Terms & Conditions for Capital Allowance Claims Service
The Client’s attention is particularly drawn to the provisions of clause 7
In these Conditions, the following definitions apply:
Agreement means the agreement between Us and You for the supply of Services on the terms set out in the Engagement Letter and these Conditions;
Business Day means a day (other than a Saturday, Sunday, or public holiday) when banks in London are open for business;
Charges means the charges payable by the Client for the supply of the Services in accordance clause 4;
Conditions means these terms and conditions as amended from time to time in accordance with clause 9;
Client means the person or firm identified in the Engagement Letter;
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Services means the service of assessing and reporting on available Capital Allowances in respect of the Property;
STax (we, our or us) means EMW STax Limited.
1. Basis of Contract
1.1 Your instructions to us as set out in the terms of the Engagement Letter constitute your offer to purchase Services in accordance with these Conditions and are deemed to be accepted at the earlier of (i) you countersigning and returning a copy of the Engagement Letter or (ii) us commencing provision of the Services pursuant to your instructions.
1.2 The Engagement Letter together with these Conditions constitutes the entire agreement between the parties. You confirm that you have not relied on any statement, promise or representation made or given by or on behalf of STax which is not set out in the Engagement Letter or these Conditions.
1.3 Any descriptive matter or advertising is issued or published by us for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
1.4 No other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing shall apply to this Agreement or the provision of the Services.
2. Supply of Services
2.1 We warrant that the Services will be provided using reasonable care and skill.
2.2 We warrant that if HMRC challenge the qualification of any Capital Allowances identified by us within 6 years from the date of the report, we will provide reasonable assistance in contesting any such challenge and, subject to the exhaustion of all remedies available to you in respect of such challenge (and clause 7), refund the value of our Charges up to an amount equal to the difference between the Capital Allowance/s identified and those allowed by HMRC.
2.3 Notwithstanding clause 9, we retain the right to make any reasonable changes to the Services that are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall give you reasonable notice in any such event.
2.4 If we are providing the Services to you as an individual, under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you have the right to cancel your contract with us within 14 days of the date of our Agreement without giving a reason. For the purposes of this clause, where we refer to your contract, we mean the Agreement. You can cancel your contract by submitting a Model Cancellation Form, which can be found https://s-tax.co.uk/images/Cancellation%20Form.pdf before the expiry of the cancellation period. You are not required to use the Model Cancellation Form, but if you do not, you must make it clear that you are cancelling the contract before the expiry of the cancellation period.
By accepting the terms of our Agreement, you are instructing us to commence work for you straightaway. This means that we will be starting work during the cancellation period. You agree that even if you exercise your right to cancel your contract after we have commenced work, you must pay our fees for the work carried out up to the point that you exercise your right to cancel.
2.5 For the avoidance of doubt, unless specifically otherwise provided in the Engagement Letter, the Services do not include any steps in relation to sections 198 or 199 of the Capital Allowances Act 2001 (as amended).
3. Your Obligations
3.1 You shall:
3.1.1 co-operate with us in all matters relating to the Services;
3.1.2 provide us, our employees, agents, consultants and subcontractors, access to your premises, office accommodation and other facilities as reasonably required by us for the performance of the Services;
3.1.3 provide us, at your expense, with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
3.1.4 take such steps and perform such functions (and cause any relevant third parties to take steps and perform functions) as are necessary to the performance of the Services (including but not limited to ensuring that your Accountant submits the claim); and
3.1.5 take appropriate professional advice on the disposition or allocation of Capital Allowances identified by us.
3.2 If performance of any of our obligations under the Agreement is prevented or delayed by any act or omission by you (“Default”):
3.2.1 we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Default, and to rely on the Default to relieve us from the performance of any of our obligations to the extent the Default prevents or delays the performance of any of our obligations;
3.2.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from a failure or delay by us to perform any of its obligations as set out in this clause 3.2; and
3.2.3 You shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Default.
4. Charges & Payment
4.1 In exchange for providing the Services, where they are identified in our report, we shall be entitled to the following:
4.1.1 a fee based on the percentage in the Engagement Letter of the value of any previously un-pooled Capital Allowances eligible expenditure or Capital Expenditure that can be reclassified as a revenue expense included in our report but subject to a minimum fee of £1,500 (plus VAT).
4.1.2 a fee equal to 1% (plus VAT) of the expenditure identified as eligible for SBA in our report.
4.1.3 As part of our Capital Allowance work, we will also check the Stamp Duty (SDLT) calculation. In some cases, relief can be missed during the conveyancing process. Should we discover you have overpaid Stamp Duty we will pursue the overpayment. We will charge a fee equal to 35% (plus VAT) of the overpayment successfully recovered. We shall issue our invoice upon agreement of the recovery of the overpayment from the third party. If after identifying the overpayment you then refuse to allow us to pursue a recovery from HMRC, the over payment identified will be deemed to have been recovered and STax’s fees due as a percentage of the deemed recovery.
(together the “Charges”).
4.2 In addition to the Charges, you will be responsible for:
4.2.1 discharging all 3rd party all 3rd party disbursements, which are specifically excluded from the terms of this engagement e.g., your Accountant’s and solicitor’s charges; and
4.2.2 additional fees from us based on our standard rate (i) if you provide us with additional information after we have completed our work which materially affects our the claim and/or our Charges, (ii) if there is a historic claim but we have to support a HMRC investigation on the value of the whole claim, (iii) for our work to support a HMRC investigation that does not related to our Services, and (iv) for producing elections.
4.2.3 our standard rates are as follows:
- Directors: £450.00 P/hr (Ex. VAT)
- Senior Managers: £350.00 £ P/hr (Ex. VAT)
- Managers: £250.00 £ P/hr (Ex. VAT)
- All other staff: £150.00 £ P/hr (Ex. VAT)
4.3 You shall pay each invoice submitted by us:
4.3.1 within 30 days of the invoice date; and
4.3.2 in full and in cleared funds to a bank account nominated in writing by us.
4.4 All amounts payable are exclusive of value added tax (“VAT”).
4.5 We may charge interest if you are late paying our invoices. This will be at the annual rate of 8% above the Bank of England base rate, from the date payment is due until payment is made.
4.6 You shall not be entitled to assert any credit, set-off or counterclaim in order to justify withholding payment of any such amount in whole or in part.
4.7 Our warranty provided to you in clause 2.2, is subject to neither you or your advisors undertaking any additional actions (beyond the normal submission of the STax report with the tax return) or taking any other steps which trigger or give rise to an HMRC enquiry into our work. Should such an investigation commence, we will be entitled to charge professional fees at our standard rates when dealing with matters relating to the investigation.
5. Intellectual Property Rights
All Intellectual Property Rights in documents, materials and information arising out of or in connection with the Services shall be owned, by us and our licensors.
6.1 Subject to the provisions of clause 6.2, a party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. This clause shall survive termination of the Agreement.
6.2 Notwithstanding the provisions of clause 6.1:
6.2.1 we reserves the right to gather and process personal data relating to you for the purposes of administration, statistical analysis, marketing, customer service and improving our services; in accordance with the Data Protection Act 2018 (DPA) and General Data Protection Regulation (EU) 2016/679 (GDPR).
6.2.2 we may share your information with business partners, who may contact you by post or e-mail, but only after we have sought your express consent prior to sharing your contact name and contract details with them.
7. Limitation of Liability
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Conditions shall limit or exclude either party’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors; fraud or fraudulent misrepresentation; or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clause 7.1:
7.2.1 we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
7.2.2 our total financial responsibility to you for each claim or series of connected claims arising under or connected with the Agreement will not exceed the fees paid by you to us during the Contract or £10,000 whichever is greater; and
7.2.3 we shall have no obligation to allocate Capital Allowances or liability arising from decisions made in respect of allocation of the same by you.
7.3 Except as set out in these Conditions, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement and this clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, each party may terminate the Agreement with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a material breach of the Agreement and fails to remedy that breach within 7 days of that party being notified in writing of the breach;
8.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
8.1.3 the other party commences negotiations with any class of its creditors relating to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
8.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration, or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
8.1.8 a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
8.1.10 any event occurs, or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.1.2 to clause 8.1.9 (inclusive); or
8.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business
8.2 Without limiting its other rights or remedies, we may terminate the Agreement with immediate effect by giving you written notice if you fail to pay any amount due under this Agreement on the due date for payment.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Agreement, shall only be binding when agreed in writing and signed by both parties.
10. Governing Law and Jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.