Terms & Conditions: Letter of Engagement

1 Interpretation

1.1. The following definitions and rules of interpretation apply in these Conditions
Definitions:
Advisor: has the meaning given to it in the Cover Sheet.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client: has the meaning given to it in the Cover Sheet.
Commencement Date: has the meaning given to it in the Cover Sheet.
Cover Sheet: means the cover sheet containing the key terms of this Contract and to which these Conditions are attached.
Fee: has the meaning given to it in the Cover Sheet.
Minimum Term: has the meaning given to it in the Cover Sheet.
Party or Parties: the Client and the Advisor.
Services: the provision of advice and assistance in connection with making Research and Development Tax Relief claims as more particularly described in clause 2.3.

2 Agreement

2.1. The Client engages the Advisor as its exclusive provider of the Services in accordance with the Contract. It is hereby agreed that the Advisor will act for, advise and assist the Client in providing the Services.
2.2. The Advisor shall provide the Services for the Minimum Term unless the Contract is terminated earlier in accordance with clause 5. After the Minimum Term the Contract shall continue to run for consecutive periods of one year (a “Renewal Term”) unless at least 3 months’ notice is given by either party to expire at the end of the Minimum Term or at the end of a Renewal Term as the case may be.
2.3. In providing the Services, and in order to submit the filing(s) for the relevant accounting periods during the Minimum Term and any Renewal Term (each an “Accounting Period”), the Advisor agrees to:
2.3.1. conduct a review of the Client’s activities and expenditure for each Accounting Period to identify projects that may qualify for R&D tax relief (“Projects”), and produce a schedule of any such Projects;
2.3.2. liaise with the Client’s key technical personnel to compile a draft Technical Report for approval by the Client, based on the representations made by the Client and its officers, employees, consultants, representatives and advisers during technical interviews;
2.3.3. liaise with the Client’s key finance personnel to obtain the information required by the Advisor to complete an R&D Costing Schedule, to document the qualifying expenditures of each Project;
2.3.4. calculate the potential quantum of R&D Tax Relief that may be due to the Client for each Accounting Period;
2.3.5. finalise, prepare and submit the claim for R&D tax relief, to be included within the relevant tax computation and CT600, and send to the Client and/or its accountant (if one is appointed) to file with HMRC (the “Submission(s)”);and                                                                                                                                                                                                                   2.3.6. respond to and advise on the appropriate responses to any enquiries from HMRC relating to the Submission(s) within the applicable statutory enquiry window. 

3 Client Obligations

3.1. The Client shall:
3.1.1. provide a letter of authority, permitting the Advisor to progress the Submission(s) and discuss matters relating to such Submission(s) with HMRC;
3.1.2. make available promptly at the Advisor’s reasonable request all necessary information, documents, records and assistance of employees, required for the purposes of satisfying the Contract and ensure that all such information, documents and records are accurate and complete;
3.1.3. notify its accountants of this Contract and provide the Advisor with details of the accountants if they will be responsible for submitting the Submission(s) on the Client’s behalf;
3.1.4. not appoint or engage any third party to provide any services that are similar to the Services in place of or in addition to the Advisor for the duration of the Contract;
3.1.5. promptly notify the Advisor of any technical or financial reviews of the Client by HMRC, providing copies of assessments and correspondence to the Advisor; and
3.1.6. be responsible for verifying the accuracy and completeness of the information contained in the Submission(s) prior to submission to HMRC.
3.2. The Advisor shall not be responsible if and to the extent that the performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its officers, agents, subcontractors, consultants, accountants or employees.

4 Fees & Payment

4.1. The Client shall pay the Advisor the Fee in respect of each Submission.
4.2. The Advisor shall invoice the Client for the Fee once the Client and/or the Advisor have received confirmation from HMRC that the Submission(s) have been processed and accepted by HMRC.
4.3. The Client shall pay the Advisor’s invoice as follows:
4.3.1. where a Payable R&D Tax Credit or Corporation Tax Refund is claimed, within 7 days of (a) receipt of such funds by the Client; or (b) immediately upon HMRC’s confirmation of the available credit being offset against any other outstanding tax liabilities of the Client;
4.3.2. in all other circumstances, within 30 days from the date of the Advisor’s invoice. This includes the future benefit of carrying forward losses as a result of the Submission(s).
4.4. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Advisor any sum due under the Contract on the due date:
4.4.1. the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
4.4.2. the Advisor may suspend all or part of the Services until payment has been made in full.
4.5. All amounts payable to the Advisor in connection with the Contract are exclusive of VAT which shall be additionally charged at the appropriate rate.
4.6. In the event that HMRC confirms that no R&D tax relief is due to the Client in connection with the Submission(s), no fee shall be payable by the Client to the Advisor, unless otherwise set out in the Contract.
4.7. From time to time, the Advisor may agree to provide additional services to the Client, outside the scope of the Contract. In this event, the scope of such additional work shall be agreed between the Advisor and the Client.
4.8. In the unlikely event of an adjustment initiated by HMRC which reduces the amount of the relief, the Advisor agrees, after confirmation of the same, to refund that part of the Fee that relates to the amount adjusted.

5 Termination

5.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
5.1.1. the other party commits a material breach of any term of the Contract and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
5.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
5.1.3. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
5.1.4. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
5.2. The provisions of clauses 5.3 to 5.5 (as applicable) shall apply if, at any time (i) the Client decides that it no longer wishes to proceed with the Services under the Contract and notifies the Advisor of that; or (ii) the Client fails to engage with the Advisor and provide instructions in order for the Advisor to complete the submission process.
5.3. If the Client does not proceed once the Advisor has carried out the initial review of the Client’s activities and expenditure in respect of the relevant Accounting Period and undertaken the technical interviews and prepared an initial draft of the Technical Report, the Client shall be liable to pay the Advisor a termination fee of £1,000 excluding VAT together with any reasonably and properly incurred expenses for travel and mileage within 30 days of the date of the Advisor’s invoice.
5.4. If the Client does not proceed once the Technical Report, R&D Costing Schedule and draft Submissions have been completed in respect of an Accounting Period, the Client shall be liable to pay a termination fee equal to 20% of the total estimated Corporation Tax Benefit that the Client would have made as a result of the Submission(s) together with any interest thereon and any expenses reasonably and properly incurred, within 30 days from the date of the Advisor’s invoice.
5.5. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

 6 Intellectual Property

6.1. The Advisor shall retain all intellectual property rights in any deliverables, documents, products and materials provided by the Advisor to the Client in relation to the Services (the “Deliverables”). The Advisor grants the Client a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business.
6.2. The Client retains all intellectual property rights in any documents, information, items and materials provided by the Client to the Advisor in connection with the Services (the “Client Materials”). The Client grants the Advisor a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client.

7 Confidentiality

7.1. Each of the parties undertakes that it shall not at any time during the term of the Contract disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party without the prior approval of the other party except as permitted in this clause 7.
7.2. Each party may disclose the other party’s confidential information:
7.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 7; and                                                                                                                                                                                                                                          7.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3. Without prejudice to the generality of the foregoing, the Client acknowledges and agrees that the Advisor may disclose the Client’s confidential information to HMRC in connection with the performance of its obligations under the Contract.
7.4. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

 8 The Advisor’s Responsibilities

8.1. In performing its obligations under the Contract, the Advisor shall comply with all applicable laws, statutes and regulations from time to time in force.
8.2. The Advisor shall use its reasonable endeavours to provide the Services and will exercise all reasonable care and skill in doing so. The Advisor will ensure that the completed reports/Submissions are provided to the Client or its accountants at least 5 business days prior to the deadline for submission to HMRC to ensure that there is time for the claim to be submitted. The Advisor reserves the right to refuse to proceed with a Submission and terminate this Contract if the Advisor is not satisfied with the accuracy and/or extent of the information being provided by the Client.
8.3. The Advisor cannot and does not guarantee or give any commitment that the Projects identified by the Advisor and any Submissions for relief made on behalf of the Client will be declared eligible by HMRC and qualify for R&D tax relief.
8.4. Save in respect of clause 8.2, any estimates or timescales given are approximate only.
8.5. The Advisor shall not be required to verify the accuracy or completeness of the Client Materials or any other information supplied by and submitted by the Client in connection with the Services including without limitation in connection with the Technical Report and Costings Schedule. The Client will be required to confirm acceptance of the Submission(s) prior to it being submitted in final form to the Client or its accountants for onward submission to HMRC.

9 Liability and Insurance

9.1. Nothing in the Contract limits any liability which cannot legally be limited or excluded by law, including liability for:
9.1.1. death or personal injury caused by negligence;
9.1.2. fraud or fraudulent misrepresentation; and
9.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2. Subject to clause 9.1, 9.3 and 9.4, the Advisor shall in no circumstances whatsoever be liable to the Client for any loss of profit, loss of sale or business, loss of agreements, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or any indirect, special or consequential loss arising under or in connection with the Contract.
9.3. The Advisor’s total liability to the Client in respect of all other losses, claims or damages arising under or in connection with the Contract, shall in no circumstances exceed the total fees paid by the Client for the Services under the Contract as at the date of the matter giving rise to the claim. In the event that no fees are paid for the Services but there is a claim by the Client in respect of the Technical Report and/or Costings Schedule, the Client’s sole remedy is the modification, amendment, rectification or repeat of the Technical Report and/or the Costings Schedule.
9.4. The Advisor shall have no liability resulting from (i) any failure by the Client’s accountant to submit the submission to HMRC (provided that it complies with clause 8.2 above) (ii) the information provided by the Client’s personnel in connection with the production of the Technical Report and/or Costings Schedule.
9.5. The Advisor shall, for the duration of the engagement, maintain in force with a well-established insurance company of repute appropriate insurance policies to cover all the normal risks arising in the course of providing the Services.

10 Force Majeure

10.1. A “Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; and any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party).
10.2. Neither party (“the Affected Party”) shall be liable for any of its obligations under the Contract where it is hindered or prevented from carrying out those obligations by a Force Majeure Event provided that the Affected Party shall promptly notify the other party (“the Non-affected Party”) in writing of the reason for the delay and the likely duration of the delay. In the event that the Force Majeure Event continues for an uninterrupted period of 30 days or longer, the Non-affected Party may provide the Affected Party with notice in writing terminating the Contract with immediate effect.

11 Data Protection

11.1. Both parties will comply with all applicable requirements of all data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 (“Data Protection Legislation”). This clause 11 (Data protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Advisor is the processor. The Advisor will process any personal data only for as long as required under the Contract and for the purpose of fulfilling its obligations under the Contract.
11.3. The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Advisor for the duration and purposes of the Contract.
11.4. Without prejudice to the generality of clause 11.1, the Advisor shall, in relation to any personal data processed in connection with the performance by the Advisor of its obligations under the Contract:
11.4.1. process that personal data only on the documented written instructions of the Client unless the Advisor is required by applicable law to otherwise process that personal data;
11.4.2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
11.4.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
11.4.4. not transfer any personal data outside of the United Kingdom and the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
11.4.4.1. the Client or the Advisor has provided appropriate safeguards in relation to the transfer;
11.4.4.2. the data subject has enforceable rights and effective legal remedies;
11.4.4.3. the Advisor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
11.4.4.4. the Advisor complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
11.4.5. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.4.6. notify the Client without undue delay on becoming aware of a personal data breach                                                                                                                                                    11.4.7. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by applicable law to store the personal data; and
11.4.8. maintain records and information to demonstrate its compliance with this clause 11 and immediately inform the Client if, in the opinion of the Advisor, an instruction infringes the Data Protection Legislation.
11.5. The Client does not consent to the Advisor appointing any third party processor of Personal Data under the Contract.
11.6. Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

12 Assignment

12.1 The Contract is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
12.2 The Advisor may assign or deal in any other manner with any of its rights under the Contract or any part of it to any third-party.

13. Counterparts

The Contract may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

14. No Partnership or Agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

15. Notices
Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand, by pre-paid first-class post or other next working day delivery service, or by pre-paid airmail at its registered office or such other address as notified in writing by the other party.

16. Governing Law and Jurisdiction

16.1. The Contract shall be governed by and construed in accordance with English and Welsh law. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with the Contract.
16.2. The Contract constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further agreement in writing signed by the parties hereto.

17. Acceptance
In the absence of a signed Contract, the continuing instructions from the Client amount to acceptance of the terms and conditions of the Contract.