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Terms & Conditions
General Terms & Conditions of Business -Tax & Regulatory Services
These General Terms of Business (Tax & Regulatory Services) (”General Terms”) apply to the delivery of services to a client pursuant to a letter enclosing these General Terms and recording the engagement (“the Engagement Letter”).
Definitions
Services means the services to be delivered by us under the Engagement Letter.
Firm or we (or derivatives) means the contracting party as identified by the Engagement Letter.
You (and derivatives) means the addressee (or addressees) of the Engagement Letter.
Services Contract means the contract formed by the Engagement Letter and these General Terms, together with any appended documents or other terms applicable to the Services (“Additional Terms”).
Firm Persons means the contracting party, each and all of our partners, members, directors, employees and agents, as the case may be, together with any other body or entity controlled by us or owned by us or associated with us and each and all of its partners, members, directors, employees and agents and “Firm Person” shall mean any one of them.
Engagement Team means, collectively or individually, Firm Persons (excluding corporate bodies, entities or firms) who is or are involved in delivering the Services.
Other Firm Person(s) means, collectively or individually, Firm Persons who are not members of the Engagement Team.
Other Beneficiaries means any person or organization identified in and for whom you sign the Engagement Letter (other than you) as a beneficiary of the Services or any product thereof.
These definitions shall apply wherever used in the Services Contract.
Our services and responsibilities
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We may acquire sensitive information concerning your business or affairs in the course of delivering the Services (“Confidential Information”). We shall preserve the confidentiality of Confidential Information and we shall not disclose it beyond Firm Persons who are involved in delivery of Services unless permitted by you or by this clause.
Information relating to you, to our relationship with you, and to the Services, including Confidential Information, may be shared by us with Firm Persons on a need to know basis, and may be accessed by other parties who facilitate the administration of our business or support our infrastructure. We shall remain responsible for preserving confidentiality if Confidential Information is shared with such Firm Persons or accessed by such other parties. This clause shall not apply where Confidential Information properly enters the public domain. This clause shall not prohibit our disclosure of Confidential Information where we are required by law or a competent regulatory or revenue authority to disclose. We shall not incur any responsibility or liability to you for any loss or damage or any other adverse consequences that may result from, arise from or be connected with any such disclosure. We may also wish to disclose Confidential Information to our professional indemnity insurers or advisers, in which event we may do so privately and in confidence only.
We may disclose in our external communication the fact that we have performed work (including the Services) for you, in which event we may identify you by your name and/or logo and we may indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
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The Services shall be delivered with reasonable skill and care. We do not render legal services and, therefore, none of the services rendered under this engagement letter or any part thereof shall be deemed to be legal services. In respect of all legal issues, you may consult your legal advisors and act in accordance with their advice.
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We may supply written advice or confirm oral advice in writing or deliver a final written report or make an oral presentation on completion of the Services. Prior to completion of the Services we may supply oral, draft or interim advice, reports or presentations but in such circumstances our written advice or our final written report shall take precedence. No reliance shall be placed by you on any draft or interim advice or report or any draft or interim presentation. Where you wish to rely on oral advice or on an oral presentation made on completion of the Services, you shall inform us and we shall supply documentary confirmation of the advice concerned.
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We shall not be under any obligation in any circumstances to update any advice, report or any product of the Services, oral or written, for events occurring after the advice, report or product concerned has been issued in final form.
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Any product of the Services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only and that, save as may be required by law or by a competent regulatory authority (in Page 1 General Terms- Tax & Regulatory Services- v4.2
which case you shall, unless prohibited by law, inform us in advance), it shall not be copied, referred to or disclosed, in whole (save for your own internal purposes) or in part, without our prior written consent. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. We disclaim all responsibility or liability for any costs, damages, losses, liabilities, expenses incurred by anyone as a result of circulation, publication, reproduction or use of our reports contrary to the provisions of this clause. You may disclose in whole any product of the Services to your legal and other professional advisers for the purposes of your seeking advice in relation to the Services, provided that when doing so you inform them that:
- disclosure by them (save for their own internal purposes) is not permitted without our prior written consent, and
- to the fullest extent permitted by law we accept no responsibility or liability to them in connection with the Services.
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Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
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We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form on payment of our charges for any such product. For the purposes of delivering services to you or other clients, the Firm Persons shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.
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Where there is more than one of you, this clause applies to each of you separately and not collectively. Notwithstanding our duties and responsibilities in relation to the Services, you shall retain responsibility and accountability for managing your affairs, deciding on what to do after receiving any product of the Services, implementing any advice or recommendations provided by us, and realising any benefits requiring activity by you.
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To enable us to perform the Services, you shall supply promptly all information and assistance and all access to documentation in your possession, custody or under your control and to personnel under your control where required by us. You shall use your best endeavours to procure these supplies where not in your possession or custody or under your control. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services.
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We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes.
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We may receive information from you or from other sources in the course of delivering the Services. You confirm that you are entitled to supply such information to us and are aware that we shall not be required to establish the reliability of the information received by us unless otherwise stated. To the fullest extent permitted by law, we shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information material or relevant to the Services or required by us, or other default relating to such information, whether on your part or that of the other information sources, unless such fraud, misrepresentation, withholding or such other default is evident to us without further enquiry.
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We may communicate with you by electronic mail where any such person wishes us to do so, on the basis that in consenting to this method of communication you accept the inherent risks (including the security risks of interception of or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices), that to the extent permitted by law we may intercept such communications in order to monitor them for internal compliance or other statutory purposes, and that you shall perform virus checks. We may, at your request, send documents to an electronic storage facility hosted or controlled by you or at your direction, in which event you shall be responsible for security and confidentiality at such facility.
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There are safeguards which are designed to facilitate the protection of each client’s interests and may include (for example): separate teams, their geographical and operational separation and/or access controls over data, computer servers and electronic mail system (“Barriers”). The effective operation of such Barriers shall constitute sufficient steps to avoid any real risk of a breach of our duty of confidence to you.
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Subject to clauses 1 and 26, we shall have the right to appoint sub-contractors to assist us in delivering the Services but where any such sub-contractors are not Firm Persons we shall consult you before doing so. Where we appoint subcontractors under this clause, we may share Confidential Information with them and for all purposes in connection with the Services Contract we shall accept responsibility for their work which shall be deemed to be part of the Services.
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Neither we nor you shall be in breach of our contractual obligations or incur any liability to the other if we or you are unable to comply with the Services Contract as a result of any cause beyond our or your reasonable control. In the event of any such occurrence affecting you or us, that one shall be obliged as soon as reasonably practicable to notify the other, who shall have the option of suspending or terminating the operation of the Services Contract on notice taking effect immediately on delivery.
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The Services Contract shall not create or give rise to, nor shall it be intended to create or give rise to, any third party rights. No third party shall have any right to enforce or rely on any provision of the Services Contract which does or may confer any right or benefit on any third party, directly or indirectly, expressly or impliedly. The application of any legislation giving to or conferring on third parties contractual or other rights in connection with the Services Contract shall be excluded. No Firm Person shall be a third party for the purposes of this clause.
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In the particular circumstances of the Services set out in the Engagement Letter, the liability to you and to Other Beneficiaries of each and all Firm Persons in contract or tort or under statute or otherwise for any consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses or losses (including without limitation, lost profits and opportunity costs) suffered by you (or by any such other party) arising from or in connection with the Services Contract and the Services, howsoever the indirect or consequential economic loss or damage is caused, shall be excluded.
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Our liability in connection with the Services Contract and the Services shall be limited in accordance with this clause.
In the particular circumstances of the Services set out in the Engagement Letter and subject to clause 19 and clause 20 below,- the aggregate liability to you and to Other Beneficiaries of each and all the Firm Persons,
- in contract or tort or under statute or otherwise,
- for any direct loss or damage suffered by you (or by any such other party) arising from or in connection with the Services or the Services Contract,
- howsoever the direct loss or damage is caused, including our negligence but not our fraud or other deliberate breach of duty, shall be limited to the amount of fee paid to us for Services.
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Subject always to the aggregate limitation on our liability in clauses above, our liability shall in aggregate be limited to that proportion of the total loss or damage, after taking into account contributory negligence (if any), which is just and equitable having regard to the extent of our responsibility for the loss or damage concerned, and the extent of responsibility of any other person also responsible or potentially responsible (“Other Person”). In order to calculate the proportionate share of our liability, no account shall be taken of any matter affecting the possibility of recovering compensation from any Other Person, including the Other Person having ceased to exist, having ceased to be liable, having an agreed limit on its liability or being impecunious or for other reasons unable to pay, and full account shall be taken of the responsibility to be attributed to any Other Person whether or not it is before the competent court as a party to the proceedings or as a witness.
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We accept the benefit of the exclusions and limitations in clauses above on our own behalf and in so doing we confer benefits on all Firm Persons who may be or might have been involved in delivering the Services.
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You and Other Beneficiaries shall not bring any claim against any Firm Person other than the contracting party in respect of loss or damage suffered by you or by Other Beneficiaries arising out of or in connection with the Services. This restriction shall not operate to limit or exclude the liability of the contracting party as a firm or company for the acts or omissions of any other Firm Person.
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You agree to indemnify and hold harmless us from time to time and at all times hereafter, from and against (i) all loss, damage, harm or injury suffered or incurred by us or any of us and (ii) all notices, claims, demands, action, suits or proceedings given, made or initiated against us on account of or arising out of (a) the performance, by us or any of us, of all or any of our obligations hereunder, or (b) any transaction contemplated under the Engagement Letter, or (c) any default committed by you in the performance of all or any of your obligations hereunder, as also against all costs, charges and expenses suffered or incurred by us on account of the aforesaid. This indemnity shall not, however, be applicable to the extent that any such notices, claims, demands, action, suits or proceedings are found by a competent court in its final judgment to have resulted primarily from our willful default in performing the Services described in the Engagement Letter.
If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time. In this clause “us” shall include all Firm Persons and “you” shall include Other Beneficiaries.
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You agree to and accept the provisions of the Services Contract on your own behalf and as agent for Other Beneficiaries. You shall procure in such circumstances that any Other Beneficiaries shall act on the basis that they are a party to the Services Contract, as if they had each signed a copy of the Engagement Letter and agreed to be bound by it. However, you alone shall be responsible for payment of our charges.
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Each party can terminate the Services Contract or suspend its operation by giving 30 days’ prior notice in writing to the other at any time. Termination or suspension under this clause shall not affect any rights that may have accrued for either of the parties before termination or suspension and all sums due to us shall become payable in full when termination or suspension takes effect.
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Clauses 1, 5, 17, 18, 22, 25, 30, 38, 39, 40 and such other clauses of these General Terms which by their very nature ought to survive the expiry or any termination of the Services Contract shall survive such expiry or termination.
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We shall process or arrange for processing of personal data on your behalf for the purposes of delivering the Services. For such purposes we shall have your authority to do so in accordance with this clause. When we do so, we shall take appropriate technical and organizational measures designed to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. In particular, we shall process personal data only for the purposes contemplated by the Engagement Letter and we shall act on your instructions only (given for such purposes) save as required by law or the order of competent court or tribunal. We may also process or arrange for processing of personal data in order to support the maintenance of quality and standards in our work or to facilitate the administration of our business or to support our infrastructure. We shall answer your reasonable enquiries to enable you to monitor our compliance with this clause. In making personal data available to us, you confirm that you have complied with applicable laws. In this clause, personal data means any information relating to an individual. We shall not subcontract our processing of personal data (unless to Firm Persons or other parties who are required to take equivalent measures when processing personal data) without your prior written consent.
Information about contacts we have at your organization may be used by Firm Persons to provide our services to you, and to occasionally provide marketing communications, which we believe may be of interest. Any person who does not wish to receive this information can at any time request that such communications cease by writing to us at the address mentioned in the Engagement Letter.
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The Services Contract sets out the entire agreement and understanding between you and us in connection with the Services. The Services Contract supersedes and relieves us from liability (if any) that might otherwise arise for any prior agreements, understandings, arrangements, statements or representations (unless made fraudulently) as to any facts or matters relating to Firm or the Services. Any modifications or variations to the Services Contract must be in writing and signed by an authorised representative of each party. If there is any inconsistency between the Engagement Letter and any other elements of the Services Contract, the Engagement Letter shall prevail. If there is any inconsistency between these General Terms and Additional Terms that may apply, the Additional Terms shall prevail. Nothing in the Services Contract shall operate to exclude any liability which we would otherwise have to you in respect of any statements made by us fraudulently prior to the date of the Services Contract.
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Each clause or term of the Services Contract constitutes a separate and independent provision. If any provision of the Services Contract is judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect. Failure by you or us to exercise or enforce any rights available to you or us shall not amount to a waiver of any rights available to you or us. Neither of the parties shall have the right to assign the benefit (or transfer the burden) of the Services Contract to another party without the written consent of the other party.
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The Services Contract shall in all respects be subject to and governed by Indian law without application of the conflict of laws principles and all disputes arising on any basis from or under the Services Contract shall be subject to the exclusive jurisdiction of the Indian courts.
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Where the Services include our preparation and submission on your behalf of returns or computations to relevant tax or regulatory authorities:
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To enable us to prepare and submit returns, computations, claims, elections, applications or forms (“Submissions”) as your advisor, you shall supply promptly all relevant information and documentation. We shall present the Submissions to you for verification of correctness and completeness before sending them to the tax or regulatory authorities. You shall retain responsibility for the correctness and completeness of Submissions and for the payment of any corresponding tax or other liabilities.
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We may send Submissions to relevant authorities electronically. Where we send Submissions electronically we shall use the online services as made available to the users by the relevant authorities at the time and we shall comply with relevant authorities’ relevant terms and conditions. Before we send a Submission electronically we shall make a copy which you shall sign to confirm that it is correct and complete to the best of your knowledge and belief and to approve submission to the relevant authorities by us. Your signature may take the form of a written signature in ink or may be provided electronically in a form agreed by us beforehand. A failure in or interruption to the operation of the authorities’ online services may affect our ability to send Submissions electronically when required or at all. Where we become aware of any such failure or interruption we may consult you on whether an alternative filing method is permissible or appropriate. In any such case, to the fullest extent permitted by law, we shall not be responsible or liable for the consequences of any delay or failure in arrival of Submissions at the relevant authorities caused by the failure or interruption.
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You shall send to us promptly any notices, assessments or determinations issued by relevant authorities relating to the Services requiring action by us.
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You shall retain responsibility for maintaining records and associated papers concerning your tax and regulatory affairs in accordance with legal requirements.
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In the Engagement Letter there shall be identified the returns, reports and other matters for which we shall be responsible. We shall not be responsible for discharging any of your statutory obligations.
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You shall inform us if you require our working papers referable to the Services to be retained for any period longer than 8 years following completion of the Services or termination of the Services Contract.
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Where the Services are delivered to the trustees of a trust in connection with tax matters concerning the Trust or concerning the trustees in their capacity as such:
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we may treat any one of the trustees as a person authorised to communicate with us under clause 10 of these General Terms; and
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save where you inform us that we may not rely on communications from such a person without evidence of the written approval of all the trustees to do so, we may assume that any such person deals with us with the authority of all the Trustees.
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Where you are an individual, you shall notify us of all employments and directorships held by you, your spouse, your spousal equivalent and any dependants, including a general description of the role performed. You shall also notify us as a priority of any changes to this information, promptly as and when the changes occur.
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The Services may include our preparation and submission of returns to relevant authorities (including overseas tax authorities, where applicable) on behalf of one or more of your employees (“the Employee”). To enable us to prepare returns on the Employee’s behalf, you shall use your best endeavours to procure that the Employee supplies promptly all relevant information and documentation. We shall present returns to the Employee for verification of correctness and completeness before sending them to the relevant authorities.
In the course of preparing Submissions on behalf of the Employee, we may acquire confidential information concerning the Employee’s financial affairs beyond employment income. You represent that you have obtained the Employee’s consent to disclose any information to you that you may require to determine the Employee’s tax position. You shall explain the arrangements outlined in this clause to the Employee and answer any questions arising. You shall inform the Employee that the Employee shall retain responsibility for the correctness and completeness of returns prepared on the Employee’s behalf and for the payment of any corresponding tax liabilities.
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Where the Services include the delivery of “US Tax Advice”, being advice on planning your tax affairs which might result in a reduction or deferral of any US tax payable by you or by any US or non-US person or entity (whether or not associated with you), US federal and certain state tax regulations may apply. Such regulations require taxpayers to disclose to the Internal Revenue Service (“IRS”) and applicable US state tax authorities, respectively, their participation in any reportable transaction(s). You shall inform us if you determine that any matter covered by the Services is required to be disclosed to the IRS or US state authorities as a reportable transaction.
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Where the Services include the delivery of US Tax Advice, US federal and certain state tax regulations may apply that require an adviser on US tax matters to disclose information on reportable transactions to the IRS and the applicable state tax authority by a prescribed date, and to retain lists of persons and other information with respect to the transactions if it is a material adviser with respect to the transactions. We shall use reasonable efforts to inform you if we provide your information to the IRS or the applicable US state tax authority.
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In compliance with US standards of tax practice prescribed by the US Treasury that apply to all US tax advisers, unless otherwise set out in the Engagement Letter, we do not anticipate that any written US tax advice provided as part of the Services will rise to the level of a Covered Opinion as defined in §10.35 of IRS Circular 230. Therefore, the following shall apply with respect to all written US tax advice provided by us:
“Any US tax advice in this engagement is not intended or written by Firm to be used, and cannot be used, by a client or any other person or entity for the purpose of (i) avoiding penalties that may be imposed on any taxpayer, or (ii) promoting, marketing or recommending to another party any matters addressed herein.”
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Where we assist you with tax matters (“Tax Services”) and:
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At the time of engagement or at any point thereafter, you are, or you are an affiliate of, an entity that is registered with the United States Securities and Exchange Commission and you are (or such affiliate is) audited by Firm Persons (i.e., an SEC Registered Audit Client), or
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The Tax Services involve the delivery of U.S. tax advice;
then clause 5 and 22 of our General Terms shall not apply (although any non-tax services, if any, shall remain subject to that clause), and no provision in this Tax Services Contract (including the engagement letter) is or is intended to be construed as a condition of confidentiality in relation to Firm’s Tax Services. In this clause, the term “affiliate” is interpreted as that term is used by the SEC with reference to auditor independence rules.
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If you are an SEC Registered Audit Client and we are providing a Tax Service, you shall promptly inform us of any conditions of confidentiality imposed at any time by other tax advisers with respect to any transaction or matter on which our Tax Service is requested.
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Where Clause 38 above applies, any product of our Tax Service (“Tax Deliverable”) released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and use only. If you refer to or disclose in whole or in part any Tax Deliverable to any third party, you shall notify such third party in writing as follows: that (i) the Tax Services performed by us for you were designed to meet your agreed requirements only, as determined by your needs at the time; (ii) any product of the Tax Services should not be regarded as suitable to be used or relied upon by any party wishing to acquire any rights against us other than you; (iii) we do not assume any responsibility in respect of the Tax Services performed for you, any product of the Tax Services, or any judgments, conclusions, opinions, findings or recommendations that we may have formed or made, to any party except you; (iv) to the fullest extent permitted by law, we accept no liability in respect of any such matters to any other person; and (v) should any person except you choose to rely on the Tax Services or any product thereof, that person will do so at their own risk. Notwithstanding the foregoing, (i) in the event of a disclosure made by you that is required by law, that is made to a regulatory authority having jurisdiction over you, or that is made pursuant to Clause 38 above, no such notification shall be required and (ii) no such notification shall be required with respect to disclosures expressly authorized by the Engagement Letter.
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If you refer or disclose in whole or in part any Tax Deliverable to any third party but do not notify such third party in writing as required by Clause 40 above, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us as a result of, arising from or in connection with any such reference or disclosure, unless we have agreed in writing with such a third party to accept responsibility and liability to that third party in respect of the Tax Services and the Tax Deliverable. If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time. In this clause “us” shall include all Firm Persons and “you” shall include Other Beneficiaries.