General Terms and Conditions
The following General Terms and Conditions (hereinafter referred to as “General Terms and Conditions”) apply to all WTS Global Member Firms that have signed up to it in respect of all Global Engagements.
1. Definitions
1.1. For the purposes of these General Terms and Conditions, the following terms shall have the following meanings:
1.2. “Special Terms and Conditions” means variations or additions to these General Terms and Conditions as required by law or regulation in a particular jurisdiction and approved in accordance with clause 29;
1.3. “Client” means any legal entity or individual seeking professional services from the Leading Firm pursuant to the relevant Statement of Work (“SOW”) and is the beneficiary of the said professional service;
1.4. “Confidential Information” shall have the meaning defined in Clause 9.1.4.
1.5. “Discloser” means the party who is releasing the Confidential Information in the context of a Global Engagement.
1.6. “Effective Date” means the date a WTS Global Member Firm agrees to and appends their signature in these General Terms and Conditions for it to become binding;
1.7. “End-Client” means all individuals or entities that are the ultimate beneficiaries of the services that Participating Firm provides to the Leading Firm pursuant to the relevant SOW;
1.8. “Engagement” means the engagement for the provision of tax services by a Leading Firm to its End-Client;
1.9. “Global Engagement” means an engagement between a Leading Firm and Participating Firm under which a Leading Firm:
1.9.1. subcontracts performance of some or all of the work in connection with an Engagement to the Participating Firm;
1.9.2. contracts with one or more Participating Firms for the provision of tax services by the Participating Firm to the Leading Firm to assist the Leading Firm in delivering some or all of the work in connection with the Engagement;
1.10. “Global Quality, Process and Risk Management Handbook” means WTS Global’s Quality, Process and Risk Management Handbook as amended from time to time;
1.11. “Leading Firm” means the WTS Global Member Firm which is party to an engagement contract with a client for the delivery of tax services and is responsible to the client for delivery of those services;
1.12. “Participating Firm” means the WTS Global Member Firm which provides services or personnel to a Leading Firm;
1.13. “Permitted Recipients” means the Recipient’s affiliates, directors, professional advisors, consultants, employees, partners, officers or managers and legal advisors involved in the Confidential Information discussions
1.14. “Recipient(s)” means the party receiving the Confidential Information in the context of a Global Engagement;
1.15. “Restricted Services” means any services which are the same or similar to the Services performed by the Participating Firm under the relevant SOW;
1.16. “Third Party Engagement” means an engagement between a Participating Firm and a Third Party Firm under which the Third Party Firm is subcontracted by the Participating Firm to provide services in connection with a Global Engagement for provision of tax services; and
1.17. “Third Party Firm” means a professional service firm which enters into a Third Party Engagement with a WTS Global Member Firm (this could be either a Leading Firm or a Participating Firm).
1.18. “WTS Global” WTS Global means WTS Global, an association (vereniging) and incorporated under the laws of the Netherlands.
1.19. “WTS Global Member Firm” means any member firm of WTS Global, which is duly authorized to use the WTS name, trade and/or service marks and has agreed to this General Terms and Conditions by way of appending their signature in the signature block at the end of the terms and conditions.
2. General Terms and Conditions
2.1.1. The General Terms and Conditions apply to all Global Engagements and Third Party Engagements. In the case of Global Engagements, the General Terms and Conditions govern the relationship between Leading Firms and Participating Firms (which shall be referred to, individually as “Party” and together as the “Parties”) and, in the case of Third Party Engagements, govern the relationship between Participating Firms and Third Party Firms.
2.1.2. Where a Leading Firm seeks to subcontract all of the work in connection with a Global Engagement for the provision of tax services to one or more Participating Firms, the General Terms and Conditions, apply, but the Leading Firm and Participating Firm may agree in writing to vary some or all of the General Terms and Conditions in a relevant SOW.
3. Duties and Obligations of the Parties and the Scope of Services
3.1. Under these General Terms and Conditions, Participating Firm shall perform such tax compliance and tax advisory services for the Leading Firm as set forth in the Statement of Work ("SOW") for the provision of tax services, in the form of the template attached hereto as Annex A ("Services").
3.2. In respect of the Services, these General Terms and Conditions and the relevant SOW will apply. Where there is a conflict between these General Terms and Conditions and the relevant SOW, the terms of the relevant SOW will prevail.
3.3. The Participating Firm shall ensure that all Services will be performed in accordance with these General Terms and Conditions, the relevant SOW and any other reasonable instructions given by the Leading Firm to the Participating Firm from time to time. The Participating Firm warrants to the Leading Firm that the Services and the work product will be created and supplied using all reasonable skill and care in accordance with those commercial standards expected in the industry in which it operates and shall be compliant with all applicable laws, regulations and guidelines which apply to the Participating Firm’s business and its performance of the Services.
3.4. The Leading Firm shall, at the Leading Firm’s own expense, provide the Participating Firm with all documents or other materials and data or other information as is reasonably necessary for the completion of the Services, in sufficient time to enable the Participating Firm to provide the Services in accordance with any timetable or other target for progress or completion set out in the relevant SOW or agreed in writing between the Parties. The Participating Firm may rely on the information provided by the Leading Firm.
4. Term
These General Terms and Conditions shall commence on the Effective Date and shall continue indefinitely until they are terminated pursuant to Clause 12 of these General Terms and Conditions.
5. Verbal Advice
In connection with the Services, Participating Firm only accepts responsibility for information and advice provided in writing.
6. Subcontracting
6.1. The Participating Firm may not subcontract the Services to any Third Party Firm (excluding its group companies) without obtaining the prior written consent of the Leading Firm (such consent not to be unreasonably withheld or delayed).
6.2. In the event that Leading Firm does consent to the use by Participating Firm of another Third Party Firm to perform part of the Services, the Participating Firm shall not be relieved of any of its liabilities or obligations under these General Terms and Conditions or the relevant SOW by entering into any subcontract and the Participating Firm accepts liability for the acts and omissions of any Third Party Firm or any member of staff (either of the Participating Firm or any Third Party Firm ) engaged in providing the Services in full as if they were the acts or omissions of the Participating Firm.
7. Independent Contractor Status
7.1. In the performance of Participating Firm’s obligations hereunder, it is understood that Participating Firm shall be at all times acting and performing independently of the Leading Firm’s control as to the manner and methods of providing the Services.
7.2. In the performance of Participating Firm’s obligations hereunder, Participating Firm shall not be considered an employee, agent, or associate of the Leading Firm for any purpose.
7.3. It is understood that the Leading Firm does not by reason of these General Terms and Conditions or any SOW agree to use Participating Firm exclusively or at all. It is likewise understood that Participating Firm is free to contract for similar services with other persons or companies while under contract with the Leading Firm.
7.4. Participating Firm shall not, in connection with any Services provided for, to, or on behalf of the Leading Firm represent to any person or entity that Participating Firm is associated with the Leading Firm in any capacity other than that of an independent contractor and nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose.
7.5. Under these General Terms and Conditions, Participating Firm acknowledges that Participating Firm is not entitled to coverage under any employer’s liability insurance coverage or workers’ compensation insurance maintained by the Leading Firm. Participating Firm agrees to maintain adequate insurance in respect of its potential liability under these General Terms and Conditions and to provide Participating Firm’s own employer’s liability and/or workers’ compensation insurance, if such coverage is required by law. Participating Firm agrees to supply Leading Firm with proof of such insurance on written request.
7.6. For the purposes of Clause 7.5 above, the amount of the insurance cover shall be mutually agreed upon by the Parties in the SOW.
8. Fees and Reimbursement
8.1. Consideration (including fees and disbursements) payable to Participating Firm for Services provided by Participating Firm on behalf of the Leading Firm shall be payable as set forth in the relevant SOW.
8.2. Where fees are being charged on an hourly rate basis, the Participating Firm shall ensure that its invoices are accompanied by timesheets evidencing the number of hours worked and the Services performed by the Participating Firm during the relevant invoice period.
8.3. Where approved in the relevant SOW, disbursements will include reasonable and customary out-of-pocket expenses such as certain telephone, overnight mail, messenger, travel, meals, accommodations and any other expenses specifically and necessarily incurred in connection with the relevant SOW.
8.4. Disbursements shall be billed at cost and Leading Firm shall only be required to reimburse such disbursements upon provision by Participating Firm of satisfactory documentary evidence of such disbursements incurred.
8.5. The Leading Firm agrees that any fees estimate set forth in the relevant SOW is based on the Participating Firm’s estimate of the time and resources required to be spent in performance of the Services and Leading Firm agrees that if the scope of work or the resources required to deliver the Services turns out to be greater than anticipated, this may result in additional fees and expenses for which invoices shall be raised. The Participating Firm shall use all reasonable endeavours to agree upon any such additional charges and expenses with the Leading Firm prior to these being incurred.
8.6. The Leading Firm shall pay all fees and expenses to Participating Firm in accordance with the invoicing and payment provisions set forth in the relevant SOW. For this purpose, Participating Firm shall keep detailed records indicating the time spent by Participating Firm on Services rendered to each client of the Leading Firm and shall allocate all such fees among all clients of the Leading Firm for which Participating Firm performs Services.
8.7. Notwithstanding any liability provisions to the contrary, Participating Firm expressly agrees that the fees received by Participating Firm pursuant to these General Terms and Conditions and the relevant SOW shall satisfy and discharge in full all claims upon the Leading Firm for compensation in respect of the relevant Services.
9. Restrictions
9.1. Confidential Information
9.1.1. Recipient acknowledges that in the course of Recipient’s engagement by the Discloser, Recipient will become acquainted with Confidential Information belonging to the Discloser. This information relates (without limitation) to Discloser’s business, including to persons, firms, corporations, or other entities that are or will become clients or customers of the Discloser. Recipient shall not, during or after the term of Recipient’s engagement, disclose, other than to those of its affiliates, directors, professional advisors, consultants, employees, partners, officers or managers and legal advisors involved in the discussions (“Permitted Recipients”) concerning these General Terms and Conditions, the relevant SOW and the provision of Services, said Confidential Information, or any part thereof, to any person, firm, corporation, association, limited liability company, partnership, joint venture, or other juridical entity, for any reason or purpose whatsoever, without the prior written consent of the Discloser, save that the Recipient may make such disclosures without the Discloser's written consent where legally required to by a relevant regulatory body, court or other supervisory authority. In so doing, and where legally permissible, Recipient will provide prompt written notice to the Discloser prior to making such disclosures.
9.1.2. Recipient shall ensure that disclosure to its Permitted Recipients is on a strict need to know basis and all such Permitted Recipients who may receive access to the Confidential Information are prior to disclosure, made aware of and agree to comply with the confidentiality and non-use obligations contained herein.
9.1.3. At any time upon request and upon the termination of these General Terms and Conditions, for any reason, Recipient agrees that it will destroy and erase (to the extent technically practicable) and not retain, without the Discloser’s prior express written consent, any figures, calculations, computer disks or other computer information, letters, papers, documents, or copies thereof that constitute or contain any Confidential Information of Discloser, or any other Confidential Information of any type or description as to the Discloser, its affairs or its clients, provided, however, that Recipient shall be entitled to retain one copy of such Confidential Information for the sole purpose of complying with applicable law, professional standards, or established documentation retention policies. Recipient acknowledges that such copies shall be kept confidential subject to these General Terms and Conditions.
9.1.4. For purposes of these General Terms and Conditions, “Confidential Information” shall include all information relating to the Discloser, the Discloser’s affairs, and the Discloser’s clients or customers except for any information that is:
(i) ascertainable from public or published information or other publicly available sources (provided such information has not been made public by an act or omission of Recipient),
(ii) acquired from a third party who, to the Recipient’s reasonable knowledge and belief, owes no obligation of confidence to Discloser in respect of that information, or
(iii) substantially developed or obtained independently of any access to Discloser’s Confidential Information.
(iv) Notwithstanding the previous provisions, Recipient shall be permitted to disclose the Confidential Information where this is required to be disclosed by any governmental or regulatory agencies or authorities, or by law, regulation or court order, provided that (to the extent legally permissible) the Discloser is notified in advance of such requirement.
9.2. Use of Confidential Information
9.2.1. Recipient agrees that, under these General Terms and Conditions and thereafter, except in connection with the performance of Services, Recipient will not utilize, directly or indirectly, for Recipient’s own benefit, or for the benefit of any other person or persons, any Confidential Information of the Discloser, including any and all information relating to the Discloser’s business and clients, without the prior written consent of the Discloser.
9.3. Scope and Duration
Participating Firm acknowledges the extreme importance being placed on the scope and duration of the covenants set forth in the preceding sub-clauses and fully agrees to these restrictions. Participating Firm further agrees that in the event of a breach of any of the terms of this clause, the Leading Firm shall be entitled to seek an order in any suit brought for that purpose to enjoin Participating Firm from further violating any of the provisions of this clause. Pending the hearing and decision of the application for such an order, the Leading Firm shall be entitled to seek a temporary restraining order or injunctive relief without prejudice to any other legal or equitable remedy available to the Leading Firm.
9.4. Remedies Not Limited
9.4.1. Nothing in this Clause 9 shall be construed as prohibiting the Leading Firm from pursuing any other remedies available to it for such breach or threatened breach, including damages, costs, and reasonable attorneys’ fees from Participating Firm.
10. Intellectual Property
10.1. Except as may be otherwise stated in the relevant SOW, the Participating Firm shall retain ownership in all copyright and other intellectual property rights in everything developed, designed or created by Participating Firm before or during the course of the Services including systems, methodologies, software, know-how and working papers and Participating Firm shall also retain ownership in all copyright and other intellectual property rights in all reports, written advice or other materials provided by Participating Firm to Leading Firm in the course of providing the Services.
10.2. Notwithstanding the foregoing, Participating Firm hereby grants Leading Firm a non-exclusive, royalty-free, worldwide, revocable and limited license to use all information, documents, reports, work product and other materials provided by Participating Firm to Leading Firm in connection with the Services, including the right to sub-license the same to Leading Firm’s relevant End-Client(s). For the sake of clarity, the license is hereby granted for the sole scope, time and purpose for which the protected elements were created pursuant to the relevant SOW, these General Terms and Conditions and the applicable law.
10.3. The Participating Firm hereby agrees that:
(i) there are no known potential, threatened or actual claims by its employees, partners or any third parties in respect of the intellectual property rights in the Services; and
(ii) it has all necessary rights and/or powers to grant the rights and licenses granted under this General Terms and Conditions.
11. Liability; Indemnification.
11.1. Subject to the provisions set forth in this clause 11, each Party’s total aggregate liability arising out of or in connection with the performance of its obligations under these General Terms and Conditions and the SOW shall be agreed between the Parties in the relevant SOW.
11.2. Nothing in these General Terms and Conditions or any SOW shall limit or exclude either Party’s liability to the other for death or personal injury caused by the negligence of that Party, or for any fraud or fraudulent misrepresentation, or for any other matter which cannot be excluded or limited in accordance with the applicable law. All other limitations of liability between the Parties shall be set forth in the relevant SOW.
11.3. Neither Party will be liable to the other Party for any loss of profits, loss of business, loss of revenue, depletion of goodwill or reputation, loss of anticipated savings, loss of competitive advantage, loss of opportunity, failure to realize anticipated profits, savings or other benefits or any other special, indirect, punitive, consequential or exemplary losses, costs or damages of any kind.
11.4. Except as may be otherwise agreed between the parties to the relevant SOW, subject to clause 11.4(i)a., and the liability cap set forth in the relevant SOW, the Participating Firm shall indemnify and hold harmless the Leading Firm from and against all direct losses, liabilities, damages, costs and expenses (including reasonable legal fees) suffered or incurred by the Leading Firm as a result of or in connection with:
(i) any actual or alleged intellectual property infringement claim brought by a third party (including the End-Client) arising out of the Participating Firm’s supply of the Services and the provision of the work product;
a. Prior to exercising its indemnity in clause 11.4, the Leading Firm shall first give the Participating firm the opportunity to resolve the issue by: (i) obtaining for it the appropriate licences or other intellectual property rights or (ii) re-submitting the deliverables without the offending intellectual property
(ii) any breach by Participating Firm of its confidentiality obligations set forth in this General Terms and Conditions and the relevant SOW; or/and
(iii) any breach by Participating Firm of any applicable law or regulations.
12. Termination
12.1. Either Party may terminate these General Terms and Conditions as a whole, or any SOW upon thirty (30) days written notice to the other Party.
12.2. Without affecting any other right or remedy available to it, either Party may terminate these General Terms and Conditions or any SOW with immediate effect by giving written notice to the other Party if:
(i) the other Party commits any material breach of its obligations under this General Terms and Conditions or the relevant SOW which is irremediable or, if capable of remedy, fails to remedy such breach within 30 days after being given written notice to do so; or
(ii) the other Party makes an arrangement with or assignment in favour of its creditors or goes into liquidation (other than voluntary liquidation for the purposes of amalgamation or reconstruction) or has a receiver or administrator appointed over its property or assets or any part thereof or any event analogous to any of the foregoing occurs in relation to the other Party in any jurisdiction; or
(iii) in the case where the Leading Firm is the terminating party: the Leading Firm’s End-Client(s) informs the Leading Firm that the Services being performed by the Participating Firm are no longer required, or the Leading Firm’s own appointment with the End-Client(s) is terminated.
12.3. The termination of these General Terms and Conditions or any SOW will be without prejudice to any rights or obligations that have accrued to either Party prior to termination. Termination of these General Terms and Conditions as a whole, or any SOW under these General Terms and Conditions shall not affect the continuation of any other SOW then in force under these General Terms and Conditions and such SOW shall continue until completion of the Services prescribed in that SOW unless that SOW is terminated earlier in accordance with these General Terms and Conditions. These General Terms and Conditions shall continue to apply to any SOW which continues in effect. Those provisions of these General Terms and Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
13. Compliance with Laws
13.1. The Participating Firm undertakes and warrants that neither it nor any member of its officers, affiliates, employees, directors or representatives have offered, given or agreed to give, nor shall offer or give or agree to give to any person, company or firm any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do anything in breach of applicable anti-bribery and anti-corruption legislation (within its jurisdiction) in relation to the obtaining of these General Terms and Conditions or the relevant SOW, or the performance of its obligations under these General Terms and Conditions and the relevant SOW.
13.2. The Participating Firm warrants that it has in place, and undertakes that it will comply with, policies and procedures to avoid the risk of bribery and fraud within its organisation and in connection with its dealings with third parties.
14. Data Protection
Where the Parties are processing personal data in connection with this General Terms and Conditions and the relevant SOW, the Parties shall comply with all the applicable data protection regulations.
15. Disclosures
15.1. Leading Firm may disclose any written advice and other documents prepared by the Participating Firm in connection with the Services to the relevant End-Client.
15.2. Leading Firm may not disclose any written advice and other documents prepared by the Participating Firm in connection with the Services to third parties without the prior written consent of the Participating Firm. The Leading Firm may disclose any written advice or other documents prepared by the Participating Firm to any competent authority for the purpose of compliance with mandatory legal or administrative obligations.
15.3. In case of violation of the above disclosure, Leading Firm is obliged to indemnify Participating Firm as well as its executives, officers and employees from all claims made by third parties, as far as these claims raised against Participating Firm, its directors, officers or employees in total would be subject to the limitation of liability agreed between Leading Firm and Participating Firm in Clause 11.
16. Digital means of communication
16.1. Parties agree that they may use digital means of communication and data storage services, whether or not offered by third parties, for the purpose of communication. Parties cannot be held liable for damage or loss resulting from the use of such services.
16.2. Parties do not assume any liability for any damages that may arise to the other Party or third parties from transmitting information, data and documents by e-mail.
17. Assignment; Benefit
17.1. Neither Party may assign, transfer or otherwise deal with its rights, liabilities or obligations under these General Terms and Conditions or the relevant SOW to any third party (excluding its group companies) without obtaining the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), and any attempted or purported assignment without such consent shall be void. The Parties agree that these General Terms and Conditions shall inure to the benefit of and be binding upon the Parties and their respective personal representatives, heirs, executors, administrators, successors, and assigns.
18. Amendments
These General Terms and Conditions may be amended at any time by mutual agreement of the Leading Firm and Participating Firm; provided, however, that before any amendment shall be valid, it shall be reduced to writing and signed by the authorised representatives of both Parties.
19. Waiver
The delay or failure by either Party to exercise or enforce any of its rights under these General Terms and Conditions and the relevant SOW shall not constitute or be deemed a waiver of that Party’s right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
