Statutory Auditors – Accountants & Business Advisors
TERMS OF BUSINESS
Kenny, Whelan & Company Limited are pleased to set out the Terms of Business which will apply to the work we do for you. The Letter of Engagement and the Terms of Business together form the Contract between us.
- Our Services
1.1. We will provide the services described in the Engagement Letter (“the Services”).
1.2. All work which we carry out for you will be performed in accordance with our understanding of the law and in accordance with current professional guidance and practice. All work is subject to our internal review procedures.
1.3. Either of us may request changes to the Services or changes to any other aspect of the Contract. Requests for changes must be sufficiently detailed to enable the other party to assess the impact of the requested change on the cost, timetable or any other aspect of the Contract. We each agree to work together to consider and, if appropriate, agree any changes. Until a change is agreed in writing, each of us will continue to act in accordance with the latest agreed version of the Contract.
1.4. The timing of the delivery of our Services will be agreed between us at the time each assignment is undertaken.
2. Your Responsibilities
2.1. Our performance is dependent on you carrying out your responsibilities as set out in this Contract.
2.2. In providing the agreed Services, we will rely on information provided by you or your nominated contacts. In doing so you agree:
- to provide on a timely basis all information required to enable us to provide the Services;
- that all the information disclosed will be true, accurate, complete and not misleading in any material respect. We will rely on, and we will not independently verify, the accuracy and completeness of the information you provide to us; and
- that you are responsible for informing us of any changes to the information originally presented to us. To enable us to provide the Services you will ensure that your staff are available to provide such assistance as we reasonably require. You will be responsible for ensuring that your staff have the skills and experience appropriate for this engagement. If any of your staff fail to perform as required, you will make suitable additional or alternative staff available.
2.3. You will not take any action that could or might cause us to be in breach of any law or regulation or be placed under any liability whatsoever whether within Ireland or any other country or legal jurisdiction.
3.1. The final report in the agreed format is the agreed final deliverable arising from this contract.
3.2. Any oral comments or explanations we may give in relation to our final written reports and letters are not intended to be a substitute for a proper reading of our reports and letters and are not intended to say anything that is not set out in our reports and letters.
3.3. While we will endeavour to report to you in the terms indicated in the Contract, it may prove necessary to attach reservations to any opinion/conclusion required to be provided by us. In such circumstances, we will draw the matter to your attention as soon as reasonably practicable.
3.4. We own all the intellectual property rights in all systems, techniques, and methodologies developed during our performance of this Contract.
3.5. The Deliverables will be prepared by us solely for the use of those to whom they are addressed to be used only for the purposes for which they were delivered. We accept no liability or responsibility to any third party to whom the Deliverables are shown or into whose hands they may come.
3.6.Acceptance of the Deliverables will be deemed to take place 5 business days after receipt by you, unless you have previously notified us in writing that they are not acceptable and stated why they are not acceptable.
3.7. In the event that you notify us that the Deliverables are not acceptable, we will, subject to our professional responsibilities, use all reasonable endeavours to modify them to your satisfaction within a reasonable period of time.
4. Fees and Payment
4.1. You agree to pay for the Services as agreed in the letter of engagement. Fees for the Services will be charged on the basis agreed in the letter of engagement. With each invoice we will provide a description of the work charged for.
4.2. Any fees that we pay on your behalf, such as filing and registration fees and late filing penalties with the Registrar of Companies or stamp duty with the Revenue Commissioners or company search fees will be reimbursed to us by you.
4.3. All invoices will be due for payment on receipt by you. Any queries concerning an invoice should be raised within 30 days of the invoice date. Any undisputed amounts remain payable on the due date.
4.4. The payments made through our website are handled by Stripe.
5. Duration and Termination
5.1. This Contract will apply from the Commencement Date (if any) stated in the Engagement Letter or, where no Commencement Date is specified, from the date upon which the Services commence. The Contract will continue until the delivery and acceptance of the Services and Deliverables unless it is terminated earlier in accordance with the terms set out below.
5.2. Unless stated otherwise in the Engagement Letter, the Contract may be terminated by either of us at any time by giving not less than 30 days written notice.
5.3. The Contract may be terminated by either party on written notice with immediate effect if the other commits a material breach of any term of this Contract.
5.4. The Contract may be terminated by either of us by written notice with immediate effect in the event that the other party is unable to pay its debts or has a receiver, administrator, or liquidator appointed or calls a meeting of its creditors or ceases for any other reason to carry on the business.
5.5. We may terminate the Contract forthwith by notice in writing if we believe that, or anticipate imminent circumstances where, the Contract or any aspect of it might result in Kenny, Whelan & Company Limited or you violating any legal or regulatory requirement in any applicable jurisdiction,
5.6. Where either of us terminates the Contract, you will pay us for all Services provided up to the date of termination, together with any additional costs reasonably incurred as a result of the early termination of the Services. We will take reasonable steps to mitigate any such additional costs.
5.7. For the avoidance of doubt, the date of termination shall be the date upon which any period of notice expires. Termination of the Contract shall be without prejudice to any accrued rights of the parties to the Contract. The provisions of the Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind each party to the Contract.
6.1. Neither of us will disclose to any third party without the prior written consent of the other party any proprietary or confidential information including, without limitation, the terms and conditions of this Contract and amounts payable under this Contract, which is received from the other party for the purposes of providing or receiving Services (“Confidential Information”).
6.2. Each of us agrees that any Confidential Information received from the other party shall be used only for the purposes of providing or receiving Services under this or any other contract between us. The Confidential Information may be disclosed to our respective employees involved in the Services, but we will each make our respective employees, to whom such Confidential Information is disclosed, aware of the restrictions on disclosure contained in this Clause.
7.1. We shall use due skill, care, and diligence in the provision of the Services and the preparation of any Deliverables.
7.2. The aggregate liability of Kenny, Whelan & Company Limited for Damage shall be limited as set out in our letter of engagement and shall not exceed five times the agreed service fees.
7.3. For the purposes of the Contract, “Damage” means the aggregate of all losses or damages (including interest thereon if any) and costs suffered or incurred, directly or indirectly under or in connection with the Contract or its subject matter (as the same may be supplemented, amended or varied) and any report prepared pursuant to it, including as a result of breach of contract, breach of statutory duty, tort (including without limitation negligence), or other act or omission by Kenny, Whelan & Company Limited but excluding any such losses, damages or costs arising from the fraud or dishonesty of Kenny, Whelan & Company Limited or in respect of liabilities which cannot lawfully be limited or excluded.
7.4. For the avoidance of doubt, the aggregate of all such allocations shall not exceed the limit applicable pursuant to paragraph 7.2.
7.5. Any legal proceedings arising from or in connection with the Contract (or any variation or addition thereto) must be formally commenced within two years from the date when the party bringing the proceedings becomes aware of, or ought reasonably to have become aware of, the facts which give rise to the liability alleged and, in any event, not later than four years after any alleged breach of contract, negligence or other act or omission.
8. Providing services to other clients
8.1. We will not be prevented or restricted by virtue of our relationship with you, including anything in the Contract, from providing services to other clients. Our standard internal procedures are designed to ensure that confidential information communicated to us during the course of the Contract will be maintained confidentially and that the advice and opinions which you receive from us are wholly independent. Just as we will not use information confidential to you for the advantage of a third party, we will not use confidential information obtained from any other party for your advantage.
9. Electronic Communication
9.1. In the course of the engagement, we may communicate with you electronically. However, as you are aware the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, or lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. Accordingly whilst we will use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically and notwithstanding any collateral contract, warranty or representation, neither we nor our partners, employees, agents or servants shall have any liability to you on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any error or omission arising from or in connection with the electronic communication of information to you and your reliance on such information and including (but not limited to) the acts or omissions of our service providers. Such exclusion of liability shall not apply to us in the event of such acts, omissions or misrepresentations which are in any case criminal, dishonest, or fraudulent on the part of our partners, employees, agents, or servants.
9.2. If the communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects of electronic transmission you should request a hard copy of such transmission from us. If you wish us to password protect all or certain documents transmitted, you should discuss this with us, and we will make appropriate arrangements.
10. Applicable Law
10.1. This contract shall be governed by and construed in accordance with Republic of Ireland Law.
10.2. Should any dispute arise between us we will attempt to resolve the dispute in good faith by senior level negotiations. Where both of us agree that it may be beneficial, we will seek to resolve the dispute through mediation. If the dispute is not resolved through negotiation or mediation each of us agrees that the Irish Courts will have exclusive jurisdiction in connection with the resolution of the dispute.
10.3. The courts of the Republic of Ireland shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the contract and any matter arising from it. Each party irrevocably waives any right it may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.
11.1. Neither of us will be liable to the other for any delay or failure to fulfil their obligations under this Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, floods, acts of God, acts or regulations of any governmental or supranational authority, pandemics, war, riot, strike, lockouts, and industrial disputes.
11.2. We reserve the right to employ agents and sub-contractors to assist us when providing any part of the Services. Any reference to our staff in the Contract includes our agents and sub-contractor staff. We will remain liable to you in respect of any Services provided by such agents and sub-contractors with whom we contract for the provision of the services.
11.3. Neither party may transfer, charge, or otherwise seek to deal with any of its rights or obligations under this agreement without the prior written consent of the other party.
11.4. Notices must be served either personally, sent by prepaid registered post or faxed to the address of the other party given in this Contract or to any other address as the parties may have notified during the period of the Contract.
11.5. Any amendment of this Contract will not be effective unless agreed in writing.
11.6. No waiver of any term or condition of this Contract will be effective unless made in writing.
12. Entire Agreement
12.1. The Contract, including any attachments or referenced documents, forms the entire agreement between us relating to the Services. It replaces and supersedes any previous proposals, correspondence, understandings, or other communications whether written or oral (except that we do not exclude liability for any fraudulent pre-contractual misrepresentations made by us on which you can be shown to have relied).
Noel J. Delaney Stephen J. Whelan
T.M.I.T.I., A.C.P.A F.C.C.A. CTax
Kenny, Whelan & Company Limited, Registered in Ireland CRO No. 152052
191/193 Lower Kimmage Road, Registered to carry out audit work and authorised by
Dublin 6w, D6W F729. the Institute of Certified Public Accountants in Ireland
Tel: 353 (1) 490 3128 Fax: 353 (1) 492 1668 E-mail: firstname.lastname@example.org