certified copy of the power of attorney on demand.
12.2 Applicable data protection regulation places express obligations on you as a data controller where we as a data processor undertake the processing of personal data on your behalf. An example would be where we operate a payroll service for you. We therefore confirm that we will at all times use our reasonable endeavours to comply with the requirements of applicable data protection regulation when processing data on your behalf. In particular we confirm that we have adequate security measures in place and that we will aim to comply with any obligations equivalent to those placed on you as a data controller.
12.3 We will notify you within 10 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. If an individual whose data you have supplied to us or which we are processing on your behalf asks us to remove or cease processing that data we shall be entitled to do so where required to by law.
12.4 We may export personal data you supply to us outside the EU/EEA/UK for the purposes of storage and data processing. We will ensure all such data export is compliant with relevant data protection legislation. You consent to such data export. Where cloud based services are to be used you may be subject to our cloud services terms and conditions.
12.5 We will answer your reasonable enquiries to enable you to monitor compliance with this clause.
13. Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standards
13.1 Unless agreed specifically in a separate engagement letter, we are not responsible for your compliance with the International Tax Compliance (United States of America) Regulations 2013, produced as a result of FATCA. In particular, we are not responsible for the categorisation of any UK entity into either a Financial Institution (FI) or an active or passive Non-Financial Foreign Entity (NFFE) nor, if a Financial Institution, for its registration with the US Internal Revenue Service (IRS) and subsequent submission of the required annual returns to HM Revenue & Customs.
13.2 However, if requested to do so we can provide advice on the completion of the forms supplied by Financial Institutions under these Regulations, or under Common Reporting Standards, and used by them to determine the status of an entity. We can also provide advice on setting up the appropriate systems to identify and report on your clients or beneficiaries who are foreign citizens affected by FATCA or Common Reporting Standards.
14. Limitation of Liability
14.1 We will provide our services with reasonable care and skill. Our liability to you is limited to direct 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 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. Further, we will not be liable to you for any delay or failure to perform our obligations if the delay or failure is caused by circumstances outside our reasonable control. Subject to clause 14.5 Our liability to you shall be limited as set out in in this clause 14 unless specifically agreed otherwise in writing.
14.2 You will not hold us, our principal(s)/director(s), shareholders 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. 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. However, 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.
14.3 You agree that you will not bring any claim in connection with services we provide to you against any of our partners, shareholders, directors or employees personally.
14.4 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 to third parties for any aspect of our professional services or work that is made available to them. 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 that we spend in defending it and our legal fees on an indemnity basis.
14.5 Nothing in this agreement shall exclude or limit our liability for death or personal injury caused by negligence nor for fraudulent misrepresentation or other fraud which may not as a matter of applicable law be excluded or limited.
14.6 Our liability for compliance services will be limited to direct losses up to a maximum of the lower of £1million and 5 times the contracted fee. You consider this to be fair and reasonable.
14.7 For non-compliance services will be limited to direct losses up to a maximum of the higher of £1million and 5 times the contracted fee. You consider this to be fair and reasonable.
14.8 Neither party shall be liable to the other for any indirect or consequential loss (including but not limited to loss of goodwill, loss of business, loss of anticipated profits or savings and all other pure economic loss) arising out of or in connection with this Agreement.
15. Limitation of third party rights
15.1 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 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.
16. Intellectual property rights and use of our name
16.1 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. You may only use such rights to the extent we agreed when engaged to provide services to you and may not resell or sublicense such rights without our further prior consent.
16.2 You are not permitted to use our name in any statement or document that 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.
16.3 Where we have acquired a license to enable us to provide services to you or with which you process information, this license belongs to us and we take no responsibility for the failure of the products relating to such licenses. Furthermore we do not guarantee the continued availability of such products, particularly if our fees remain outstanding beyond our standard terms.
17. Draft/interim work or oral advice
17.1 In the course of our providing services to you we may provide advice or reports or other work products in draft or interim form, or orally. However, final written work products will always prevail over any draft, interim or oral statements. Where you request it, we will provide you with written confirmation of matters stated orally.
18. Conflicts of Interest
18.1 If during the course of our work 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, we will take such steps as are necessary to deal with the conflict. In resolving the conflict, we would take into consideration the Code of Ethics of The Institute of Chartered Accountants in England and Wales which can be viewed at http://www.icaew.com/en/members/regulations-standards-and-guidance/ethics, Code of Ethics section 220.
18.2 We would also like to draw to your attention that Johnsons comprises several business which are interrelated. We firmly believes that making available such services to you will not just enhance your experience of Johnsons but add to the quality of advice given. Therefore we obtain and retain your information on the basis that we may share it with other Johnsons’ businesses, such as Johnsons FCA regulated brokerage (Johnsons Brokerage Limited), where we deem it appropriate. By providing us with such information you are accepting this. Furthermore you acknowledge and accept that there is a potential conflict of interest in that Johnsons may receive benefit from provision of other services to you.
19. Interpretation
19.1 If any provision of our engagement letter or terms of business is held to be void for whatever reason, then that provision will be deemed not to form part of this contract, and no other provisions will be affected or impaired in any way. 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.
20. Disengagement
20.1 If we resign or are asked to resign, we will may issue a disengagement letter to ensure that our respective responsibilities are clear.
20.2 Following notice of one party’s decision to disengage the provision of services by us to you, then we reserve the right to delete all client records within 14 days.
21. Money laundering
21.1 In common with all accountancy and legal practices, the firm is required by the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 to:
- Maintain identification procedures for all new clients;
- Maintain records of identification evidence obtained, and
- Report, in accordance with the relevant legislation and regulations.
21.2 We have a duty under section 330 of the Proceeds of Crime Act 2002 to report to the Serious Organised Crime Agency (SOCA) 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.
21.3 The offence of money laundering is defined by section 340(11) of the Proceeds of Crime Act and includes concealing, converting, using or possessing the benefits of any activity that constitutes a criminal offence in the UK. It also includes involvement in any arrangement that facilitates the acquisition, retention, use or control of such a benefit.
This definition is very wide and would include such crimes as:
- deliberate tax evasion;
- deliberate failure to inform the tax authorities of known underpayments or excessive repayments;
- fraudulent claiming of benefits or grants; or
- obtaining a contract through bribery.
21.4 We are obliged by law to report any instances of money laundering to SOCA without your knowledge or consent. In fact, we may commit the criminal offence of tipping off under section 333 of the Proceeds of Crime Act if we were to inform you that a report had been made. In consequence, neither the firms’ principals nor staff may enter into any correspondence or discussions with you regarding such matters.
21.5 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 The Institute of Chartered Accountants in England and Wales.
22. Lien
22.1 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 are paid in full.
23. The Provision of Services Regulations 2009
23.1 We are registered to carry on audit work in the UK and Ireland by the Institute of Chartered Accountants in England and Wales. Details of our audit registration can be viewed at auditregister.org.uk for the UK under reference number C001681357.
23.2 Our professional indemnity insurers are CNA Insurance Company Limited based at 20 Fenchurch Street, London, EC3M 3BY. The territorial coverage is worldwide excluding professional business carried out from an office in the United States of America, Canada and US Virgin Islands and excludes any action for a claim brought in any court in the USA, Canada and US Virgin Islands.