Terms of business
The following terms of business apply to all engagements accepted by Ellacotts LLP. All work carried out is subject to these terms of business except to the extent that any changes are expressly agreed in writing in the terms of engagement letter.
Ellacotts LLP is a limited liability partnership incorporated under English Law. Any references in these terms to ‘we’, ‘us’, ‘our’, ‘our partners’ shall be construed accordingly. Any references in these terms of business to ‘you’ or ‘your’ shall refer to each and every party to the terms of engagement (other than us).
1. Investment advice – exempt regulated activities
1.1. Although we are not authorised by the Financial Conduct Authority to conduct Investment Business, we are licensed by the Institute of Chartered Accountants in England and Wales to provide certain limited investment services where these are complementary to, or arise out of, the professional services we are providing to you.
1.2. Such assistance may include the following:
- advising you on investments generally, but not recommending a particular investment or type of investment;
- referring you to a Permitted Third Party (PTP) (an independent firm authorised by the FCA) and assisting you and the permitted third party during the course of any advice given by that party. This may include comment on, or explanation of, the advice received (but we will not make alternative recommendations). The PTP will issue you with its own terms and conditions letter, will be remunerated separately for its services and will take full responsibility for compliance with the requirements of the Financial Services and Markets Act 2000. The firm may receive fees from such an introduction, in which case you will be fully informed of the expected size and nature of such fees at the time of the introduction;
- advising on the sale of a contractually based investment other than disposing of any rights or interests which you may have as a member of a personal pension scheme;
- advising and assisting you in transactions concerning shares or other securities not quoted on a recognised exchange;
- managing investments or acting as trustee (or donee of a power of attorney) where decisions to invest are taken on the advice of an authorised person;
1.3. We may also, on the understanding that the shares or other securities of the company are not publicly traded:
- advise the company, existing or prospective shareholders in relation to exercising rights, taking benefits or share options valuation and methods;
- arrange any agreements in connection with the issue, sale or transfer of the company’s shares or other securities;
- arrange for the issue of new shares; and
- act as the addressee to receive confirmation of offer documents etc.
1.4. If, during the provision of professional services to you, you need advice on investments or other financial matters, we may refer you to our related company, Ellacotts Wealth Planning Limited. Ellacotts Wealth Planning Limited is authorised and regulated by the Financial Conduct Authority. Ellacotts Wealth Planning Limited will treat you as its client, will issue you with its own terms and conditions, will be remunerated separately for its services and take full responsibility for compliance with the regulations of the Financial Conduct Authority and the requirements of the Financial Services and Markets Act 2000. We may comment on or explain advice given by them but we will not make alternative recommendations.
1.5. Ellacotts Wealth Planning Limited is a wholly owned subsidiary of Ellacotts LLP and although we do not receive introductory fees from Ellacotts Wealth Planning Limited, we do receive the profits from Ellacotts Wealth Planning Limited. You consent to us retaining any profits from any business undertaken on your behalf by Ellacotts Wealth Planning Limited.
1.6. We would request that there is freedom of movement between ourselves and Ellacotts Wealth Planning Limited with regard to any information held by either party that may relate to the functions of the other. Please notify us in writing if you would prefer us not to pass on any such information.
2. Client monies
If you are dissatisfied in any way with our services described in this section, you should follow the procedures set out in the “Quality of service” section below. In the unlikely event that we cannot meet our liabilities to you, you may be able to claim compensation under the Chartered Accountants’ Compensation scheme.
2.1. 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 and Wales.
2.2. In order to avoid an excessive amount of administration, interest will only be paid to you where the amount of interest that would be earned on the balances held on your behalf in any calendar year exceeds £25. Any such interest would be calculated using the prevailing rate applied by Barclays Bank Plc for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
2.3. 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.
2.4. We will return monies held on your behalf promptly as soon as there is no longer any reason to retain those funds. In the unlikely event of us holding any unclaimed monies we reserve the right to pay such monies to a registered charity in line with the guidelines set out in the Clients’ Money Regulations referred to above. We will not do this unless we have been unable to contact you for at least 5 years and we have taken reasonable steps to trace you and return the monies.
2.5. Money held on your behalf in relation to probate-related services will be held in a separate client bank account ring-fenced for legal services. This will normally be a separate interest bearing client account for the estate in question.
3.1. Our fees are based not only on the time spent on your affairs by us and the level of skill and responsibility of the partners and staff involved, but also on the level of risk involved and the importance and value of the services and advice we provide to you during the course of our work.
3.2. If it is necessary to carry out work outside the scope and responsibilities outlined in our terms of engagement, this will involve additional fees. Accordingly we would like to point out that it is in your interests to ensure that your records etc. are completed to the agreed stage and on a timely basis.
3.3. Our fees will also include any disbursements and out of pocket expenses necessarily incurred in the course of carrying out the work outlined in our terms of engagement. Our fees, including any disbursements and out of pocket expenses, are exclusive of any applicable Value Added Tax (‘VAT’).
3.4. Unless otherwise agreed, our fees do not include the costs of any third party, counsel or other professional fees necessarily incurred in the course of carrying out the work outlined in our terms of engagement.
3.5. Unless otherwise agreed, our fees will be charged separately for each of the main areas of work outlined in our terms of engagement, and will be billed at appropriate intervals during the course of the year as the work is undertaken.
3.6. Our fees will be due for payment within 30 days of the date of issue of the invoice. We reserve the right to charge interest on late paid invoices at the rate at 1.5% per month and the interest will be calculated from the date of the invoice.
3.7. In some cases, you may be entitled to assistance with your professional fees, particularly in relation to any investigation into your tax affairs by H M Revenue & Customs. Assistance may be provided through insurance policies you hold or via membership of a professional or trade body. Other than where such insurance was arranged through us, you will need to advise us of any such insurance cover that you have. You will remain liable for the payment of our fees regardless of whether all or part of these is liable to be paid by your insurers.
3.8. If you are 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 you and we shall be entitled to enforce any sums due against the Group Company or individual nominated to act for you.
3.9. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of any of our fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
4. Retention of records
4.1. During the course of our work we will collect information from you and others acting on your behalf and will return any original documents to you following the completion of the work outlined in our terms of engagement.
4.2. Whilst certain documents may legally belong to you, unless you tell us to the contrary, we intend to destroy correspondence and other papers which are more than seven years old unless we think they may be of continuing significance. If you require retention of any document you must indicate that fact to us.
5. Applicable law
5.1. Our engagement with you shall be governed by, and construed in accordance with, English law. The Courts of England shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning our engagement letter and terms of business and any matter arising from or under them. Each party irrevocably waives any right it may have to object to an 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.
5.2. Persons who are not party to this agreement shall have no rights 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.
6.1. Ellacotts LLP is a limited liability partnership. All communications sent to you in connection with the performance of our services, whether signed by a member, partner, consultant or employee, shall for all purposes be assumed to be sent on behalf of Ellacotts LLP.
Any liability arising out of or related to the services provided by us to you shall be a liability of Ellacotts LLP. Accordingly, you agree by engaging us that you will not bring any claim or take any action personally against any of our members, partners, consultants or employees in connection with the services provided by Ellacotts LLP to you. This restriction does not limit or exclude the liability of Ellacotts LLP. Any reference in any document of Ellacotts LLP, or any verbal reference, to a partner is a reference to a member of Ellacotts LLP.
6.2. 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. We will accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.
6.3. If you receive advice from a third party, Ellacotts LLP will not be responsible for advising you on the potential implications of having undertaken any arrangements following that advice. Accordingly, any liability arising out of or related to the services provided by third parties to you shall not be a liability of Ellacotts LLP.
6.4. We will provide the professional services outlined in this letter with reasonable care and skill. However, we will not be responsible for any losses, penalties, surcharges, interest or additional tax liabilities 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, the tax authorities or other authorities.
7. Electronic communication
7.1. Unless you instruct us otherwise, we may, where appropriate, communicate with you and with third parties via email or by other electronic means. Where appropriate, we will accept your written response by electronic means as legally binding (such as the approval of a tax return for submission to HM Revenue & Customs).
7.2. With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection, data corruption, unauthorised amendment, tampering and interception by third parties. It is the responsibility of the recipient to carry out a virus check on any attachments received. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However, electronic communication is not totally secure and we cannot be held responsible for damage or loss caused by viruses nor for communications which are corrupted, tampered with 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 relating to you.
If you intend to reply on the information contained in an email, you should verify the contents of the email with the author. 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.
8. Data protection
8.1. To enable us to discharge the services agreed in this engagement letter, comply with related legal and regulatory obligations and for other related purposes including updating and enhancing client records and analysis for management purposes, as a data controller, we may obtain, use, process and disclose personal data about you, your business, company, partnership, its shareholders, members, officers and employees as described in our privacy notice. We confirm when processing data on your behalf that we will comply with the provisions of all relevant data protection legislation and regulation.
8.2. Where you are an independent controller responsible for complying with data protection legislation and regulation in respect of the personal data you process and, accordingly where you disclose personal data to us you confirm that such disclosure is fair and lawful and otherwise does not contravene relevant requirements. Nothing within this engagement letter relieves you as a data controller of your own direct responsibilities and liabilities under data protection legislation and regulation.
8.3. Data protection legislation and regulation places obligations on you as a data controller where we act as a data processor to undertake the processing of personal data on your behalf, for instance where we operate a payroll service for you. We therefore confirm that we will at all times take appropriate measures to comply with relevant requirements when processing data on your behalf. In particular we confirm that we have adequate security measures in place and that we will comply with any obligations equivalent to those placed on you as a data controller.
8.4. Our privacy notice, which can be found on our website at www.ellacotts.co.uk explains how we process personal data in respect of the various services that we provide.
9. The Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007
9.1. In common with all other professional services firms, we are required by the Proceeds of Crime Act 2002, the Terrorism Act 2000 and the Money Laundering Regulations 2007 (together, the ‘Anti-Money Laundering Legislation’) to:
- have due diligence procedures for the identification of all clients;
- maintain appropriate records of evidence to support customer due diligence; and
- report in accordance with the relevant legislation and regulations.
9.2. We have a duty under section 330 of the Proceeds of Crime Act 2002 to report to the National Crime Agency (NCA) if we know, or have reasonable cause to suspect, that another person is 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.
9.3. 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.
9.4. 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. Clearly these examples are by no means exhaustive.
9.5. We are obliged by law to report any instances of money laundering to NCA without your knowledge or consent. In consequence, neither the firms’ principals nor staff may enter into any correspondence or discussions with you regarding such matters.
9.6. 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 Consultative Committee of Accountancy Bodies.
9.7. We may use electronic checks as part of our identification procedures. We confirm that these electronic checks are not credit checks.
10. The Provision of Services Regulations 2009
10.1. We are registered to carry on audit work in the UK and regulated for a range of investment business activities. Details about our audit registration can be viewed at www.auditregister.org.uk under the reference number C001386037.
10.2. Details of our professional indemnity insurers can be found on our website www.ellacotts.co.uk. 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.
10.3. If for any reason circumstances arise that may result in a claim to our professional indemnity insurers, you give us your permission to notify them.
11.1. We confirm that where you give us confidential information we shall at all times keep it confidential, except as required by law or as provided for in regulatory, ethical or other professional statements relevant to our engagement.
11.2. We may, on occasions, subcontract work on your affairs to other tax or accounting professionals. These subcontractors will be bound by our client confidentiality terms.
12. External review
12.1. As part of our ongoing commitment to providing a quality service, our professional services files are periodically subject to an independent external quality review. These external reviewers are independent qualified accountants and highly experienced and are bound by the same requirements of confidentiality as our partners, principals and staff.
13. Quality of service
13.1. We aim to provide you with a fully satisfactory service and your engagement partner will seek to ensure that this is so. If, however, you are unable to deal with any difficulty through the partner and the team please contact our Compliance Partner, David Stevens. We undertake to look into any complaint carefully and promptly and to 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 by whom we are regulated.
13.2. 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 accept instructions to act for you on this basis. You can see copies of these requirements in our offices. The requirements are also available on the internet at www.icaew.co.uk/membershandbook.
13.3. If you are dissatisfied in any way with our services as outlined in our terms of engagement, you should follow the procedures set out above. In the unlikely event that we cannot meet our liabilities to you, you may be able to claim compensation under the Chartered Accountants’ Compensation scheme. When conducting audit work we are required to comply with the Ethical Standards for Auditors and the International Auditing Standards (UK) which can be accessed on the internet at www.frc.org.uk/Our-Work/Codes-Standards/Audit-and-assurance/Standards-and-guidance/Standards-and-guidance-for-auditors/Ethical-standards-for-auditors.aspx. A revised standard applies from 17 June 2016 which can be found at https://www.frc.org.uk/getattachment/0bd6ee4e-075c-4b55-a4ad-b8e5037b56c6/Revised-Ethical-Standard-2016-UK.pdf.
14. Conflicts of interest
14.1. We reserve the right during our engagement with you to deliver services to other clients whose interests might compete with yours or are or may be adverse to yours, subject to our confidentiality clause. We confirm that we will notify you immediately should we become aware of any conflict of interest involving us and affecting you.
14.2. If 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 be guided by the ICAEW Code of Ethics.
15. Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standards
15.1. 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.
15.2. 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.
16. Provision of cloud-based services
16.1. Where the firm provides accounting software in the Cloud, this will be provided by a third party (the ‘Cloud Supplier’).
16.2. The service provided by the Cloud Supplier will be a discrete web based hosted facility, and you agree that access will also be provided to the firm and the third party.
16.3. The firm cannot be held liable for any interruption of service provided by the Cloud Supplier. However, we will liaise with them to help ensure that normal service is resumed as soon as possible.
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