Clarke Engagement Terms

TERMS AND CONDITIONS

 

INTRODUCTION

1) These terms and conditions set out the general terms under which we undertake our business. The specific conditions relating to particular assignments will be covered in this Letter of Engagement Letter and your Monthly Subscription Pricing Agreement.

APPLICABLE LAW

2) This engagement shall be governed as to validity, interpretation, construction, effect and in all other respects by the laws and decisions of the State of Illinois.

AUTHORIZATION AND REGISTRATION

3) Any individual performing services for our firm and bearing the designation “CPA” is a Certified Public Accountant, registered with the Board of Accountancy.

COMMISSIONS OR OTHER BENEFITS

4) In some circumstances, commissions or other benefits may become payable to us in respect of transactions which we arrange for you. Where this happens, we will notify you in writing of the amount and terms of payment. The same will apply where the payment is made to or transactions are arranged by a person or business connected with ours.

COMMUNICATION

5) Unless you instruct us otherwise, we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments.

6) With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties. We use virus-scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However electronic communication is not totally secure, and we cannot be held responsible for damage or loss caused by viruses nor for communications which are corrupted or altered after dispatch. Nor can we accept any liability for problems or accidental errors relating to this means of communication especially in relation to the commercially sensitive material. These are risks you must bear in return for greater efficiency and lower costs. If you do not wish to accept these risks please let us know and we will communicate by paper mail, other than where electronic submission is mandatory.

CONFIDENTIALITY

7) Communication between us is confidential and we shall take all reasonable steps to keep confidential your information except where we are required to disclose it by law, by regulatory bodies, by our insurers, or as part of an external peer review. Unless we are authorized by you to disclose information on your behalf this undertaking will apply during and after this engagement.

8) We may, on occasion, subcontract work on your affairs to other tax or accounting professionals. The subcontractors will be bound by our client confidentiality terms.

9) We reserve the right, for the purpose of promotional activity, training, or for other business purpose, to mention that you are a client. As stated above we will not disclose any confidential information.

CONFLICTS OF INTEREST

10) We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client. Where conflicts are identified which cannot be managed in a way that protects your interests, we will resolve the conflict by finding one of the parties a substitute provider.

11) If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests, then we will adopt those safeguards. Where possible this will be done on the basis of your informed consent. We reserve the right to act for other clients whose interests are not the same as or are averse to yours subject of course to the obligations of confidentiality referred to above.

DISENGAGEMENT

12) Should we resign or be requested to resign a disengagement letter will be issued to ensure that our respective responsibilities are clear.

13) Should we have no contact with you for a period of 3 months or more we may issue a disengagement letter and consider the engagement terminated.

ETHICAL GUIDELINES

14) We are bound by the ethical guidelines of the Illinois Board of Accountancy and accept instructions to act for you on the basis that we will act in accordance with those ethical guidelines. We will not be liable for any loss, damage, or cost arising from our compliance with statutory or regulatory obligations.

SUBSCRIPTION FEES

15) We operate on a basis of fixed fees, quoted in advance. Please refer to your Subscription Pricing/Fees Schedule for a breakdown of these. The initial fee agreed to will be on a trial basis for three months. After the three months have expired, we will review these fees, and if necessary, adjustments will be discussed with you in advance and be implemented by mutual consent.

Your subscription pricing will increase automatically by the higher of 5% or the COLA rate (published by the Social Security Administration) effective the 1st of August of the following year of this Engagement, and every 1st of August thereafter. You will be notified directly if an increase is greater than this amount due to a change in services provided.

All fees are considered earned when paid and are non-refundable.

16) In some cases, you may be entitled to assistance with your professional fees, particularly in relation to any investigation into your tax affairs by the IRS. Assistance may be provided through insurance policies you hold or via membership of a professional or trade organization. Other than where such assurance was arranged through us you will need to advise us of any such insurance coverage that you have. You will remain liable for our fees regardless of whether all or part will be paid by your insurers.

17) Work that is not included in the monthly subscription pricing will be progress billed, and our invoices are due for payment upon receipt. Any expenses we incur on your behalf and expenses incurred in the course of carrying out our work for you will be added to our invoices where appropriate.

18) Unless otherwise agreed to the contrary our fees do not include the costs of any third party, legal, or other professional fees.

19) It is our normal practice to require clients to pay by completion of the ad hoc scope of work being completed before any submission to any tax agency is made.

20) We reserve the right to charge interest on late paid invoices at the rate of 5% per annum. We also reserve the right to suspend our services or to cease to act for you on giving written notice if payment of any fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.

21) If you do not accept that an invoiced fee is fair and reasonable, you must notify us in writing within 21 days of receipt, including a detailed explanation of the reasoning of your non-acceptance. Failing to do so will be deemed as acceptance.

INTELLECTUAL PROPERTY RIGHTS

22) We will retain all copyright in any document prepared by us during the course of carrying out the engagement save where the law specifically provides otherwise.

INTERPRETATION

23) If any provision of the engagement letter or schedules is held to be void, then that provision will be deemed not to form part of this contract.

24) In the event of any conflict between these terms of business and the engagement letter or appendices, the relevant provision in the engagement letter or schedules will take precedence.

LIMITATION OF LIABILITY

25) We will provide our services with reasonable care and skill. Our liability to you is limited to losses, damages, costs, and expenses caused by our negligence or willful default.

26) Exclusion of liability for loss caused by others

We will not be liable if such losses, penalties, surcharges, interest, or additional tax liabilities are due to the acts or omissions of any other person or due to the provision to us of incomplete, misleading, or false information or if they are due to a failure to act on our advice or a failure to provide us with relevant information.

27) Exclusion of liability in relation to circumstances beyond our control

We will not be liable to you for any delay or failure to perform our obligations under this engagement letter if the delay or failure is caused by circumstances beyond our reasonable control.

28) Exclusion of liability relating to the discovery of fraud, etc.

We will not be responsible or liable for any loss, damage, or expense incurred or sustained if information material to the service we are providing is withheld or concealed from us or wrongly misrepresented to us or from fraudulent acts, misrepresentation or willful default on the part of any party to the transaction and their directors, officers, employees, agents, or advisers. This exclusion shall not apply where such misrepresentation, withholding or concealment is or should (in carrying out the procedures which we have agreed to perform with reasonable care and skill) have been evident to us without further inquiry.

29) Indemnity for unauthorized disclosure

You agree to indemnify us and our agents in respect of any claim (including any claim for negligence) arising out of any unauthorized disclosure of our advice and opinions, whether in writing or otherwise. This indemnity will extend to the cost of defending any such claim, including payment at our usual rates for the time that we spend in defending it.

30) Limitation of aggregate liability

You have agreed that you will not bring any claim of a kind that is included within the subject of the limit against any of our principals or employees, on a personal basis.

NOTIFICATION

31) We shall not be treated as having notice, for the purposes of our payroll, reporting, and tax responsibilities, of information provided to members of our firm other than the principal in charge and/or the person responsible for the specific assignment (for example, information provided in connection with accounting, taxation, and other services).

PERIOD OF ENGAGEMENT AND TERMINATION

32) Unless otherwise agreed, we will not be responsible for periods before the date specified in an accepted proposal and/or letter of engagement.

33) After 1 year from the signature of this agreement or a previous agreement which contained the “Early Termination” clause, each of us may terminate this agreement by giving not less than 21 days’ notice in writing to the other party except where you fail to cooperate with us or we have reason to believe that you have provided us or the IRS with misleading information, in which case we may terminate this agreement immediately. Termination will be without prejudice to any rights that may have accrued to either of us prior to termination.

Early Termination: If Client terminates this agreement within 1 year from the initial signature date, Client agrees to pay the prorated balance of 1 year of monthly fees. The calculation is: 12 months minus number of months of active contract before termination. If a catastrophic event occurs preventing either party from fulfilling their obligations during this period, this clause and the termination fee are both null and void.

34) In the event of termination of this contract, we will endeavor to confirm with you the arrangements for the completion of work in progress at that time, unless we are required for legal or regulatory reasons to cease work immediately. In that event, we shall not be required to carry out further work and shall not be responsible or liable for any consequences arising from termination.

QUALITY OF SERVICE

35) We aim to provide a high quality of service at all times. If you would like to discuss with us how our service could be improved, or if you are dissatisfied with the service that you are receiving, please let us know as soon as possible by contacting Eric Fisher.

36) We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If we do not answer your complaint to your satisfaction, you may take up the matter with the Board of Accountancy.

RELIANCE ON ADVICE

37) We will endeavor to record all advice on important matters in writing. Any advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral advice (for example during the course of a meeting or a telephone conversation) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.

RETENTION OF RECORDS

38) You have a legal responsibility to retain documents and records relevant to your tax affairs. During the course of our work, we may collect information from you and others relevant to your affairs. We will return any original documents to you if requested.

39) It is our policy to retain engagement documentation for a period of seven years, after which time we will commence the process of destroying the contents of our engagement files. To the extent we accumulate any of your original records during the engagement, those documents will be returned to you promptly upon completion of the engagement, and you will provide us with a receipt for the return of such records. The balance of our engagement file, which we will provide to you at the conclusion of the engagement, is our property, and we will provide copies of such documents at our discretion and if compensated for any time and costs associated with the effort.

THIRD PARTY

40) Any advice we give you will be supplied on the basis that it is for your benefit only and shall not be disclosed to any third party in whole or part without our prior written consent. It may not be used or relied upon for any other purpose or by any other person other than you without our prior written consent. If our advice is disclosed to any third party (with or without our consent), then we accept no responsibility or liability to that third party for any consequences that may arise to them, should they rely on the advice.

41) If it is proposed that any documents or statement which refer to our name, are to be circulated to third parties, please consult us before they are issued.

TIMETABLE

42) The services we undertake to perform for you will be carried out on a timescale to be determined between us on an ongoing basis.

43) The timing of our work will in any event be dependent on the prompt supply of all information and documentation as and when required by us.

LEGAL PROCEEDINGS

44) In the event we are required to respond to a subpoena, court order or other legal process for the production of documents and/or testimony relative to information we obtained and/or prepared during the course of this engagement, you agree to compensate us at our standard hourly rates then existing for the time we expend in connection with such response, and to reimburse us for all of our out-of-pocket costs incurred in that regard. Except for any failure on our part to comply with professional standards.

45) In the event that we become obligated to pay any judgment, fine, penalty, or similar award or sanction; agree to pay any amount in settlement; and/or incur any costs, as a result of a claim, investigation, or other proceeding instituted by any third party, including any governmental or quasi-governmental body, and if such obligation is a direct or indirect result of any inaccurate or incomplete information that you provide to us during the course of this engagement, whether intentionally or negligently, and not any failure on our part to comply with professional standards, you agree to indemnify us, defend us, and hold us harmless as against such obligations, agreements, and/or costs.

CONSENT TO DISCLOSURE OF TAX RETURN INFORMATION

45) Federal law requires this consent form be provided to you. Unless authorized by law, we cannot disclose your tax return information to third parties for purposes other than those related to the preparation and filing of your tax return without your consent. If you consent to the disclosure of your tax return information, Federal law may not protect your tax return information from further use or distribution.

46) You are not required to complete or sign this form. Because our ability to disclose your tax return information to another Company and its employees affects the bookkeeping, accounting, and tax return preparation services that we provide to you and their cost, we may decline to provide you with these services or change the terms (including the cost). If you agree to the disclosure of your tax return information and sign this form, your consent is valid for the time that you specify. If you do not return this form with your signature, the duration of your implied consent is valid for one year.

47) This consent to disclose may result in your tax return information being disclosed to a Company and its employees located outside the United States, including your personally identifiable information such as your Social Security Number (“SSN”). Clarke Professional Accounting, LLC, in the United States will disclose your SSN, and the Company located outside the United States that will receive your SSN, maintain an adequate data protection safeguard (as required by the regulations under 26 U.S.C. Section 7216) to protect privacy and prevent unauthorized access of tax return information. If you consent to the disclosure of your tax return information, Federal agencies may not be able to enforce U.S. laws that protect the privacy of your tax return information against the Company and its employees located outside of the U.S. to which the information is disclosed.

48) If you (and your spouse or partner) agree to allow Clarke Professional Accounting, LLC, (U.S. based firm) to disclose your tax return information, including your SSN, to the foreign entity or entities listed below for purposes of aiding in the preparation of your bookkeeping, accounting, and tax return preparation services, please sign and date your consent to the disclosure of your tax return information.

If you believe your tax return information has been disclosed or used improperly in a manner unauthorized by law or without your permission, you may contact the Treasury Inspector General for Tax Administration (TIGTA) by telephone at 1-800-366-4484, or by e-mail at complaints@tigta.treas.gov.