1.         The contract between us

1.1          The contract between you (the “Client”, or “you”) and the UK limited liability partnership of Frost Wiltshire LLP (“Frost Wiltshire” or “we”) is described in the covering engagement letter and any appendices and enclosures thereto (“Engagement Letter”), and these Terms of Business, (together the “Contract”).  No-one is authorised to agree any variations in the Contract unless any variations are agreed in writing between us.

1.2          If we have already started work (e.g. by gathering information, project planning or giving initial advice) then you agree that this Contract applies retrospectively from the start of our work.

1.3          If any provision of this Contract is determined to be illegal, void or unenforceable in whole or in part, such provision or the affected part shall be deemed not to form part of this Contract but all other provisions together with the remainder of the affected provision shall remain in full force and effect.

Contracting parties and assignment

1.4          This Contract is between you and Frost Wiltshire. You agree that your relationship is solely with Frost Wiltshire as the entity contracting with you to provide the Services, and that no party other than Frost Wiltshire LLP will have any liability to you in connection with this Contract. The foregoing exclusion does not apply to any liability, claim or proceeding founded on an allegation of fraud or other liability that cannot be excluded under English law.

Third party rights

1.5          A person who is not party to this agreement shall have no right 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.

Right to cancel in 14 days

1.6          Whilst we hope that you will be happy with the service provided and will continue to be a client of the firm, we would draw your attention to your right to cancel this agreement within 14 days of the date of you signing it. You are not obliged to provide any reason for cancellation.

               If you wish to exercise your right to cancel, you should email admin@frostwiltshire.co.uk, or write to us at the address stated on the front of the engagement letter, stating clearly your decision to cancel. On receiving notice of cancellation from you, we will immediately cease all work on your behalf and invoice you only for the work undertaken down to the date of cancellation, at the rates set out in the engagement letter.

2.         Our services and responsibilities to you

2.1          The scope of our services and any Deliverables to be provided under this Contract together with our responsibilities for them (together the “Services”) are as described in the Engagement Letter. We will use all reasonable efforts to supply the Services in accordance with any timetable specified by the parties.  However, unless both parties specifically agree otherwise in writing, all dates given specified for the supply of the Services are intended for planning and estimating purposes only and are not contractually binding.

Data protection

2.2          To enable us to discharge the services agreed under this 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.  You have a right of access, under data protection legislation, to the personal data that we hold about you. You consent to our using a third party agency to undertake identification searches relating to the entity, its directors and members for the purposes of complying with anti-money laundering regulations.  

3.         Your responsibilities

3.1          You are responsible for determining that the scope of the Services is appropriate for your needs.

3.2          Our performance of the Services, the timetable, the level of our Charges and any fee estimates each depend on the accuracy and completeness of any assumptions set out in the Engagement Letter.  Please tell us if you believe any of these assumptions are unrealistic for any reason. 

3.3          You will give us all the information that is necessary for the performance of the Services.  You agree that we shall be entitled to rely on all information provided to us and on your decisions and approvals in connection with our Services and to assume that all such information provided to us from whatever sources is true, complete and not misleading.  We will not be responsible for the consequences of any information provided to us in the course of the Services not being complete, accurate or current.

3.4          Where needed to assist us in performing the Services, you will (i) take decisions and obtain management approvals promptly; (ii) give us full and prompt access to your people and premises and those of your affiliates and to your other advisors associated with the engagement; (iii) keep us promptly informed of any proposals or developments in your business relevant  to the Services; and (iv) provide us promptly with all information and documents that appear to you to be relevant to our work and any other information or documents that we specifically request. In particular, you should let us know about any relevant changes to your circumstances that may affect your position, so that the implications of these changes on our engagement can be assessed.

3.5          You agree that you remain solely responsible for managing all aspects of your business, for taking all decisions and operating all systems of internal control and, save as expressly agreed in the covering engagement letter, all accounting or management information systems and administering all aspects of your business.  This includes applying your independent business judgement to evaluate any information, Deliverables, advice or recommendations that we give you.  You will be responsible for deciding whether the information that is produced by us, including Deliverables, any recommendations or advice that make sense in the context of your business, and whether you wish to rely on, implement, approve, authorise or act on them, including the actions necessary to realise any expected benefits or mitigate any potential losses.

3.6          If the Services include work on, or in connection with, a financial forecast, the directors retain sole responsibility for the preparation and contents of that forecast and for the assumptions, methodologies, internal consistency and resulting projections contained therein.  This includes any alterations or updates to the forecast that are made in the course of or in connection with the performance of the Services.

The scope of our Services and our responsibilities will not involve us in performing the work necessary for the purpose of providing, neither shall we provide, any opinion as to the reliability, proper compilation or clerical accuracy of any plan, budget, projection or forecast (“prospective financial information”) nor the reasonableness of the underlying assumptions. Since any prospective financial information relates to the future, it may be affected by unforeseen events.  Actual results are likely to be different from those projected because events and circumstances frequently do not occur as expected, and those differences may be material.

The realisation of projected results shown in any prospective financial information depends in part upon the effectiveness of management’s actions in its implementation and execution of the underlying business plans. We can give no assurance as to whether or how closely the actual results ultimately achieved will correspond to those planned, budgeted, projected or forecast. Any views we may express as to the basis for any prospective financial information or possible future outcomes will be made in good faith on the basis of the information available to us at the time but will not constitute a representation, undertaking or warranty of any kind.

3.7          You will also be responsible for paying the Charges in accordance with this Contract.

4.         Responsibilities to each other

Confidentiality

4.1          We each agree that where either of us is in possession of information about the other that is by its nature confidential, or is designated as such by the other (whether in writing or orally), including this Contract (“Confidential Information”), we each undertake to (i) keep it confidential; (ii) use it only in connection with providing and receiving the Services; and (iii) not to disclose it to any other person without the other’s prior written consent. These undertakings will not apply to any information that otherwise becomes generally publicly available, was possessed prior to the commencement of the Services (or prior to being designated as Confidential Information), or is lawfully acquired from a third party who is under no obligation of confidence; or information which is or has been independently developed by the recipient.

4.2          We each will be entitled to disclose Confidential Information to our legal advisors to protect our legitimate interests and to comply with any legal, professional or regulatory requirement.

4.3          Unless you tell us otherwise, we may in the performance of the Services attend meetings to discuss your affairs with your other advisers and may do so openly, free from any obligation to you of confidentiality.

4.4          When offering our services to others we may disclose to them that we have acted for you unless you instruct us to the contrary.

4.5          Nothing in this Contract will prevent or restrict Frost Wiltshire from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purpose any knowledge, experience and skills used in, gained or arising from performing the Services subject to the obligations of confidentiality set out in clause 4.1 even if those other clients’ interests are in competition with your own.  Equally, you agree that to the extent that we possess information obtained under an obligation of confidentiality to another client or other third party, we are not obliged to disclose it to you or make use of it for your benefit, however relevant it may be to the Services.

Conflicts of interest

4.6          It is our practice, in appropriate circumstances, to check for conflicts of interest before taking on engagements.  Frost Wiltshire provides many different professional services to clients and we cannot be certain that we will identify promptly all situations where there may be a conflict with your interests. Please notify us promptly of any potential conflict affecting this engagement of which you are, or become, aware.

Electronic communications

4.7          E-mail may be used to enable us to communicate with you. As with other means of delivery this carries with it the risk of inadvertent misdirection or non-delivery.  It is the responsibility of the recipient to carry out a virus check on any attachments received.

4.8                         As internet communications are capable of data corruption we do not accept any responsibility for changes made to such communications after their despatch.  For this reason it may be inappropriate to rely on advice contained in an e-mail without obtaining written confirmation of it.  All risks connected with sending commercially-sensitive information relating to your business are borne by you.  If you do not accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.

5.         Deliverables

Drafts and oral discussions

5.1          In formulating our conclusions, we may discuss ideas with you orally or show you drafts of the Deliverables (as specified in the Engagement Letter) for your comment.  We do this on the basis that you will not rely on any drafts or oral comments or advice unless their content is finalised and confirmed to you in writing in the final Deliverables.  Accordingly, we will not be responsible if you choose to act, or refrain from acting, on the basis of any drafts or oral comments or advice. If you want to rely or act on oral comments, or advice, please let us know in order that we may deal with them in our final Deliverables. Furthermore, for your convenience, the Deliverables may be made available to you in draft or in electronic as well as hard copy format.  Multiple copies and versions of documents may therefore exist in different media.  In the case of any discrepancy, the signed hard copy of the final Deliverable is definitive.

5.2          It is our policy to set out in writing any advice on which you may wish to rely. In many cases, our advice will include a summary of our understanding of the facts or background on which our advice is based. It is important that you tell us if you think this summary does not accurately reflect the facts since our analysis of the transaction and the resulting advice may then change. In many instances, advice is requested ad hoc initially and very often orally with no subsequent written confirmation being sought. In these circumstances, we will accept no liability for your reliance on any oral advice on technical matters, until we have subsequently reconfirmed that advice in writing.

5.3          Unless the Engagement Letter specifies other arrangements, you agree that each Deliverable will be deemed accepted by you (and our Services, or the relevant part of them, completed) when it is in its final form or when you first make use of the Deliverable, whichever first occurs.

Use of deliverables

5.4          Save as expressly provided in this Contract the Deliverables we provide to you are for your exclusive use and must be used solely for the purpose described in the Engagement Letter. They will be specific to your current circumstances and intentions and therefore may not be suitable for use at a different time or in different circumstances. They must not be used for any other purpose, recited or referred to in any document, copied or made available (in whole or in part) to any other person without our prior written express consent.  You acknowledge that were you to do so (and without limitation) this could expose us to a risk that a third party who otherwise would not have access to the Deliverable (and/or Confidential Information as defined in clause 4 above), might claim to have relied upon it to its detriment and might bring an action, claim or proceedings against us.

5.5          Save as expressly provided by the Engagement Letter, no person other than you may rely on the Deliverables and we accept no responsibility to any other person into whose hands the Deliverables may come. 

5.6          Frost Wiltshire shall always be permitted to retain copies of Deliverables (whether in final or in draft form) provided to the Client, for its own use subject to the provisions of Clause 4 above.

Post date events

5.7          Our advice will be based on our understanding of the statute, case law and practice as at the time of its issue. We have no responsibility to update any Deliverable for events occurring after completion of this Contract (which, unless provided otherwise in the Engagement Letter, will be the date on which the final Deliverable is delivered or signed), nor to monitor its continuing relevance or suitability for your purposes. You should ask us to confirm advice previously given if you wish to rely on it subsequently.

Ownership and intellectual property

5.8          On payment of all of our Charges, you will acquire ownership of the Deliverables in their tangible form and the right to use them internally in your business. We will own and retain ownership of all intellectual and other proprietary rights of any kind that we may use or develop in connection with this Contract (other than materials provided to us by you in which you retain intellectual and other proprietary rights).  Any papers retained by us on completion of the Contract (including documents legally belonging to you) may routinely be destroyed in accordance with our internal policies.

5.9          You and we agree that neither of us will use the other’s name, trademarks, service marks, logos, trade names and/or branding without prior written consent.

6.         Liability provisions

6.1          The advice which we give to you is for your sole use and does not constitute advice to any third party to whom you may communicate it.

6.2          We will provide the professional services outlined in this letter with reasonable care and skill.  However, we will not be responsible for any losses arising from the supply by you or others of incorrect or incomplete information, or from the failure by you or others to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us or the tax authorities.

6.3          We will not be liable for any Losses arising out of your use of our Deliverables or our advice for a purpose other than as set out in the Engagement Letter.

6.4          We will not be liable for Losses arising from the acts or omissions of any person other than Frost Wiltshire.

6.5          Our total liability of whatever nature, whether in contract, tort (including, without limitation, negligence), under statute or otherwise to you, for any and all Losses arising from or in any way in connection with this contract, for work performed covered by this Contract shall not exceed the amount specified in the engagement letter. 

6.6          Frost Wiltshire neither owes nor accepts any duty to any person other than you.  Frost Wiltshire shall not be liable for any Losses suffered by any other person caused by that or any other person’s use of or reliance on our Deliverables or our advice.

6.7          Any claim or action brought by you under or connection with this Contract must be brought within 24 months of the cause of action arising.

7.         Charges

7.1          We will render invoices in respect of the Services comprising our fees, out-of-pocket expenses and any other charges, plus applicable VAT (together our “Charges”).  These will be in accordance with the Engagement Letter.  Our fees are generally calculated on the basis of the time required to conduct the Services. Other factors may also be taken into account, including the use of our proprietary expertise and know how, the need to act rapidly or the importance, complexity or monetary value of the matter concerned. Out-of-pocket expenses will depend on the nature of the Services.

7.2          Any estimate of the fees involved in the Services will be based upon our assessment of the work involved, taking account of any assumptions set out in the Engagement Letter. Unless we have agreed otherwise in the Engagement Letter, our fees may be adjusted if the Services prove more complex or time consuming than expected.  We will let you know when we consider any estimate is likely to be exceeded.

7.3          We will be entitled to receive all charges incurred up to the date of termination of this Contract for any reason.

7.4    These invoices are due for settlement within 7 days of receipt. You agree that we are entitled to charge you interest on overdue invoices at 2% over the prevailing Royal Bank of Scotland plc base rate.

8.         Termination

8.1          We each may terminate this Contract without notice in the event that the other becomes the subject of insolvency proceedings or calls any meeting of its creditors.  Alternatively, either of us may terminate this Contract at any time on 30 days written notice to the other.

8.2          Should any action taken by you create a situation which amounts to a professional conflict of interest under the rules of the professional and/or regulatory bodies regulating the activities of Frost Wiltshire, we may terminate this Contract without penalty on written notice.  We will inform you as soon as reasonably practicable of any situation that we become aware of that may create such a professional conflict.

8.3          Any provisions of the Contract which either expressly, or by their nature, extend beyond the expiry or termination of this Contract shall survive such expiration or termination.

8.4          From time to time our clients express an interest in taking on a team member as an employee.  This may be permitted at our discretion, and such permission must be obtained from us in writing.  In this event, we would charge a one-off recruitment fee of 25% of the agreed annual salary (pro-rated where applicable for part-time employees).

9.         General terms of business

Quality of service

9.1          If, at any time, you believe our service to you could be improved, or if you are dissatisfied with any aspect of our services, you should raise the matter with the partner responsible for providing the Services to you. 

9.2          We will investigate all complaints. You have the right to take any complaint up with the Institute of Chartered Accountants in England and Wales (the ICAEW). Details of how to do so can be found at www.icaew.co.uk/complaints.

Negotiation / mediation

9.3          We each agree that we will attempt in good faith to resolve any dispute or claim arising out of or in connection with the Contract promptly through negotiations between us.  If the matter is not resolved through negotiation then, prior to the commencement of legal proceedings, we will each attempt in good faith to resolve the dispute or claim by participating in an Alternative Dispute Resolution (ADR) procedure. If the matter has not been resolved by an ADR procedure within 45 days of such procedure being commenced, then the matter may be dealt with through legal proceedings.   

Force majeure

9.4          Neither of us will be liable for any delays or failures in performance or breach of contract due to events or circumstances beyond our reasonable control.

Governing law and jurisdiction

9.5          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 it may have 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.