These additional terms and conditions supplement the ‘Terms of Engagement’ between ‘FCS Compliance Ltd’ and the client which identify the engagement to which they relate.
1 Limited Company
1.1 FCS Compliance Ltd is constituted as a limited company with Companies House and registered as company number 9971538 and the registered office of the company is at 37 Battersea Square, Battersea, London, SW11 3RA.
2 Limitation of liability
2.1. The relevant aggregate liability of this firm for the Total Damage shall be limited as set out in our engagement letter.
2.2. For the purposes of this engagement letter “the Total Damage” shall mean the aggregate of all losses or damages (including interest thereon if any) and costs suffered or incurred, directly or indirectly, by the addressees of this letter (together with such other parties, including, where appropriate, the lay client identified in the engagement letter, whom the Firm and such original addressees have agreed may have the benefit of and rely upon our work on the terms hereof) (together “Addressees”) under or in connection with this engagement or its subject matter (as the same may be amended or varied) and any report prepared pursuant to it, including as a result of breach of contract, breach of statutory duty, tort (including negligence), or other act or omission by the Firm but excluding any such losses, damages or costs arising from the fraud or dishonesty of the Firm or in respect of liabilities which cannot lawfully be limited or excluded.
2.3. Where there is more than one Addressee the relevant limit of liability specified in our engagement letter will have to be allocated between Addressees. It is agreed that such allocation will be entirely a matter for the Addressees, who shall be under no obligation to inform the Firm of it, provided always that if (for whatever reason) no such allocation is agreed, no Addressee shall dispute the validity, enforceability or operation of the limit of liability on the ground that no such allocation was agreed.
3.1. In respect of all services, the Total Damage suffered or incurred by the addressee(s) of this letter shall be limited to the proportion of the Total Damage which may be justly and equitably attributed to FCS Compliance Ltd after taking into account the contributory negligence (if any) of the addressee(s) and any other third party found to be liable to contribute to the Total Damage pursuant to the Civil Liability (Contribution) Act 1978.
4 Scope of limitation of liability
4.1. The limitation of liability referred to in this schedule refers to all services undertaken by FCS in relation to this engagement letter. Our maximum liability for all services provided by us in relation to this engagement shall be limited as set out in our engagement letter.
5 Ownership of records
5.1. All documents compiled for the purposes of undertaking Customer Due Diligence e.g. papers, letters, memoranda, file notes of meetings and telephone calls, e-mails etc and copies of other original documents FCS create or receive either as principal in our own right or as agent for the client will be supplied to the client. For the avoidance of doubt, FCS will not assert such ownership rights to documents provided to the firm as part of the Customer Due Diligence process or offering consultancy advice relating to AML.
6 Force majeure
6.1. No party to this agreement shall be held in any way responsible for any failure to fulfil its obligations under this Agreement if such failure has been caused (directly or indirectly) by circumstances beyond the control of the defaulting party. This shall include war, riot, acts of terrorism, industrial action, accident or equipment failure (except where such accident or equipment failure has been caused by the negligence of the defaulting party, its agents or otherwise).
7 The Contracts (Rights of Third Parties) Act 1999 in respect of the firm
7.1. In the course of our work for you under this engagement FCS may obtain advice and/or other services from third parties. FCS and the client agree that in that event the terms of this engagement will apply for the benefit with respect to any work that they carry out in respect of or in relation to this engagement. Other than in relation to the advice and/or services provided by the said third party as set out below it is hereby agreed between us that the Contracts (Rights of Third Parties) Act 1999 does not apply to the terms of this Engagement or any subsequent amendment to it unless expressly confirmed in writing that the said Act does apply.
8 General Data Protection Regulation [GDPR] & Data Protection Act 2018 [DPA]
FCS will hold and process data relating to the client which may include “sensitive personal data” (as defined in the Data Protection Act 2018) in accordance with the Client’s Data Protection Policy. FCS will only receive data in order for the client to comply fully with AML legislation in line with Article 6 of the EU General Data Protection Regulation [GDPR]. It will hold and process information relating to the client pursuant to relevant obligations under the Data Protection Act 2018, and associated codes of practice when processing personal data relating to any employee, worker, director agent of the client.
FCS is subject to the requirements of data protection legislation applicable to the UK and will use the client’s data in accordance with the law. The firm will keep the client’s data confidential and will not disclose it to third parties unless disclosure is:
- Authorised by the client
- Necessary as part of the compliance services provided
- Required by law
- Necessary for the purposes of our legitimate interests or those of a third party
- Necessary to protect the client’s vital interest or those of another person
FCS is registered with the Information Commissioner’s office and its Data Protection Policy can be found on the FCS website: fcscompliance.co.uk.
8.1. We confirm that we are aware of our obligations under GDPR & DPA and we will take appropriate technical and organisational measures to comply with all our obligations under GDPR & DPA when processing Personal Data supplied by you. All terms used in this paragraph have the same meaning as in GDPR & DPA.
8.2. In the conduct of our professional services, FCS may need to collect and use personal information about the client or its customers, agents or contractors, which we will hold as data controllers under GDPR & DPA. The client confirms that they will comply with any obligations that you may have under GDPR & DPA when providing FCS with this personal information.
8.3. All such personal information will be held and processed strictly in accordance with the provisions of GDPR & DPA and will only be used to provide professional services agreed under this engagement letter and for related purposes (including updating client records and legal and regulatory compliance). FCS will not, without consent, provide any such personal information to any third party except that where such transfer is a necessary part of the services provided, or the firm is required to do so by operation of law.
8.4. All individuals have a right under GDPR & DPA to obtain details of information held on them by this firm. If you/your partners/your company/your trustees/your clients or customers and your or their employees, agents or contractors wish to exercise this right please contact the firm.
9 Bribery Act 2010
9.1. The policy of FCS is to conduct all of its business in an honest and ethical manner, and to comply with all applicable anti-corruption legislation, including the Bribery Act 2010. The firm takes a zero-tolerance approach to bribery and corruption and is committed to acting professionally and with integrity in all its business dealings and relationships whether in the UK or abroad. Where FCS instructs any third party on behalf of the client to provide services in relation to any engagement, FCS will implement proportionate risk-based procedures which are designed to prevent any relevant third party from engaging in, or agreeing to engage in, any acts of bribery or corruption in relation to the services that are provided.
10 Quality of service
10.1. If at any time the client wishes to discuss how the services provided could be improved, or the client is dissatisfied with the service they are receiving they should contact the Managing Director of FCS Jerry Walters.
10.2. FCS undertake to look into any complaint carefully and promptly and to do all that it can to explain the position to the client and undertakes to do everything reasonable to resolve any issue.
11 Disputes and mediation
11.1. In the unlikely event of a dispute arising out of or relating to this engagement it is mutually agreed that before embarking on litigation proceedings FCS will attempt to resolve it through negotiations. If the matter is not resolved through negotiation, FCS shall endeavour to agree upon the nomination and appointment of an independent Mediator upon receipt of a written notice, by either FCS or the client, to concur in such nomination and appointment. Should either FCS or the client fail to concur in such nomination and appointment within 14 days, either party may apply to the Centre for Effective Dispute Resolution (CEDR at www.cedr.co.uk), for the appointment of a Mediator.
11.2. Both FCS and the client will give due weight to the views of the Mediator and will hope to resolve the dispute as a result thereof but such mediation is not binding and after the mediation, either party can resort to other means of dispute resolution that will be binding and enforceable. If either party unreasonably refuses to invoke the mediation process the other party can, on giving written notice, rescind this term.