The General Terms & Conditions of TransPrice apply to all our engagements, agreements, offers, and proposal:
Contract and Parties.
(a) The engagement letter and any appendices other than these Tax Business Terms (“Engagement Letter”) issued by TransPrice Tax Advisors LLP (“TransPrice”) and addressed to the entity specified in the Engagement Letter (“Client”), and these Tax Business Terms (collectively the “Contract”) constitute the whole agreement between the Client and TransPrice in relation to the services, deliverables and work product described in the Engagement Letter (the “Services”). For the purposes of this Contract, the “Client” shall mean the contracting party with TransPrice.
(b) This Contract is between the Client and TransPrice. TransPrice may subcontract any Services under this Contract to any member firm and its respective subsidiaries and affiliates or, with the consent of the Client, to any other party (collectively “Subcontractor”). Client’s relationship is solely with TransPrice as the entity contracting to provide the Services. Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co-owner, or representative.
TransPrice remains responsible to the Client for all of the Services under this Contract, including Services performed by its Subcontractors. Accordingly, to the fullest extent possible under applicable law, none of the entities of the Group (except TransPrice) will have any liability to the Client and the Client will not bring, and will ensure that no other member of the Client Group brings, any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or in connection with this Contract against any of the entities of the Group (except TransPrice).
(i) The Client shall cooperate with TransPrice in the performance by TransPrice of the Services, including, without limitation, providing TransPrice with reasonable facilities and timely access to data, information and personnel of the Client Group. The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy and completeness of all data and information (including all financial information and statements) provided to TransPrice by or on behalf of the Client Group and for the implementation of any advice provided as part of the Services. TransPrice may use and rely on information and data furnished by the Client or others without verification. TransPrice’s performance shall be dependent upon the timely performance of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services. TransPrice shall be entitled to rely on all decisions and approvals of the Client.
(ii) Except as otherwise provided in the Engagement Letter, the Client shall be solely responsible for, among other things: (A) making all management decisions and performing all management functions; (B) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services; (C) evaluating the adequacy and results of the Services; (D) accepting responsibility for the results of the Services; and (E) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.
(i) The Services provided are not binding on tax authorities or the courts and do not constitute a representation, warranty, or guarantee that the tax authorities or the courts will concur with TransPrice’s advice or opinion. Any Services provided by TransPrice will be based upon the law, regulations, cases, rulings, and other tax authorities in effect at the time-specific Services are provided.
Subsequent changes in or to the foregoing (for which TransPrice shall have no responsibility to advise Client) may result in the Services provided by TransPrice being rendered invalid.
(ii) Except as specifically agreed to in writing, TransPrice shall not provide advice regarding the financial accounting treatment of any transaction implemented from the Services and will not assume any responsibility for any financial reporting with respect to the Services. TransPrice shall have no responsibility to address any legal matters or questions of law, other than tax law in relation to the Services.
(iii) In formulating any advice as part of the Services, TransPrice may discuss ideas with the Client orally or show the Client drafts of such advice. To the extent that the content of such drafts or oral advice are expected to be finalized and confirmed to the Client in writing, such writing shall supersede any previous drafts or oral advice and, accordingly, TransPrice shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of such drafts or oral advice.
Payment of Invoices. TransPrice’s invoices are due and payable by the Client upon presentation. For invoices upon which payment is not received within thirty (30) days of the invoice date, TransPrice reserves the right to charge interest 1% per month, simple interest. Without limiting its other rights or remedies, TransPrice shall have the right to suspend or terminate the Services entirely or in part if payment is not received within thirty (30) days of the invoice date. The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Services, other than TransPrice’s income and property taxes.
Term. This Contract may be terminated by either party at any time, with or without cause, by giving written notice to the other party not less than 30 days before the effective date of termination, provided that, in the event of a termination for cause, the breaching party shall have the right to cure the breach within the notice period if the breach is capable of remedy. TransPrice may terminate this Contract with immediate effect upon written notice to the Client if TransPrice determines that (a) a governmental, regulatory, or professional entity, or an entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render TransPrice’s performance of any part of the Contract illegal or otherwise unlawful or in conflict with independence or professional rules, or (b) circumstances change (including, without limitation, changes in ownership of the Client or any of its affiliates) such that TransPrice’s performance of any part of the Contract would be illegal or otherwise unlawful or in conflict with independence or professional rules. Upon termination of the Contract, the Client will compensate TransPrice under the terms of the Engagement Letter for the Services performed and expenses incurred through the effective date of termination.
Ownership of TransPrice Property & Work Products. To the extent that TransPrice utilizes or develops any of its property (whether tangible or intangible) in connection with this Contract, such property, including work papers, shall remain the property of TransPrice. On payment of all of TransPrice’s fees in connection with this Contract, the Client shall only obtain a non-exclusive license to use within the Client Group, subject to the other provisions of this Contract, any Deliverables or work product (as defined or described in the Engagement Letter) for the purpose for which the Deliverables or work product were supplied. TransPrice shall have ownership (including, without limitation, copyright and other intellectual property ownership) and all rights to use and disclose its ideas, concepts, know-how, methods, techniques, processes and skills, and adaptations thereof in conducting its business, and the Client shall not assert or cause to be asserted against any Group entity or its personnel any prohibition or restraint from so doing. Any intellectual property and proprietary rights in the material provided by Client Group for performing the Services shall remain the property of the Client Group.
Notwithstanding anything to the contrary in sections, the Client acknowledges that TransPrice, in connection with performing the Services, may develop or acquire general experience, skills, knowledge, and ideas that are retained in the memory of its personnel. The Client acknowledges and agrees that TransPrice may use and disclose such experiences, skills, knowledge and ideas.
Limitation on Damages. TransPrice, any other Group Entity and their respective personnel, if and only to the extent it is determined such other Group entity and its respective personnel have a liability, shall not be liable to the Client Group for any claims, liabilities, losses, damages, costs or expenses relating to this Contract or the Services (“Claims”) for an aggregate amount in excess of the fees paid by the Client to TransPrice, except to the extent finally judicially determined to have resulted primarily from the fraud or bad faith of TransPrice, or any other Group entity or their respective personnel. In no event shall any Group entity (including TransPrice) or their respective personnel be liable for any loss of use, contracts, data, goodwill, revenues or profits (whether or not deemed to constitute direct Claims) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this Contract or the Services. In circumstances where all or any portion of the provisions of this paragraph 6 are finally judicially determined to be unavailable, the aggregate liability of TransPrice and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim and shall not exceed the amount of fees paid by the client to TransPrice.
If the liability exclusion for Group and Subcontractors provided in paragraph 1(b) is for any reason not effective, then the limitations on liability provided for in this paragraph 6 shall apply to Group and Subcontractors as if they were named therein.
Force Majeure. 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, the act of God, epidemic, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.
Limitation on Actions. No action, regardless of form, relating to this Contract or the Services, may be brought by either party more than two years after the cause of action has accrued under applicable law.
Confidentiality. (a) To the extent that, in connection with this Contract, TransPrice comes into possession of any tax return information, trade secrets or other proprietary information relating to the Client Group which is designated in writing by the disclosing party as confidential (the “Confidential Information”), TransPrice shall not disclose such Confidential Information to any third party without Client’s consent. The Client hereby consents to TransPrice disclosing such Confidential Information (i) to any Group entity (including its partners, principals, and employees) and to any Subcontractors (ii) to legal advisors, auditors, insurers or as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with potential litigation; or (iii) to the extent such Confidential Information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by TransPrice in breach hereof, (B) becomes available to TransPrice on a non-confidential basis from a source other than the Client which TransPrice believes is not prohibited from disclosing such information to TransPrice by obligation to the Client, (C) is known by TransPrice prior to its receipt from the Client without any obligation of confidentiality with respect thereto, or (D) is developed by TransPrice independently of any disclosures made by the Client to TransPrice of such information. The obligations imposed by this clause 9 (a) shall apply for a period of one (1) year from the date of the disclosure of such Confidential Information by the Client to TransPrice.
(b) Client shall not disclose to any third party the advice, opinions, reports or other work product of TransPrice provided hereunder without the express written consent of TransPrice, except (i) where applicable laws, regulations, rules and professional obligations prohibit limitations on disclosure, (ii) in the event that the Client or its affiliates have securities registered with the United States Securities and Exchange Commission and any Group entity is the auditor of the Client or any of its affiliates, in which case there are no restrictions or limitations on the disclosure of TransPrice’s advice, opinions, reports and other work product provided hereunder, or (iii) to the extent the United States Internal Revenue Code and applicable Internal Revenue Service guidance relating to confidential tax shelters (or comparable law or guidance from other taxing authorities) apply, in which case there are no restrictions or limitations on the disclosure of TransPrice’s advice, opinions, reports and other services. Client shall use the advice, opinions, reports or other work product of TransPrice solely for the purposes specified in the engagement letter and, in particular, shall not, without the prior written consent of TransPrice, use any advice, opinion, report or other work product of TransPrice in connection with business decisions of any third party or for advertisement purposes. All Services are only intended for the benefit of the Client. The mere receipt of any advice, opinions, reports or other work product by any other persons is not intended to create any duty of care, professional relationship or any present or future liability between those persons and TransPrice. As a consequence, if copies of any advice, opinions, reports or other work product (or any information derived therefrom) are provided to others under the above exclusions, it is on the basis that TransPrice owes no duty of care or liability to them, or any other persons who subsequently receive the same.
(c) In addition, the Client acknowledges and agrees that any such information that comes to the attention of TransPrice in the course of performing this engagement may be considered and used by any Group entity rendering accounting services in the context of responding to its professional obligations as the independent accountants for the Client.
Assignment. Neither party may assign or otherwise transfer this Contract without the prior express written consent of the other, except that TransPrice may assign any of its rights or obligations hereunder to any Group entity and to any successor to its business. Neither party will directly or indirectly agree to assign nor transfer to a third party any claim against the other party arising out of this Contract.
Indemnification. The Client shall indemnify and hold harmless TransPrice, any other Group Entity and their respective personnel from all third-party Claims, except to the extent finally judicially determined to have resulted primarily from the intentional misconduct or fraud of TransPrice, any other Group entity or their respective personnel. In circumstances where all or any portion of the provisions of this paragraph are finally judicially determined to be unavailable, the aggregate liability of TransPrice, other Group entities and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.
Governing Law and Submission to Jurisdiction. This Contract, including exhibits and all matters relating to it, shall be governed by, and construed in accordance with, the laws of India (without giving effect to the choice of law principles thereof). Any action or proceeding arising out of or relating to this Contract or the Services shall be brought and maintained exclusively in the courts of India. The parties hereby expressly and irrevocably (i) submit to the exclusive jurisdiction of such courts for the purposes of any such action or proceeding and (ii) waive, to the fullest extent permitted by law, any defence of inconvenient forum to the venue and maintenance of such action in any such courts.
(a) Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, email (including email exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning this Contract, as well as other means of communication used or accepted by the other.
(b) It is recognized that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communication may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any Group entity personnel to networks, applications, electronic data or other systems of the Client Group
Engagement Letter induced, nor forms part of, the Contract unless as specifically set out in this Contract. This Contract supersedes any previous agreement, understanding or communication, written or oral, relating to its subject matter. No variation to the Contract shall be effective unless it is documented in writing and signed by authorized representatives of both parties, provided, however, that the scope of Services set forth in the Engagement Letter may be changed by agreement of the parties in writing, including by e-mail or facsimile. If TransPrice has already started work (e.g., by gathering information, project planning or giving initial advice) then the Client agrees that this Contract is effective as of the start of such work.
Limitation on Warranties. This is a services engagement. TransPrice warrants that it shall perform the Services in good faith and with due professional care. TransPrice disclaims all other warranties, either express or implied.
Other Clients. Nothing in this Contract will prevent or restrict any Group entity, including TransPrice, from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purpose any knowledge, experience or skills used in, gained or arising from performing the Services subject to the obligations of confidentiality set out in paragraph 9 even if those other clients’ interests are in competition with the Client Group. Equally, to the extent that TransPrice possesses information obtained under an obligation of confidentiality to another client or other third party, TransPrice is not obliged to disclose it to any member of the Client Group or use it for the benefit of the Client Group, however relevant it may be to the Services.
Destruction of Working Papers. Any papers retained by TransPrice on completion of the Services (including documents legally belonging to the Client) may routinely be destroyed in accordance with TransPrice’s policies applying from time to time.
Marketing Material. Neither party shall use the other party’s trademarks, service marks, logos, and/or branding in external publicity material without such other party’s prior written consent.
Use of Client name. Notwithstanding anything herein to the contrary, TransPrice may use the name of the Client, logo and the performance of the Services in marketing and publicity materials, as an indication of its experience, and an internal data system.
Dispute Resolution. The parties agree to attempt in good faith to resolve any dispute or claim arising out of or in connection with the Contract promptly through negotiations between senior management. If the matter is not resolved through negotiation, then either party may request that a good faith attempt is made to resolve the dispute or claim by participating in an Alternative Dispute Resolution (“ADR”) procedure.