TERMS OF BUSINESS (31 October 2019)
The following terms of business apply to all engagements accepted by Bracken Rothwell Limited. All work is carried out under these terms except where changes are expressly agreed in writing.
1.0 APPLICABLE LAW
1.1 Our engagement letter, the schedules of services and our standard terms and conditions of business are governed by, and should be construed in accordance with Companies (Jersey) Law 1991. Each party agrees that the courts in Jersey will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it on any basis. Each party irrevocably waives any right to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
2.0 CLIENT IDENTIFICATION
2.1 As with other professional services firms, we are required to identify our clients for the purposes of the 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.
3.0 CLIENT MONEY
3.1 We may, from time to time, hold money on your behalf. The money will be held 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.
3.2 All client monies will be held in an interest-bearing account. To avoid excessive administration, interest will only be paid to you where the amount earned on the balances held on your behalf in any calendar year exceeds £25.00. 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.
3.3 We will return monies held on your behalf promptly as soon as there is no longer any reason to retain those funds. If any funds remain in our client account that are unclaimed and the client to which they relate has remained untraced for five years or we as a firm cease to practise then we may pay those monies to a registered charity.
4.1 We are committed to providing you with a high quality service that is both efficient and effective. However, should there be any cause for complaint in relation to any aspect of our service please contact Alistair Rothwell on 01534 511700. We agree to look into any complaint carefully and promptly and do everything reasonable to put it right. If you are still not satisfied you can refer your complaint to our professional body, the Institute of Chartered Accountants in England and Wales.
5.1 Unless we are authorised by you to disclose information on your behalf, we confirm that where you give us confidential information we shall at all times during and after this engagement keep it confidential, except as required by law, by our insurers or as provided for in regulatory, ethical, or other professional pronouncements or as part of an external peer review applicable to us or our engagement. This undertaking will apply during and after this engagement.
5.2 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.
5.3 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.
5.4 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.
5.5 We reserve the right, for the purpose of promotional activity, training or for other business purpose, to mention that you are a client. As stated above we will not disclose any confidential information.
6.0 CONFLICTS OF INTEREST
6.1 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. 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.
6.2 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. You agree that we reserve the right to act during and after our engagement for other clients whose interests are or may be competing with or adverse to yours subject of course to our obligations of confidentiality and the safeguards set out in the paragraph on confidentiality above.
7.0 DATA PROTECTION (JERSEY) LAW 2018
7.1 To enable us to discharge the services agreed under our engagement, and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance, we may obtain, use, process and disclose personal data about the company. We confirm when processing data on your behalf that we are registered and will comply with the relevant provisions of the Data Protection (Jersey) Law 2018.
7.2 We shall use appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. We shall not sub-contract any processing of personal data unless that personal data continues to be subject to an appropriate level of protection. To the extent we act as data processor for you, we shall only process personal data in accordance with your instructions.
7.3 We shall notify you in 10 working days in the event of an individual asking for copies of their personal data, a complaint about processing of personal data or a notice from a relevant authority. You and we shall consult and co-operate with each other when responding to any such request, complaint or notice.
7.4 We shall answer your reasonable enquiries to enable you to monitor compliance with this clause.
8.0 DATA PROTECTION
8.1 In this clause (8), 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).
8.2 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 client’s personal data.
8.3 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 at clause 9;
(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.
8.4 Should you require any further details regarding our treatment of personal data, please contact our Data Protection Point of Contact, Christine R Jervier as detailed in clause 9.15.
8.5 We shall only process our client’s 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 (clause 9) contains further details as to how we may process client personal data.
8.6 We shall maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of the client personal data and against accidental loss or destruction of, or damage to, the client personal data.
8.7 In respect of client personal data, provided that we are legally permitted to do so, we shall promptly notify you in the event that:
(a) we receive a request, complaint or any adverse correspondence from or on behalf of a relevant data subject, to exercise their data subject rights under the data protection legislation or in respect of our processing of their personal data;
(b) we are served with an information, enforcement or assessment notice (or any similar notices), or receive any other material communication in respect of our processing of the client personal data from a supervisory authority as defined in the data protection legislation (for example in the UK, the Information Commissioner’s Officer); or
(c) we reasonably believe that there has been any incident which resulted in the accidental or unauthorised access to, or destruction, loss, unauthorised disclosure or alteration of, the client personal data.
8.8 Upon the reasonable request of the other, we shall each co-operate with the other and take such reasonable commercial steps or provide such information as is necessary to enable each of us to comply with the data protection legislation in respect of the services provided to you in accordance with our engagement letter with you in relation to those services.
9.0 PRIVACY NOTICE
9.1 This clause describes how we collect and use personal data about you, in accordance with the General Data Protection Regulation (GDPR), the Data Protection (Jersey) Law 2018 and any other national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK (‘Data Protection Legislation’).
Please read the following carefully to understand our practices regarding your personal data and how we will treat it.
9.2 Bracken Rothwell Limited (“Bracken Rothwell”, ”BRL”, “we”, “us”, “our” and “ours”) is an accountancy and tax advisory firm. We are registered in Jersey as a company under company number: 102441 and our registered office is 2nd Floor, The Le Gallais Building, 54 Bath Street, St Helier, Jersey, JE1 1FW.
For the purpose of the Data Protection Legislation and this clause, we are the ‘data controller’. This means that we are responsible for deciding how we hold and use personal data about you. We are required under the Data Protection Legislation to notify you of the information contained in this privacy clause.
We have appointed a Data Protection Officer. Our Data Protection Officer is our Data Protection Point of Contact and is responsible for assisting with enquiries in relation to this privacy notice or our treatment of your personal data. Should you wish to contact our Data Protection Point of Contact you can do so using the contact details noted at clause 9.15 (Contact Us), below.
9.3 We obtain personal data about you, for example, when:
• you request a proposal from us in respect of the services we provide;
• you or your employer or our clients engages us to provide our services and also during the provision of those services;
• you contact us by email, telephone (for example when you have a query about our services); or
• from third parties and/or publicly available resources (for example, from your employer or from Companies House)
9.4 The information we hold about you may include the following:
• your personal details (such as your name and/or address);
• details of contact we have had with you in relation to the provision, or the proposed provision, of our services;
• details of any services you have received from us;
• our correspondence and communications with you;
• information about any complaints and enquiries you make to us;
• information from research, surveys, and marketing activities;
• Information we receive from other sources, such as publicly available information, information provided by your employer or our clients or information from our member network firms.
9.5 We may process your personal data for purposes necessary for the performance of our contract with you or your employer or our clients and to comply with our legal obligations.
We may process your personal data for the purposes necessary for the performance of our contract with our clients. This may include processing your personal data where you are an employee, subcontractor, supplier or customer of our client.
We may process your personal data for the purposes of our own legitimate interests provided that those interests do not override any of your own interests, rights and freedoms which require the protection of personal data. This includes processing for marketing, business development, statistical and management purposes.
We may process your personal data for certain additional purposes with your consent, and in these limited circumstances where your consent is required for the processing of your personal data then you have the right to withdraw your consent to processing for such specific purposes.
Please note that we may process your personal data for more than one lawful basis depending on the specific purpose for which we are using your data.
9.6 We may use your personal data in order to:
• carry out our obligations arising from any agreements entered into between you or your employer or our clients and us (which will most usually be for the provision of our services);
• carry out our obligations arising from any agreements entered into between our clients and us (which will most usually be for the provision of our services) where you may be a subcontractor, supplier or customer of our client;
• provide you with information related to our services and our events and activities that you request from us or which we feel may interest you, provided you have consented to be contacted for such purposes;
• seek your thoughts and opinions on the services we provide; and
• notify you about any changes to our services.
In some circumstances we may anonymise or pseudonymise the personal data so that it can no longer be associated with you, in which case we may use it without further notice to you.
If you refuse to provide us with certain information when requested, we may not be able to perform the contract we have entered into with you. Alternatively, we may be unable to comply with our legal or regulatory obligations.
We may also process your personal data without your knowledge or consent, in accordance with this notice, where we are legally required or permitted to do so.
9.7 We will only retain your personal data for as long as is necessary to fulfil the purposes for which it is collected.
When assessing what retention period is appropriate for your personal data, we take into consideration:
• the requirements of our business and the services provided;
• any statutory or legal obligations;
• the purposes for which we originally collected the personal data;
• the lawful grounds on which we based our processing;
• the types of personal data we have collected;
• the amount and categories of your personal data; and
• whether the purpose of the processing could reasonably be fulfilled by other means.
9.8 Where we need to use your personal data for another reason, other than for the purpose for which we collected it, we will only use your personal data where that reason is compatible with the original purpose.
Should it be necessary to use your personal data for a new purpose, we will notify you and communicate the legal basis which allows us to do so before starting any new processing.
9.9 We will share your personal data with third parties where we are required to by law and where it is necessary to administer our relationship with you. We may also share your personal data with third parties where we have another legitimate interest in doing so.
“Third parties” includes third-party service providers. The following activities are carried out by third-party service providers: IT and cloud services and banking services.
All of our third-party service providers are required to take commercially reasonable and appropriate security measures to protect your personal data. We only permit our third-party service providers to process your personal data for specified purposes and in accordance with our instructions.
We may share your personal data with other third parties, for example in the context of the possible sale or restructuring of the business. We may also need to share your personal data with a regulator to otherwise comply with the law.
9.10 We will not transfer the personal data we collect about you outside of the European Economic Area (“EEA”).
9.11 We have put in place commercially reasonable and appropriate security measures to prevent your personal data from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. In addition, we limit access to your personal data to those employees, agents, contractors and other third parties who have a business need to know. They will only process your personal data on our instructions and they are subject to a duty of confidentiality.
We have put in place procedures to deal with any suspected data security breach and will notify you and any applicable regulator of a suspected breach where we are legally required to do so.
9.12 Your duty to inform us of changes
It is important that the personal data we hold about you is accurate and current. Should your personal information change, please notify us of any changes of which we need to be made aware by contacting us, using the contact details below (clause 9.15).
Under certain circumstances, by law you have the right to:
• Request access to your personal data. This enables you to receive details of the personal data we hold about you and to check that we are processing it lawfully.
• Request correction of the personal data that we hold about you.
• Request erasure of your personal data. This enables you to ask us to delete or remove personal data where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal data where you have exercised your right to object to processing (see below).
• Object to processing of your personal data where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this basis. You also have the right to object where we are processing your personal information for direct marketing purposes.
• Request the restriction of processing of your personal data. This enables you to ask us to suspend the processing of personal data about you, for example if you want us to establish its accuracy or the reason for processing it.
• Request the transfer of your personal data to you or another data controller if the processing is based on consent, carried out by automated means and this is technically feasible.
If you want to exercise any of the above rights, please email our Data Protection Point of Contact per clause 9.15.
You will not have to pay a fee to access your personal data (or to exercise any of the other rights). However, we may charge a reasonable fee if your request for access is clearly unfounded or excessive. Alternatively, we may refuse to comply with the request in such circumstances.
We may need to request specific information from you to help us confirm your identity and ensure your right to access the information (or to exercise any of your other rights). This is another appropriate security measure to ensure that personal information is not disclosed to any person who has no right to receive it.
9.13 In the limited circumstances where you may have provided your consent to the collection, processing and transfer of your personal data for a specific purpose (for example, in relation to direct marketing that you have indicated you would like to receive from us), you have the right to withdraw your consent for that specific processing at any time. To withdraw your consent, please email our Data Protection Point of Contact as detailed in clause 9.15.
Once we have received notification that you have withdrawn your consent, we will no longer process your personal information (personal data) for the purpose or purposes you originally agreed to, unless we have another legitimate basis for doing so in law.
9.14 Any changes we may make to our privacy clause in the future will be provided to you via an update to our terms and conditions as detailed on our website.
9.15 If you have any questions regarding this notice or if you would like to speak to us about the manner in which we process your personal data, please email our Data Protection Point of Contact:
Christine R Jervier – Privacy@brackenrothwell.com
You also have the right to make a complaint to The Office of the Information Commissioner (OIC), the Jersey supervisory authority for data protection issues, at any time. The OIC’s contact details are as follows:
The Office of the Information Commissioner
One Liberty Place
La Route De La Liberation
Telephone – +44 (0)1534 716530
Email – email@example.com
10.1 Should we resign or be requested to resign we will normally issue a disengagement letter to ensure that our respective responsibilities are clear. Should we have no contact with you for a period of 1 month or more we may issue to your last known address a disengagement letter and hence cease to act.
11.0 ELECTRONIC AND OTHER COMMUNICATION
11.1 Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments.
11.2 With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through 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 or altered after despatch. Nor can we accept any liability for problems or accidental errors relating to this means of communication especially in relation to commercially sensitive material. These are risks you must bear in return for greater efficiency and lower costs. If you do not wish to accept these risks please let us know and we will communicate by paper mail, other than where electronic submission is mandatory.
11.3 Any communication by us with you sent through the post or courier services is deemed to arrive at your postal address two working days after the day that the document was sent.
12.0 FEES AND PAYMENT TERMS
12.1 Our fees may depend not only upon the time spent on your affairs but also on the level of skill and responsibility and the importance and value of the advice that we provide, as well as the level of risk.
12.2 If we provide you with an estimate of our fees for any specific work, then the estimate will not be contractually binding unless we explicitly state that that will be the case.
Otherwise our fees will be calculated on the basis of the hours worked by each member of staff necessarily engaged on your affairs multiplied by their charge-out rate per hour, GST being charged thereon. Indicative hourly charge out rates are as follows:
Associate Director £215
Assistant Manager £145
The majority of the work is performed by associates and the use of senior members of the team is to be kept to minimum.
12.3 Where requested we may indicate a fixed fee for the provision of specific services or an indicative range of fees for a particular assignment. It is not our practice to identify fixed fees for more than a year ahead as such fee quotes need to be reviewed in the light of events. If it becomes apparent to us, due to unforeseen circumstances, that a fee quote is inadequate, we reserve the right to notify you of a revised figure or range and to seek your agreement thereto.
12.4 In some cases, you may be entitled to assistance with your professional fees, particularly in relation to any investigation into your tax affairs by Comptroller of Taxes. 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 our fees regardless of whether all or part are liable to be paid by your insurers.
12.5 We will bill monthly and our invoices will are due for payment upon presentation. Our fees are exclusive of GST 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.
12.6 Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees Should these costs be incurred to fulfil our engagement then such necessary additional charges may be payable by you.
12.7 We reserve the right to charge interest on late paid invoices at the rate of 1% per month. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of any fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
12.8 If you do not accept that an invoiced fee is fair and reasonable you must notify us within 21 days of receipt, failing which you will be deemed to have accepted that payment is due.
12.9 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.
13.1 We will only assist with implementation of our advice if specifically instructed and agreed in writing.
14.0 INTELLECTUAL PROPERTY RIGHTS
14.1 We will retain all copyright in any document prepared by us during the course of carrying out the engagement save where the law specifically provides otherwise.
15.1 If any provision of our engagement letter or terms of business is held to be void, then that provision will be deemed not to form part of this contract. 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.
16.0 INTERNAL DISPUTES WITHIN A CLIENT
16.1 If we become aware of a 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 registered office/normal place of business for the attention of the directors. If conflicting advice, information or instructions are received from different directors in the business we will refer the matter back to the board of directors and take no further action until the board has agreed the action to be taken.
17.1 Insofar as we are permitted to do so by law or professional guidelines, we reserve the right to exercise a lien over all funds, documents and records in our possession relating to all engagements for you until all outstanding fees and disbursements are paid in full.
18.0 LIMITATION OF THIRD PARTY RIGHTS
18.1 The advice and information we provide to you as part of our service is for your sole use and not for any third party to whom you may communicate it unless we have expressly agreed 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.
19.0 PERIOD OF ENGAGEMENT AND TERMINATION
19.1 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.
19.2 Each of us may terminate our agreement by giving not less than 21 days’ notice in writing to the other party except where you fail to cooperate with us or we have reason to believe that you have provided us or Comptroller of Taxes 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 prior to termination.
19.3 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.
20.0 PROFESSIONAL RULES AND STATUTORY OBLIGATIONS
20.1 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 Comptroller of Taxes 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. You can see copies of these requirements in our offices. The requirements are also available on the internet at:
21.0 QUALITY CONTROL
21.1 As part of our ongoing commitment to providing a quality service, our files are periodically reviewed by an independent regulatory or quality control body. These reviewers are highly experienced and professional people and, of course, are bound by the same rules for confidentiality as our principals and staff.
22.0 RELIANCE ON ADVICE
22.1 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.
23.0 RETENTION OF PAPERS
23.1 You have a legal responsibility to retain documents and records relevant to your financial affairs. During the course of our work we may collect information from you and others relevant to your tax and financial affairs. We will return any original documents to you, if requested. Documents and records relevant to your tax affairs are required by law to be retained for the period of 6 years.
23.2 Whilst certain documents may legally belong to you, we may destroy correspondence and other papers that we store electronically or otherwise that are more than 6 years old, except documents we think may be of continuing significance. You must tell us if you wish us to keep any document for any longer period.
24.0 TIMING OF OUR SERVICES
24.1 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 in order to meet any regulatory deadlines. However, failure to complete our services prior to any such regulatory deadline would not, of itself, mean that we are liable for any penalty or additional costs arising.
25.0 LIMITATION OF LIABILITY
25.1 We have discussed with you the extent of our liability to you in respect of the professional services described within this engagement letter (the professional services). Having considered both your circumstances and our own, we have reached a mutual agreement that £TBC 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 of £TBC represents the maximum total liability to you in respect of the firm, its principals, directors, members and staff. 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 confirm 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 firm, its principals, directors, members or employees; and
• you have agreed that you will not bring any claim of a kind that is included within the subject of the limit against any of our principals, directors, members or employees; on a personal basis.