HaysMac LLP Standard Terms of Business
The following standard terms of business ("Standard Terms of Business") apply to all
engagements accepted by HaysMac LLP. All work carried out by us is subject to these Standard
Terms of Business except where changes are expressly agreed in writing. Please ensure that
you periodically check our website for any changes to these Standard Terms of Business.
The services we will provide to you ("Professional Services") will be set out in the Engagement
Letter (as that term is defined in the Engagement Letter). Where we provide Ancillary Services
(as defined in Schedule 1 to these Standard Terms of Business) the terms of Schedule 1 apply
to your use of such services.
Our agreement with you ("Agreement") therefore comprises of:
a) the Engagement Letter (including its appendices); and
b) these Standard Terms of Business (including Schedule 1) as amended from time to time.
We may take your: (i) signing the Engagement Letter and returning it to us; (ii) proceeding to
instruct us; or (iii) relying upon advice from us (whichever is earlier), as your acceptance of the
Agreement.
The terms of the Agreement prevail over any other terms and conditions that you may seek to
impose or incorporate, whether as part of a purchase order procedure or otherwise, and (to the
fullest extent permitted by law) that are implied by trade, custom, practice, course of dealing or
otherwise.
The terms of the Agreement are applicable to all types of entities (e.g. individuals, companies,
LLPs, charities, friendly societies, academies, pension schemes, etc). Any reference therefore
to director or company should be interpreted as appropriate for the entity type (e.g. partner,
trustee, governor, charity, LLP, etc.).
We (like many other limited liability partnerships) call our members “partners” rather than use
the legal term “members”. However, legally they are not partners and do not have joint and
several personal liability to you. All liability is the sole responsibility of HaysMac LLP and you
agree not to bring any claims against individual partners or employees.
1 Professional obligations
1.1 Details of the firm’s professional registrations can be found at www.haysmac.com/aboutus.
1.2 We will observe and act in accordance with the bye-laws and regulations of The Institute
of Chartered Accountants in England and Wales (ICAEW) together with their code of
ethics. We accept instructions to act for you on this basis. In particular you give us
authority to correct errors made by HM Revenue and Customs (HMRC) where we become
aware of them. We will not be liable for any loss, damage or cost arising from our
compliance with statutory or regulatory obligations.
Professional indemnity insurance
1.3 In accordance with the disclosure requirements of the Provision of Services Regulations
2009, our lead professional indemnity insurer is W. R. Berkley Syndicate Management
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Limited, 14th Floor, 52 Lime Street, London EC3M 7AF. The territorial coverage is
worldwide.
2 Investment services
2.1 Since we are not authorised by the Financial Conduct Authority ("FCA") then we may have
to refer you to someone who is authorised if you need advice on investments. However,
as we are licensed by the ICAEW, we may be able to provide certain investment services
that are complementary to, or arise out of, the professional services we are providing to
you.
2.2 Such advice may include:
• advising you on investments generally, but not recommending a particular
investment or type of investment;
• referring you to a Permitted Third Party (PTP) (an independent firm authorised by
the FCA), assisting you and the PTP during the course of any advice given by that
party and commenting on, or explaining, the advice received (but not make
alternative recommendations). The PTP will issue you with his own terms and
conditions letter, will be remunerated separately for his services and will take full
responsibility for compliance with the requirements of the Financial Services and
Markets Act 2000;
• advising you in connection with the disposal of an investment, other than your
rights in a pension policy or scheme;
• advising and assisting you in transactions concerning shares or other securities
not quoted on a recognised exchange;
• assisting you in making arrangements for transactions in investments in certain
circumstances; and
• managing investments or acting as trustee (or donee of a power of attorney) where
decisions to invest are taken on the advice of an authorised person.
2.3 For corporate clients we may also, on the understanding that the shares or other securities
of the company are not publicly traded:
• advise the company, existing or prospective shareholders in relation to exercising
rights, taking benefits or share options, valuations and methods of such valuations;
• arrange any agreements in connection with the issue, sale or transfer of the
company’s shares or other securities;
• arrange for the issue of new shares; and
• act as the addressee to receive confirmation of acceptance of offer documents etc.
2.4 In the unlikely event that we cannot meet our liabilities to you, you may be able to claim
compensation under the Chartered Accountants’ Compensation Scheme in respect of
exempt regulated activities undertaken.
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Financial Promotions
2.5 To enable us to provide you with a proper service, there may be occasions when we will
need to contact you without your express permission concerning investment business
matters. For example, it may be in your interests to sell a particular investment and we
would wish to inform you of this. We may therefore contact you in such circumstances,
but would only do so in our normal office hours. We shall of course comply with any
restrictions you may wish to impose which you notify to us in writing.
3 Commissions or other benefits
3.1 In some circumstances, commissions or other benefits may become payable to us or to
one of our associates in respect of transactions we or such associates arrange for you, in
which case you will be notified in writing of the amount and terms of payment. You consent
to such commission or other benefits being retained by us or, as the case may be, by our
associates, without us, or them, being liable to account to you for any such amounts.
4 Client monies
4.1 Unless we have previously agreed to do so, we will not hold money on your behalf. In the
event that we have previously agreed to hold such money, we hold it in trust in a client
bank account, which is segregated from the firm’s funds. The account is operated, and all
funds dealt with, in accordance with the Clients’ Money Regulations of the ICAEW.
4.2 In order to avoid an excessive amount of administration, interest will not be paid on
balances held on your behalf.
4.3 We will return monies held on your behalf promptly as soon as there is no longer any
reason to retain those funds. In the unlikely event of us holding any unclaimed monies we
reserve the right to pay such monies to a registered charity in line with the guidelines set
out in the Clients’ Money Regulations referred to above. We will not do this unless we
have been unable to contact you for at least five years and we have taken reasonable
steps to trace you and return the monies.
5 Groups
5.1 Where our appointment is by a parent company on behalf of a Group or particular Group
companies, the parent company confirms that the terms of the Agreement apply to all
Group entities to which we are appointed. 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.
5.2 For the purposes of the Agreement, “Group” shall mean in relation to that company and
every other company which from time to time is or becomes a subsidiary or holding
company of that company or a subsidiary of any such holding company (and the terms
“subsidiary” and “holding company” shall have the meanings given to them by Section
1159 of the Companies Act 2006).
6 Personnel
6.1 We reserve the right to determine which of our staff and partners are allocated to an
engagement and, where named individuals are not available, we will supply substitutes of
equivalent quality and experience.
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7 Non-solicitation of personnel
7.1 You will not solicit, or endeavour to solicit, in any way the services of any of our staff or
partners with whom you have had dealings in connection with any engagement in the
twelve months prior to your approach. This provision shall not be effective if the member
of staff or partner responds to a general recruitment campaign. Should you breach this
provision and employ or engage any such staff or partners during this period, we reserve
the right to charge you a fee equal to 30% of the total annual profit share or remuneration
package, including benefits, payable by us to the staff or partner at the time that their
employment with us ceases. You acknowledge that this is a fair and reasonable term
representing a genuine pre-estimate of the loss caused to us by your employing or
engaging any of our partners or members of staff.
8 Fees
8.1 Our fees are computed on the basis of time spent on your affairs by the partners, our staff
and sub-contractors or consultants, and on the levels of skill and responsibility involved.
Disbursements represent travel, accommodation and other expenses incurred in dealing
with your affairs.
8.2 You agree that we may commence work immediately following receipt of your instructions.
If you wish to terminate our engagement, you will be liable to pay all of our fees (or a
proportionate part of our fees where we have agreed a fixed fee, depending on the work
done), and all expenses and disbursements incurred or committed to at the time of
effective termination plus any applicable VAT or other sales tax.
8.3 If it is necessary to carry out work outside the responsibilities agreed with you for each
service, we will advise you in advance. Any additional work will involve additional fees.
Accordingly, we would like to point out that it is in your interests to ensure that your records
etc. are completed to the agreed stage.
8.4 Where our fees are calculated by time spent this will be charged to you at the applicable
hourly rate which are subject to review from time to time in order to reflect market
conditions. If we agree with you any special fee arrangements that are favourable to you,
these arrangements are conditional on prompt payment of all of our invoices.
8.5 From time to time, prior to commencing work on a particular matter, we may request
money on account up front. Any request for money on account shall be made at our
discretion but may include circumstances where the fees for a particular matter are
expected to be significant or where you are a new client.
8.6 Invoices are payable in full (including disbursements) in accordance with the terms set out
on the invoice. 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.
8.7 The lack of a purchase order number being quoted on our invoice shall only entitle you to
delay payment in circumstances where we have previously agreed in writing to quote such
numbers in order to facilitate your payment processes and you have provided us with the
relevant purchase order number at the time of giving instructions in relation to the
engagement. You need to agree in advance with the relevant partner dealing with your
matter if you would like for us to use a particular billing portal or system, such as Serengeti.
Failure to agree such shall not entitle you to delay payment.
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8.8 We reserve the right to charge interest on overdue accounts at the current rate under the
Late Payment of Commercial Debts (Interest) Act 1998 or other prevailing and relevant
legislation. We also reserve the right to terminate the Agreement and cease acting if
payment of any fees billed is unduly delayed.
8.9 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.
8.10 Insofar as we are permitted to do so by law or by 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.
8.11 In the event that this firm ceases to act in relation to your affairs you agree to meet all
reasonable costs of providing information to your new advisers. In particular you agree to
meet these costs where we are required by law to provide information to a successor firm.
9 Expenses Disbursements and Third Parties
9.1 If, in carrying out the Professional Services, we incur expenses, such as couriers,
photocopying, certain search fees (which may include an administration fee), printing,
postage, travelling and telephone charges, these expenses will normally be charged to
you in addition to our fees. If you would like more information about the cost of these
expenses, please contact the relevant partner looking after your matter.
9.2 In addition, we may incur liabilities to third parties in respect of services supplied to you,
which are often referred to as “disbursements”. In all cases, you will be responsible for all
sums charged by such third parties including any applicable VAT or other sales tax. Where
disbursements are payable upfront or on a short timescale we may at our discretion
require you to make this payment to us before we incur the disbursement with the relevant
third party.
10 Termination
10.1 You have the right to terminate the Agreement (or part thereof in respect of individual
Professional Services) for any reason by giving not less than 60 days’ notice in writing, at
any time.
10.2 You have the right to terminate the Agreement immediately on written notice to us if:
a) we commit a material breach of any of our obligations under the Agreement that is
not capable of remedy; or
b) having been given notice by you in writing to, within a period of not less than 30 days,
remedy a breach, and/or desist from any action that constitutes a breach, and have
failed to remedy the breach and/or desist from the relevant action within that time
period.
10.3 If you terminate the Agreement (whether in whole or in part), you will be liable to pay all
of our fees (or a proportionate part of our fees where you have terminated part of the
Agreement or we have agreed a fixed fee, depending on the work done), and all expenses
and disbursements, which have been incurred or committed to up to the time of the
termination is effective, plus any applicable VAT or other sales tax.
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10.4 You may choose to terminate the Agreement (or part thereof) by using the ‘model form’
wording set out below (which we are obliged to provide to clients who purchase our
services as ‘consumers’) or by providing us with any other clear written statement
explaining that you wish to terminate the Agreement (or part thereof).
FAO [Insert name of Partner]
HaysMac LLP
10 Queen Street Place
London
EC4R 1AG
I hereby give you notice to terminate the engagement dated [ ] for the supply of
[complete as appropriate] services.
[Signature]
[Print your full name]
[Insert your address]
Date: [ ]
10.5 We are entitled to terminate the Agreement immediately on written notice to you:
(a) in the circumstances set out in these Standard Terms of Business, including
pursuant to clause 8.8, 10.6 and/or 10.7; or
(b) if any guarantee provided in relation to your obligations is withdrawn by the giving
of notice, or if any event or act occurs which vitiates the guarantee or otherwise
renders it void or unenforceable; or
(c) if you fail to give us timely and adequate instructions, so that we are unable to
conduct any of your matters properly and expeditiously; or
(d) if you insist on a course of action which requires us to act contrary to our
responsibilities as accountants or which would lead to a breakdown of the
relationship of trust and confidence which is essential for the proper handling of
accountancy matters; or
(e) if there is a breakdown of trust and confidence between you and us; or
(f) if, as appropriate, you become insolvent, enter into liquidation or bankruptcy, or
any insolvency, liquidation or bankruptcy procedures are commenced against
you, or you pass a resolution for your own winding up or insolvency, or you
become unable to pay your debts as they fall due, or any receiver, administrator
or similar person is appointed in respect of any of your assets, or you enter into
any arrangement or composition with your creditors (including for the avoidance
of doubt any voluntary arrangement), or you have ceased trading, or any similar
or equivalent event occurs in relation to any guarantor who has provided a
guarantee in relation to your obligations (unless a replacement guarantee is
provided by an alternative guarantor acceptable to us); or
(g) you fail to comply with any term of the Agreement; or
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(h) if you object to a processing activity under clause 20 below, and that objection in
our reasonable view serves to fundamentally undermine our ability to provide that
part of the service to you which is affected by that processing activity.
10.6 Should you fail to pay our invoices or a request for payment on account when they become
due, we reserve the right to suspend, or terminate, our Professional Services until such
invoices or requests have been fulfilled. We will give you notice of our intention to suspend
or terminate such Professional Services. We are not liable for any loss or damage
whatsoever incurred by you as a result of any such suspension or termination.
10.7 In order for us to provide you with a high quality service on an ongoing basis it is essential
that you provide us with relevant records and information when requested and we reserve
the right to terminate the Agreement in the event that you fail to co-operate with us in
providing us with such records and/or information.
10.8 Where we are providing audit services to you, we will assume that we will be undertaking
the subsequent financial period’s audit unless you have confirmed to us, in writing, to the
contrary, that you will be appointing new auditors, on the earlier of the date we issue our
audit report and the next financial period end. In the event such notice is not provided you
will be liable for all costs incurred and committed to in relation the subsequent financial
year’s audit and allocated staff time that cannot be redeployed to other chargeable work.
10.9 If we or you terminate this Agreement or part thereof, we will normally issue a
disengagement letter setting out our respective responsibilities from the date of
termination.
11 Retention
11.1 During the course of our Professional Services we will collect information from you and
others acting on your behalf and will return any original documents to you following the
preparation and audit of your financial statements and returns. You should retain these
records for 6 years from the 31 January following the end of the tax year to which they
relate. You should retain them for longer if HMRC enquire into your tax return.
11.2 Subject to any papers which have been returned to you we will retain records relating to
the matter on which we are instructed for seven years after the matter has been completed
and would intend to destroy correspondence and other papers and records thereafter
unless those documents and records need (in our opinion) to be retained. We may, for
example, need to retain documents and records to meet our professional indemnity
insurance or other insurance obligations, because there is a dispute, proceedings or an
investigation or an enquiry or proceedings by a tax authority or Regulator. If you require
retention of any document you must notify us of that fact in writing.
11.3 We reserve the right to convert information records and data irrespective of ownership,
into electronic format (for example, digital images). If you require information returned
then you agree that we may supply it either in electronic format or as a print of the image.
12 Conflicts of interest and independence
12.1 We reserve the right to deliver services to other clients whose interests might compete
with yours or are or may be adverse to yours, subject to clause 13 below. We confirm that
we will notify you immediately should we become aware of any conflict of interest involving
us and affecting you 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
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in a way that protects your interests then we regret that we will be unable to provide further
services.
13 Confidentiality
13.1 We confirm that where you give us confidential information, we shall at all times keep it
confidential, except as required by law or as provided for in regulatory, ethical or other
professional statements relevant to our engagement.
13.2 You agree that, if we act for other clients who are or who become your competitors, to
comply with our duty of confidentiality it will be sufficient 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. These may include taking the same or similar steps as
we take in respect of the confidentiality of our own information.
13.3 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.
13.4 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.
13.5 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.
13.6 If we use external or cloud based systems, we will take all reasonable steps to ensure that
confidentiality of your information is maintained.
13.7 We reserve the right, for the purpose of promotional activity, training or other business
purposes, to mention that you are a client. As stated above, we will not disclose any
confidential information.
14 Quality control
14.1 As part of our ongoing commitment to providing a quality service, our files are periodically
subject to an independent regulatory or quality review. Our reviewers are highly
experienced and professional people and are, of course, bound by the same requirements
of confidentiality as our principals and staff.
15 Dealing with HMRC
15.1 When dealing with HMRC on your behalf we are required to be honest and to take
reasonable care to ensure that your returns are correct. To enable us to do this, you are
required to be honest with us and to provide us with all necessary information in a timely
manner. For more information about ‘Your Charter’ for your dealings with HMRC, see
www.hmrc.gov.uk/charter/index.htm. To the best of our abilities, we will ensure that
HMRC meet their side of the Charter in their dealings with you.
15.2 We will take account of the steps and checks suggested by HMRC in their ‘Agent Toolkits’.
While use of the Toolkits is voluntary, we will ensure that our quality control procedures
match or enhance the suggestions in the Toolkits so that, in the unlikely event that HMRC
consider any of your tax returns with which we assist to be inaccurate, we will be able to
help you demonstrate to HMRC that reasonable care has been taken in the preparation
of the return, thereby significantly reducing the possibility of an inaccuracy penalty being
imposed. To further reduce the possibility of an inaccuracy penalty, you will remain
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responsible for maintaining good quality supporting records for each return, for providing
us with all relevant information and explanations and for acting on any advice that we give
you.
16 Help us to give you the right service
16.1 We are committed to providing you with a high quality service that is both efficient and
effective. 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 our Complaints Partner, David Cox, on 020 7969 5564 or at
[email protected].
16.2 We undertake to look into any complaint carefully and promptly and do all we can to
explain the position to you. If we do not answer your complaint to your satisfaction you
may of course take up the matter with the ICAEW.
17 Applicable law
17.1 The Agreement is governed by, and construed in accordance with, English law. The
Courts of England will have exclusive jurisdiction in relation to any claim, dispute or
difference concerning the Agreement and any matter arising from it. 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.
17.2 If any provision in the Agreement, or their application, are found to be invalid, illegal or
otherwise unenforceable in any respect, the validity, legality or enforceability of any other
provisions shall not in any way be affected or impaired.
18 Changes in the law, in practice or in public policy
18.1 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.
18.2 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.
19 Internet communication
19.1 Unless you instruct us otherwise we may, where appropriate, communicate with you and
with third parties via email or by other electronic means. However, internet
communications are capable of data corruption and therefore we do not accept any
responsibility for changes made to such communications after their despatch. 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 use of internet 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, or use of our online
services, is not an acceptable means of communication. If you so notify us, there may be
circumstances in which we are unable to provide some of our services as anticipated.
19.2 It is the responsibility of the recipient to carry out a virus check on any attachments
received.
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19.3 If you request that we access, download documents from, or upload documents to, your
account on a file sharing or cloud website (“Client Website”), you agree that:
(a) we have not advised you in connection with the selection or use of the Client
Website;
(b) you have specifically instructed us to use the Client Website in connection with
our engagement and you recognise that the Client Website may not be secure
and/or may be unavailable from time to time;
(c) you assume all the risks and liabilities arising from the use of the Client Website
to the fullest extent permissible by law. You accept that we shall not be liable for
any loss or damage, howsoever arising whether in contract, tort (including
negligence), breach of statutory duty, misrepresentation, restitution or otherwise,
arising out of or in connection with any unavailability of the Client Website, any
unauthorised access to the Client Website or our use of the Client Website; and
(d) you will reimburse us in full for any losses, costs and expenses we may suffer or
incur as a consequence of the use of the Client Website.
19.4 You agree that we may use audiovisual telecommunication technology (for example
Skype, Zoom, MS Teams or any other similar communication) and electronic file sharing
systems (for example Dropbox or any other similar file sharing system) when acting for
you. If you would rather we did not do so, please notify your HaysMac contact. Further,
for security reasons, please refrain from communicating or attempting to communicate
with us using social media platforms such as WhatsApp.
20 Data Protection
Provision of services as a controller
20.1 To enable us to discharge the Professional Services, including but not limited to any
Ancillary Services as set out in Schedule 1 (the “Engagement”) and for other related
purposes including but not limited to updating and enhancing client records, analysis for
management purposes and statutory returns, staff management and supervision, crime
prevention and detection, investigations and litigation, and legal and regulatory
compliance (“Related Purposes”) we may obtain, use, process and disclose Personal
Data about you / your business / company / partnership / its officers and employees and
the Personal Data of your customers and clients and their workers, directors and
employees.
20.2 We confirm when processing data for the Engagement, and for Related Purposes, we act
as a data controller and as such we will comply with applicable Data Protection
Legislation.
20.3 We rely on you to comply with any and all Data Protection Legislation which is applicable
to any Shared Personal Data and are entitled to assume that any Shared Personal Data
has been collected and disclosed to us in accordance with your obligations pursuant to
such legislation.
20.4 In addition, we rely on you to comply with Data Protection Legislation when processing
Personal Data about our employees, members, directors, workers, agents and contractors
(Our Personal Data) in the course of the Engagement or otherwise when doing business
with us
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20.5 We and you will take appropriate technical and organisational measures designed to
protect against unauthorised, or unlawful, processing, or the accidental loss, or
destruction of, or damage to, any Shared Personal Data or to Our Personal Data.
20.6 In carrying out the Engagement (or the Related Purposes) we may appoint sub- contractor
data processors who will process the Shared Personal Data on our behalf and at our
direction and also may appoint or share data with other controllers (whether as joint
controllers or in common with us). Recipients of the Shared Personal Data may include
(but may not be limited to) HMRC, regulatory bodies, legal and other advisers, crime and
law enforcement agencies, and IT service providers.
20.7 If you are based in the EEA please note that it may be necessary during the Engagement
or for the Related Purposes to transfer the Shared Personal Data to countries outside the
EEA.
20.8 If either of us becomes aware or reasonably suspects that any breach of security leading
to the accidental or unlawful destruction, loss, alteration unauthorised disclosure of, or
access to any Shared Personal Data or to Our Personal Data (as the case may be) we
shall notify the other of any such breach within 48 hours and then provide such assistance
to the other as may reasonably be required to ensure that we and you comply with our
respective reporting obligations in connection with any such incident ("Relevant
Assistance").
20.9 Similarly, we shall provide Relevant Assistance to each other should either of us become
aware of any Data Subject Rights’ Request concerning the Shared or Our Personal Data
and will notify the other of any such Request within 48 hours of receipt.
Provisions of services as a processor
20.10 Where we act as a data processor, for example, where we operate a payroll service for
you, we will:
• Only act on the written instructions of you, the controller.
• Ensure that our staff and any sub processors are subject to a contractual duty of
confidence in relation to their handling of the Shared Personal Data.
• Take appropriate measures to ensure the security of processing of the Shared
Personal Data.
• Only engage sub-processors with your prior consent and ensure that the sub
processor enters into a written contract containing provisions which replicate the
obligations set out in this clause 20.10.
• Assist you, the controller in providing subject access and allowing data subjects to
exercise Data Subject Rights.
• Assist you, the controller in meeting your obligations under applicable Data
Protection Legislation in relation to the Shared Personal Data in connection with
security of processing, notification of personal data breaches or the need to
conduct data protection impact assessments.
• Delete or return all Shared Personal Data to you, the controller as requested at the
end of the Engagement.
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• Submit to audits and inspections of systems and processes which are relevant to
the performance of the service which we provide to you as a processor only and,
provide you, the controller with information required to ensure that we are meeting
obligations as a processor in relation to the Shared Personal Data, and tell you,
the controller immediately if we are asked to do something which would infringe
our or your obligations under Data Protection Legislation.
Definitions
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section
205(4)) of the Data Protection Act 2018.
Data Protection Legislation: shall mean all applicable laws rules and regulations
relating to the processing of personal data and the privacy of electronic communications
in the United Kingdom, as amended, replaced or updated from time to time including the
Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI
2426/2003), the Data Protection Act 2018 and UK GDPR.
Personal Data: shall have the meaning given to it in the UK GDPR.
Shared Personal Data: shall mean Personal Data about you, your members, officers,
or partners (as the case may be) your employees, contractors, and workers, (Staff) and
the Personal Data of your customers or clients and their Staff that you may share with us
(or which others on your behalf provide to us) or we may obtain for the Engagement or
for Related Purposes.
Data Subject Rights Request: shall mean any request pursuant to Articles 15-21 UK
GDPR and Data Subject Rights shall be construed accordingly.
21 Limitation of third party rights
21.1 Persons who are not party to this agreement shall have no rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does
not affect any right or remedy of any person which exists or is available otherwise than
pursuant to that Act.
21.2 Our work is not, unless there is a legal or regulatory requirement, to be made available to
third parties without our written permission. The advice we give you is for your sole use
and is confidential to you and will not constitute advice for any third party to whom you
may communicate it, unless we have expressly agreed in writing 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.
22 Client identification
22.1 We wish to draw to your attention our obligations under the United Kingdom’s anti-money
laundering and counter terrorist financing legislation. Under this legislation we are
required to identify our clients and individuals with a beneficial interest of more than 25%.
We may also need to make enquiries about your sources of wealth and funds. We are
also required to keep the identification and verification details up to date. We may not
Terms effective from 1 January 2025
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undertake engagements or continue to act if you are unable to comply with these
obligations.
22.2 The legislation also requires us to make reports to the relevant authorities if we know,
suspect or have grounds for suspecting that an individual or entity is engaged in money
laundering or financing terrorism. We are generally prohibited by law from disclosing to
you that we have made such a report.
23 Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standards
23.1 Unless agreed specifically in an Engagement Letter, we are not responsible for your
compliance with the International Tax Compliance (United States of America) Regulations
2013, produced as a result of FATCA. In particular, we are not responsible for the
categorisation of any UK entity into either a Financial Institution (FI) or an active or passive
Non-Financial Foreign Entity (NFFE) nor, if a Financial Institution, for its registration with
the US Internal Revenue Service (IRS) and subsequent submission of the required annual
returns to HM Revenue & Customs.
23.2 However, if requested to do so we can provide advice on the completion of the forms
supplied by Financial Institutions under these Regulations, or under Common Reporting
Standards, and used by them to determine the status of an entity. We can also provide
advice on setting up the appropriate systems to identify and report on your clients or
beneficiaries who are foreign citizens affected by FATCA or Common Reporting
Standards.
24 General limitation of liability
24.1 In respect of any term agreed between you and us as to the exclusion or limitation of our
liability to you, references to "us" or "we" shall, for the avoidance of doubt, include all
representatives, members, partners, principals, consultants, employees, officers,
directors or agents of HaysMac LLP, and references to liability shall include any personal
liability of any of the aforesaid persons.
24.2 We refer you to the cap on our liability set out in the Engagement Letter. That limit applies
to all our liability for services provided under the Engagement Letter, no matter how many
parties to whom we accept liability. Where we act for multiple parties, the limit will be
shared between all of those parties and any other party we agree in writing to assume a
duty of care to in the Engagement Letter. It will be entirely a matter for you how you
apportion the sharing of the limit of liability and you shall be under no obligation to inform
us of any apportionment. If no such apportionment is agreed, you shall not dispute the
validity, enforceability or operation of the limit of liability on the grounds that (for whatever
reason) no such apportionment was agreed.
24.3 We will not be liable for any losses incurred as a result of any errors, failures or
unavailability of software provided by third parties other than as set out in Schedule 1.
24.4 Subject to clause 24.9, you agree that we are not responsible for:
a) loss or corruption of data;
b) any losses to the extent caused by: (i) the provision by you or your representatives of
false, inaccurate, misleading or incomplete data, information or documentation; (ii)
the failure to act promptly on our advice or respond to communications; (iii) the acts
or omissions of you or your representatives; or (iv) delay or failure to perform our
obligations where delay or failure is caused by circumstances outside our reasonable
control.
Terms effective from 1 January 2025
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c) the content of any data you upload to a third party platform, or any access needed to
do so;
d) loss of profit, goodwill, reputation, revenue, opportunity or anticipated savings, or
wasted management or staff time;
e) punitive or exemplary damages; or
f) indirect or consequential loss.
24.5 We exercise reasonable skill and care to ensure that our advice is valid at the time that it
is provided. We will not accept responsibility if you act or refrain from acting on: (i) the
basis of any draft advice or documentation provided by us before it has been finalised; or
(ii) 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 in your circumstances. We will accept no liability for
losses arising from changes in law or the interpretation thereof or in your circumstances
that occur after the date on which the advice is given.
24.6 Where any loss is suffered by you for which we would otherwise be jointly and severally
liable with any third parties, the extent to which such loss shall be recoverable by you from
us, as opposed to the third party, shall be limited so as to be in the proportion to our
contribution to the overall fault for loss, as agreed between the parties, or in the absence
of agreement, as finally determined by the relevant court (ignoring for these purposes the
ability of the third party to pay or any limitation of liability that you might have agreed with
such third party). Where our proportionate liability has not been determined by a court, an
expert shall determine the extent of the responsibility of any third party for the loss and
the corresponding reduction in our liability, and the expert's determination shall be final.
Any judgment in favour of you shall be deemed to be fully and finally satisfied when paid,
after making any reduction in our liability as determined by the expert together with any
costs awarded in your favour by the expert.
24.7 If, as a result of any exclusion or limitation of liability agreed by you with any other person
the amount which we are able to claim as a contribution from such other person, in
connection with any claim by you against us arising out of or in connection with the
Professional Services provided under the Engagement Letter is reduced, our liability to
you in respect of such claim shall be reduced by the amount of such reduction.
24.8 No representative, member, partner, principal, consultant, employee, officer, director or
agent of any entity belonging to HaysMac LLP shall incur any personal liability to you in
any circumstances, and you agree not to sue, commence, prosecute or cause to be
commenced or prosecuted any action, suit or other proceeding against the aforesaid
parties, who may enforce and rely on this clause to the same extent as if they were a
party to this agreement, and nothing in this agreement shall exclude their rights under
the Contracts (Rights of Third Parties) Act 1999. You acknowledge that all written and
oral communications from our representatives, members, partners, principals,
consultants, employees, officers, directors and agents are provided for and on behalf of
HaysMac LLP and no undertaking or commitment given therein is binding on them.
24.9 Nothing in the Agreement excludes or limits our liability for: (i) death or personal injury
caused by our negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) liability that
cannot be excluded due to any law applicable to the Agreement.
24.10 Any advice that we provide as part of our services is provided to you as our client and we
will not be liable for any losses suffered by a third party arising out of or in connection
with our services including as a result of any reliance placed by such third party on advice
we have provided to you as part of our services. You agree to indemnify us and our
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Page 15 of 22
agents in respect of any claim (including any claim for negligence) 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 to any third party. This indemnity will
extend to the cost of defending any such claim, including payment at our usual rates for
the time that we spend in defending it.
24.11 You will not hold us, our partners and staff, responsible, to the fullest extent permitted by
law, for any loss suffered by you arising from any misrepresentation (intentional or
unintentional) supplied to us orally or in writing. This applies equally to fraudulent acts,
misrepresentation or wilful default on the part of any party to the transaction and their
directors, officers, employees, agents or advisers. However, this exclusion shall not apply
where such misrepresentation, withholding or concealment is or should (in carrying out
the procedures which we have agreed to perform with reasonable care and skill) have
been evident to us without further enquiry.
24.12 By: (i) signing the Engagement Letter; (ii) proceeding to instruct us; or (iii) relying upon
advice from us you agree that you have given proper consideration to the limits in this
clause 24 and accept that they are reasonable in all the circumstances. If you wish to
discuss the limits, you should contact us before signing the Engagement Letter, providing
us with instructions or relying upon our advice.
25 Intellectual property rights and use of our name
25.1 We will retain all intellectual property rights in any document prepared by us during the
course of carrying out the engagement except where the law specifically states otherwise.
We hereby grant you a non-transferrable, royalty free, licence to use the intellectual
property rights contained within such documents for the purpose of receiving the benefit
of the Professional Services.
25.2 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.
26 Draft/interim work or oral advice
26.1 In the course of delivering the Professional Services we may provide advice or reports or
other work products in draft or interim form, or orally. However, final written work products
will always prevail over any draft, interim or oral statements. Where you request it, we will
provide you with written confirmation of matters stated orally.
27 MSI Global Alliance (“MSI”)
27.1 The firm is a member of MSI, an international association of independent legal and
accounting firms. Each firm is a separate and independent legal entity and is not liable for
the acts or omissions of any other member firm, and as such has no liability for the acts
or omissions of any other member firm.
28 Interpretation
28.1 If any provision of the Agreement is held to be void for whatever reason, then that
provision will be deemed not to form part of this contract, and no other provisions will be
affected or impaired in any way. In the event of any conflict between: (i) these Standard
Terms effective from 1 January 2025
