These are the additional terms and conditions on and subject to which Broadthunder Accounting Ltd will provide the services described in a letter of engagement related to any particular service requested by the client which, together with these Standard Terms and Conditions comprises the “Engagement Letter”. This represents the entire understanding between the parties in respect of our engagement.
Any reference in this Engagement Letter to a statute, or rules or regulations shall include a reference thereto as the same may have been, or may from time to time be, amended, modified or re-enacted.
References to ‘you’ in this Appendix shall be deemed to include a separate reference to:
(a) Any business established by you which will be engaged in the proposed transaction whether as a party or otherwise; and
(b) Your officers, employees and agents,
To the intent and effect that it is a condition of our Engagement that you procure the observance and compliance by all such persons with the aforementioned paragraphs of this Engagement Letter as if each was a party to the Engagement Letter. References to ‘your’ shall be construed accordingly.
Where there is any conflict between the express terms of the attached letter and this Appendix, the provisions of the attached letter will prevail.
This Engagement Letter may not be amended or modified except with the approval of each of the parties in writing.
This Engagement Letter shall inure for the benefit of and be binding upon the personal representatives and successors in title of each of the parties.
2. Provision of the services
Unless specifically agreed by us in writing, any advice rendered by us during the term of the Engagement is provided solely to the persons to whom it is addressed for the purposes of the Engagement and may not be used or relied upon for any other purpose or by any other person whatsoever.
We shall not be responsible for giving or obtaining specialist advice in areas that are outside our expertise, or where you have engaged other advisers. If you have engaged any other advisers in connection with a transaction or service we shall be entitled to rely on their advice for the purposes of the Engagement without having to verify its accuracy.
3. Provision of information
We shall be entitled to all information, which it is within your power or control to deliver, which we may reasonably require or request in connection with the performance of the Engagement.
You shall ensure that all such information provided is true, complete and accurate in all material respects and not misleading, whether by omission or otherwise. If at any time you become aware that any information provided to us does not meet these requirements then you will forthwith provide such additional information and explanation as may be relevant to the correction of a false or misleading impression that might otherwise have been obtained.
You will ensure that any and all circulars, announcements and documents published or statements made by you or which you procure any other person to make or publish in the course of, and relevant to, the proposed transaction or service, will only be made or published after consultation with us and will be true and accurate and not misleading.
You will procure that we and our advisers shall be given such access to members of your management team and your other advisers as we or they may reasonably require for the purpose of performing the Engagement.
You will at all times during the Engagement keep us fully and promptly informed of all developments and discussions relevant to the Engagement or the proposed transaction or service and that no initiatives in any way concerning the same will be taken without our prior agreement.
You will appoint and retain such other appropriate professional advisers in all relevant jurisdictions as is reasonably necessary having regard to the nature of the proposed transaction or service.
If we consider it necessary and appropriate in relation either to the implementation of the proposed transaction or service in accordance with applicable laws and regulations or otherwise the performance of the Engagement to appoint further professional advisers in connection with the proposed transaction or service, we shall inform you accordingly. Except as we may agree otherwise, the costs of any such appointment shall be for your account and accordingly you agree to reimburse us on demand all such costs on a full indemnity basis.
During the term of this Engagement Letter and for a period of three years after its termination, you and we each undertake with the other that save as required by law or (to the extent applicable) the rules of any relevant regulatory or professional body, there shall not be disclosed to any person (other than our respective professional advisers who reasonably need to know the same) any confidential information received from the other (or that other’s agents or professional advisers), which restriction shall in your case extend to the content or nature of any advice which you receive from us pursuant to this Engagement Letter. This restriction shall not, however, apply to any information or advice which at the date of this Engagement Letter is in the public domain or which subsequently comes into the public domain otherwise than by reason of a breach of this Engagement Letter by the person disclosing the same.
You and we each undertake to the other that such confidential information as may be received shall only be used for the purpose of negotiating and implementing the proposed transaction or service.
Save as may be required by law or (to the extent applicable) the rules of any relevant regulatory authority or professional body, no announcement, advertisement or circular shall be issued by you regarding the proposed transaction or service or our Engagement during either the term of this Engagement Letter or for a period of three years after its termination for any reason without reasonable prior consultation with, and the consent in writing of, us as to the content, manner and timing of the publication of the same.
5. Laws, rules and regulations
You agree that during the term of the Engagement and in relation to the proposed transaction or service, you will comply with all applicable legal and regulatory requirements of all relevant jurisdictions.
We are subject to a number of rules and regulations in addition to our obligations under the general law in relation to the performance of the Engagement. You accordingly acknowledge that our duties and obligations under this Engagement Letter are to be performed and construed in the light of all such laws and regulatory requirements which are from time to time applicable.
Except as provided in paragraph 5.4 below, a person who is not an express party to this Engagement Letter shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Engagement Letter or to consent to any purported amendment or variation of its terms, but this does not affect any right or remedy of any person which exists or is available apart from pursuant to that Act.
Notwithstanding paragraph 5.3, the Indemnified Parties (as defined in paragraph 9 below) may enforce the terms of paragraph 9 subject to and in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999.
6. Conflicts of interest
Neither we nor any of our employees or agents shall have any duty to disclose to you any information which comes to our or their attention in the course of carrying on any other business or as a result of, or in connection with, the provision of services to other persons.
You accept that our directors, employees and agents may be prohibited from disclosing or it may be inappropriate for them to disclose, information to you, even if it relates to you. Similarly, we may be prohibited from using, or it may be inappropriate to use in the course of the Engagement, certain information obtained by us.
7. Intellectual property rights
We shall retain all copyright and other intellectual property rights in all things developed by us either before or during the course of the Engagement including, without limitation, systems, methodologies, software and know-how. We also retain all copyright and other intellectual property rights in all reports, written advice or other materials prepared or compiled by us, although you will be entitled to copy and distribute such documents to any of your professional advisers who reasonably require the same for the purposes of providing advice and services in relation to the proposed transaction or service.
Save as permitted by paragraph 7.1 above, none of the materials referred to in that paragraph shall be copied or distributed to any other person without our prior written consent or the consent of our relevant professional advisers.
8. Expenses and payment terms
You shall pay or procure payment to us of the fees set out in the Engagement Letter on presentation of invoice. All amounts are stated before any VAT obligations and accordingly all payments shall be made together with VAT. We shall be entitled to charge interest at a rate of 5 per cent above the base rate on all invoices which remain unpaid 7 days after presentation of the relevant invoice.
You will be responsible for payment or procuring payment of all costs associated with the proposed transaction or service.
You shall indemnify and hold us harmless and our affiliated companies, and our and their respective directors, officers, employees, agents and professional advisers (collectively, “the Indemnified Parties”), from and against all losses, claims, actions, proceedings, demands, damages, liabilities, costs and expenses arising out of or in connection with the Engagement which any Indemnified Party may suffer or incur in any jurisdiction, and all costs and expenses reasonably incurred by any such Indemnified Party shall be reimbursed promptly on demand, including those incurred in connection with investigating or defending any such pending or threatened litigation or claim within the terms of this indemnity or any matter incidental thereto.
You shall not, however, incur any liability under this paragraph 9 to the extent that any loss, claim, damage, liability or expense is agreed by us or otherwise determined by a judgment of a court of competent jurisdiction to have resulted from the fraud, negligence or wilful default of any Indemnified Party or a material breach of duty or obligation of any Indemnified Party under the Financial Services and Markets Act 2000 or any other relevant legislation or regulatory system.
You agree that we shall not have any liability whatsoever to you in connection with things done or omitted to be done pursuant to the Engagement, other than as a result of our fraud, negligence or wilful default or a material breach by us of a duty or obligation under relevant legislation or regulations to which we are subject and save in such circumstances all such liability is hereby excluded to the fullest extent permissible by law.
You agree that:
(a) (i) Where we and/or any Indemnified Party would otherwise be liable to you for any loss, damage, cost or expense suffered by you or arising from or connected with the Engagement (together, “losses”); and
(ii) Any of your other advisers is liable to you for all or any part of the same losses and such other adviser has agreed with you to exclude and/or limit the maximum amount of its liability to you in respect of such losses (“the Liability Limitation”);
Then the maximum amount of the liability for which we and/or any Indemnified Party shall be liable will be limited to such proportion of the losses as we have agreed, or as have been judicially determined, to be just and equitable having regard to the extent of the responsibility, respectively, of ourselves and/or any Indemnified Party and of such other advisers for the losses (and, for the purpose of allocating such responsibility, ignoring the Liability Limitation); and
(b) If for any reason whatsoever paragraph 9.4 (a) shall be ineffective to limit the liability of ourselves and/or any Indemnified Party to you, the maximum aggregate amount of our liability and any Indemnified Party for the losses shall be reduced by an amount equal to such part of the amount which we and/or they would have been entitled to recover pursuant to the Civil Liability (Contributions) Act 1978 or otherwise for the losses but are prevented from recovering as a result of the Liability Limitation.
Nothing in this paragraph 9 shall limit or exclude the parties’ liability arising as a result of fraud or any other liability for which exclusion or restriction is otherwise prohibited by law.
If any payment made under this paragraph 9 is subject to a charge to taxation in the hands of the Indemnified Party then the amount so payable shall be increased by such amount as will ensure that after deduction of the taxation so chargeable the Indemnified Party concerned shall retain a sum equal to the amount that would otherwise have been payable under this paragraph 9.
All sums payable to any Indemnified Party under this paragraph 9 shall be paid free and clear of all deductions, withholdings, set-off or counterclaims unless the deduction or withholding is required by law, in which event the person making the payment shall, if permitted by law, pay such additional amount as shall be required to ensure that the net amount received by the relevant Indemnified Party will equal the full amount which would have been received by it had no such deduction or withholding been made.
The provisions of paragraph 9 shall remain in full force and effect after the termination of the Engagement.
10. Service Regulation 2009
In accordance with the disclosure requirements of the Provision of Services Regulations 2009, our professional indemnity insurer is: Royal & Sun Alliance Insurance PLC, 9th Floor, One Plantations Place, 30 Fenchurch Street, London EC3M 3BD. The territorial coverage is worldwide excluding professional businesses 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 of America or Canada.
The Engagement shall commence on the date of this Engagement Letter and shall (subject as provided below) terminate (unless previously terminated or mutually extended by agreement) on completion of the Engagement.
We reserve the right at any time and without liability or any continuing obligation to you to terminate our Engagement forthwith if you shall be in material breach of any of the terms of this Engagement Letter or you shall fail to accept our advice on a material regulatory or professional matter concerning the proposed transaction or service or, we are not satisfied that we can proceed with the Engagement without being in default of acceptable professional standards or otherwise failing to observe in full our responsibilities at law and/or under any regulatory requirements to which we may from time to time be subject.
The Engagement may be terminated (subject as provided in paragraphs 10.4 below) by either party on the giving of not less than one month’s prior written notice to the other party.
The expiry or termination of the Engagement shall not affect:
(a) The respective rights and obligations of the parties which may have accrued prior to such date (including without limitation accrued rights to our fees and expenses);
(b) Our rights to any fees costs and expenses which pursuant to the Engagement only become payable on or after such date; or
c) The provisions of paragraphs 1, 4, 7, 8, 9, 10, 12, 13 and 14 which shall continue in full force and effect notwithstanding such expiry or termination.
12. Force Majeure
Neither we nor you shall be liable in any way for failure to perform our respective obligations under this Engagement Letter if the failure is due substantially to causes outside the reasonable control of the party that has failed to perform.
13. Data Protection Act 1998
We are required to comply with the provisions of the Data Protection Act 1998 in relation to the processing of any personal data we obtain from you. We may process all the details we obtain from you to enable us to carry out the services detailed in this Engagement Letter and may also request further information from third parties with your consent, such as your current accountants.
Any information gathered will only be used in the context of the business we conduct for you. If you are unhappy with the way we use your personal data or have voluntarily provided us with any information that you no longer wish us to process, please refer the matter to your usual corporate finance partner.
We may disclose your personal data if obliged to do so under any applicable legal or regulatory requirement, or to any third parties who process personal data on our behalf. This will in no way affect the obligations of confidentiality that we owe each other by virtue of this contract.
14. Archiving and storage
In accordance with our normal internal operating procedures, we will classify some information about you as ongoing and the remainder as specific to this transaction. Upon completion of the assignment, we will transfer all documents and paperwork specific to this transaction to our on site storage facility where it will be held or stored for a minimum of seven years from completion of the assignment. Transaction specific information will be destroyed after this period.
Any notice by any party to this Engagement Letter to any of the others may be delivered in person or be sent by pre-paid registered first class post or by fax in our case to the address or facsimile number set out in the Engagement letter, marked for the attention of the partner signing that letter and in your case to the address or to the facsimile number notified by you to us for the purpose of this clause from time to time.
16. Law and jurisdiction
This Engagement Letter shall be governed by and construed in accordance with English Law and both we and you hereby agree to submit to the exclusive jurisdiction of the English courts.