General terms of Business
These General Terms of Business (“General Terms”) apply to all services delivered or due to be delivered by Gintax to a client unless otherwise agreed in writing.
Definitions
The meanings of the following expressions, wherever used in the Services Contract, shall be as follows (and derivative terms shall be construed accordingly):
Engagement Letter - any letter or email enclosing these General Terms, or a link to these General Terms and recording the engagement.
Ireland – means the Republic of Ireland.
Gintax or we – the Gintax contracting party as identified by the Engagement Letter.
Other Beneficiaries - any and each person or organisation identified in the Engagement Letter (other than you) as a beneficiary or recipient of the Services or any product thereof.
Services - the services delivered or due to be delivered by us under the Services Contract.
Services Contract - these General Terms and the applicable Engagement Letter, if any, together with any documents or other terms applicable to the Services (“Additional Terms”).
You (and derivatives) - the addressee (or addressees) of the Engagement Letter.
Our services and responsibilities
1. The Engagement Letter (if any) shall set out the Services and associated matters.
2. The Services shall be delivered with due skill, care and diligence.
Confidentiality
3. 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 our firm unless permitted by you or by this clause. We shall comply with the confidentiality standards of the Institute of Chartered Accountants in Ireland (the “ICAI”) and we shall adhere to the confidentiality restrictions of any other Irish authority with powers over us, as well as any obligations imposed on us by Irish law. We shall be entitled to comply with any requirement of Irish law, the ICAI, or any other Irish regulatory body with powers over us, to disclose Confidential Information. This clause shall not apply where Confidential Information properly enters the public domain. This clause shall not prohibit our disclosure of Confidential Information, always privately and in confidence, to our professional indemnity insurers or advisers.
4. 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 or 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 any 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.
5. 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.
6. All communications with you 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 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. 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.
7. 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.
Ownership
8. 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 Fees for any such product. For the purposes of delivering services to you or other clients, Gintax shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.
Our Fees
9. Unless specifically stated otherwise, all fees (and outlays thereon) are quoted exclusive of VAT. In addition to fees and outlays you shall be liable to pay any VAT arising thereon. We shall render invoices in respect of the Services comprising fees, outlays and VAT chargeable (if any) (“our Fees”). Details of our Fees and any special payment terms may be set out in the Engagement Letter or separate email. Our Fees may differ from estimates or quotations that may have been supplied, which shall be provisional only.
10. In return for the delivery of the Services by us, you shall pay our Fees (without any right of set-off), on presentation of our invoice or at such other time as may be specified in the Engagement Letter. If we are required by you or any court or regulatory body to provide information or to produce documents relating in any way to the Services, in any proceedings or forum in which we are not a party or participant, you shall pay our costs incurred in responding to any such requirement at our standard rates applicable at the time of responding, together with outlays including legal expenses, and VAT thereon (where appropriate).
Your responsibilities
11. 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 the management, conduct and operation of your business and your tax affairs and for deciding on your use of, choosing to what extent you wish to rely on, or implementing advice or recommendations or other product of the Services and realising any benefits requiring activity by you.
Information
12. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services. You shall supply information in response to our enquiries (if any) to enable us to comply with our statutory responsibilities to make disclosures to relevant authorities in respect of money laundering and other criminal activity that we may encounter during performance of the Services and where such disclosures include Confidential Information, clause 3 shall be treated as having been varied to permit this.
13. 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. We may communicate with you by email or other forms of electronic communication 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) and that to the extent permitted by law we may monitor them for internal compliance or other statutory purposes, and that you shall perform virus checks.
14. We may receive information from you or from other sources in the course of delivering the Services. 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 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.
Third party rights
15. 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 against Gintax whether in contract, tort (including negligence) or otherwise, nor shall Gintax owe any duties to third parties in respect of, arising out of or in connection with the Services or the Services Contract. No third party shall have any right as against Gintax to enforce or rely on any provision of the Services Contract.
Circumstances beyond your or our control
16. Neither of us shall be in breach of our contractual obligations nor shall either of us 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 one of 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.
Limitations on our liability
17. For the purposes of clauses 17 to 21, Gintax’s liability shall be defined as Gintax’s aggregate liability in contract or tort (including negligence) or under statute or otherwise, whether to you or to any other party including Other Beneficiaries, in connection with the Services. Gintax’s liability shall be limited as follows:
18. Gintax’s liability for any loss or damage, however caused, suffered by you (or by any other party) arising from or in connection with the Services, shall be limited to the amount of 5 times the fees paid or payable to us in respect of the specific service giving rise to the liability in accordance with the terms of the Engagement Letter.
19. Where there are Other Beneficiaries, the limitation on our liability under clause 18 to you and each Other Beneficiary shall be apportioned by you and the Other Beneficiaries between you and the Other Beneficiaries. Neither you nor any Other Beneficiary shall dispute or challenge the validity, enforceability or operation of clause 18 on the ground that no such apportionment has been so agreed or on the ground that the agreed share of the limitation amount apportioned to you or any Other Beneficiaries is unreasonably low.
20. Subject always to the aggregate limitation on Gintax’s liability in clause 18 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”).
21. You acknowledge a collateral agreement with us to the effect that any claim from you or Other Beneficiaries in respect of loss or damage suffered as a result of, arising from or in connection with the Services Contract, whether in contract or tort or under statute or otherwise, must be made:
where Services have been delivered within four years of the date on which the work giving rise to the claim was performed
if the Services Contract has been terminated, within four years of the date of termination (subject to the bullet point above)
if the loss or damage is suffered as a result of, arising from or in connection with our unauthorised disclosure of Confidential Information, within four years of the date on which the unauthorised disclosure took place and in any of these cases that shall be the date when the earliest cause of action (in contract or tort or under statute or otherwise) shall be deemed to have accrued in respect of the relevant claim.
Third parties
22. If you breach any of your obligations under the Services Contract and there is any claim made or threatened against us by a third party, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us which results from or arises from or is connected with any such breach and any such claim. If you make any payment under this clause you shall not seek recovery of that payment from us at any time. In this clause “you” shall include Other Beneficiaries.
Data Protection
23. “DP Legislation” means, before 25 May 2018, the Data Protection Act 1988 and 2003 from 25 May 2018, the General Data Protection Regulation (EU 2016/679) and any legislation which amends, re- enacts or replaces it in Ireland. The definitions and interpretations in the DP Legislation apply to this clause.
24. This clause 24 applies to personal data provided to us by you or on your behalf in connection with the Services (“Personal Data”).
25. You warrant and represent that you have any necessary consent, provided any necessary notice and done all other things required under the DP Legislation to disclose Personal Data to us in connection with the Services. Where we act as a Data Controller we shall perform the Services in accordance with the DP Legislation. In circumstances where we are performing any of the Services as a Data Processor to you we shall enter into terms with you which comply with Article 28 of the General Data Protection Regulation (EU 2016/679).
26. We will take appropriate technical and organisational steps to protect against unauthorised or unlawful processing of Personal Data and accidental loss or destruction of, or damage to, Personal Data.
27. We shall process the Personal Data as reasonably required (i) to provide the Services; (ii) for our reasonable business purposes including facilitation and support of our business and quality control; and (iii) to meet our legal and regulatory obligations. We shall notify you promptly: (i) upon receiving a request for Personal Data or other request from a data subject, or if we receive any claim, complaint or allegation relating to the processing of the Personal Data; (ii) upon becoming aware of any breach of security leading to the destruction, loss or unlawful disclosure of the Personal Data in Gintax’s possession or control.
28. Upon request, each Party shall provide the other with information relating to its processing of Personal Data as reasonably required for the other to satisfy its obligations under DP Legislation.
Capacity
29. 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 Fees.
Law and jurisdiction
30. The Services Contract shall be subject to and governed by Irish law and all disputes arising on any basis from or under the Services Contract shall be subject to the exclusive jurisdiction of the Irish courts.
Feedback on our performance
31. If at any time you would like to discuss with us how the Services could be improved or if you have a complaint about them, then please discuss with Maura Ginty. If you are still not satisfied, you may refer the matter to the Institute of Chartered Accountants in Ireland.
Taxation Advisory Services
32. We rely on you to advise us of the services you require from us, and to seek advice accordingly. Advice is best given at a time when the form of a transaction has not become finalised.
33. You should note that, where a transaction may involve transferable securities such as company shares, our advice will relate solely to the taxation consequences of that particular transaction. It will not constitute investment business advice relating to the securities concerned and should not be relied on for the purposes of assessing any other factors that may be relevant to your decision to purchase or sell those securities.
34. Any tax advice given by Gintax is subject to the fact that the law can be ambiguous and open to more than one interpretation. Many areas of law are not the subject matter of clarification by decisions of the Irish courts and accordingly there is always risk that the courts might, on future occasions or in the course of a specific litigation by you, disagree with the interpretation placed on legislation by this firm. In addition, any advice given is also subject to the possibility that the Revenue Commissioners might adopt a different interpretation of the law or might re-characterise a transaction which in their opinion constitutes a tax avoidance transaction. You may in such circumstances have to litigate in an effort to maintain the expected results of a particular transaction.
35. Any advice given by Gintax is dependent on all relevant information being provided by you to us.
36. It is important that where advice has been given in relation to tax matters or other matters, it should not be relied on once a significant period of time has elapsed, without confirming with this firm that the advice remains appropriate. Clause 5 of the General Terms is particularly relevant in this context.
Provision of Services to Trusts and Trustees
37. 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: (i) we may treat any one of the Trustees as a person authorised to communicate with us under clause 13 of the General Terms; and (ii) 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.
Provision of Services to Partnerships and Partners
38. Where the Services are delivered to the Partners of a Partnership in connection with tax matters concerning the Partnership or concerning the Partners in their capacity as such: (i) we may treat any one of the Partners as a person authorised to communicate with us under clause 13 of the General Terms; and (ii) 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 Partners to do so, we may assume that any such person deals with us with the authority of all the Partners.
General Ethical, Regulatory and Disclosure Matters
39. Where the Services include the delivery of advice on your tax affairs to achieve a tax advantage, we may be required by law to disclose to the Revenue Commissioners the details of such advice. We shall determine whether and to what extent any such disclosure, which may include Confidential Information, shall be made. To the fullest extent permitted by law, 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.
40. Gintax, in its provision of services to clients, observes ethical standards and is also governed by certain statutory requirements. Such ethical standards include those developed by the firm itself, as well as the ethical guidelines laid down by the Irish Taxation Institute, and by Chartered Accountants Ireland. These ethical guidelines and statutory requirements may require the firm, in specified circumstances, to cease to act for a client.
41. We have a statutory duty to report certain matters as follows:
§ the Criminal Justice (Theft and Fraud Offences) Act 2001 requires that where we become aware that an offence, as detailed in the act, may have been committed that we report same to the Garda Siochana;
§ the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 requires that where we have a suspicion that a money laundering offence has been committed that we report the matter to the Garda Siochana; and
§ additionally, under the Criminal Justice Act 2011 all persons in the State have an obligation to report to the Garda Siochana information known to them that may be of material assistance in preventing or prosecuting an offence specified in that act.
42. We shall endeavour, where appropriate and permitted by law, to liaise with you prior to making any report required by us, subject to our sole responsibility to make such reports
Version #1a- 5 February 2020
