Terms of Business – USA – January 10, 2019

1. Introduction

1.1. Terms – These terms apply to the services you have engaged us to provide under the Engagement Letter email. If anything in the terms is inconsistent with the Engagement Letter email or Engagement Information, the terms take precedence, unless the Engagement Letter email or Engagement Information specifically amends any of them. 

1.2. Commencement – This agreement will start on the later of (i) the date of the Engagement Letter email; and (ii) the commencement of the services. 

2. Services

2.1. Services – We will perform the services described in the Engagement Letter email with reasonable skill and care. You confirm that the scope is sufficient for your purpose. The services (including deliverables) are provided solely for you for the purpose set out in the Engagement Information or the relevant deliverable. 

2.2. Deliverables – You may not disclose a deliverable or make the benefit of the services available to anyone else or refer to the contents of a deliverable or the findings of our work, except (i) as stated in the Engagement Letter email, (ii) with our prior written consent on terms to be agreed, (iii) where required by law or regulation, or (iv) to your lawyers or group members as long as you tell them, in advance, that we accept no liability to them and that no onward disclosure may be made. 

2.3. Liability to you alone – We accept no liability to anyone, other than you, in connection with our services, unless otherwise agreed by us in writing. You agree to reimburse us for any liability (including legal costs) that we incur in connection with any claim by anyone else in relation to the services. 

2.4. Changes – Either we or you may request a change to the services or this agreement. A change will be effective only when agreed in writing. 

2.5. Extent of services – In performing the services, we will not (i) carry out an audit or other assurance engagement in accordance with applicable professional standards or (ii) attempt to detect or accept responsibility for detecting fraud. 

2.6. Oral advice and draft deliverables – You may rely only on our final written deliverables and not on oral advice or draft deliverables. If you wish to rely on something we have said to you, please let us know so that we may prepare a written deliverable on which you can rely. 

2.7. Deemed knowledge – In performing the services we will not be deemed to have information from other services. 

3. Your responsibilities

3.1. Information – In order for us to advise you properly you will make sure that (i) any information given to us by you, or anyone else working with or for you, is (a) given promptly, (b) accurate and (c) complete; and (ii) any assumptions are appropriate. We will not verify any information given to us relating to the services. 

3.2. Your obligations – Our performance depends on you performing your obligations under this agreement. We are not liable for any loss arising from you not fulfilling your obligations. If we contact you and we do not receive a response from you, via email, within 30 days, we reserve the right to terminate this agreement as a material breach in accordance with clause 11. 

4. Fees

4.1. Payment for services – You agree to pay us for our services. Any estimate we may give you is not binding. It is our standard practice that the balance is paid prior to the release of any deliverables, such as tax returns. You will receive an invoice during the tax preparation process. We reserve the right to request that a deposit is paid prior to us commencing the work. 

4.2. Basis of fees – Fees for the services will be charged on the basis set out in the Engagement Letter email. Our fees may reflect not only time spent, but also such factors as complexity, urgency, inherent risks, use of techniques, know-how and research together with the level of skills and expertise required of the personnel needed to perform and review the services. Our fees may include any time spent travelling for the purpose of the services that cannot be used productively for other purposes. 

4.3. Expenses – You will pay any reasonable expenses that we incur in connection with the services. 

4.4. Taxes – You will also pay any taxes, including VAT, GST or withholding tax, that are due in relation to our goods and services. You will pay us the full amount of any invoice, regardless of any deduction that you are required by law to make. 

4.5. Invoices and payment – We may invoice you on a monthly basis. All invoices are payable 14 days after the date of the invoice. If you do not pay an invoice within 30 days, you agree to pay us interest or compensate us for damages on the outstanding amount. 

4.6. Exchange rates – All fees are required to be paid in US dollars (USD). 

4.7. Bank charges – All fees are to be paid net of all bank charges; should payments be received that do not cover the invoice in full, your invoice will be considered unpaid. Our bank does not impose any bank charges on incoming payments, hence any bank charges are considered your responsibility. 

4.8. Work subject to hourly rates – We will provide an estimate of our fees in advance before beginning the work, where the fees are expected to be in excess of one hour of time. We will only begin the work upon receipt of your written approval.

5. Confidentiality

5.1. Confidential information – We and you agree to use the other’s confidential information only in relation to the services, and not to disclose it, except where (i) required by law or any court of competent jurisdiction or regulation or where requested by a professional body of which we are a member; (ii) such information is or becomes generally available to the public, other than as a result of a breach of an obligation under this clause 5.1; (iii) it has been received from a third party who owes no duty of confidentiality in respect of the confidential information; or (iv) it has been independently developed by the recipient. However, we may give confidential information to other Expat US Tax firms or relevant subcontractors as long as they are bound by confidentiality obligations, and to your advisers who are involved in this matter. Nothing in this agreement will restrict your ability to disclose our advice concerning the tax (including social security) treatment or tax structure of any transaction, regardless of any confidentiality markings on any communications. 

5.2. Referring to you and the services – We may wish to refer to you and the services we have performed for you when marketing our services. You agree that we may do so, as long as we do not disclose your confidential information. 

5.3. Performing services for others – You agree that we may perform services for your competitors or other parties whose interests may conflict with yours, as long as we do not disclose your confidential information and we comply with our ethical obligations. 

6. Intellectual property rights 

6.1. We will own the intellectual property rights in the deliverables and any materials created under this agreement, and you will have a non-exclusive, non-transferable licence to use the deliverables for your own internal purposes. 

7. Data protection 

7.1. Personal data – You agree that we may process your personal data for the purposes of any of (i) providing the services, (ii) maintaining our administrative or client relationship management systems, (iii) quality and risk management reviews, and (iv) providing you with information about us and our range of services. 

8. Liability 

8.1. Specific types of loss – You agree that we will not be liable for (i) loss or corruption of data from your systems, (ii) loss of profit, goodwill, business opportunity, anticipated savings or benefits or (iii) indirect or consequential loss. 

8.2. Our liability – You agree that our total liability (including interest) for all claims connected with the services or this agreement (including but not limited to negligence) is limited to the fees paid for the services. 

8.3. Sharing of limit – Where we agree in writing to accept liability to more than one party, the limit on our liability in clause 8.2 will be shared between them, and it is up to those parties how they share it. 

8.4. Unlimited liability – Nothing in this agreement will limit a person’s liability for (i) death or personal injury caused by that person’s negligence, (ii) that person’s fraud or (iii) anything else that cannot by law be limited. 

8.5. No claims against individuals – You agree to bring any claim in connection with the services only against us, and not against any individual, without reference to their employment title with Expat US Tax. 

8.6. Proportionality – If we are liable to you under this agreement, and another provider would be liable to you in respect of the same loss (save for your contractual arrangements with them), then (i) the compensation payable by us to you in respect of that loss will be reduced; (ii) the reduction will take into account the extent of the responsibility of that other provider for the loss; and (iii) in determining the extent of the responsibility of that other provider for the loss, no account will be taken of (a) any limit or exclusion placed on the amount that provider will pay or (b) any shortfall in recovery from that provider (for whatever reason). 

9. Member firms and subcontractors 

9.1. Subcontractors – We may use other Expat US Tax affiliated firms (each of which is a separate and independent legal entity) or subcontractors to provide the services. We remain solely responsible for the services. 

9.2. Restriction on claims – You agree not to bring any claim (including one in negligence) against another Expat US Tax firm (or its members, directors or employees) or our subcontractors in connection with the services. 

9.3. Group members – You will ensure that no group member, including your subsidiaries, associated companies and any holding company (unless a party to this agreement), both while they are a group member and thereafter, brings any claim against any Expat US Tax firm (or its members, directors or employees) or our subcontractors in respect of any liability relating to the services or this agreement. 

10. Materials 

10.1. Policy – We will retain one copy of all materials relevant to the services, including any materials given to us by you or on your behalf solely for the purpose of compliance with our professional obligations and internal risk management policies. 

10.2. Release – We do not release materials which belong to us (including our working papers) unless we have specifically agreed to do so. We may require a release letter from the recipient as a condition of disclosure. 

11. Termination 

11.1. Immediate notice – Either we or you may end this agreement immediately by giving written notice to the other if (i) the other materially breaches it and does not remedy the breach within 14 days, (ii) the other is or appears likely to be unable to pay its debts or becomes insolvent or (iii) the performance of it (including the application of any fee arrangements) may breach a legal or regulatory requirement. 

11.2. 30 days’ notice – Either we or you may end this agreement on 30 days’ written notice. 

11.3. Fees payable on termination – You agree to pay us for all services we perform up to the date of termination. Where there is a fixed fee for services, you agree to pay us for the services that we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee. Any contingent element of the fees will remain payable in accordance with the Engagement Letter email and these terms. If a contingent fee cannot be paid for regulatory reasons, you agree to pay all outstanding fees on the basis of time spent, unless alternative arrangements have been agreed.

12. Dispute resolution 

12.1. Mediation – If a dispute arises, the parties will attempt to resolve it by discussion, negotiation and mediation before commencing legal proceedings. 

12.2. Law and jurisdiction – This agreement and any dispute arising from it, whether contractual or non- contractual, will be governed by Texas law and will be subject to the exclusive jurisdiction of the Texas courts. 

12.3. Limitation period – Any claims must be brought no later than 1 year after the date the claimant should have been aware of the potential claim and, in any event, no later than 2 years after any alleged breach. 

13. General 

13.1. Matters beyond reasonable control – No party will be liable to another if it fails to meet its obligations due to matters beyond its reasonable control i.e. a force majeure event. 

13.2. Entire agreement – This agreement forms the entire agreement between the parties in relation to the services. It replaces any earlier agreements, representations or discussions. Subject to clause 8.4, no party is liable to any other party (whether for negligence or otherwise) for a representation that is not in this agreement. 

13.3. Your actions – Where you consist of more than one party, an act or omission of one party will be regarded as an act or omission of all. 

13.4. Assignment – No party may assign, transfer or deal with their rights or obligations under this agreement without prior written consent, but we may novate the agreement to a transferee of all or part of our business. This novation will take effect on written notice from us so that (i) the transferee will be substituted for us with effect from the date specified in the notice and we will no longer have any rights and obligations under this agreement except in respect of work performed prior to that date and (ii) the combined aggregated liability of us and the transferee will not exceed the limit of our liability before the novation took place. 

13.5. Rights of third parties – Except as set out in clauses 8.5, 9.2 and 9.3, a person who is not a party to this agreement has no rights to enforce any term of this agreement. The Expat US Tax firms and individuals referred to in those clauses may enforce them in their own right. Their consent is not required to vary or rescind this agreement. 

13.6. Quality of service – If you are not satisfied with the services, or have suggestions for improvement, please contact us. We will look carefully and promptly at any complaint. 

13.7. Survival – Any clause that is meant to continue to apply after termination of this agreement will do so including, but not limited to, 2.3, 2.4, 2.6, 2.7, 4, 5, 6, 7, 8, 9, 11.3, 12, 13 and 14. 

14. Interpretation 

14.1. In this agreement the following words and expressions have the meanings given to them below: 

14.2. Expat US Tax firm – any entity or partnership or limited liability company within the worldwide network of Expat US Tax firms and entities; 

14.3. services – the services set out in the Engagement Letter email; 

14.4. this agreement – these terms, the Engagement Information and the Engagement Letter email to which they relate (including any schedules); 

14.5. we, us or our – refers to the Expat US Tax firm from whom the Engagement Letter email is sent; 

14.6. you, your – the party or parties to this agreement (excluding us).