1 Basis of contract
1.1 These Terms shall be deemed accepted by us on the earlier of either; (i) when we receive a signed and dated Letter or (ii) upon commencement of us performing of any of the Services.
1.2 Where there is any contradiction between the Terms and the Letter, the Terms shall take precedence.
1.3 These Terms apply to the contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by any trade, custom, practice or course of dealing.
1.4 For the avoidance of doubt, where there is a conflict of interest between you and your directors or employee’s, we shall represent your interests.
2 Supply of Services
2.1 We shall, subject to these Terms, supply the Services to you.
2.2 We shall use all reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence for the performance of Services.
2.3 We shall provide the Services using reasonable care and skill. For the avoidance of doubt the Services do not include:
2.3.1 regulated activities that are subject to the Financial Conduct Authority regulations; or
2.3.2 influencing, managing or controlling your business or financial decisions; or
2.3.3 fulfilling any other function or role which could potentially be considered by HMRC to be a service that would trigger the Managed Service Company legislation (as amended from time to time).
2.4 Subject to clause 2.3 and in accordance with your express written instructions to us, we shall where reasonably necessary and where possible to do so, act as Agent on your behalf for the provision of Services. For the avoidance of doubt, any submissions, documents or returns lodged by us on behalf of the Director and/or the Client are solely drafted in reliance upon any information and representations made by the Director and or the Client to Gorilla.
2.5 In the event that the Client fails to meet its obligations under the Letter and/or the Terms then Gorilla may not be able to submit documents to the relevant bodies, on behalf of the Client and/or Director, in time or at all and Gorilla shall not be liable for any losses suffered or incurred as a result.
2.6 Our engagement by you under the Letter and these Terms is a business-to-business contract.
Therefore, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 do not apply to this engagement.
3.1 The following charges apply, if you do not subscribe on the date of you signing the Letter to our registered office services (ROS):
3.1.1 Our standard annual charge is currently the fixed fee of £1,020 plus VAT each year for the provision of the Services. Save where our Services are terminated in accordance with clause 8 of the Letter, our standard yearly charge (either as stated above or otherwise revised from time to time) will be payable upon engagement and from the first day of the first anniversary of the date of commencement of the provision of the Services (and thereafter each such anniversary date). Unless you have agreed to pay our charges in one payment (see 3.4 below) then such charges shall be divided equally into 12 monthly instalments of £85.00 plus VAT per month.
3.2 The following charges apply, if you subscribe to our ROS on the date of you signing the Letter:
3.2.1 Our standard annual charge inclusive of subscription to our ROS is currently the fixed fee of £1,140 plus VAT each calendar year for the provision of the Services. Save where our Services are terminated in accordance with clause 8 of the Letter, our standard yearly charge (either as stated above or otherwise revised from time to time) will be payable upon engagement and from the first day of the first anniversary of the date of commencement of the provision of the Services (and thereafter each such anniversary date). Unless you have agreed to pay our charges in one payment (see 3.4 below) then such charges shall be divided equally into 12 monthly instalments of £95.00 plus VAT per month.
3.3 You may subscribe to or cancel your subscription during our engagement to our ROS at any point by way of written notice to us. If you subscribe or cancel the ROS, a change in the amount of the monthly fee that you pay to us will either increase or decrease (as applicable) in the sum of £10.00 plus VAT and such change in the monthly fee will either increase or decrease (as applicable) in the month following notification from Companies House that the registered office has been changed. Please note that this clause will not apply if a Client has agreed to pay our charges (see 3.4 below).
3.4 As a special offer to our new Clients we are willing to offer a 10% discount if the first year fixed fee are paid in full upon engagement. Such charges are set out below. Please note that this only applies providing payment is made upon engagement. In all other cases our charging structure outlined at 3.1-3.3 will apply.
3.4.1 If you do not subscribe to our ROS then our yearly fee for the first year will be £918.00 plus VAT. Should you subsequently wish to subscribe to our ROS during your first year then you will be charged a one off fee at a rate of £9.00 plus VAT per month for each remaining month in that year.
3.4.2 If you subscribe to our ROS then our yearly fee for the first year will be £1,026.00 plus VAT.
3.4.3 Should you chose to subscribe to our ROS (either upon engagement or subsequently) then you will be able to cancel such subscription at the first anniversary of the date of commencement of the provision of the Services (and thereafter each such anniversary date) by contacting us.
3.4.4 On or around the first anniversary of the date of commencement of the provision of the Services or following your financial year end (whichever is sooner) then we will provide you with an invoice detailing our proposed charges for the next year. Such invoice will confirm the level of discount (if any) that we are able to provide in the event that you pay for our yearly charges in full and the date when such charges need to be paid by. You will then have the option of either paying such charges in full or alternatively forgoing such discount and paying our standard annual charge on a monthly basis. Should you fail to pay our yearly charges by the date specified then you will be deemed to have elected to pay our standard annual charge on a monthly basis.
3.4.5 Should you agree to pay our yearly charges in full for your second year then we will send you an invoice on second and subsequent anniversary of either the date of commencement of the provision of the Services or following your financial year end (whichever is sooner) as per the procedure set out in 3.4.4 until such time that you elect to pay our standard annual charge on a monthly basis. If you elect to pay our standard annual charge on a monthly basis then you may agree to pay our charges on a yearly basis (and take advantage of any discount) by contacting us before the commencement of each year of service.
3.5 Save for were you have paid in full under 3.4 then please note that once the first draft document detailed in clause 2 of the Letter has been produced, our full yearly charges for the year in which it relates to the Services shall become due (although such charges remain equally divided over the remaining months of the calendar year) regardless of when the documents are produced. In the event that you fail to pay the fee on the 1st of each month, we reserve our right to seek the full remaining balance (until the end of the calendar year for which the payment is due) from you immediately.
3.6 Any fees and expenses (including but not limited to the fee payable in connection with filing the Client’s annual confirmation statement) payable (i) to any Regulatory Body arising out of or in connection with the provisions of the Services or (ii) in connection with or ancillary to the formation of a newly incorporated English law governed private limited company on your behalf, shall be borne and paid by the Client in addition to the payment of the charges set out in clauses 3.1 – 3.3 (inclusive) or 3.4 of these Terms.
3.7 Save for were you have paid in full under 3.4 then we shall issue invoices each month and you shall set up a standing order to make payment to us in a on the 1st day of each month in full and cleared funds. If we do not receive payment by the 14th day of each month, we reserve the right to suspend the provision of the Services that we provide to you until all outstanding charges have been paid in full. This includes the right to hold any and all documentation that you provide to us.
3.8 In the absence of payment within our payment terms then we reserve the right to take one or more of the following steps without notice;
3.8.1 limit and/or suspend the Services;
3.8.2 limit and/or suspend access to any tools and/or services either online or otherwise;
3.8.3 hold a lien over your property which is in our possession;
3.8.4 charge interest in accordance with the relevant statutory provisions or at a rate of 4% over the base rate of the Bank of England; and
3.8.5 take steps to recover any outstanding charges due, such steps may include the appointment of debt recovery agencies and/or solicitors and costs shall be indemnified by you and the Director in accordance with clause 7 of these Terms.
4 Your obligations:
4.1 You undertake and warrant to us that:
4.1.1 you shall ensure that all information supplied to us is up to date, accurate and complete and not misleading and will expressly confirm that any information provided to us to complete any returns, declarations and disclosures to any Regulatory Body are to the best of your information, knowledge and belief, correct, complete and accurate;
4.1.2 you shall co-operate fully with us in all matters relating to the provision of the Services;
4.1.3 you shall provide us and our representatives with the required records and related financial information (including but not limited to any correspondence from any Regulatory Body) delivered promptly to us as reasonably required or requested by us;
4.1.4 you shall authorise us to act as Agent where necessary for the provision of the Services, for the avoidance of doubt we shall not make any decisions on your behalf, we shall only complete accounts and other reporting obligations based upon written instructions given by you to us from time to time;
4.1.5 you shall authorise and sign such documentation as we may reasonably request in connection with the provision of the Services including but not limited to form 64-8 authorising contact with HMRC;
4.1.6 you shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services start; and
4.1.7 you shall set up a standing order to make payment on the 1st day of each and every month in full and cleared funds and in any event payment to be made no later than the 14th day of each month;
4.1.8 you shall keep us promptly informed about any change in your circumstances;
4.1.9 you are required to file the Client’s accounts at Companies House within 9 months of its year-end. You (and the officers of the Client) will be liable to a fine if it fails to do so. In order to avoid this we will produce statutory accounts, suitable for filing, within the required period, provided that all of your records are complete and presented to us no later than five months after your year end, and all subsequent queries by us are promptly and satisfactorily answered by you;
4.1.10 you shall keep us fully informed of any relevant changes or events that are required to be notified to Companies House, within one week of the said change or event;
4.1.11 you have taken and received independent advice from a professional advisor in relation to the Director and/or the Client’s IR35 determination and status prior to the date of this engagement and during the term of our engagement and shall notify us immediately if there is any change to you or the Director’s IR35 status; and
4.1.12 you acknowledge that you are solely responsible for determining your IR35 status and you will continue to review the Director’s and the Client’s 24 Month Rule and IR35 status on an ongoing and regular basis during the term of our engagement and if such IR35 status changes during the term of our engagement (taking appropriate independent advice where you deem appropriate) you undertake to notify us in writing immediately. As at the time of signing this Letter and the Terms, you confirm to us that you fall outside of the scope of IR35.
4.2 If our performance or any of our obligations in providing the Services is prevented or delayed by any act or omission by you or any failure by you to perform any relevant obligation including but not limited to the obligations in clause 4.1 of these Terms (Default) then we shall without limiting our other rights and remedies have the right to suspend performance of the Services until you remedy your Default and shall be entitled to rely on your Default to relieve us from the performance of any of our obligations to the extent that your Default prevents or delays our performance of any of our obligations.
4.3 We will be pleased to assist the Client generally in tax matters if you advise us in good time of any proposed transactions and request advice. We would, however, warn you that because tax rules change frequently you must ask us, in writing, to review any advice already given if a transaction is delayed, or if an apparently similar transaction is to be undertaken.
5 Confirmation of advice
It is our policy to confirm in writing advice upon which the Client may wish to rely. If you require any such advice then please contact Gorilla for an appropriate written notice.
6.1 We shall not disclose to any person any confidential information concerning your business, affairs, clients or suppliers, except as permitted by clause 6.2.
6.2 We may disclose your confidential information:
6.2.1 to our employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our obligations. We shall ensure that our employees, officers, representatives, subcontractors or advisers to whom we disclose your confidential information comply with this clause 6;
6.2.2 with your prior consent, including but not limited to where we have highlighted in the Letter that we will provide your basic information to third parties; and
6.2.3 as may be required by law, a court of competent jurisdiction or any governmental or Regulatory Body.
6.3 We are registered with the Information Commissioner under ZA091838 as a data controller as required under the Data Protection Act 1998 (as amended). We may process, store and retain any information including personal data about you, your officers, agents and employees as a consequence of you agreeing to us providing the Services. By engaging with us you consent to us sharing this information with other Affiliates of Gorilla or our agents where it is believed that it may be suitable for your requirements or is considered necessary to settle your outstanding charges. All information (including databases on which such information is stored) held by us shall remain our property.
7 Indemnity and Limitation of our liability
7.1 You undertake to indemnify and to hold us and our employees and Affiliates harmless from and against all or any losses, claims, actions, liabilities, expenses, demands, charge or proceedings (including legal and other professional fees and expenses) (together “Proceedings”) whatsoever in any jurisdiction brought or established against us or and our employees or Affiliates by any company, person, partnership, governmental agency or Regulatory Body whatsoever in connection with these Services or any additional services that we provide and including but not limited to:
7.1.1 any of the materials or documents issued or supplied by you to us;
7.1.2 your failure to comply with any of your obligations with these Terms or the Letter (including for the avoidance of doubt, clause 4 of these Terms);
7.1.3 any failure or alleged failure by you to comply with any legal, statutory, Regulatory Body requirement or law; or
7.1.4 any failure by you to pay sums to Gorilla as and when they fall due.
7.2 The indemnity in clause 7.1 shall extend to include all costs, charges and expenses including legal fees and expenses (together with any value added or equivalent tax thereon) suffered or reasonably incurred by us or any of our employees, Affiliates or representatives.
7.3 If at any time any one or more of the provisions of the indemnity in clause 7.1 or any part of the indemnity is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions of the indemnity shall not in any way be affected or impaired.
7.4 The indemnity in clause 7.1 confers benefits on any of our employees and Affiliates and is intended to be enforceable by any relevant employee by virtue of the Contracts (Rights of Third Parties) Act 1999. No other party is intended to have any other rights under the Services pursuant to that Act.
7.5 Neither we nor our Affiliates shall be liable to you and/or the Director for determining or advising you or the Directors on their IR35 status and/or determining or advising whether or not the Client and/or the Director fall within or outside of the ‘24 month rule’ set out in section 339(3) ITEPA 2003 (as amended) (the “24 Month Rule”).
7.6 You shall not be liable to indemnify Gorilla for any costs, liabilities or losses incurred by us as a result of our own negligence.
7.7 The total aggregate liability of us to you in respect of any direct or indirect losses arising under or in connection with providing the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall in no circumstances exceed £1 million.
7.8 We hold professional indemnity insurance in respect of any claims arising from alleged professional negligence. Details of our insurer are available upon written request following the service of a CPR Compliant Pre-action preliminary notice.
7.9 Nothing in these Terms shall limit or exclude either party’s liability for:
7.9.1 death or personal injury caused by its negligence, or the negligence of it employees, agents or subcontractors;
7.9.2 fraud or fraudulent misrepresentation; or
7.9.3 any other liability which cannot be excluded or limited by reason of applicable law.
7.10 For the avoidance of doubt, Gorilla does not make any representation or warranty as to
the accuracy or the fitness for purpose or tax efficiency of any services provided by the Client and
the Client, the Director and the officers and employees of the Client provide such services at their own risk.
From time to time Gorilla may receive commissions or other benefits for introductions to third parties and other professionals and these commissions or other benefits typically range in value between £10 - £500. In so far as it may be relevant we will notify you if we will be receiving a commission for an introduction. However, unless required by regulation or other statute, we are under no obligation to confirm the actual value of such commission or account to you for the same.
9.1 These Terms are governed by, and construed in accordance with English law. The Courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it (including any non-contractual claims or disputes).
9.2 Each party irrevocably waives any right it may have to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
9.3 If any provision in the Terms or the Letter, or its application, are found to be invalid, illegal or otherwise unenforceable in any respect, the validity, legality or enforceability of any other provisions shall not in any way be affected or impaired.
9.4 These Terms and the Letter represent the entire agreement and understanding between us and you and supersedes and extinguishes, as from the date of this Letter, all previous agreements, promises, assurances, warranties, undertakings, representations and understandings between us, whether written or oral, relating to the subject matter of this Letter or the Terms.
9.5 Where you are required to give notice under these Terms, the notice shall be in writing and sent by email, personally delivered, or sent by first class recorded delivery to (a) firstname.lastname@example.org or (b) Gorilla’s registered office address for the attention of Mr Craig McCall, Operations Director. Email communication shall be deemed to have been received on the same working day if sent on a working day or at 9am the next working day if sent on a non-working day. Hand delivered communication shall be deemed to have been delivered at 9am the next working day. Posted communication shall be deemed to have been delivered at 9am on the second Working Day after mailing if mailed as stated.
9.6 Any payments to be made by you under this engagement shall be made free from set-off, counterclaim or deduction.
9.7 Gorilla may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights under this engagement and may subcontract or delegate any or all of its obligations under the Letter to any third party or agent.
Affiliates means in relation to either Party each and any ‘subsidiary’ or ‘holding company’ of that Party and each and every subsidiary of a holding company of that Party (as each such term is defined in the Companies Act 2006);
Agent means that we have received the power to act on your behalf, binding you as if you are making the decisions;
Applicable Laws means all applicable laws, statutes and regulations from time to time in force.
HMRC means Her Majesty’s Revenue & Customs;
Regulatory Body means government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled by any Applicable Law to supervise, regulate, investigate or influence the matters dealt with in this agreement or any other affairs of the Customer including but not limited to HMRC and Companies House; and
Working Day is a day other than a Saturday, Sunday or recognised public bank holiday in England.