Terms of Business
GENERAL TERMS OF BUSINESS
1.1 These General Terms of Business may not be varied unless agreed in writing and signed by a Director of Synceritas Limited (“Synceritas”).
1.2 The purpose of these General Terms of Business is to set out the basis on which Synceritas will act for you. We aim to provide you with a first class professional service in a cost effective manner. All of the work we do for you is carried out under these General Terms of Business unless variations are agreed with you in writing. Please note that your agreement is solely with Synceritas. For the avoidance of doubt where there is any conflict between these General Terms of Business and any engagement letter we send to you the engagement letter will prevail over these General Terms of Business.
1.3 The contract under which our services are provided to you is with Synceritas and not with any individual principal, employee or agent of Synceritas.
1.4 Your acceptance of the provision of services to you after the date of first sending these General Terms of Business to you shall be deemed to be acceptance of these General Terms of Business.
2. IDENTITY OF OUR CLIENT
2.1 Unless specifically and explicitly modified in writing, we assume as an essential condition to our representation that our only client is the person or entity identified in the attached engagement letter. In the absence of an express statement to the contrary, our client is the person or entity to whom the engagement letter is addressed, even though in certain instances the payment of our fees may be the responsibility of others.
2.2 Unless specifically stated in our engagement letter, our representation of you does not extend to any of your affiliates. For example, if you are a corporation, our representation does not include any of your parents, subsidiaries, sister corporations, employees, officers, directors, shareholders, or partners, or any entities in which you own an interest. If you are a partnership or limited liability company, our representation does not extend to the individual partners of the partnership or members of the limited liability company. If you are a joint venture, our representation does not extend to the participants. If you are a trade association, our representation excludes members of the trade association. If you are an individual, our representation does not include your spouse, siblings, or other family members. If you are a trust, you are our only client. The beneficiaries are not our clients, nor is the trustee in any capacity other than as the fiduciary for the particular trust in our representation.
2.3 We do not anticipate that we will be given any confidential information of your affiliates or any other entities or individuals during this representation. You agree to advise us before sending us such information and agree that any such information that we receive without such notice is not confidential information and shall not be treated as such.
2.4 In addition, the advice and communications that we render on your behalf are not intended to be disseminated to or relied upon by any other parties without our prior written consent.
2.5 In order to comply with the law on money laundering, we need to obtain evidence of your identity as soon as practicable. We will require, therefore, documents to verify your identity and address.
3. THE SCOPE OF THE WORK WE AGREE WITH YOU
3.1 We will seek your agreement to our role to help you achieve your objectives in a timely, efficient and courteous manner. Work carried out by other professionals to assist you in achieving your objectives and objectives in respect of which we have not been specifically instructed to act will not be our responsibility. We shall be entitled to act on the instructions of any of your apparently authorised employees or agents and to rely upon any information supplied to us by such employees and agents.
3.2 Advice which we give is restricted to the matter upon which we are specifically instructed and may not be relied upon by you for other matters with which you are concerned. We assume no responsibility for your use of our advice outside the specific matter upon which we are instructed.
3.3 We shall not be under any obligation in any circumstances to update any report for events occurring after the report has been issued in final form.
4.1 To enable us to perform our services, you shall use your best endeavours to 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 relevant) where required by us. You shall inform us of any information or developments which may come to your notice and which may have a bearing on our services. You shall supply information in response to our enquiries (if any) to enable us to comply with our statutory responsibilities and where such disclosures include confidential information shall be treated as having been varied accordingly.
4.2 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.
4.3 We may receive information from you or from other sources in the course of delivering our 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 our services, 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.
4.4 Your cooperation and candid communication with us is such an integral part of our working relationship that if we come to the conclusion you are not meeting your obligations in this regard, we reserve the right to withdraw from the representation.
5. OUR FEES
5.1 Fees estimate and quotations
If we provide a fee estimate for a piece of work its effect is as follows:-
5.1.1 An estimate is our indication, made in good faith, of our likely fee for carrying out the work concerned, based on our information at the time the estimate is given. An estimate is subject to revision and does not amount to a contractual commitment on our part to carry out the work for that fee. We will tell you promptly if it becomes apparent that our fees are likely to exceed an estimate that we have given and we will discuss and agree with you the best way forward.
5.1.2 A fixed fee or capped fee quotation is a proposal by us to carry out specified work for a stated fee. Any such quotation will be in writing, setting out the work included and excluded, and is given on the basis of the information available, and the circumstances known to us being and remaining materially correct and not changing. If you accept that proposal, it then becomes a contractual commitment on both our parts. If we carry out work in excess of that specified, our fees for that additional work will be charged at our then applicable standard hourly rates. We also reserve the right to charge additional fees on the same basis for material additional work arising from circumstances known to you when you accepted our quotation, but which you did not disclose to us, or which are materially different from those envisaged when we gave our quotation.
5.1.3 If we request the payment of a retainer on account of fees and expenses, we reserve the right to apply such retainer in whole or in part payment of any fee note that may be raised and we shall provide you with a receipted fee note.
5.2 Charging Rates
5.2.1 Unless we have agreed a fixed fee or capped fee quotation or made another specific agreement with you we invoice on the basis of the time our professional staff have been engaged on your matter.
5.2.2 These rates do not include any enhanced rate or value element for work that is particularly complicated, has to be carried out very quickly, or in an inconvenient location, but such an increase will only be added with your prior agreement or where we have stipulated an increase for such factors before embarking on the work.
5.3 Detailed Information
5.3.1 At any time at your request we will provide you with a full breakdown of the fees and expenses incurred to date.
5.4 Payments on your Behalf
5.4.1 As an adjunct to providing professional services, we may incur and pay a variety of charges on your behalf or charge for certain ancillary support services. Whenever we incur such charges on your behalf or charge for such ancillary support services, we bill them to you separately or arrange for them to be billed to you directly. We may also require an advance payment from you for such charges. These charges typically relate to long-distance telephone calls; messenger, courier, and express delivery services; facsimile communications; photocopies; travel expenses; private investigators; and charges made by third parties (such as outside experts and consultants, government agencies, airlines, hotels and the like).
5.4.2 We will not instruct other professionals or experts on your behalf without informing you first and wherever possible we will attempt to agree their fees on your behalf in advance.
5.4.3 Although these expenses are your responsibility, we usually advance payment of these costs on your behalf if there is a retainer amount with us and your account is current. In the event any of our statements for such services are not paid by their due dates, we reserve the right not to advance any further amounts on your behalf. Notwithstanding our advance payments of any charges, you shall be solely responsible for all invoices issued by these third parties. It is our policy to arrange for outside providers of services involving relatively substantial charges to bill you directly. Prompt payment by you of invoices generated by third-party vendors is often essential to our ability to deliver our services to you. Accordingly, we reserve the right to treat any failure by you to pay such invoices in a timely manner to be a material breach of your obligation to cooperate with us.
5.4.4 You can play an important role in helping us control your expenses. Our fees will be based primarily on the amount of time we devote to your matters. To the extent possible, please (i) give us all relevant documents and information together at one time at the outset; (ii) tell us your goals; (iii) do not change your instructions unnecessarily; and (iv) structure matters as straightforwardly as possible. In this way, you can help to minimize your costs. With this in mind, we would appreciate good coordination and advance notice from you of your expected timeline for work we undertake so that we may balance the interests of our other clients. We ask this of all our clients so that they may similarly defer to your emergency deadlines and situations should they arise. We will naturally do our utmost to coordinate with you as well and hope to be fully informed at all times.
6.1 Timing of invoices
The timing of invoices will depend on the nature of the work but our general rule is that clients will be invoiced on an interim (e.g. monthly or quarterly) basis.
7 PAYMENT TERMS
7.1 We are committed to providing a timely service and in turn we expect all invoices to be paid within 14 days after the invoice date. If you wish to dispute any invoice you should speak to the Director responsible for the relevant work within 7 days after the invoice date, so that any necessary action can be taken before the end of the credit period. We reserve the right to charge interest at a daily rate on any unpaid invoice, from the end of our credit period, at 8% per annum.
7.2 If you seek an assessment of our fees then unless we already hold the money to cover our fees, you must pay half our fees shown in the invoice, all the VAT shown in the invoice and all the expenses we have incurred shown in the invoice.
7.3 We may apply amounts credited to your client account towards any outstanding fees or disbursements.
7.4 Where you are more than one person, unless provision is made with Synceritas for payment of our invoices by one of you or by a third party, all of you shall each be fully liable and we shall be entitled to call upon any of you and all of you for payment in full.
7.5 If an account becomes delinquent, we employ the same prudent collection procedures used by other businesses to ensure that our other clients who do pay their bills promptly are not penalized for the additional cost of delinquent bills. In addition, should your account become delinquent and satisfactory payment terms are not arranged, we may (without limiting our rights under clause 15 below) declare the engagement at an end. You will remain responsible for payment of our fees rendered and charges incurred prior to such withdrawal. If collection becomes necessary, you agree to pay the cost of collection, including court costs and attorneys’ fees incurred as a result.
8 CONFIDENTIALITY AND DATA PROTECTION
8.1 We place great emphasis on maintaining the highest standards of confidentiality. We are under an obligation not to disclose any confidential information to third parties without your authority. This applies to most client information, as well as the reports, letters, documents, and information which we provide to you. In addition our agreements as to fees are given in confidence and are provided on the condition that you undertake not to disclose these or any other confidential information made available to you by us during the course of our work (other than within your own organisation, if applicable) without our prior knowledge.
8.2 In some cases where reports, letters, documents, information or advice given by us to you will be provided by us or you to or used by a third party, we reserve the right to stipulate terms regarding such use or we may require the third party to enter into a direct relationship with us. Where reports, letters, documents, information or advice given by us is disclosed to a third party we recognise no obligation to that third party.
8.3 Before we undertake any work on your behalf we will ask for information about you, including your name, address and date of birth together with some identification, for example, your passport and proof of residence and we will keep a copy of this (“your Data”). We may use your Data to undertake a search with a credit reference agency. We will keep a copy of any searches made and the results which will be used for internal decision making purposes. The credit reference agency may also keep a copy of the search and they may share that information with other businesses who undertake similar searches in respect of you.
8.4 We may use your Data and other information we obtain as a result of the work we do for you to provide you with our services and to administer your account with us including tracing and collecting any debts. We may also use it for fraud prevention (for example by verifying your identity to comply with our money laundering obligations), to ensure client satisfaction and to improve services and for the safety and security of our offices and staff.
8.5 Under the Data Protection Act 2002 an individual has the right upon payment of a fee to obtain copies of personal data about them held by us. If you have any queries in relation to the above please do not hesitate to contact us.
8.6 You may disclose a report in whole to your legal and other professional advisers for the purpose of your seeking advice in relation to the matters contained within a report, 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 that to the fullest extent permitted by law and save as may be agreed between us we accept no responsibility or liability to them.
9.1 We shall have the right to appoint sub-contractors to assist us but where any sub-contractors are not employees or agents of Synceritas we shall consult you before doing so. Where we appoint sub-contractors under this clause, we may share confidential information with them, and for all purposes in connection with our services to you we shall accept responsibility for their work which shall be deemed to be part of those services.
10.1 We will maintain any documents you furnish to us in our client files for this matter. At the conclusion of the matter (or earlier, if appropriate), it is your obligation to advise us promptly as to which, if any, of the documents in our files you wish us to turn over to you. At your request, your papers and property will be returned to you promptly upon receipt of payment for outstanding fees and other charges. Your documents will be turned over to you in accordance with ethical requirements and subject to any lien that may be created by law for payment of any outstanding fees and costs. We will retain our own files, including our drafts, notes, conflict checks, billing and financial information, internal memos, and work product, such as drafts, notes, internal memoranda, and factual research, including investigative reports, and other materials prepared by or for the internal use of our consultants. All such documents retained by us will be transferred to the person responsible for administering our records retention program. For various reasons, including the minimization of unnecessary storage charges, we reserve the right to destroy or otherwise dispose of any such documents or other materials retained by us at the conclusion of the file retention period referred to in clause 11.1 below.
11 FILE RETENTION
11.1 Our policy is to archive files and documents for a period of at least 6 years after they are regarded as closed by us. We accept no responsibility or liability for any loss or damage caused by our failure to retain such files and documents for any period after such closure and are authorised by you to destroy the files and documents after such a time. If you wish to retain your papers then please ask for them. Many papers on our files constitute our working papers or emanate from yourself or record what has already been sent to you and as such belong to us and are not papers to which you are entitled.
12 INTELLECTUAL PROPERTY
12.1 We retain all copyright and other intellectual property rights in everything developed or prepared by us either before or during the course of a matter relating to you including all reports, letters, documents, precedents, written advice or other materials we provide to you.
13.1 We are proud to serve you and hope to share that information with other clients and prospective clients. On occasion, we provide names of current clients in marketing materials and on our website. We may include your name on a list of representative clients. We may also prepare lists of representative transactions or other representations, excluding of course any we believe are sensitive. If you prefer that we refrain from using your name and representation in this manner, please advise us in writing.
14.1 Where you require us or the nature of our services is such that it is likely to be more efficient for us to perform our services at your premises or use your computer systems or telephone networks, you shall ensure that all arrangements are made for access, security procedures, virus checks, facilities, licenses or consents as may be required by us are made available without cost to us.
14.2 You shall not, directly or indirectly, solicit the employment of any member of Synceritas’s staff while our services are being performed or for a period of six months following their completion or following termination under clause 15 below, without our prior written consent. This prohibition shall not prevent you at any time from running recruitment advertising campaigns or from offering employment to any member of Synceritas’s staff who may respond to any such campaign.
15 TERMINATION OF OUR INSTRUCTIONS
15.1You may terminate our representation at any time, with or without cause, by notifying us. After receiving such notice, we will cease to render services to you as soon as allowed by applicable law. Your termination of our services will not affect your responsibility for payment of services rendered and other charges incurred both before termination and afterwards in connection with an orderly transition of the matter, including fees and other charges arising in connection with any transfer of files to you or to other consultants, and you agree to pay all such amounts in advance upon request.
15.2 Although we hope to have a mutually satisfying relationship, we reserve the right to withdraw from the engagement if you fail to honor these General Terms of Business for any reason or without cause. Specifically, if you fail to meet your obligations under these General Terms of Business and continue to fail to do so for thirty (30) or more days after we have attempted to provide you with written notice, we shall have the right to the fullest extent authorized by applicable law, in our sole discretion and without any further authorization by you, to declare the engagement at an end.
15.3 Our rights are in addition to those rights created by statute or applicable law. In the event of any such withdrawal, you shall promptly pay us in full for all services rendered by us and all fees, charges and expenses incurred.
16 LIMITATION OF LIABILITY
16.1This section shall apply unless we agree otherwise in writing signed by a Director.
16.2 You agree that:-
a) Our maximum aggregate liability for any professional negligence whether in contract or tort (except for fraud, or for death or personal injury) is £10 million inclusive of interest but exclusive of costs;
b) Where we are instructed jointly by more than one party, this limit shall apply to all of you collectively and in total and also including anyone claiming through you;
c) This overall limit applies if we make the same or a similar mistake in relation to either one piece of work for you or several pieces of work;
d) More than one mistake on a matter or transaction is considered as one mistake for the purposes of calculating our overall limit of liability;
16.3 Your agreement is solely with Synceritas. Its Directors, employees and agents shall have no personal liability for the conduct of the work which you instruct us to carry out.
16.4 You agree to make no claim against an individual except for fraud. You and we intend that this clause is for the benefit of, and shall be enforceable by, the Directors, employees and agents of Synceritas under the Contracts (Rights of Third Parties) Act 2001
16.5 We do not accept liability to any person who is not our client.
16.6 Whilst we endeavour to ensure that our email and attachments are checked by virus detection software no liability is accepted for any loss or damage caused by viruses emanating from or relayed by Synceritas, its employees or agents.
16.7 Proceedings in respect of any claims must be commenced within three years after you first had (or ought reasonably to have had) both the knowledge for bringing an action for damages and the knowledge that you had a right to bring such an action an in any event no later than six years after any alleged breach of contract, negligence or other cause of action. This provision expressly overrides any statutory provision which would otherwise apply; it will not increase the time within which proceedings may be commenced and may reduce it.
16.8 We shall not be liable for any loss arising from or connected with our compliance with any statutory obligation which we may have, or reasonably believe we may have, to report matters to the relevant authorities under the provisions of applicable money laundering legislation.
16.9 We believe the limitations on our liability set out in this section are a reasonable amount of having regard to our assessment of:-
- The amount of any likely liability to you if we make a mistake, and
- The availability and cost of professional indemnity insurance, and
- Possible changes in the future availability and cost of insurance,
but we are happy to discuss the limit with you if you consider it insufficient for your purposes, and if appropriate we may then consider whether we are able to provide a higher limit at extra cost.
16.10 These limits apply to the extent that they are permitted by law. If any part of this section of our terms which seeks to limit liability is found by a court to be void or ineffective on the grounds that this is unreasonable or does not accord with any professional obligation, the remaining provisions shall continue to be effective.
17 CIRCUMSTANCES BEYOND YOUR OR OUR CONTROL
17.1Neither 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 our obligations hereunder 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 this engagement on notice taking effect immediately on delivery.
18 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 2001
18.1 For the avoidance of doubt, save as expressly mentioned in these General Terms of Business, it is not intended by the parties that any term which may be construed as conferring a benefit on any person who is not a party to this engagement should be enforceable by such party. Unless we agree otherwise expressly and in writing, no other party may rely on our advice. The granting of such agreement may be subject to payment of an additional fee.
19 SYNCERITAS ONLINE INTELLIGENCE ASSESSMENTS
19.1.1 Based on the information received in the initial instructions, our methodology in securing any information in this report has been sourced and achieved via databases which provide information on registered individuals, property and other data/credit and financial links in the Isle of Man, in the United Kingdom and internationally.
19.1.2 We draw your attention to the fact that the accessibility of online information differs across the world. This can be due to legislation, privacy laws, access to the Internet or a combination of all three.
19.2 Online intelligence assessment
19.2.1 During the course of this research an extensive analytical investigation is undertaken using our research team to collect intelligence across an extensive range of sources. In course of that enquiry various searches are carried out. This will include, where appropriate or necessary, a trawl of social media platforms in order to produce a comprehensive online footprint. However, it must be noted that online data is both electronic and dynamic: over time that information (particularly when controlled by the person or entity of interest) can easily be deleted or altered.
19.3 Whilst Synceritas will always endeavour to produce the most up to date information it should be noted that search engine algorithms change over time and this can at times produce different search volumes or results. In other words a search for a subject of interest may produce another result if searched for on another day.
19.4 We rely on documentation available to us and cannot attest to its completeness or accuracy. Should any additional information be made available to us after the date of a report, we reserve the right to review this information and revise our report.
20 EMAIL COMMUNICATIONS AND ELECTRONIC STORAGE
20.1 If you wish we will use email for communication with you. However, there are some specific issues of which you should be aware:
20.1.1 Communications over the Internet are not secure. You must guide us as to what should not be sent over the Internet to you or on your behalf.
20.1.2 Emails do not always reach the intended recipient. We cannot guarantee that every email, sent and received, will reach the end user.
20.1.3 Whilst we take reasonable precautions against viruses by use of a fire wall and virus checking software, we do not guarantee that our email correspondence will be free from viruses. If we are to communicate by email, it is on the basis that you will also take reasonable precautions to prevent such viruses or other harmful devices.
20.1.4 We monitor email traffic to detect unauthorised or illegal use of our email system. As a result, we may collect personal data about those sending and/or receiving the email or which is contained in the email. Any personal data collected in this way will be held and processed in accordance with the provisions of the Data Protection Act 2002.
20.2 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.
21 CONCERN OR COMPLAINT
21.1 It is our aim to provide you with a first class professional service. We may invite you to provide feedback on our performance so that we can measure the extent to which we meet your objectives. If at any time you would like to discuss with us how our services could be improved or if you have a complaint about them, you are invited to telephone the Director identified in our Terms of Engagement or to contact that Director by e mail or in writing to our registered office. We will investigate any complaint promptly.
22.1 Any notice to you or us delivered under these General Terms of Business shall be in writing and delivered by pre-paid post or left at our respective addresses as shown in the Terms of Engagement (or such other address as may be notified in writing). Notices delivered by post shall be deemed to have arrived, where posted from and to an address in the Isle of Man, on the fifth working day and where posted from or to an address overseas, on the tenth working day, in both cases exclusive of the date of posting.
23 OUR CONTRACT WITH YOU
23.1 These General Terms of Business will remain effective until replaced by any updated General Terms of Business which we may issue to you, or other written agreement between us. Please confirm in writing your agreement to these General Terms of Business by signing one copy of the Terms of Engagement sent with these General Terms of Business in the space provided and returning it to us. If you do not return the copy letter but still decide to engage us you do so on the basis of these General Terms of Business. Please do not hesitate to contact the Director with whom you are dealing if you wish to discuss these General Terms of Business before replying.
23.2 The Terms of Engagement (including these General Terms of Business) set out the entire agreement and understanding between you and us in connection with our services, and supersede and relieve us from liability (if any) which may otherwise arise under any prior agreements, understandings, arrangements, statements or representations (unless made fraudulently) as to any facts or matters relating to Synceritas or to our services.
23.3 Each of these terms constitutes a separate and independent provision. If any provision (or part) is judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force or effect.
24 GOVERNING LAW
24.1 These General Terms of Business and any work which we undertake for you shall be governed by, and interpreted in accordance with Isle of Man law. The parties submit to the non-exclusive jurisdiction of the Isle of Man Courts.