Terms of Business (Updated May 2018)
The following terms of business apply to all engagements accepted by Craker Business Solutions LTD. All work is carried out under these terms except where changes are expressly agreed in writing.
1.0 Applicable Law
Our Contract and our Terms of Business are governed by and should be construed in accordance with English law. Each party agrees that the Courts of England shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning our Contract and Terms of Business and any matter arising from or under them. 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 inconvenient forum, or to claim that those Courts do not have jurisdiction.
2.0 Changes in Law
We will not accept responsibility if you act on advice given by us on an earlier occasion without first confirming with us that the advice is still valid in the light of any change in the law or your circumstances.
We will accept no liability for losses arising from changes in the law or the interpretation thereof that are first published after the date on which the advice is given.
3.0 Client Identification
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.
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:-
(i) Have due diligence procedures for the identification of all clients
(ii) Maintain appropriate records of evidence to support customer due diligence
(iii) Report in accordance with the relevant legislation and regulations.
4.0 Clients’ Money Regulations
We do not hold money on your behalf. If we did so in the future in an exceptional circumstance, then the money would be held in trust in a client bank account, which is segregated from the firm’s funds. The account will be opened and all funds dealt with in accordance with the Clients’ Money Regulations of the Institute of Chartered Accountants in England and Wales.
If the total sum of money held on your behalf is enough to give rise to a significant amount of interest or is likely to do so, then we will put the money in a designated interest-bearing client bank account and pay the interest to you. Subject to any tax legislation, interest will be paid gross.
5.0 Commissions or Other Benefits
In some circumstances we may receive commissions or other benefits for introductions to other professionals or transactions we arrange for you. In this case we will notify you in writing of the amount, the terms of payment and receipt of any such commissions or benefits. The fees you would otherwise pay as described below will not be reduced by such amounts.
We confirm that where you give us confidential information we shall take all reasonable steps at all times to keep it confidential, except as required by law, by our insurers, or as provided for in regulatory, ethical or other professional statements relevant to our work.
Unless we are authorised by you to disclose information on your behalf this undertaking will apply during and after this engagement.
We may, on occasions, subcontract work on your affairs to other tax or accounting professionals or bookkeepers. The subcontractor will be bound by our client confidentiality terms.
For the purposes of promotional activity, you agree that we can state your name as a client. We will obtain agreement in writing from you before using any testimonial you may provide us with. As stated above we will not disclose any confidential information.
7.0 Conflicts of Interest and Independence
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. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. 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.
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. We reserve the right to provide services for other clients whose interests are not the same as yours, or are adverse to yours subject, of course, to the obligations of confidentiality referred to in point no.6 above.
8.0 Data Protection
In this clause, the following definitions shall apply:
‘client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
‘data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the GDPR and any applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation;
‘GDPR’ means the General Data Protection Regulation ((EU) 2016/679); and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
We shall each be considered an independent data controller in relation to the client personal data. Each of us will comply with all requirements and obligations applicable to us under the data protection legislation in respect of the client personal data.
You shall only disclose client personal data to us where:
(i) you have provided the necessary information to the relevant data subjects regarding its use (and you may use or refer to our privacy notice available on our website for this purpose);
(ii) you have a lawful basis upon which to do so, which, in the absence of any other lawful basis, shall be with the relevant data subject’s consent; and
(iii)you have complied with the necessary requirements under the data protection legislation to enable you to do so.
Should you require any further details regarding our treatment of personal data, please contact our data protection manager.
We shall only process the client personal data:
(i) in order to provide our services to you and perform any other obligations in accordance with our engagement with you;
(ii) in order to comply with our legal or regulatory obligations; and
(iii) 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 on our website) contains further details as to how we may process client personal data.
Should we resign, or be requested to resign, we will normally issue a disengagement email to ensure that our respective responsibilities are clear. Should we have no contact with you for a period of three months or more we may issue to your last known address a disengagement email and letter and hence cease to act.
10.0 Electronic and Other Communication
Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via e-mail, Dropbox, Google Drive or by other electronic means. The recipient is responsible for virus checking e-mails 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 e-mails or electronic storage devises. 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 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 necessary.
Any communication by us with you sent through the postal or DX system is deemed to arrive at your postal address two working days after the day that the document was sent.
Where we provide templates in editable format, we are not responsible for any changes after these are provided to you. Templates provided are for your use only. Templates provided are based on your circumstances at that time and if there are changes in your circumstances the Templates may no longer be suitable.
11.0 Electronic Publication of Work
Where any of our work is to be published electronically by you, you must ensure we have agreed for the work to be published in the public domain. You are responsible for the maintenance and integrity of electronically published information, and we accept no responsibility for changes made to any information after it is first posted.
12.0 Help Us Give Best Service
We wish 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 let us know by contacting, Danni Craker, on 01825 790027.
We undertake to look into any complaint carefully and promptly and do all we can to explain the position to you. If we do not answer your complaint to your satisfaction you may, of course, take up the matter with the Institute of Chartered Accountants in England and Wales.
13.0 Intellectual Property Rights and Use of our Name
We will retain all copyright in any document prepared by us during the course of carrying out the work 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.
If any provision of our Contract or these Terms of Business is held to be void, then that provision will be deemed not to form part of this Contract or Terms of Business.
In the event of any conflict between these Terms of Business and the Contract or any appendices attached, for example the Schedule of Services, the relevant provision in the Contract or Schedule of Services will take precedence.
15.0 Internal Disputes within a Client
If we become aware of a dispute between the parties who own the business, or who are in some way involved in its ownership and management, it should be noted that our client is the business. 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 named person as noted in our Contract.
16.0 Investment Advice
If, during the provision of professional services to you, you need advice on investments we may have to refer you to someone who is authorised by the Financial Conduct Authority or licensed by a Designated Professional Body.
We reserve the right to exercise a Lien to hold onto your property/documents in our possession until you pay all the outstanding invoices and disbursements owed for work carried out in respect of that property/documentation. This is not limited to paper-based information and can include information stored digitally or in other formats.
18.0 Limitation of Liability
We will provide services with reasonable care and skill. Our liability to you is limited to losses, damages, costs and expenses caused by our negligence or wilful default. 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.
You will not hold us, our Shareholders, Directors, Employees or Subcontractors, 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. You have agreed that you will not bring any claim in connection with services we provide to you against any of our Shareholders, Directors, Employees or Subcontractors personally.
We have discussed with you the extent of our liability to you in respect of the services described within the Contract (the professional services). Having considered both your circumstances and our own, we have reached a mutual agreement that the amount as stated in the Contract represents a fair maximum limit to our liability.
In reaching this agreement it is also agreed that:
- in the event of any claim for loss or damage arising from the professional services, you have agreed that the sum as stated in the Contract represents the maximum total liability to you in respect of the firm, its Shareholders, Directors, Employees or Subcontractors. This maximum total liability applies to any and all claims made on any basis and therefore includes any claims in respect of breaches of contract, tort (including negligence) or otherwise in respect of the professional services and shall also include interest;
- we acknowledge that the limit in respect of our total aggregate liability will not apply to any acts, omissions or representations that are in any way criminal, dishonest or fraudulent on the part of the us, the Shareholders, Directors, Employees or Subcontractors firm; and
- you have agreed that you will not bring any claim of a kind that is included within the subject of the limit against our Shareholders, Directors, Employees or Subcontractors on a personal basis.
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.
19.0 Limitation of Third Party Rights
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 in the Contract that a specified third party may rely on our work. We accept no responsibility to third parties, including any group company to whom the Contract 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
20.0 Period of Contract and Termination
Unless otherwise agreed in our Contract, our work will begin when we receive implicit or explicit acceptance of that Contract, except, as stated in that Contract, we will not be responsible for periods before that date. Your previous advisers will deal with any outstanding matters relating to earlier periods. Once agreed, the Contract will remain effective from the date of signature until it is replaced.
Each of us may terminate our agreement by giving not less than twenty-one days notice in writing to the other party except if you fail to co-operate with us or we have reason to believe that you have provided us (or HMRC) with misleading information, in which case we may terminate this agreement immediately. Termination will be without prejudice to any rights that may have accrued to either of us before termination.
If we come to a difference of opinion in relation to the content or accuracy of accounts, reports or tax returns. We would first discuss this with you and agree on amendments required. Where we believe that amendments are not sufficient, then we may terminate this contract with immediate effect.
On termination we will Invoice for any work performed (including if the work was unable to be completed due to the termination) which is not covered by the Invoices already issued, or provide a Credit Note and refund where payment has been received and work not performed.
All our pricing is exclusive of value added tax (VAT) and calculated on the basis of the time spent, value provided and levels of skill or responsibility involved.
We invoice either on:
- a monthly payment plan when we provide a package of work that is spread over more than one month, or
- where work is expected to extend over a period of one month and is grouped into blocks of work over the year, then our fees will be prorated to each block of work and billed on completion of each block of work, or
- on completion, where work spans a short time frame of one to two months.
Our invoices will be due for payment within fourteen days of issue.
Our prices are excluding out of pocket expenses and disbursements.
Any disbursements we incur on your behalf and out of pocket expenses incurred in the course of carrying out our work for you will be added to our invoices where appropriate.
If we need to do work outside the responsibilities outlined in our Contract, we will advise you in advance and agree a price for the new piece of work.
We reserve the right to charge interest on overdue accounts at the current rate under the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to terminate our engagement and cease acting if payment of any invoices are unduly delayed.
If you do not accept that an invoice is fair and reasonable you must notify us within twenty-one days of receipt, failing which you will be deemed to have accepted that payment is due.
22.0 Professional Rules and Practice Guidelines
We will observe and act in accordance with the bye-laws, regulations and ethical guidelines of the Institute of Chartered Accountants in England and Wales and accept instructions to act for you on this basis. In particular, 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. The requirements are available at www.icaew.com/regulations.
23.0 Provision of Information and Timing of Services
When performing our work, you agree to make available to us all information necessary for us to do our work. You will keep us informed of material changes in circumstances. You authorise us to approach third parties as may be appropriate for information that we consider necessary to deal with the companies affairs.
When performing our work we are required to take reasonable care to ensure that our work is correct. To enable us to do this, you are required to provide us with all necessary information in a timely matter.
We perform our work based on the information you provide us, therefore it is your responsibility to provide us with all information to enable us to complete our work. We will provide you with checklists to help you provide all relevant information. But if in doubt, please declare any other information which you think may be relevant.
We will communicate with you in advance when we require information and agree with you’re a deadline, so that we may complete our work without undue pressure.
We will endeavour to undertake and finish all agreed work within filing deadlines provided all the information requested is complete and received in a timely manner.
We define timely manner as being reasonable given the level of work required and the time of year. We are most busy during March, June, July, December and January.
Where information is provided past a previously agreed deadline or later than would be deemed reasonable within our industry, we will not be able to guarantee we will be able to complete work to meet regulatory or other deadlines. We reserve the right to agree with you an increased price in such situations.
Where you provide us with information late, and a filing deadline is missed, you are responsible for paying any fines/penalties.
24.0 Professional Duty
We have a professional duty to compile financial statements that conform with generally accepted accounting principles and to compile tax returns that confirm with tax law from the accounting records and information and explanations given to us. We also have a professional responsibility not to allow our name to be associated with financial statements or tax returns, which we believe may be misleading. Therefore, although we are not required to search for such matters, should we become aware, for any reason, that the financial statements or tax returns, may be misleading or accounting or policies or tax treatment inappropriate, we will discuss the matter with you with a view to agreeing appropriate adjustments and/or disclosures in the financial statements or tax returns.
25.0 Provision of Services Regulations 2009
Our current professional indemnity insurer is Royal & Sun Alliance Insurance plc of 9th Floor, One Plantation Place, 30 Fenchurch Street, London EC3M 3BD. The territorial coverage is worldwide excluding professional business carried out from an office in the United States of America or Canada and excludes any action for a claim brought in any court in the United States or Canada. Where we have changed our insurer this is updated on our website at www.crakerbusinesssolutions.co.uk
26.0 Quality Control
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 for confidentiality as our directors, employees and subcontractors.
27.0 Reliance on Advice
We will endeavour to record all advice on important matters in writing/e-mail. Advice given orally is not intended to be relied upon unless confirmed in writing/e-mail. If we provide oral advice 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/e-mail. Where this is extensive we reserve the right to deem this a separate piece of work and price for it accordingly.
It is your responsibility as to whether to act on advice given. We will not make decisions for you, although we understand our advice will be used in your decision making process.
Where requested to, and we attend director/management meetings, we do so as an independent accountant and not as a Director/Manager of the company/business. We have no vote at such meetings.
28.0 Retention of Papers
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 (unless point no.17 above relating to Lien has been exercised). 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 ten months after the end of the tax year
- otherwise: twenty-two months after the end of the tax year.
Companies and Limited Liability Partnerships –
- six years from the end of the accounting period.
Whilst certain documents may legally belong to you, unless you tell us not to, we intend to destroy correspondence and other papers that are more than seven years old, except documents we think may be of continuing significance. You must tell us if you wish us to keep any document for any longer period.
29.0 Right to cancel
Under the Consumer Contracts (Information, Cancellation and Additional Charge) Regulations 2013 you have the opportunity to read and understand fully the main elements of the services outlined in the Contract including the Schedule of Services and Terms of Business before buying those services.
Once you have returned the signed Contract you have the right to change your mind and cancel our appointment to be your accountant and advisers. This cancellation must be in writing/e-mail and received by our office within fourteen days of the date of the signed agreement. Where we have commenced work, due to an imminent deadline, you agree to pay for the time spent to the date of cancellation of the Contract.
30.0 Specialist advice
Where specialist advice is required on occasions we may need to seek this from or refer you to appropriate specialists.
31.0 Your responsibilities
Where you have asked us to perform services, it is on the understanding we are performing these to assist you in meeting your legal responsibilities. You will still retain legal responsibility for ensuring that financial statements and tax returns are correct and complete, filed on time and tax is paid. You cannot delegate this legal responsibility to others. The signatory agrees to check that financial statements and returns are understood, accurate and complete before he/she signs them.
Failure to file or to pay tax on time may result in automatic penalties, surcharges, and/or interest.
You are responsible for keeping adequate accounting records that set out with reasonable accuracy at any time the business’ financial position You are also responsible for safeguarding the assets of the business and hence for taking reasonable steps to prevent and detect fraud and other irregularities. You are responsible for ensuring that the business complies with laws and regulations that apply to its activities, and for preventing non-compliance and detecting any that occurs.
Specifically, in relation to financial statements for a limited company, limited liability partnership, community interest company, community benefit society, or co-operative:
As Directors of the Company, you are responsible for preparing financial statements which give a true and fair view and which have been prepared in accordance with the Companies Act 2006 (the Act) as applied by the Company Regulations. As Directors you must not approve the financial statements unless you are satisfied that they give a true and fair view of the assets, liabilities, financial position and profit or loss of the Company.
In preparing the financial statements, you are required to:
- select suitable accounting policies and then apply them consistently;
- make judgements and estimates that are reasonable and prudent; and
- prepare the financial statements on the going concern basis unless it is inappropriate to presume that the company will continue in business.