TERMS OF BUSINESS
JS Penny Consulting is the trading name of JS Penny Ltd, Registered in England No. 12356222, Registered Office, 2 The Windmills, St Marys Close, Alton GU34 1EF
The following terms of business apply to all engagements accepted by JS Penny Ltd, trading as JS Penny Consulting. All work is carried out under these terms except where changes are expressly agreed in writing.
1.1. Our engagement letter, the schedules of services and our standard terms and conditions of business are governed by, and should be construed in accordance with, English law. Each party agrees that 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. Each party irrevocably waives any right to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
1.2. 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 considering any change in the law or in 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.
1.3. As with other professional services firms, we are required to identify our clients for the purposes of the UK anti-money laundering legislation. We may request from you, and retain, such information and documentation as we require for these purposes and/or make searches of appropriate databases. If we are not able to obtain satisfactory evidence of your identity, we will not be able to proceed with the engagement.
Commissions or other benefits
1.4. In some circumstances we may receive commissions or other benefits for introductions to other professionals.
1.5. If this happens, we will notify you in writing within 60 days of the amount and terms of payment and receipt of any such commissions or benefits. You agree that we can retain the commission or other benefits without being liable to account to you for any such amounts.
1.6. The following are examples of likely commissions that may be received and the likely amounts. Introduction of another technical or training specialist for a single piece of work might be up to 10% of the value of the work. These are examples only, and may not cover all receipts in the future.
1.7. If in the future, abnormally large commissions (for example more than double the largest amount in the previous paragraph are received which were not envisaged when the engagement letter was signed, we will obtain specific consent to the retention of those commissions.
1.8. Unless we are authorised by you to disclose information on your behalf, we confirm that if you give us confidential information we will, 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 our engagement.
1.9. 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.
1.10. 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.
1.11.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.
1.12. We may, on occasions, subcontract work on your affairs to other relevant professionals. We will only do this with your permission and to individuals with the appropriate qualifications, experience and ability.
1.13. If we use external or cloud-based systems, we will ensure confidentiality of your information is maintained.
1.14. This applies in addition to our obligations on data protection in section 6
Conflicts of interest
1.15. 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. If conflicts are identified which cannot be managed in a way that protects your interests, we regret that we will be unable to provide further services.
1.16. If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests, we will adopt those safeguards. In resolving the conflict, we would be guided by ICAEW’s Code of Ethics, which can be viewed at icaew.com/en/membership/regulations-standards-and-guidance/ethics. During and after our engagement, you agree that we reserve the right to act for other clients whose interests are or may compete with or be adverse to yours, subject, of course, to our obligations of confidentiality and the safeguards set out in the paragraph on confidentiality above.
Data Protection - data controller
1.17. In this clause, the following definitions shall apply:
‘client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
‘data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the GDPR and any applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation;
‘GDPR’ means the General Data Protection Regulation ((EU) 2016/679); and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
1.18. We shall each be considered an independent data controller in relation to the client personal data. Each of us will comply with all requirements and obligations applicable to us under the data protection legislation in respect of the client personal data.
1.19. You shall only disclose client personal data to us where:
a) you have provided the necessary information to the relevant data subjects regarding its use;
b) 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
c) you have complied with the necessary requirements under the data protection legislation to enable you to do so.
1.20. Should you require any further details regarding our treatment of personal data, please contact Julia Penny [email protected]
1.21. 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.
1.22. If the nature of the engagement with you is to provide ongoing services and we resign or you ask us to resign, we will issue a disengagement letter to confirm we are no longer offering the services.
1.23. Where the nature of the engagement with you is for a specific piece of finite work no disengagement letter will be issued, but the completion of the work will indicate the end of that assignment. Further services may be commenced by the issuance of a new schedule of service, still referring to the original engagement letter and terms of business.
Electronic and other communication
1.24. Unless you instruct us otherwise, we may, if appropriate, communicate with you and with third parties by email or other electronic means. The recipient is responsible for virus checking emails and any attachments. If you wish reports to be issued to you via a secure link, rather than as an email attachment please make this clear, otherwise we will assume that you are happy for information to be exchanged by email.
1.25. With electronic communication, there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted in emails or by electronic storage devices. Nevertheless, electronic communication is not totally secure, and we cannot be held responsible for damage or loss caused by viruses or for communications which are corrupted or altered after despatch. Nor can we accept any liability for problems or accidental errors relating to this means of communication, especially in relation to commercially sensitive material. These are risks you must bear in return for greater efficiency and lower costs. If you do not wish to accept these risks, please let us know and we will communicate by paper mail, other than when electronic submission is mandatory.
1.26. Any communication by us with you sent through the postal [or DX] system is deemed to arrive at your postal address two working days after the day the document was sent.
Fees and payment terms
1.27. Our fees may depend, not only upon the time spent on your affairs, but also on the level of skill and responsibility and the importance and value of the advice or service we provide, as well as the level of risk. If we provide you with an estimate of our fees for any specific work, the estimate will not be contractually binding unless we explicitly state that will be the case. Otherwise, our fees will be calculated on the basis of the specific hourly or daily rate agreed, or the rate agreed for a lecture or other specific piece of work where applicable.
1.28. If requested, we may indicate a fixed fee for the provision of specific services or an indicative range of fees for a particular assignment. It is not our practice to identify fixed fees for more than a year ahead as such fee quotes need to be reviewed in the light of events. If it becomes apparent to us, due to unforeseen circumstances, that a fee quote is inadequate, we reserve the right to notify you of a revised figure or range and to seek your agreement thereto.
1.29. We will bill monthly or at the conclusion of the agreed engagement if that is sooner and our invoices will be due for payment within [15 days of issue]. Our fees are exclusive of VAT which will be added where it is chargeable. Any disbursements we incur on your behalf, and expenses incurred in the course of carrying out our work for you, will be added to our invoices where appropriate.
1.30. Unless otherwise agreed to the contrary, our fees do not include the costs of any third party, counsel or other professional fees. If these costs are incurred to fulfil our engagement, such necessary additional charges may be payable by you.
1.31. We reserve the right to charge interest on late paid invoices at the rate of [8%] above bank base rates under the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to suspend our services or to cease to act for you, having given written notice, if payment of any fees is unduly delayed. We intend to exercise these rights only if it is fair and reasonable to do so.
1.32. 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.
1.33. 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.
Help us to give you the best service
1.34. We are committed to providing you with a high-quality service that is both efficient and effective. If, at any point 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 Julia Penny.
1.35. We will consider carefully any complaint you may make about our service as soon as we receive it and do all we can to explain the position to you. We will acknowledge your letter within five business days of its receipt and endeavour to deal with your complaint within eight weeks.
1.36. If we do not answer your complaint to your satisfaction, you may, of course, take up the matter with our professional body, ICAEW.
Intellectual property rights and use of our name
1.37. 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.
1.38. You are not permitted to use our name in any statement or document 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.
1.39. If any provision of our engagement letter or terms of business is held to be void, that provision will be deemed not to form part of this contract. In the event of any conflict between these terms of business and the engagement letter or appendices, the relevant provision in the engagement letter or schedules will take precedence.
Internal disputes within a client
1.40. If we become aware of a dispute between the parties who own the business or who are in some way involved in its ownership and management, it should be noted that our client is the business and we would not provide information or services to one party without the express knowledge and permission of all parties. Unless otherwise agreed by all parties, we will continue to supply information to the normal place of business for the attention of the directors/partners. If conflicting advice, information or instructions are received from different directors/partners in the business, we will refer the matter back to the board of directors/managing partner and take no further action until the board/partnership has agreed the action to be taken.
1.41. Insofar as we are permitted to 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.
Limitation of third party rights
1.42. The advice and information we provide to you as part of our service is for your sole use, and not for any third party to whom you may communicate it, unless we have expressly agreed in the engagement letter that a specified third party may rely on our work. We accept no responsibility to third parties, including any group company to whom the engagement letter is not addressed, for any advice, information or material produced as part of our work for you which you make available to them. A party to this agreement is the only person who has the right to enforce any of its terms, and no rights or benefits are conferred on any third party under the Contracts (Rights of Third Parties) Act 1999.
Period of engagement and termination
1.43. Unless otherwise agreed in our engagement letter, our work will begin when we receive implicit or explicit acceptance of that letter.
1.44. 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 if this is not corrected within 30 days of being asked to do so.
1.45. In the event of termination of our contract, we will endeavour to agree with you the arrangements for the completion of work in progress at that time, unless we are required for legal or regulatory reasons to cease work immediately. In that event, we will not be required to carry out further work and shall not be responsible or liable for any consequences arising from termination.
Professional rules and statutory obligations
1.46. We will observe and act in accordance with the Bye-laws, regulations and Code of Ethics of ICAEW and will 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 online at icaew.com/en/membership/regulations-standards-and-guidance.
1.47. As part of our ongoing commitment to provide a quality service, our files are periodically reviewed by an independent regulatory or quality control body. These reviewers are highly experienced professionals and are bound by the same rules of confidentiality as our principal[s] [and staff].
Reliance on advice
We will endeavour to record all advice on important matters in writing. Advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral advice (for example, during the course of a meeting or a telephone conversation) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.
Retention of papers
1.48. We will keep information relating to the services provided to you for a period of up to six years, dependent upon the nature of those documents and the need to retain them for legal or other appropriate reasons. However, once a report is issued to you it will be your responsibility to keep it if you so wish and we cannot guarantee being able to supply a further copy.
The Provision of Services Regulations 2009
1.49. Our professional indemnity insurer is Tokio Marine HCC, of Tokio Marine HCC, 1 Aldgate, London, EC3N 1RE, Tel: +44 (0)20 7702 4700. The territorial coverage is worldwide, excluding professional business carried out from an office in the United States of America or Canada, and excludes any action for a claim brought in any court in the United States or Canada.
Timing of our services
1.50. 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 to meet any regulatory or other deadlines of which you have informed us. However, failure to complete our services before any such regulatory deadline would not, of itself, mean that we are liable for any penalty or additional costs arising.
Version dated January 2020
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