Terms Of Business: Detail

RiskMelder LLP

14 Sellers Hall Close

Finchley N3 1JL

London, United Kingdom

Company No. OC454170 

Tel.  +44 203 488 5820 

1. The Agreement and the parties 

1.1. The letter of engagement (“Letter of Engagement”) and any appendices and any subsequent changes subject to clause 2.4 as well as these Terms of Engagement collectively constitute the agreement (“the Agreement”) between the client and RiskMelder. 

1.2. The parties to the Agreement shall be RiskMelder and the client, and neither may assign or transfer rights or obligations under the Agreement or part of such Agreement to any other party without prior written approval by the other party. 

1.3. RiskMelder may engage other firms to assist in the provision of the service under the Agreement. When another firm assists RiskMelder in providing the service, RiskMelder shall be responsible for such service in all respects. The client’s contractual arrangement is with RiskMelder only, which has committed itself in relation to the client to providing the service agreed. 

1.4. When entering into the Agreement with RiskMelder, the client shall accept that in case of any disagreement between RiskMelder and the client about the Agreement entered into or the service provided under such Agreement, the client may only advance a claim or take legal steps against RiskMelder – and not against any other firms.

1.5. In the event of any inconsistencies between the terms stated in the Letter of Engagement and these Terms of Engagement, the Letter of Engagement shall supersede the Terms of Engagement. 

1.6. The client’s indication of special terms in tender documents, orders or in their own terms of engagement shall not be considered a departure from the Agreement and the terms below unless RiskMelder has accepted such special terms in writing.

2. Scope and performance of the engagement 

2.1. The service provided by RiskMelder (“the service”) is described in the Letter of Engagement.

2.2. RiskMelder will endeavour to provide the service in accordance with any schedule prearranged between the parties. Unless the client and RiskMelder specifically and in writing have agreed on a final time of delivery, all dates stated by RiskMelder, for example in the Letter of Engagement, shall be estimates only.

2.3. RiskMelder shall not be obliged to update recommendations, conclusions, reports, presentations or other products, either orally or in writing, once these records have been handed over in their final form to the client. 

2.4. Any increase or reduction in the scope of the service arranged shall be agreed to in writing by the parties. Any such work as RiskMelder may perform in relation to the change in the scope of the engagement shall be governed by the Agreement and the terms therein, however, subject to any adjustment of RiskMelder’s fees and the schedule.

3. Co-operation 

3.1. The parties shall keep each other informed about any material circumstances relating to the performance of the engagement. 

3.2. The client shall appoint a qualified person to make decisions at management level with respect to the Agreement. 

3.3. The client shall co-operate in good faith with RiskMelder in performing the engagement, and this shall include timely arrangements for RiskMelder’s access to all of the client’s data, information and staff as is necessary for providing the service agreed, and inform RiskMelder immediately of any proposals, developments or other circumstances or issues which in the opinion of the client are material to RiskMelder’s performance of the engagement and RiskMelder’s provision of the service agreed.

4. Confidentiality

4.1. The parties shall be under a mutual duty to safeguard the confidentiality of all material, records and information about the other party as well as all information received from the other party in connection with the performance of the engagement. 

4.2. This stipulation on confidentiality shall not apply to material, records and information (i) which are known to the public, (ii) with which the recipient is already familiar, (iii) which have been passed on by any third parties without restrictions, (iv) which have been developed separately, (v) which have been disclosed pursuant to a legal requirement or a court order or (vi) these undertakings will not apply where reporting would otherwise be required under applicable laws relating to mandatory reporting of cross-border tax arrangements, including local laws implementing DAC6, or equivalent. 

4.3. Irrespective of the stipulation stated in clause 4.1., RiskMelder shall be entitled to pass on the client’s confidential information and material to the firm(s) and other relevant third parties assisting in the provision of the service or when this is necessary in order to attend to the client’s interests. 

4.4. Neither the client nor RiskMelder shall mention the other party or the service in public without such party’s prior written consent. 

4.5. After the time of delivery of the service, RiskMelder shall be entitled to refer to the client and the engagement in good faith by using the name and logo of the client, for example, when submitting proposals or presentations, or during training, unless the client explicitly so forbids. 

4.6 RiskMelder may retain copies of documents and files provided by the client in connection with the services for the purposes of compliance with professional standards and internal retention policies, subject to the obligations of confidentiality set out in this clause 4. Any documents and files retained by RiskMelder on completion of the services (including documents legally belonging to the client) may routinely be destroyed in accordance with RiskMelder’s policies applying from time to time.

5. Personal data 

5.1. This clause 5 is not applicable when RiskMelder is a data processor on behalf of the client, in which case the data processing will be governed by a specific data processing agreement between the parties. 

5.2. RiskMelder respects its clients’ expectations of privacy and confidentiality. Accordingly, RiskMelder collects and processes personal data in accordance with applicable legislation, including, but not limited to the EU General Data Protection Regulation (GDPR. 

5.3. RiskMelder may use data processors as suppliers to store and process personal data received from the client or its representatives or from other firms or other sources. Furthermore, RiskMelder may disclose personal data to other firms and other relevant third parties assisting with the provision of the service or when this is necessary in order to attend to the client’s interests and/or to deliver the services as agreed. 

5.4. When the client provides RiskMelder with personal data on a third party, it is the responsibility of the client to ensure that the client is entitled to disclose such personal data to RiskMelder.

5.5. At our website www.RiskMelder.com, RiskMelder provides a privacy notice to individuals, with whom RiskMelder has no direct contact, e.g. the client’s employees, clients and other relations. As a client, you should refer your employees, clients and other relations to this privacy notice. 

6. Electronic communication 

6.1. Unless otherwise stipulated in the Agreement, both parties shall agree to use electronic communication through such means as e-mailing of all documents and messages of relevance to this Agreement. 

6.2. The parties shall accept that electronic communication is neither completely safe nor stable and that data may be destroyed, that messages may not always be delivered immediately (if at all) or be brought to the knowledge of third parties. 

6.3. Electronic communications are prone to contamination by computer viruses. Each party shall be responsible for protecting their own systems and interests. RiskMelder shall not be responsible to the client for any loss or damage in any way arising from RiskMelder’s use of the Internet or the client’s network, applications, electronic data or other systems.

7. Conflict of interest

7.1. It is the practice of RiskMelder to check for conflicts of interest before accepting an engagement. RiskMelder provides many different professional services to clients, and RiskMelder cannot guarantee prompt identification of all situations in which a conflict with the client’s interests may exist, although RiskMelder will make a reasonable effort to do so. 

7.2. Should the client be or become aware of possible conflicts of interests that may affect the engagement, RiskMelder urges that the client notify RiskMelder thereof without undue delay. 

7.3. If a potential or actual conflict of interest has been identified, and RiskMelder believes that the interests of the client may be adequately safeguarded through the implementation of relevant procedures, RiskMelder will discuss and agree such procedures with the client.

8. Fees, expenses and terms of payment 

8.1. RiskMelder’s fees for performing an engagement shall be calculated in accordance with the Letter of Engagement. 

8.2. If, prior to commencement of the work, no arrangement has been made with the client about the fee to be charged, the fee shall be charged on a time basis using the hourly rates fixed at any time relating to those partners and employees who performed the engagement. 

8.3. Any fee specified by RiskMelder upon formation of the Agreement shall reflect an estimate based on the assumptions stated by the parties in the Letter of Engagement. As a consequence, even though a fixed fee has been agreed for the service, RiskMelder shall in the following situations be entitled to charge a fee for the extra time it has to invest in providing the service if, after the formation of the Agreement, it becomes evident that (a) the assumptions for providing the service have changed, or (b) the assumptions for providing the service proved incorrect or inadequate, and the circumstances in (a) and (b) may be put down to the client. If the service agreed is expanded or reduced, please refer to clause 2.4 of these Terms of Engagement. 

8.4. Any expenses or outlays relating to the engagement, including reasonable travelling expenses, accommodation, subsistence allowances, publications, data, etc shall be paid by the client in addition to the fee. Any fees to external advisors or specialists engaged by the client shall be paid directly by the client and shall be of no concern to RiskMelder. 

8.5. Any fees to sub-service providers engaged by RiskMelder are not included in RiskMelder’s fee and shall be charged to the client as ordinary outlays. 

8.6. The terms of payment are net cash from the date of invoice. Upon payment after 14 days, interest shall be charged in accordance with the rules of the Late Payment of Commercial Debts (Interest) Act 1998 or any subsequent updates prior to the signing of the Letter of Engagement.

9. Rights 

9.1. Each party shall maintain the rights existing prior to the commencement of the engagement, irrespective of whether these rights form part of the service, and no party shall gain any right to the other party's rights existing prior to the Agreement. 

9.2. RiskMelder shall have the right of ownership of any intellectual property rights, products and material arising from the rendering of the service. 

9.3. The client shall be entitled to use the service rendered pursuant to the Agreement in-house in its own organisation. The right of use, however, shall not include any models or methods or similar means which have been applied in connection with the rendering of the service and which are the property of RiskMelder. 

9.4. The service provided by RiskMelder to the client may not be passed on to any third parties. The service may be applied for own use only and for the purpose specified in the Letter of Engagement, unless otherwise consented to by RiskMelder in writing, or if English law or any judicial decision orders/allows the client to do so. 

9.5. RiskMelder shall assume no responsibility or obligations if the service is used for any purpose other than that outlined in the Letter of Engagement.

10. Breach of agreement 

10.1. If either party materially defaults on their obligations pursuant to the Agreement and/or these Terms of Engagement, the other party shall be entitled to terminate the Agreement. 

10.2. If the client defaults on its payment obligations, RiskMelder shall be entitled to terminate the Agreement. 

10.3. However, the Agreement may be terminated only if the breach of agreement has not been rectified 14 days after submission of a written default notice. The default notice shall state the cause of breach and that the Agreement will be terminated if the breach has not been rectified before expiry of the notice period. 

10.4. In case of material breach of the Agreement, a party shall be entitled to compensation pursuant to the general rules of English law. However, see clause 11 on limitation of responsibility.

11. Limitation of responsibility

11.1. RiskMelder shall be responsible for the service rendered under the Agreement in accordance with the general rules of English law. RiskMelder shall not be liable for an amount in excess of the aggregated fees paid by the client under the Agreement to RiskMelder for the part of the services giving rise to the claim. 

11.2. RiskMelder shall assume no responsibility for any indirect loss or consequential damage, including loss of goodwill, image, earnings, profit or data. 

11.3. RiskMelder shall not be held responsible for any claims that might arise as a result of false, misleading or incomplete information, data or documentation furnished by other parties than RiskMelder. 

11.4. In connection with the preparation of any recommendation, conclusion, report, presentation or any other product as part of the service, RiskMelder shall have the right to orally discuss ideas with the client or to present a draft of such products to the client. RiskMelder shall not be held responsible for the content of any oral reports or draft products that are subsequently to be replaced by final products. 

11.5. RiskMelder shall assume no responsibility in respect of any other parties (including third parties) who benefit from, use or gain access to the service provided by RiskMelder. The client shall undertake to compensate RiskMelder for obligations, losses, expenses or other costs that RiskMelder may reasonably incur in connection with claims from such other parties and claims against RiskMelder attributable to the client’s defaulting on the Agreement. 

11.6. The limitation of responsibility under the Agreement shall apply to all firms as if they were direct parties to the Agreement.

11.7. When performing audit, review or attest services that are subject to the US Public Company Accounting Oversight Board (“PCAOB”) and/or US Securities and Exchange Commission (“SEC”) rules or professional standards, any clauses that result in a limitation of RiskMelder’s liability do not apply.

12. Termination of the Agreement

12.1. If the service is an audit engagement, it may be terminated in accordance with the rules effective in this area. 

12.2. Unless otherwise agreed, and subject to clause 12.1, both parties shall be entitled to terminate the Agreement at one month’s notice. The termination shall be presented in writing.

12.3. Notwithstanding anything else stated herein, RiskMelder may without being in default terminate this Agreement in whole or in part, with immediate effect upon written notice to client if RiskMelder determines that RiskMelder’s performance of any part of this Agreement due to law, regulation, change in circumstances (including, without limitation, changes in ownership or control of client) will imply that RiskMelder’s performance of any part of the Agreement will be illegal or otherwise unlawful or in conflict with independence rules applicable to RiskMelder. 

12.4. When terminating the Agreement, the client shall pay RiskMelder for the services provided until the termination and/or any unsettled hours used and costs and outlays incurred, as well as any reasonable expenses that RiskMelder may incur as a result of the termination. 

12.5. Unless the Agreement is terminated prematurely in accordance with the above, it shall terminate when the service has been provided. 

12.6. Any provisions of the Agreement that – either explicitly or by nature – extend beyond the date of termination shall continue to apply after the termination of the Agreement irrespective of the above.

13. Force Majeure

13.1 Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or other casualty, act of God, epidemic, pandemic, strike or labour dispute, war or other violence, or any law, order, sanctions or other requirements of any governmental agency or authority.

14. Anti-corruption 

14.1 RiskMelder understands that the client maybe subject to laws that prohibit bribery and/or providing anything of value to government officials with the intent to influence that person’s actions in respect of the client. RiskMelder may be subject to similar laws and codes of professional conduct and has its own internal policies and procedures which prohibit illegal or unethical behaviours. In providing the services, RiskMelder undertakes not to offer, promise or give financial or other advantage to another person with the intention of inducing a person to perform improperly or to reward improper behaviour for the benefit of the client, in each case, in violation of applicable law.

15. Export control and Sanctions laws and restrictions 

15.1. Each party shall comply with all economic, trade or financial sanctions, export control, and import laws and regulations applicable to it in (or having an impact on) providing and receiving the services under the Agreement. Each party warrants that (i) the party is not subject to the EU, UK, UN or US sanctions applicable from time to time (the “Sanctions”), nor (ii) is the party directly or indirectly controlled by, or 25% or more owned by, nor (iii) does the party receive the majority of its revenues from, any entity or individual being subject to the Sanctions. A party shall inform the other party if there is any change in the party’s conditions, subject to this clause 15.1 

15.2. Client shall ensure that: (i) no entity or individual being subject to the Sanctions; and (ii) no entity or individual being located and/or established in any country, region or annexed area being subject to the Sanctions (“Sanctioned Areas”), shall in any way have access to, receive, use, implement and/or benefit from the services; and (iii) no services which are classified as banned services under the Sanctions from time to time will be provided for the direct or indirect benefit of entities or individuals incorporated, domiciled, located, or ordinarily resident in any Sanctioned Areas. 

15.3. Any breach of a party’s obligations under this clause 15 shall constitute a material breach, which gives the other party the right to suspend the performance of the services (in whole or in part) and/or terminate the Agreement with immediate effect upon written notice to the party in breach.

16. Applicable law and venue

16.1. Any disagreement or dispute arising between the parties on the interpretation of the Agreement and/or these Terms of Engagement shall be settled by application of English law before English courts.