EFM Financial Management Limited is a private limited company registered in Ireland at 11 Cuan an Óir, Dungory West, Kinvara, Co Galway. Company number 605787.
For the purposes of this document, all references to ‘EFM’, ‘us’, ‘we’ and ‘the company’ shall refer to EFM Financial Management Limited.
The following General Terms should be read in conjunction with and, shall form part of, the Engagement Letter.
Fees and Invoicing
Fees (calculated and payable on a € basis unless agreed otherwise) are agreed on an individual basis taking into account the number and seniority of staff required, the degree of skill and responsibility involved and the resources required to complete the work. We will also charge for any disbursements incurred during the engagement and we will add VAT to charges and disbursements if applicable. Charges will be in units of half a day, unless agreed otherwise.
We will work closely with our clients and seek to agree bonuses with you where value has been delivered over and above the normal month to month service. As part of our acceptance process we will discuss with you a mechanism for measuring our performance and agreeing any bonus fees that will form part of our contract with you.
Our charges are reviewed annually unless agreed otherwise. A minimum of fourteen days notice will be given prior to any increase being implemented.
Please note that we may provide you with an estimate of our fees (as opposed to an agreed fixed fee). Any such fee estimate is not binding on us and by giving the estimate we are not agreeing to perform the services within a fixed time or for the estimated fee.
Any fee budget agreed with you is necessarily based on the assumption that the information required for our work is made available in accordance with agreed timetables, and that key executives and personnel are made available to us during the course of our work. If delays or other unanticipated problems that are beyond our control occur this may result in additional fees. We will advise you of any delays as they occur and will estimate their effect prior to commencing additional work.
It is not regarded as a normal part of our business, however in some circumstances, commissions or other benefits may become payable to us in respect of transactions we, or our associates, arrange on your behalf. In such circumstances, you will be notified of the amount and terms of any payment. Your consent to such commissions or other benefits being retained by us without our being liable to account to you for any such amounts is assumed by your agreement to our standard terms.
For recurring work, invoices will be submitted monthly with settlement arrangements by way of standing order, seven days after the invoice date. For other work, we will submit invoices on an interim basis as the work progresses. In such cases, invoices are payable upon presentation.
We shall be entitled to charge costs and interest at a rate of 8% above the current base rate (Bank of Ireland) on all invoices, which remain unpaid 28 days after presentation. In addition, we shall be entitled to suspend the provision of any services until settlement of any reasonable amounts due are received. The decision not to enforce this right when amounts become overdue, shall not limit our ability to subsequently enforce it.
We will provide the services described in our Engagement Letter (or such variations as may subsequently be agreed in writing between us) with reasonable skill and care and in a timely manner in accordance with the professional standard expected of us. We reserve the right to utilise the skills and resources of other individuals or organisations to perform services under the agreement, where it is deemed appropriate to the nature of the work.
The nature and content of any advice we provide will necessarily reflect the specific scope and limitations of our engagement, the amount and accuracy of information provided by you to us and the time-scale within which the advice is required. If at your request, we provide our advice in an abbreviated format or time-scale, you acknowledge that you will not receive all the information you would have done had we provided a full written report or had more time in which to carry out the work.
If general advice is provided, the applicability of this will depend on the particular circumstances in which it is to be used by you (of which we might not be aware) and should be viewed accordingly. In relation to any particular transaction, specific advice should always be sought and all material information provided to us. Our advice is provided for the purposes of this engagement and we disclaim any responsibility for the use of our advice for a different purpose or in a different context.
Unless otherwise directed by you, we will correspond by means of email, the Internet or other electronic media. Where we do so, whilst we will take reasonable steps to safeguard the security and confidentiality of the information transmitted, you acknowledge that we cannot guarantee its security and confidentiality. While it is our policy to check all correspondence with anti-virus software, we cannot guarantee that transmissions will be free from infection, and therefore we will not be liable to you for any loss or damage suffered by you resulting from any virus so transmitted unless such virus was introduced by our wilful misconduct.
In relation to all of our work for you it is your responsibility and that of your directors and employees to provide us with complete, accurate and timely information where we have requested this and to carry out any other obligations ascribed to you or others under your control. We will not be responsible for any consequences that may arise from any delay or failure by you to do so and these may also result in additional fees for which invoices may be raised.
You are responsible for any commercial decisions that you make (whether or not based on information we provide), and regard must be had to the restrictions on the scope of our work and to the large number of other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware by means other than our work.
Where we provide you with an on-site resource, whether as an employee or under third party arrangements, you will be responsible for their on-site safety, welfare and training under applicable health & safety legislation.
Information and confidentiality
We confirm that where you give us confidential information (including personal data) that we shall, subject to the following comments, undertake to keep it confidential and it will not be disclosed to
third parties except as may be necessary to provide the services for which we are engaged or authorised by you or as required by law.
The service that we provide to you includes a regular newsletter from EFM Financial Management Ireland trading as EFM Ireland, which will be sent to your employees, where you have given us their employee email addresses and they may also be invited to EFM events from time to time. Your employees are free to unsubscribe from this mailing list at any time.
There are a few specific circumstances when we may need to disclose your confidential information to third parties. For example, we may be required to do so by law, in which case we will disclose only the relevant information. Further, we do outsource some of our responsibilities (e.g. the preparation of a monthly payroll), and in this situation we may need to provide the external service provider with sufficient information to complete the task. If we propose to outsource any of our responsibilities we will tell you beforehand. We will also ensure that the external service provider is put under similar obligations of confidentiality in respect of your confidential information.
We may share your confidential information within the EFM Group, in particular with EFM Financial Management Limited (a company registered in Ireland, company number 605787) and EFM Financial Management Limited (a company registered in England, company number 06544210) to help us administer our service to you.
1 As part of performing the services agreed with you, we may come in to personal data being “data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller” (Personal Data), as defined in the DPA. Such Personal Data may include first name, last name, email address and contact information. It is not expected that you will pass sensitive personal data to us. The Data Subjects (as defined in the DPA) to who this Personal Data relates will be your directors and employees and the directors and employees of your clients/customers and potential clients/customers;
2 Where we are the Data Processor, we shall only process the Personal Data on your instruction, as the Data Controller, and/or in accordance with the DPA;
3 Where we are the Data Processor, we will take all measures required by the DPA in relation to the security of processing, including but not limited to implementing appropriate technical and organisational measures to protect Personal Data received from you as Data Controller;
4 Where you receive a subject access request which relates to Personal Data that has been passed to us, we agree that we will assist you in providing subject access and allowing data subjects to exercise their rights under the DPA;
5 Where we receive a subject access request from a Data Subject, we will notify you, without undue delay;
6 We shall delete or return all Personal Data to you, as requested, at the end of the contract;
7 We shall assist you in meeting your obligations under the DPA, as required by law, in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
8 We will notify you, without undue delay, in the event of a data security breach affecting the Personal Data being processed on your behalf, and
9 Where Personal Data has been passed to us we agree that we shall submit to audits and inspections and provide you with whatever information you need to ensure that the obligations under the DPA are being satisfied and shall tell the Data Controller immediately if we are asked to do something infringing the DPA.
If we misuse your confidential information (including Personal Data), thereby causing you loss, we shall be liable to you in accordance with these General Terms.
Without in any way detracting from the duty of confidentiality that we owe you, we reserve the right to act for your competitors or other clients, whose interests are or may be opposed to yours.
The reports, letters, information and advice we provide to you during this engagement are given in confidence solely for the purpose of this engagement 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, to any third party (being a party other than those to whom the report, letter, information or advice is addressed) without our prior written consent.
These Information and Confidentiality provisions shall survive termination of our engagement, however they shall cease where information enters the public domain other than by breach of these provisions.
Intellectual property rights
We retain all copyright and other intellectual property rights in everything developed by us either before or during the course of an engagement including systems, methodologies, software and know- how. We also retain all copyright and other intellectual property rights in all reports, written advice or other materials provided by us to you although you will have the full right to distribute copies of these materials within your own organisation. If you wish to distribute copies of these materials outside your own organisation this will require our permission.
Web site and its use
We will use our reasonable endeavours to maintain, free of charge, 24 hour access to our website and the services provided on it (“the Site”) but we cannot guarantee continuous or uninterrupted access and, save as expressly stated herein, we will not be liable for any failure to access or for any loss or expense arising to you in consequence of your use or attempted use of the Site. Further, we accept no liability whatsoever for your inability to use or access the Site due to a failure or incompatibility of any kind.
We may include on the Site links to other web sites and sources of information. We are not responsible for and do not endorse the contents of any linked site. Whilst all information provided by us on the Site is given in good faith, we cannot accept responsibility for the accuracy or completeness of any information provided by third parties or for the quality of any products, facilities and services offered or made available by third parties on or through the Internet and accordingly you must rely on your
own judgment and transact with third parties entirely at your own risk. We will not be responsible for any losses or damages that may arise from any such transactions.
We reserve the right without notice to change the content, presentation and/or facilities of the Site.
You agree that you will, at all times, keep passwords and all information and access to the Site secure. You also agree that you will only grant and allow access to the Site to authorised personnel and we reserve the right to suspend access to the Site in the event of misuse. You must notify us immediately of any unauthorised access or use which you become aware of. You shall not permit any third party to use the Site on your behalf.
You must ensure that the Site is used only in accordance with these General Terms, that all applicable laws and regulations are complied with and in particular that no material is sent which is of a defamatory, offensive, obscene or threatening nature.
You must not do anything that may cause any interruption or degradation to the Site or any part of it.
You agree to indemnify us immediately on demand in relation to any loss or damage suffered by us, including any legal and administrative costs or technical charges that may arise from your use, misuse or abuse of access to the Site or anyone using your means of access.
If we are provided with custody of any documents belonging to you, those documents will be retained during the course of our appointment (unless their return is requested) at the end of which they will be returned to you, if requested (though we may retain copies of documents for our records).
Whilst we will take reasonable steps to safeguard the security and confidentiality of the records we retain on your behalf, you acknowledge that we cannot guarantee their security and confidentiality. You will maintain responsibility for insuring any documentation stored at our premises or at a third party storage facility. We reserve the right to re-charge for any costs incurred storing your archived material at this facility. When these records are subsequently returned to you, we will require you to indemnify us against any costs incurred in so doing.
We reserve the right, where fees have been invoiced and payment is outstanding to us, to exercise a lien in respect of those outstanding fees over any documents belonging to you that may be in our possession.
Your engagement of us means that you agree that we are acting for you and no other person and we will not be responsible to any person other than you for providing our services. Any advice given is provided solely for your use and benefit and may not be used or relied on by any other person or for any other purpose or disclosed to any other person (excluding your other professional advisors, who for the avoidance of doubt should not be entitled to place any reliance on such advice) without our prior written approval.
By engaging us you agree that any claim of any sort whatsoever arising out of or in connection with this engagement shall be brought only against us and that no claims in respect of this engagement will be brought personally against any persons involved in performance of this engagement, whether actual or deemed servants or agents of us or not.
Our total liability to you in any one year (a “year” being the 12-month period commencing on the date of our engagement and each subsequent year thereafter), in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement (including interest and costs) shall be limited to the greater of the following:
The total amount of fees charged by us to you under this engagement in the relevant year.
Subject to the death and personal injury provision below, but otherwise notwithstanding anything else in these General Terms we shall under no circumstances be liable to you in contract, tort, (including negligence or breach of statutory duty) or otherwise for any consequential, direct or indirect loss, damages or expenses (including, without limitation, loss of profit, loss of data, or damage to goodwill or reputation).
Nothing in these General Terms shall exclude our liability for death or personal injury caused by our negligence or any other liability for which exclusion or restriction is prohibited by law or for fraudulent misrepresentation.
Save as expressly stated herein all warranties and conditions implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
Any claim for breach of contract, breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be brought against us within six years of the act or omission alleged to have caused the loss in question.
These limitation provisions shall survive termination of our engagement.
You undertake that during the course of this engagement and for a period of six months following its conclusion you will not:
Solicit or entice away (or assist anyone else in soliciting or enticing away) any of our employees or associates with whom you have had dealings in connection with this engagement during the 12 months immediately prior to your approach; or employ any such person or engage them in any way to provide services to you.
In the event of a breach of the terms of this undertaking which leads to the individual working directly for you, you will pay to us, on demand, a sum equivalent to 30% of the total annual remuneration package paid by us to the individual prior to his or her departure. You acknowledge that this provision is a fair and reasonable term intended to be a genuine assessment of the likely loss to us.
Subject to the “Your responsibilities” section above, neither party shall be liable in any way for failure to perform their respective obligations under this engagement if the failure is due to causes outside the reasonable control of the party which has failed to perform.
Unless our agreement stipulates otherwise either party may terminate our engagement by giving 3 months notice in writing to the regular correspondence address. In the event of termination, fees and expenses incurred to the date of termination are payable by you.
Either party may terminate the engagement with immediate effect by serving on the other written notice of such termination in the event that:
a) The other party commits a material breach of any provision hereof which is not remediable or if remediable is not remedied within 30 days after the non-breaching party has given notice to the breaching party requiring such breach to be remedied.
b) The other party passes a resolution or a court of competent jurisdiction makes an order that such party be wound up (otherwise than for the purposes of a bona fide reconstruction or amalgamation) or a receiver or examiner is appointed in respect of such party’s business or any part thereof or if an administrator is appointed.
Termination of our engagement shall not prejudice or affect any right of action or remedy, which shall have accrued or shall thereafter accrue to either party.
Severance of terms
In the event that any of these General Terms or any part thereof are held to be invalid, the remainder of the terms will continue in full force and effect.
Failure or delay in enforcing any term of these provisions shall not be construed as a waiver of such term, nor affect the relevant party’s right to later enforce or exercise it
Governing law and jurisdiction and other general provisions
All potential new clients must provide proof of identity as part of our measures to ensure compliance with the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 and 2013 and we will ask you to provide documents to satisfy this obligation.
These terms of business shall be governed by and construed in accordance with the laws of Ireland and any dispute arising out of this engagement or these terms shall be subject to the exclusive jurisdiction of the Irish courts.
No amendment to the provisions of these General Terms shall be effective unless it is made by a written instrument executed on behalf of both parties.
The Engagement Letter and these General Terms constitute the entire agreement between the parties relating to the provision of the services detailed in the Engagement Letter and these documents supersede all prior representations, agreements, negotiations or understandings, whether oral or in writing.
Any notices, by either party, in connection with our engagement can be served by recorded delivery, registered post or by fax or email to the registered office address of each party. However, a notice served by fax or email will not be valid unless a copy of the notice is sent by recorded delivery or registered post on the day of transmission.
These General Terms do not give any rights to any third party.