APC Accountants Limited - Standard Terms of Business updated January 2019
The following Standard Terms of Business apply to all engagements accepted by APC Accountants Limited trading as ApC. All work carried out is subject to these terms except where changes are expressly agreed in writing.
1 - Professional rules and practice guidelines
1.1 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 accept instructions to act for you on this basis. 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 www.icaew.com/regulations.
1.2 We confirm that we are Statutory Auditors eligible to conduct audits under the Companies Act 2006. When conducting audit work we are required to comply with the Ethical and Auditing Standards issued by the FRC, which can be accessed on the internet at https://www.frc.org.uk/Our-Work/Audit/Audit-and-assurance/Standards-and-guidance/Standards-and-guidance-for-auditors.aspx. We are also required to comply with the Audit Regulations and Guidance which can be accessed on the internet at http://icaew.com/en/technical/audit-and-assurance/working-in-the-regulated-area-of-audit.
2 - Confidentiality
2.1 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 or as provided for in regulatory, ethical or other professional pronouncements applicable to us or this engagement.
2.2 You agree that if we act for other clients who are to become your competitors, it will be sufficient compliance with our duty of confidentiality for us to take such steps as we think appropriate to preserve the confidentiality of information given to us by you, both during and after this engagement.
2.3 In addition, if we act for any other clients whose interests 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 the storage of and access to information.
2.4 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.
2.5 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.
2.6 Where cloud based systems are used (including, but not exclusive to Xero, Sage One Accounting and Intuit Quickbooks Online) we will ensure confidentiality of your information will be maintained in accordance with the service provider’s confidentiality policy.
2.7 We reserve the right, for the purposes of promotional activity, training or for other business purpose, to mention you as a client. As stated above we will not disclose any confidential information.
3 - Conflicts of interest
3.1 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 interest 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.
3.2 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. In resolving the conflict, we would be guided by the code of ethics of our professional body, which can be reviewed at https://www.icaew.com/en/members/regulations-standards-and-guidance/ethics in part B, sub-section 220. 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.
4 - Investment service
4.1 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.
4.2 We may, in the course of the other professional services set out in the engagement letter:
- advise you on investments generally, but not recommend a particular investment or type of investment;
- refer you to a permitted third party (PTP). A PTP is authorised by the Financial Conduct Authority to conduct Investment Business. We may assist you and the permitted third party during the course of any advice given by that party and comment on, or explain, the advice received but 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. If we introduce you to a PTP, the PTP will be completely responsible for any advice given by themselves. We may receive commission from such an introduction and we will explain to you the basis of this commission in a separate letter. Approval by you of that letter will signify your acceptance that we may retain the commission. The PTP will confirm the actual commission received by us for each and every transaction.
- assist you in making arrangements for transactions in investments in certain circumstances;
- advise and assist you in transactions concerning shares or other securities not quoted on a recognised exchange; and
- manage investments or act as trustee, or donee of a power of attorney, where decisions to invest are taken on the advice of an authorised person.
4.3 If you are dissatisfied in any way about our services described in this section, you should follow the procedures
set out in section 10 of these terms and, in the unlikely event that we cannot meet our liabilities to you, you may have the right to compensation under the Chartered Accountants’ Compensation Scheme.
5 - General commission (outside Financial Services and Markets Act 2000)
5.1 In some circumstances, commissions or other benefits may become payable to us in respect of transactions we arrange for you, in which case you will be notified in writing of the amount and terms of payment and receipt of any such commissions or benefits. You consent to such commission or other benefits being retained by us without our being liable to account to you for any such amounts.
6 - Custody services
6.1 Where we provide custody of title documents belonging to you, we:
- Will charge for such services separately from our other fees on the basis stated in section 16 below;
- Will provide you with periodic statements or records of title documents;
- May appoint sub-custodians to undertake arrangements for the custody of your title documents; and
- Will reimburse you for any losses of investments due to fraud, wilful default or negligence arising from our activities and/or those of our nominees and/or sub-custodians and/or third party custodians.
7 - Client monies
7.1 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.
7.2 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 NatWest Bank plc for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
7.3 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.
7.4 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.
7.5 Where work has been invoiced, paid but not actually performed, this means a credit exists in your “ledger” within ApC. We reserve the right to offset this credit against work that has been performed, invoiced but not paid. This can happen when we perform multiple services for you that are invoiced separately.
8 - Cloud based third party software
8.1 For the purposes of these terms and conditions “cloud based software” shall include, but not be limited to Xero, Sage One Accounting and Intuit Quickbooks Online.
8.2 Where we are accessing cloud based software as a registered user under your subscription in order to provide bookkeeping services to you, we will comply with the third party product terms and conditions applicable to us as a registered user of the service under your subscription. Under these circumstances you will own the subscription of the cloud based software and retain control of the product. Input and processing on the software will be in accordance with the bookkeeping terms detailed in the schedule of services included with our engagement letter that clarifies which parties will be performing which functions. Should we disengage at any point in the future it will be your responsibility to remove ApC Accountants as registered users under your subscription.
8.3 Where you are accessing cloud based software as a registered user under our subscription, you agree to the terms and conditions applicable to the product being used. Full details of the terms and conditions of the service provider can be reviewed on the relevant service provider’s website. You agree that you will review and comply with all third party product terms and conditions applicable to you as a registered user of the service. Under these circumstances we will own the subscription of the cloud based software and retain control of the product, although the data linked to it will belong to you. Input and processing on the software will be in accordance with the bookkeeping terms detailed in the schedule of services included with this engagement letter that clarifies which parties will be performing which functions. Should we disengage at any point in the future we can discuss arrangements for the transfer of this subscription and ongoing payment of fees should you wish to continue with its use, or the provision of the history of your data as processed in a pdf document format if not. Should you not wish to continue with the use of the product we reserve the right to invoice you for the full subscription price plus an administration fee.
9 - Records and data storage
9.1 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 as follows:
- Individuals, trustees and partnerships with trading or rental income: 5 years and 10 months after the end of the tax year.
- Companies, Limited Liability Partnerships, and other corporate entities: 6 years from the end of the accounting period.
9.2 Whilst certain documents may legally belong to you, unless you tell us not to, we may destroy correspondence and other papers that we store which are more than seven years old, other than documents which we consider to be of continuing significance. If you require retention of any document you must tell us.
9.3 Our files may be subject to inspection by professional bodies and other regulators. We will provide officials and representatives of such bodies with information and explanations that they may reasonably require in accordance with their rights and powers. Such inspectors will normally be bound by the same requirements for confidentiality as our directors and staff.
9.4 Where cloud based systems are used the third party provider is responsible for data storage, security and back up. You acknowledge and accept that the service provider has this responsibility and that we will have no liability in this regard.
9.5 Cloud based service providers use best practice policies and procedures to prevent data loss, but the service providers do not make any guarantees that there will be no loss of data. As a consequence you must maintain copies of any data inputted into the cloud based system.
9.6 Where cloud based systems are used we may also use or develop additional working papers, including spreadsheets, in the provision of our services to you. These additional working papers are not held within the cloud system. Copies of such documents can be provided on request. However you acknowledge that these were developed for our purposes only and to the fullest extent permitted by law, we make no representations or warranties as to the sufficiency or appropriateness of these documents for any purpose for which you may use them.
10 - Complaints procedure
10.1 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 the managing director; Andrew Cripps.
10.2 We undertake to look into any complaint promptly and to do all we can to explain the position to you. If we have given you a less than satisfactory service we undertake to do everything reasonable to put it right. If you feel that our efforts have not been sufficient to remedy the situation you are entitled to take up the matter with the Institute of Chartered Accountants in England and Wales.
11 - Applicable Law
11.1 This engagement letter, the schedules of services and our standard terms and conditions of business are governed by, and should be construed in accordance with, English law. The Courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it on any basis, save that nothing shall prevent us from enforcing payment of money due to us in courts outside England. Each party irrevocably waives any right it may have to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
11.2 We will not accept responsibility if you act on advice previously given by us without first confirming with us that the advice is still valid in light of any change in the law or your circumstances. We will accept no liability for losses arising from changes in the law or the interpretation thereof that occur after the date on which the advice is given.
12 - Electronic communication
12.1 Unless you instruct us otherwise, we may communicate with you and with third parties by e-mail or by other electronic means. The recipient is responsible for carrying out a virus check on emails and attachments.
12.2 With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection, data corruption or someone other than the intended addressee intercepting or interfering with the contents of such communication. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. You acknowledge these potential risks and you agree that we shall have no liability whatever, whether in negligence or otherwise, for any costs, claims loss or damages howsoever arising out of non-receipt, delayed receipt, inadvertent misdirection, data corruption or the interception or interferences with electronic communications between you and us or sent and received on your behalf. It may therefore be inappropriate to rely on advice contained in an e-mail without obtaining written confirmation of it. We do not accept responsibility for any errors or problems that may arise through the us of Electronic communication and all risks connected with sending commercially sensitive information relating to your business are borne by you. If you do not agree to accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.
12.3 Any communication by us with you sent through the post is deemed to arrive at your postal address two working days after the day that the document was sent.
13 - Data Protection
13.1 In this section 13, 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 Data Protection Act 1998 (before 25 May 2018), 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 (from 25 May 2018 onwards);
‘controller’ bears the following meaning: up to and including 24 May 2018 it has the same meaning as ‘data controller’ as defined under the Data Protection Act 1998; and from 25 May 2018 it has the meaning given to ‘controller’ in the data protection legislation;
‘data subject’, ‘personal data’, personal data breach’, ‘process’ and ‘supervisory authority’ shall have the meanings given to them in the data protection legislation;
‘processor’ bears the following meanings: up to and including 24 May 2018 it has the same meaning as ‘data processor’ as defined under the Data Protection Act 1998; and form 25 May 2018 it has the meaning given to ‘processor’ in the data protection legislation;
‘GDPR’ means the General Data Protection Regulation (EU0 2016/679); and ‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
13.2 Where we act as controller in relation to personal data provided to us by you or on your behalf, we shall each be considered an independent data controller in relation to the client personal data.
13.3 Where we each act as independent controllers in relation to the client personal data, you shall only disclose the client personal data to us where:
- 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 at apc-accountants.co.uk for this purpose);
- 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
- you have complied with the necessary requirements under the data protection legislation to enable you to do so.
13.4 Where we each act as independent controllers in relation to the client personal data, we shall only process the client personal data:
- in order to provide our services to you and perform any other obligations in accordance with our engagement with you;
- in order to comply with our legal or regulatory obligations; and
- where it is necessary for the purposes of our legitimate interests and those interests are not overridden by the relevant data subject’s own privacy rights.
13.5 Where we each act as independent controllers in relation to the client personal data, 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.
13.6 Where we act as processor in relation to the client personal data, we both acknowledge that for the purposes of the data protection legislation in respect of our engagement, you are the controller and we are the processor.
13.7 Where we act as processor in relation to the client personal data, unless otherwise required by applicable laws or other regulatory requirements, we shall:
- process the client personal data only in accordance with your lawful written instructions, in order to provide you with the services pursuant to our engagement with you and in accordance with applicable data protection legislation;
- maintain written records of our processing activities performed on your behalf which shall include: (i) the categories of processing activities performed; (ii) details of any cross border data transfers outside of the European Economic Area (EEA); AND (iii) a general description of security measures implemented in respect of the client personal data;
- not transfer any client personal data outside of the EEA unless the following conditions are fulfilled: (i) either of us has provided appropriate safeguards in relation to the transfer; (ii) the relevant data subjects have enforceable rights and effective legal remedies; (iii) we comply with our obligations under the data protection legislation by providing an adequate level of protection to any client personal data that is transferred; and (iv) we comply with reasonable instructions that you notify to us in advance with respect to the processing of the client personal data;
- return or delete all the client personal data upon the termination of the engagement with you pursuant to which we agreed to provide the services;
- ensure that only those personnel who need to have access to the client personal data are granted access to it and that all of the personnel authorised to process the client personal data are bound by a duty of confidentiality;
- notify you if we appoint a sub-processor (but only if you have given us your prior written consent, such consent not to be reasonably withheld or delayed) and ensure any agreement entered into with the relevant sub-processor includes similar terms as the terms set out section 13.
13.8 Where we act as processor in relation to the client personal data, you will ensure that you have all necessary appropriate consents and notices in place to enable the lawful transfer of the client personal data to us.
13.9 Where we act as controller and/or processor 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.
13.10 For the purpose of providing our services to you, we may disclose the client personal data to our regulatory bodies or other third parties (for more information about this, please see our privacy notice which can be found on our website at www.apc-accountants.co.uk). We shall also disclose the client personal data to courts, government agencies and other third parties as and to the extent required by law. The third parties to whom we disclose such personal data may be located outside of the European Economic Area (EEA). We will only disclose client personal data to a third party (including a third party outside of the EEA) providing that the transfer is undertaken in compliance with the data protection legislation.
13.11 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.
13.12 Provided that we are legally permitted to do so, we shall promptly notify you in the event that:
- 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;
- 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);
- 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 (a personal data breach in respect of the client personal data);
- at your cost and upon receipt of your prior written notice, allow you, on an annual basis and/or in the event that we notify you of a personal data breach in respect of the client personal data, reasonable access to the relevant records, files, computer or other communication systems, for the purpose of reviewing our compliance with the data protection laws.
13.13 Our privacy notice, which can be found on our website at www.apc-accountants.co.uk, also explains how we
process personal data in respect of the various services that we provide.
13.14 Should you require any further details regarding our treatment of personal data, please contact our data controller; Steven Pincott, at email@example.com or write to Steven Pincott, The Data Controller, APC Accountants Limited, 7 St John Street, Mansfield, Nottinghamshire, NG18 1QH.
14 - Contracts (Rights of Third Parties) Act 1999
14.1 A person or company who is not a party to this engagement has no right under the Contracts (Rights of Third Parties) Act 1999, or any subsequent legislation, to enforce any term of this engagement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
14.2 The advice that we give to you is for your sole use and does not constitute advice to 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 aspect of our professional services or work that is made available to them.
15 - Client identification
15.1 As with other professional services firms, we are required to identify our clients for the purpose of the UK anti- money laundering legislation. We are likely to request from you, and retain, some information and documentation for these purposes and/or to make searches of appropriate databases. If we are not able to obtain satisfactory evidence of your identity within a reasonable time, there may be circumstances in which we are not able to proceed with the appointment.
15.2 We may be required by law to make a disclosure to the National Crime Agency if we know or suspect that a transaction may involve money laundering or terrorist financing. In these circumstances we may have to stop working for you without being able to tell you why. It is not our practice to inform you when such a disclosure is made or the reasons for it because of the restrictions imposed by the ‘tipping off’ provisions of the legislation.
16 - Fees and payment terms
16.1 Our fees are computed on the basis of the time spent on your affairs by the directors and our staff, which may include travelling time. Time is charged at hourly rates that vary to reflect the levels of skill and responsibility involved, the importance and value of the advice that we provide and the level of risk. Hourly rates are modified from time to time to reflect inflation. Unless otherwise agreed, our fees will be charged separately for each of the main classes of work and will be billed at appropriate intervals during the course of the year. Fees will be subject to the addition of expenses and disbursements (such as sub-contractor fees, travel and accommodation expenses) that we incur in undertaking the engagement. Fees will also be subject to the addition of VAT and will be due within 30 days after presentation.
16.2 If we provide you with an estimate of our fees for any specific work, then this 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, VAT being charged thereon.
16.3 Unless otherwise agreed to the contrary our fees do not include the costs of any third party, counsel or other professional fees or disbursements. Should these costs be incurred to fulfil our engagement then such necessary additional charges may be payable by you.
16.4 We reserve the right to charge interest on late paid invoices at a rate of 8% or the rate for the time being applicable under the Late Payment of Commercial Debts (Interest) Act 1998, whichever is the higher. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
16.5 If you should be dissatisfied with the amount of the invoice or the work done for any reason, you should draw this to the attention of the engagement director or manager, within 30 days of the date of the invoice, failing which you will be deemed to have accepted that payment is due.
16.6 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.
16.7 Where we are instructed by or on behalf of more than one person or company in relation to any particular matter, each person or company for whom we act will be jointly and severally responsible for payment of the full amount of our fees and disbursements.
16.8 If someone else agrees or is ordered to pay our fees on your behalf that is for your benefit and does not change your primary responsibility for our fees and disbursements if they fail or delay.
16.9 If, for any reason, it becomes necessary for us to withdraw from the engagement, our fees for work already performed will be payable by the persons identified in the engagement letter.
17 - Groups
17.1 Where our appointment is by a parent company on behalf of a group or particular group of companies, the parent company confirms that these Standard Terms of Business apply to all group entities to which we have been appointed.
17.2 Whilst fee invoices may be addressed to either the parent company or the relevant group company or entity, both parties remain jointly and severally liable until they are settled.
18 - Non-solicitation of personnel
18.1 You will not solicit, or endeavour to solicit, in any way the service of any staff member with whom you have had dealings in connection with the engagement during the 12 months immediately prior to your approach (except where the staff member responds directly to a general recruitment campaign).
19 - Timing of our services
19.1 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.
20 - The Provision of Services Regulations 2009
20.1 The Provision of Services Regulations 2009 are displayed at our offices at 7 St John Street, Mansfield Nottinghamshire, NG18 1QH, and a copy is available on request.
21 - Intellectual property rights
21.1 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.
21.2 You are not permitted to use our name in any statement or document that 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.
22 - Limitation of liability
22.1 We will provide our professional 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 held responsible for any losses, penalties, surcharges, interest or additional tax liabilities arising from the supply by you or others (i.e. people/businesses that have not been instructed by us) of incorrect or incomplete information, or your or others failure to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us or other relevant authorities.
22.2 You agree not to hold us, our principals or our staff responsible, to the fullest extent permitted by law, for any loss suffered by you arising from any misrepresentation, whether intentional or unintentional, supplied to us orally or in writing in connection with this agreement. You have agreed that you will not bring any claim in connection with services provided to you by the firm against any of our partners or employees on a personal basis.
22.3 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 work that is made available to them.
22.4 Subject to paragraphs 12.2, 22.6, 22.7, 22.8, 22.9, 22.10 and 22.11. and unless the engagement letter specifies otherwise, our total liability under or in connection with any professional services that we may provide to you for breach of contract, our negligence or otherwise shall not exceed £1 million. This sum shall be the maximum aggregate liability of this firm, its members, agents and employees to all persons to whom the engagement letter is addressed and also any other person that we have agreed with you may rely on our work. By signing the engagement letter you agree that you have given proper consideration to this limit and accept that it is reasonable in all the circumstances. If you do not wish to accept it you should contact us to discuss it before signing the engagement letter.
22.5 You agree to indemnify us in respect of any claim arising out of any unauthorised disclosure by you or by any person for whom you are responsible of our advice and opinions, whether in writing or otherwise. This indemnity will extend to the cost of defending any such claim, including payment at our usual rates for the time that we spend defending it.
22.6 Without prejudice to any other limit on or exclusion of liability where a claim is substantiated as a result of the services we have provided, but others also have responsibility for a claim or claims which has or have arisen, our liability will be limited to a fair share of the liability only, taking into account the relative responsibility of others, including in appropriate circumstances, your responsibility. Our share of such a liability will not be increased because a claim cannot be successfully pursued against others who are also responsible, by way of example because those others are insolvent or have limited their own liability.
22.7 Nothing in these terms of business seeks to limit or exclude the liability of APC Accountants Limited to you for death or personal injury caused by our negligence or for any acts, omissions or representations that are in any way criminal, dishonest or fraudulent. We will not be liable for loss caused by others or for circumstances beyond our control.
22.8 Unless the engagement letter specifies otherwise, and unless there is a separate Auditor Liability Limitation Agreement in place, nothing in these terms of business seeks to limit the liability of APC Accountants Limited in relation to engagements for audit work under the Companies Act 2006.
22.9 The aggregate liability of the practice, its directors, agents and employees in connection with breaches of data protection legislation (including the General Data Protection Regulation ((EU) 2016/679)) shall be limited to the total sum of fees paid to the practice under the terms of the engagement letter during the preceding twelve months.
22.10 Where cloud based systems are used you agree that we do not accept any liability for any loss howsoever arising out of the content, quality, performance or reliability of any third party website accessed through our website or cloud based subscriptions we invite you to use, nor do we endorse or approve the contents of any such sites in any way whatsoever. We do not give any warranty that these websites are free from viruses or malware and you must take appropriate steps to protect your own IT systems. We will not be liable for any failures whatsoever to deliver any of our services to you, or any loss howsoever arising from such failures, due to transmission errors or unavailability of telecoms networks (including reasons of force majeure), or due to the failure or unavailability of any third party infrastructure.
22.11 Where we are accessing cloud based software as a registered user under your subscription, you agree that you will be responsible for ensuring that your network and systems meet the necessary performance requirements and for maintaining your own network and communication links. We will not be liable for any loss howsoever arising out of any service interruption and/or if our services to you cannot be delivered because you are in breach of the third party service provider’s terms and conditions.
23 - Interpretation
23.1 If any provision or part-provision of this engagement letter is or becomes invalid, illegal, void or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity or enforceability of the rest of this agreement.
23.2 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.
24 - Period of engagement, variation and termination
24.1 Unless otherwise agreed in the engagement covering letter our work will begin when we receive your implicit or explicit acceptance of that letter. Except as stated in that letter we will not be responsible for periods before that date.
24.2 Any variation of these terms will be notified to you in writing. Following such notification, you have 7 days to raise any concerns, in writing, before the revised terms take effect.
24.3 Each of us may terminate this agreement by giving not less than 30 days notice in writing to the other party except where you fail to co-operate with us or we have reason to believe that you have provided us or HM Revenue and Customs 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.
24.4 We reserve the right to terminate the engagement between us with immediate effect in the event of your insolvency, bankruptcy or other arrangement being reached with creditors; an independence issue or change in the law which means we can no longer act; failure to pay our fees by the due dates; or either party being in breach of their obligations where this is not corrected within 30 days of being asked to do so.
24.5 In the event of termination of this 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.
25 - Entire agreement
25.1 These Standard Terms of Business, together with our Letter of Engagement and any applicable Service Schedules constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
25.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Standard Terms of Business, our Letter of Engagement and any applicable Service Schedules.