1. The following terms of business apply to all engagements accepted by Kirkhams. All work is carried out under these terms except where changes are expressly agreed in writing.
References to “the engagement letter” are references to the letter of engagement of which these general terms and conditions form part and to any appendix to such letter of engagement. References in this letter to the “firm” or to “we” or “us” are references to Jeffery Allen Kirkham trading as Kirkhams, Chartered Accountants & Business Advisers.
2. Applicable law
2.1 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 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.
We will not accept responsibility if you act on advice previously given by us without first confirming with us that the advice is still valid in light of any change in the law or in your circumstances. We will accept no liability for losses arising from changes in the law, or the interpretation thereof, that occur after the date on which the advice is given.
3. Client identification
3.1 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 and/or make searches of appropriate databases. If we are not able to obtain satisfactory evidence of your identity, we will not be able to proceed with the engagement.
Any personal data received from you to comply with our obligations under The Money Laundering, Terrorist Financing and Transfer for Funds (Information on the Payer) Regulations 2017 (MLR 2017) will be processed only for the purposes of preventing money laundering or terrorist financing. No other use will be made of this personal data unless use of the data is permitted by or under enactment other than the MLR 2017, or we have obtained the consent of the data subject to the proposed use of the data.
4. Client money
4.1 We may, from time to time, hold money on your behalf. The money will be held on 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 ICAEW’s Clients’ Money Regulations.
In order to avoid an excessive amount of administration, no interest will be paid on any monies held by us on your behalf, unless the total amount earned on balances held on your behalf in any calendar month exceeds £25.00.
4.2 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.
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,
we may pay those monies to a registered charity.
5. Commissions
5.1 In some circumstances we may receive commissions or other benefits for introductions to other professionals or in respect of transactions we arrange for you. Where this happens we will notify you in writing of the amount and terms of payment and receipt of any commission or benefits.
5.2 You consent to such commission being retained by us, without our being liable to account to you for it.
6. Confidentiality and the operation of law
6.1 We shall take such steps as we, in good faith, think fit to preserve the confidentiality of any information concerning your affairs held in connection with the services we provide to you.
6.2 You agree that, otherwise than with our prior written consent, any advice, opinions, and statements, reports and other information that we provide in connection with the services (in whatever form or medium) or any document or statement which bears our name (other than financial statements in the form in which they have been reported on by ourselves):
- will be held in strict confidence by you, your officers and employees and others engaged by you;
- will not be disclosed to any third party; and
- will not be used for any purpose except as provided for in this letter.
6.3 The above does not apply to any necessary disclosure to your or our professional advisers, or to our insurers or as part of an external peer review or where there is a legal or regulatory right, requirement or duty to make such disclosure. In particular we may in certain circumstances have
a right or a duty to report certain matters arising in the course of our professional work to relevant authorities under the Proceeds of Crime Act 2002, the Financial Services and Markets Act 2000 or other legislation without necessarily disclosing such fact to you.
6.4 You agree that, if we act for other clients who are or who become your competitors, to comply with our duty of confidentiality it will be sufficient for us to take such steps as we think appropriate to preserve the confidentiality of information given to us by you, both during and after this engagement. These may include taking the same or similar steps as we take in respect of the confidentiality of our own information.
6.5 In addition, if we act for other clients whose interests are or may be adverse to yours, we will manage the conflict by implementing additional safeguards to preserve confidentiality. Safeguards may include measures such as separate teams, physical separation of teams, and separate arrangements for storage of, and access to, information.
6.6 You agree that the effective implementation of such steps or safeguards as described above will provide adequate measures to avoid any real risk of confidentiality being impaired.
6.7 You agree to indemnify us in respect of any claim against us, including the costs of defending such a claim, arising out of any unauthorised disclosure by you or anyone else engaged by you.
6.8 It is possible that we may be prevented from completion of the assignment, or required to wait before acting or taking any step, by the operation of law and in that event we shall not be liable
to you for the consequences of this.
6.9 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.
6.10 We will inform you of the proposed use of a subcontractor before they commence work, except where your data will not be transferred out of our systems and the subcontractor is bound by confidentiality terms equivalent to an employee.
7. Conflicts of interest
7.1 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, unless we are unable to do so because of our confidentiality obligations. 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.
7.2 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. In resolving the conflict,
we would be guided by ICAEW’s Code of Ethics, which can be viewed at icaew.com/en/membership/regulations-standards-and-guidance/ethics. During and after our engagement, you agree that we reserve the right to act for other clients whose interests are or may compete with or be adverse to yours, subject, of course, to our obligations of confidentiality and the safeguards set out in the paragraph on confidentiality above.
7.3 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.
8. Contracts (Rights of Third Parties) Act 1999
8.1 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 expressly agreed in the engagement letter 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
9. Data Protection
9.1 We may obtain, use, process and disclose personal data about you in order that we may discharge the services agreed under this engagement letter, 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. You have a right of access, under data protection legislation, to the personal data that we hold about you.
9.2 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;
‘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).
9.3 In respect of the client personal data, unless otherwise required by applicable laws or other regulatory requirements, we shall:
a) process the client personal data only in accordance with your lawful written instructions, in order to provide you with the services pursuant to our engagement with you and in accordance with applicable data protection legislation;
b) process the client personal data in order to comply with our legal or regulatory obligations;
c) process client personal data 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 http://www.kirkhamsaccountants.com) contains further details as to how we may process client personal data;
d) disclose and transfer the client personal data to members of our firm’s network, our regulatory bodies or other third parties (for example, our professional advisers or service providers) as and to the extent necessary in order to provide you with the services pursuant to our engagement with you in relation to those services;
e) disclose the client personal data to courts, government agencies and other third parties as and to the extent required by law;
f) maintain written records of our processing activities performed on your behalf;
g) maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of any client personal data and against accidental loss or destruction of, or damage to, such client personal data;
h) return or delete all the client personal data upon the termination of the engagement with you pursuant to which we agreed to provide the services;
i) ensure that only those personnel who need to have access to the client personal data are granted access to it and that all of the personnel authorised to process the client personal data are bound by a duty of confidentiality;
j) notify you, without undue delay, in the event that we reasonably believe that there has been a personal data breach in respect of the client personal data;
k) at your cost and upon receipt of your prior written notice, allow you, on an annual basis and/or in the event that we notify you of personal data breach in respect of the client personal data, reasonable access to the relevant records, files, computer or other communication systems, for the purposes of reviewing our compliance with the data protection laws.
9.4 Should you require any further details regarding our treatment of personal data, please contact Jeff Kirkham.
9.5 Unless you advise us to the contrary we will assume that by signing the engagement letter you give us your initial consent for us to send you information which may be of interest to you by electronic or other means.
9.6 A copy of our Privacy Notice can be found on our website: www.kirkhamsaccountants.com. If you have any questions regarding the way we handle your data, please do not hesitate to contact us.
10. Electronic communications
10.1 Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via email or other electronic means.
10.2 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 in emails or by electronic storage devices. Nevertheless, internet communications are not totally secure and are capable of data corruption 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. We do not accept responsibility for any errors or problems that may arise through the use of Internet communication and all risks connected with sending commercially sensitive information relating to your business are borne by you. If you do not agree to accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication. We will then communicate by paper mail, other than when electronic submission is mandatory.
Any communication by us with you sent through the postal system is deemed to arrive at your postal address two working days after the day the document was sent.
10.3 You accept the risks associated with us communicating with you electronically. If you have given us your work email address, you accept the risks that anyone to whom you have given access (eg secretary or other colleagues, IT support staff and others who may obtain access) may read such emails which may, from time to time, contain information that you may prefer to keep confidential.
10.4 It is the responsibility of the recipient to carry out a virus check on emails and any attachments received.
11. Fees and payment terms
11.1 Unless otherwise agreed, our fees will be charged separately for each main class of service that we provide and will be computed on the basis of time spent on your affairs, on the levels of skill and responsibility needed to carry out the work, on the importance and value of the advice we provide and on the level of risk involved.
11.2 Our fees will be billed at appropriate intervals during the course of the year and will be due within 14 days. Any queries concerning an invoice must be raised within 14 days of the invoice date. If you fail to raise any concerns within this period, you will be deemed to have accepted the invoice and that payment is due. 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.
11.3 Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees.
11.4 To assist us in our work we may agree with you or management that certain information will be provided to us by specified dates. Where this is the case any estimate of our fees or fixed fees agreed will be based on the assumption that all such information will be provided, in the agreed form, by the dates specified. We reserve the right to increase our fees beyond any such estimate or fixed fee agreed should there be any failure to comply in full with such agreed arrangements, or should the work required be greater than envisaged at the time the estimate was given.
11.5 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 via membership of a professional or trade body. Other than where such insurances are 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.
11.6 We reserve the right to charge interest on overdue invoices from the date when payment is due until the date payment is made at 8% above the Bank of England base rate under the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to cease work on your behalf when fees have been invoiced and payment has been outstanding for more than 30 days and, where the law permits, to exercise a lien over any document(s) in our possession belonging to you. If we cease to work you will be responsible for payment of all charges incurred up to the time we cease to work for you.
If a client company, trust 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.
11.7 We may make a charge to recover reasonable costs incurred in providing access to information to successor advisers. We will agree the maximum amount of any such charge with you in advance.
11.8 Value added tax will be charged at prevailing rates on fees billed. Kirkhams VAT registration number is 181 9241 02.
12. Lien
12.1. Insofar as we are permitted to so by law or by professional guidelines, we reserve the right to exercise a lien over all funds, documents and records in our possession relating to all engagements for you until all outstanding fees and disbursements are paid in full.
13. Information
13.1 You agree to provide us with all documents and information we may need to complete the engagement and unless stated otherwise, you confirm that the documents and information provided are complete and accurate. We will not be responsible for any losses arising due to their inaccuracy or incompleteness nor as a result of undue delay in providing the documents and information.
14. Intellectual property rights
14.1 We will own and retain all intellectual property rights in any document prepared by us during the course of carrying out the engagement save where the law specifically provides otherwise.
You are not permitted to use our name in any statement or document 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.
15. Liability
15.1 In this paragraph 15 “Kirkhams” means Jeffery Allen Kirkham and any directors, employees, subcontractors and agents working as part of that practice.
15.2 Where our engagement letter has set out the purposes for which our advice is given Kirkhams will not be liable for losses arising out of any other use of our advice.
15.3 We will perform the engagement with reasonable skill and care but you agree that any liability on Kirkhams for any loss or damage resulting from the provision of the services or other work that we carry out for you, however caused and regardless of the cause of action whether in contract, tort, statute or otherwise shall be subject to the limitations set out in this paragraph 15.
15.4 We will not be liable for losses arising as a result of false or misleading information being provided to us or from information being withheld from us unless (and then only to the extent that) we should reasonably have been expected to be aware of such matter because it was evident from the information or documentation provided to us and required to be considered by us in providing our services.
15.5 The liability of Kirkhams shall be limited to the proportion of the total loss or damage fairly attributable to the negligence of Kirkhams after taking into account your contributory negligence (if any) and the negligence of any other person which is also liable or potentially liable to you in respect of the same loss or damage (ignoring for these purposes any limitation of liability that you might have agreed with such person).
15.6 The aggregate liability of Kirkhams in respect of this engagement shall be limited to £250,000. For the avoidance of doubt this limit of liability applies to the aggregate of all claims that may be made against us by all the clients named in our engagement letter and not separately to each client or to each separate incident of loss or damage.
15.7 You agree that your relationship is solely with Kirkhams as the entity contracting with you to provide the services the subject of this engagement letter and that no party other than Kirkhams owes you, or will owe you, any duty of care. You agree, therefore, that you will not bring any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise and including but not limited to a claim for negligence) in any way in respect of or in connection with this engagement against any party other than Kirkhams.
15.8 Nothing in these general terms and conditions shall have the effect of excluding or limiting our liability or of requiring us to be indemnified:
a) to any extent prohibited by legislation or by regulation applicable to us; or
b) for death or personal injury caused by our negligence.
15.9 Nothing in these general terms and conditions shall have the effect of excluding or limiting the liability of Kirkhams for any fraudulent pre-contractual misrepresentations made by or on behalf of Kirkhams upon which you have relied, or for any fraud undertaken in the course of undertaking this engagement by Kirkhams.
15.10 The provisions of sub-paragraphs 15.2 to 15.7 are cumulative. None of these sub-paragraphs shall be taken as limiting the operation of any other of them. If any of the provisions of this paragraph 15 are found by a Court to be invalid, unenforceable or illegal such finding shall not affect the application or enforceability of any other provision. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with such modifications as may be necessary to make it valid, enforceable and legal.
15.11 You acknowledge that the limitations in this paragraph 15 are reasonable having regard to all the circumstances, including the limited nature of our engagement.
15.12 In accordance with the disclosure requirements of the Services Regulations 2009, our professional indemnity insurer can be found on our website: www.kirkhamsaccountants.com.
16. Quality of Service
16.1 We aim to provide a high quality of service 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 dissatisfied with the service you are receiving, please contact Jeff Kirkham in the first instance.
16.2 We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. We will acknowledge your letter within five business days of its receipt and endeavour to deal with your complaint within eight weeks.
If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns. If you are still not satisfied you may take up matters with our professional body, the Institute of Chartered Accountants in England and Wales.
16.3 When dealing with HMRC on your behalf we are required to be honest and to take reasonable care to ensure that your returns are correct. To enable us to do this, you are required to be honest with us and to provide us with all necessary information in a timely manner.
For more information about ‘Your Charter’ for your dealings with HMRC, visit www.gov.uk/government/publications/your-charter. To the best of our abilities, we will ensure that HMRC meet their side of the Charter in their dealings with you.
17. Internal disputes within a client
17.1 If we become aware of any dispute between the parties who own or are in some way involved in the ownership and management of the business, it should be noted that our client is the business and we would not provide information or services to one party without the express knowledge and permission of all parties. Unless otherwise agreed by all parties we will continue to supply information to the normal place of business for the attention of the directors/proprietors. If conflicting advice, information or instructions are received from different directors/principals in the business we will refer the matter back to the board of directors/partnership and take no further action until the board/partnership has agreed the action to be taken.
18. Reliance upon reports and advice
18.1 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.
No reliance shall be placed by you on any draft reports, advice or opinions issued by us, as such draft reports, advice or opinions may be subject to further revision and other factors which may result in them being substantially different from any final report, advice or opinion issued.
18.2 Our reports, advice and opinions will, where appropriate, reflect relevant law and regulation at the time they are sought and provided and we accept no responsibility for the consequences of a change of law or regulation after such reports, advice and opinions have been provided.
18.3 Any reports, advice, opinions or work carried out by us is provided solely for your use and only for the purpose for which our services are being provided and to the fullest extent permitted by law we will not accept or assume responsibility or a duty of care to any third party.
19. Retention of and access to records
19.1 During the course of our work we will collect information from you and others acting on your behalf. Whilst certain documents may legally belong to you we may destroy correspondence and other papers and scan and save them in electronic form only, unless you tell us not to or unless the law requires us to retain them in original form. We will endeavour to return any original documents to you, if requested. It is our preference that you collect original documents from our office.
In addition we may also destroy electronic and/or hard copy original correspondence and documents including those that belong to you which are more than seven years old, except documents we think may be of continuing significance. If you require retention of any document that belongs to you, you must notify us of that fact in writing.
19.2 Documents and records relevant to your tax affairs are required by law to be retained as follows:
Individuals, trustees and partnerships:
- with trading or rental income: five years and 10 months after the end of the tax year
- otherwise: 22 months after the end of the tax year.
Companies, Limited Liability Partnerships, and other corporate entities:
- six years from the end of the accounting period.
20. Severability of terms
20.1 If any of the terms of this engagement letter are deemed unreasonable, void or otherwise unenforceable by any court, tribunal, ombudsman, arbitrator or other person, it is the intention
of the parties that the remaining terms continue to have full force and effect. 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.
21. Period of Engagement and Termination
21.1 Unless otherwise agreed in our engagement letter, our work will begin when we receive implicit or explicit acceptance of that letter. Except as stated in that letter, we will not be responsible for periods before that date.
21.2 Both parties shall have the right to terminate this engagement by giving not less than 21 days notice in writing to the other at any time, but termination will not affect our rights of remuneration, indemnification or any contractual provision intended to survive termination or any other accrued rights. We may terminate this agreement immediately if you fail to co-operate with us or we have reason to believe that you have provided us, or HMRC, with misleading information. Termination will be without prejudice to any rights that may have accrued to either of us before termination.
21.3 We reserve the right to terminate the engagement between us with immediate effect in the event of: your insolvency, bankruptcy or other arrangement being reached with creditors; an independence issue or change in the law which means we can no longer act; failure to pay our fees by the due dates; or either party being in breach of their obligations if this is not corrected within 30 days of being asked to do so.
21.4 In the event of termination of our 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.
22. Disengagement
22.1 If we resign, or are asked to resign, we will normally issue a disengagement letter to ensure that our respective responsibilities are clear.
22.2 If we have no contact with you for a period of twoyears or more, we may issue to your last known address a disengagement letter and thereafter cease to act.
23. Timing of our services
23.1. If you provide us with all information and explanations on a timely basis in accordance with our requirements, we will plan to undertake the work within a reasonable period of time to meet any regulatory deadlines. However, failure to complete our services before any such regulatory deadline would not, of itself, mean that we are liable for any penalty or additional costs arising.
24. Force majeure
24.1 We will not be in breach of the terms of the engagement letter, nor liable to you for any delay in performance or failure by us to fulfil any of our obligations under the engagement letter, which are caused by circumstances outside of our control.
25. Professional rules and statutory obligations
25.1 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. In particular, you give us the authority to correct errors made by HMRC if 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. You can see copies of these requirements on the internet at www.icaew.com/regulations
Chartered Accountants Lincoln | 