Based on Standard Terms of Delivery for accounting assignments
Regnskap Norge 2017, version 2 (Oct. 2017)
Standard Terms of Engagement
1. The agreement between the parties
1.1 The agreement framework between the parties
The Customer («Customer») and the Accounting Firm («Accounting Firm») have entered into an agreement whereby the Accounting Firm shall undertake certain tasks related to bookkeeping and similar services on behalf of the Customer in accordance with the Assignment Specification. These Standard Terms of Engagement supplement the Assignment Specification and govern the general terms and conditions that apply between the Customer and the Accounting Firm (each referred to as a «Party» and together as the «Parties») in the engagement relationship.
The assignment presupposes that the accounting firm has completed the necessary customer due diligence in accordance with the Act relating to measures to combat money laundering and terrorist financing (the Anti-Money Laundering Act) before the assignment commences. If customer due diligence cannot be carried out or approved, the agreement shall not enter into force, and the accounting firm may, without liability, decline to take on the assignment. Any specified deadlines shall run only from the time KYC has been approved.
The assignment further presupposes that the customer answers loyally the questions the accounting firm may have in connection with the carrying out of customer due diligence, and, if necessary, provides documentation that can verify the customer's information. If the Accounting Firm does not find it possible to carry out legally required customer due diligence, the Customer shall be notified.
The agreement framework between the Customer and the Accounting Firm consists of the following parts:
The Assignment Specification, which sets out which services and responsibilities the Accounting Firm has undertaken to perform on behalf of the Customer;
Standard Terms of Engagement, which set out the general contractual terms and conditions applicable between the Parties;
Any annexes regarding other services agreed between the Parties that are not stated in the Assignment Specification.
The Assignment Specification, Standard Terms of Engagement and any supplementary annexes, etc. will be referred to collectively as the Engagement Agreement.
In the event of conflict between the Standard Terms of Engagement and the Assignment Specification, the Assignment Specification shall prevail when it is clearly stated. In the event of conflict between the Assignment Specification and any other annexes, the specific annex shall prevail to the extent applicable when it is clearly stated and the annex is the most recent in time.
1.2 Background and purpose of the agreement
The assignment involves the Parties cooperating to prepare accounting reports and submit returns as defined in the Engagement Agreement, etc. The Engagement Agreement does not remove the Customer's own obligation to submit correct returns and prepare reports under the law, but the Accounting Firm undertakes a defined obligation to prepare more specifically defined reports, returns, etc. on the basis of the Customer's information and materials. The cooperation between the Parties depends on good and complete communication and on the Customer contributing accurate facts.
2. Collaboration questions
2.1 Customer's duties
In order for accounts, reports and notifications to public authorities to be correct, the Customer must:
Provide information and loyally assist so that the Accounting Firm can carry out the assignment;
Ensure that accounting records handed over to the Accounting Firm are complete and related to the business;
Comply with the deadlines set out in the Assignment Specification;
On its own initiative, clarify how the accounting records are to be treated in the Customer's business, if this is not clearly stated in the accounting records;
Pay invoices when due;
Follow the instructions in place for delivering and receiving information digitally;
Notify the Accounting Firm of everything that may be significant for the performance of the assignment;
Inform the Accounting Firm of notices and information from public authorities that are relevant to the assignment;
The Customer shall, without undue delay, provide the necessary information and documentation for the implementation and ongoing updating of KYC, including confirming beneficial owners and changes in the business.
Cooperation requires that the Customer, as soon as the accounts, reports, tax returns, etc. have been made available, reviews them and alerts the Accounting Firm to possible errors and omissions where possible.
Inquiries from the Accounting Firm shall be answered as soon as possible.
2.2 Communication and documentation
The parties shall have designated representatives who ensure proper communication electronically to the specified email addresses in the Assignment Specification.
The legislation sets requirements for the storage of accounting records subject to retention, and all accounting records subject to retention may be stored electronically. “Accounting records subject to retention” means accounting records as referred to in Section 13(1) of the Bookkeeping Act.
If accounting records are handed over to the Accounting Firm on paper, the Accounting Firm may shred the material after it has been securely stored electronically.
Delivery and making available to the Customer of accounting records takes place electronically in accordance with section 9.3.
2.3 Supervision, insurance, etc.
The Customer is aware that the Financial Supervisory Authority and industry organization may request access to relevant accounting records and full access to physical and electronic archives documenting the Accounting Firm's work, including necessary access to IT systems, in connection with their inspections.
Furthermore, the Customer is aware that the Accounting Firm is subject to the rules of the Anti-Money Laundering Act. The Accounting Firm is insured with professional liability insurance.
2.4 Duty of confidentiality
Section 10 of the Accounting Act governs the Accounting Firm's duty of confidentiality.
In addition, pursuant to clause 5 of this agreement and Section 1 of the Personal Data Act, cf. Regulation (EU) 2016/679 Article 28(3)(b), the Accounting Firm is obliged to process personal data confidentially.
The duty of confidentiality does not apply where the Accounting Firm, at its own discretion and on its own initiative, chooses to inform a person who has personal responsibility for the preparation of the accounts at the Customer, as this person is not considered an unrelated third party.
Information that the Customer becomes aware of as a result of the assignment shall be treated confidentially.
3. Accounting firms' services and duties
The accounting firm is, in the engagement, subject to the requirements and obligations set out in the Engagement Agreement, and shall perform its duties in accordance with the requirements arising from applicable legislation, including accounting legislation, bookkeeping legislation, tax and VAT legislation, company legislation and good accounting practice (GRFS).
As part of the engagement, the Accounting Firm will normally provide advice within the field of accounting. Other advice may be provided on the basis of a separate agreement. The Customer is responsible for assessing what expertise the specific questions require.
4. Authorization for access to information and submission of returns
The accounting firm is authorized, on its own initiative, to:
Require accounting information from relevant third parties, including ledger account information and bank statements;
Require all relevant information for completing official filings, including downloading electronic data to relevant software at the Accounting Firm;
Complete and submit official filings via Altinn or another filing portal used by the relevant tax or filing authorities. This includes signing the filing(s) on behalf of the Customer. Such signature may only occur where the Accounting Firm believes that it is not contrary to good accounting practice and the Accounting Firm has no reason to doubt the basis or accuracy of the filing;
Disclose ledger account information to the Customer's customers and suppliers.
Other authorizations, e.g. authorization on accounts owned by the Customer, are documented through written authorization or engagement agreement.
By signing on behalf of the Customer, the Accounting Firm only confirms that the submitted filings correspond with registered and documented information, and that, to the best of the Accounting Firm's knowledge, the information corresponds with the actual facts.
The Accounting Firm has the right to delegate the authorization, with all matters regulated herein, further to employees of the Accounting Firm. There is an overview of which persons in the Accounting Firm exercise the authorization. This authorization applies from the conclusion of this agreement and until the assignment ends, or the authorization is withdrawn in writing.
5. The accounting firm's processing of personal data on behalf of the customer
5.1 Introduction
The Customer is the controller and has the right and duty to determine the purpose of the processing of personal data and which means are to be used for the processing. The Customer has a duty to ensure that there is a valid legal basis for the processing the Accounting Firm is to perform. The Accounting Firm processes personal data on behalf of the Customer and is the processor.
5.2 The nature and purpose of the processing
The Accounting Firm's processing of personal data is carried out with the aim of ensuring correct identification, accounting reporting and withholding information, as well as communication purposes. The Accounting Firm will only process personal data on behalf of the Customer in accordance with the Engagement Agreement and the tasks set out in the Engagement Specification, or pursuant to documented instructions from the Customer.
The processing will last as long as the Engagement Agreement between the Parties remains in force. The Accounting Firm stores accounting materials with associated personal data in accordance with what has been agreed in the Engagement Specification and statutory requirements for storage of accounting and engagement documentation, etc. When the statutory retention period expires, the personal data will be deleted.
The purpose and nature of the Accounting Firm's processing of personal data is to fulfill the requirements incumbent on the Customer and the Accounting Firm, including accounting obligations, etc. Processing of personal data under the Engagement Agreement applies to personal data that has been collected, stored or otherwise processed pursuant to the special legislation applicable at any given time, see section 5.3. The Accounting Firm does not process personal data beyond what is stated in the Engagement Agreement between the Parties or the special legislation. If the Parties, in their cooperation, choose to process personal data beyond such mandatory processing, a special agreement shall be entered into in a separate appendix to the Engagement Agreement.
5.3 Types of personal data processed
The Accounting Firm will process personal data in order to fulfill its obligations under the Engagement Agreement and the special legislation applicable at any time, including accounting legislation, bookkeeping legislation, company law, the Anti-Money Laundering Act, tax legislation, the National Insurance Act, the Working Environment Act and GRFS.
Which types of personal data are processed on behalf of the Customer is set out in Appendix 1 – Description of processing of personal data («Appendix 1»).
5.4 Use of subcontractors
The Accounting Firm has the right at any time to use subcontractors to fulfill its obligations under the Engagement Agreement. Upon entering into the engagement agreement, the Accounting Firm provides the Customer with an overview of the subcontractors it uses and where personal data is processed in connection with the engagement relationship, and which the Customer approves by signing the Engagement Agreement. The Accounting Firm will notify the Customer if a new subcontractor is used that the Customer has not previously been informed about. The notification routine is described in more detail in Appendix 1.
The Accounting Firm shall ensure that processing of personal data performed by subcontractors is subject to the same obligations as those imposed on the Accounting Firm under the Engagement Agreement with the Customer.
5.5 Data protection security
The Parties shall implement appropriate technical and organizational security measures to the extent deemed appropriate and necessary when processing personal data. Upon request from the Customer, the Accounting Firm shall be able to demonstrate how the Customer fulfills its obligations in the contractual relationship in accordance with data protection legislation.
If the Parties, through their planned review of data protection security or otherwise, discover a breach of data protection security, the Parties shall notify the other Party without undue delay. If a breach of data protection security is discovered, the Customer is responsible for notifying the Norwegian Data Protection Authority and, if applicable, the data subject(s), if such notification is required.
The Customer is responsible for the accuracy, integrity, content and reliability of the personal data. The Accounting Firm is not responsible for breaches of privacy rules caused by the Customer's unauthorized use of the IT system, or actions taken by the Customer's personnel or persons to whom the Customer has granted access.
5.6 Liability and compensation
The Customer may be held liable for any damage caused by processing that is contrary to the data protection legislation applicable at any time. The Accounting Firm may be held liable for breaches of data protection legislation that are directed directly at the Accounting Firm, or breaches resulting from the Accounting Firm acting contrary to or exceeding the Customer's lawful, documented instructions. Neither Party may be held liable for damages if it is proved that the Parties are not responsible for the event causing the claim for compensation. In the event of a claim for compensation, the recourse rule in GDPR Article 82(5) applies.
If a Party is subject to an administrative fine that is wholly or partly due to the other Party, the Party to which the administrative fine is imposed may claim recourse for the part attributable to the other Party's circumstances.
General principles and conditions of tort law, including rules on burden of proof, causation and assessment of compensation, apply to the extent they do not conflict with the data protection legislation applicable at any time.
6. Copyright
The accounting firm has copyright to its own intellectual works, working methods, and methodological basis. The accounting firm is subject to rules of confidentiality and good business practice. Unless otherwise agreed in writing, the accounting firm may use general knowledge commercially.
7. Compensation and payment terms
At the start of the assignment, the fee is calculated based on the accepted offer. The accounting firm's fee may be changed and is calculated according to the accounting firm's current rates at any time.
8. Breach
8.1 When a breach exists
A breach exists if one of the Parties fails to fulfill the other Party's justified expectation under the Engagement Agreement or applicable background law.
8.2 The Parties' obligations in the event of breach
For breach remedies to be invoked, a written notice of complaint must be submitted. The complaint shall be sent electronically and clearly state that there is a breach of contract and which remedy for breach will be claimed. The complaint must be sent without undue delay after the Party has become or should have become aware of the circumstances invoked. The remedy for breach must be proportionate to the breach. If breach is alleged because the invoice sent is not valid, complaint must be made before the invoice due date.
8.3 Termination
The Parties have the right to terminate the Engagement Agreement in the event of material breach. The Accounting Firm shall be deemed to have materially breached the Engagement Agreement if:
Execution of the assignment materially deviates from the rules applicable to the services that the Accounting Firm has undertaken to perform under the Engagement Agreement; or • The Accounting Firm's deadline for delivery is not met, and delivery has still not been made within one week after notice has been received from the Customer, and the delay is not due to circumstances on the Customer's side;
The Customer shall be deemed to have materially breached the Engagement Agreement if:
The Customer has not paid the due fee plus interest within 14 days from the Accounting Firm's reminder;
The Accounting Firm is not given the opportunity to perform its assignment in a proper manner, because the Accounting Firm does not receive the necessary documentation, or communication between the Parties fails in form or content;
The Customer acts in such a way that it is no longer possible to carry out legally required customer due diligence measures pursuant to the Anti-Money Laundering Act, or the results of the performed customer due diligence do not provide an adequate or satisfactory conclusion;
The Accounting Firm is attempted to be required to perform the assignment in violation of laws and regulations, or;
The Customer intentionally or grossly negligently makes entries, etc. in the system to evade tax or duty in violation of applicable regulations.
Termination of the Engagement Agreement shall take place by written declaration called "termination notice", etc. The declaration shall provide a concise description of the reason for the termination and be delivered electronically. The Parties' obligations under this engagement agreement cease immediately after a valid termination notice has been sent.
In the event that the Engagement Agreement has been terminated on the basis of material breach by the Customer, the Accounting Firm is entitled to remuneration in accordance with clause 9.2 on termination when the Accounting Firm does not perform accounting services under the Engagement Agreement during the notice period.
8.4 Financial consequences of breach
As a remedy for breach, the Parties may choose the ordinary remedies for breach, namely:
For the Customer
Price reduction;
Termination.
For the Accounting Firm
Replacement performance;
Right to suspend and withhold, see clause 8.5.
In addition or alone, damages may be claimed depending on the circumstances. The compensation amount shall cover the Party's financial loss, however such that:
In the event of improper termination by the Customer, the average monthly fee based on the last twelve months is charged, for the period as if the assignment had been terminated under clause 9;
In the event of defective or missing delivery from the Accounting Firm, indirect loss or loss caused by third parties, or circumstances beyond the Accounting Firm's control, is not covered;
In the event of defective or missing delivery from the Accounting Firm that is not due to intent or gross negligence, liability is limited to six times the annual fee, or a maximum of NOK 1 million.
Each of the Parties therefore bears responsibility for its own use and entries in the Accounting System.
The Accounting Firm is not liable for errors or defects in the accounting system, communication, data security, lack of maintenance, backup, reconstruction or other circumstances not caused by the Accounting Firm.
8.5 Special provisions on suspension right, right of retention and closure of access to the Accounting System
In the event of the Customer's breach, the Accounting Firm may suspend the work and/or exercise a right of retention in documents, materials or other items prepared by the Accounting Firm until the breach ceases. The Accounting Firm shall notify the Customer when the Accounting Firm suspends the work, withholds accounting material or closes access to the Accounting System, see clause 8.2.
The Accounting Firm's right of retention does not cover accounting material received from the Customer.
If the Customer is subject to insolvency proceedings, or if it otherwise becomes clear that the Customer's ability to fulfill its obligations under this engagement agreement ceases, the Accounting Firm may suspend the work.
Closure of access to the Accounting System may only take place where the Accountant is the license holder to the Accounting System, see the Assignment Specification. Closure means that both the Customer's vouchers and the Accounting Firm's materials will be inaccessible to the Customer. Vouchers may be copied out and handed over to the Customer in PDF or another generally available format against prepayment to the Accounting Firm.
The Accounting Firm is not liable for any deadline overruns, late fees, etc. incurred by the Customer as a result of the suspension right or right of retention being exercised. If the Accounting Firm chooses to perform the assignment and meets the agreed deadlines, the Accounting Firm may charge additional fees based on increased effort, overtime or similar.
The Accounting Firm may suspend delivery and/or block access in the event of missing KYC, lack of cooperation or other circumstances preventing lawful performance of the assignment.
9. Termination
9.1 Termination and notice period
The Engagement Agreement remains in force until it is terminated by one of the Parties. Notice of termination shall be given to the other Party in writing and it must clearly state that it is a termination.
The notice period is regulated in the assignment specification and runs from when the termination was received by the Party, unless the exception in clause 10 applies.
The Accounting Firm may terminate the agreement with immediate effect if KYC cannot be carried out or approved.
9.2 The Parties' obligations and rights during the notice period
The Parties' obligations under the Engagement Agreement continue during the notice period. This includes the Accounting Firm performing the tasks that would normally under the Engagement Agreement be carried out in the months covered by the notice period, and the Client being obliged to pay remuneration in accordance with the applicable fee provisions. If the notice period expires during the annual accounts period, the Accounting Firm also includes the tasks of finalizing the annual accounts and tax return with attachments, unless the Client simultaneously with the termination notifies the Accounting Firm that the Accounting Firm shall not prepare these.
The Client may choose that the Accounting Firm shall not perform the agreed work during the notice period. The Accounting Firm is nevertheless entitled to remuneration corresponding to the average monthly fee based on the last twelve months.
9.3 The Parties' obligations after expiry of the notice period
The Client has the formal responsibility for storage of accounting records.
The Accounting Firm may undertake, as a service, to store the Client's accounting records subject to retention obligation, electronically or physically, in return for remuneration in accordance with the Accounting Firm's current price list at any time, cf. clause 7. If such a storage agreement is entered into, this shall be stated in the Assignment Specification. If no such agreement has been entered into, the Accounting Firm will hand over the Client's accounting records subject to retention obligation and other accounting material in a commonly accessible format (pdf, excel etc.). Recorded information is provided in the accounting system's file format or in the standard data format for electronic accounting material (SAF-T). Other accounting material is handed over in its original medium.
Provision of accounting material is invoiced according to ordinary principles. The Accounting Firm is entitled to remuneration based on time spent, as well as remuneration for any subcontractors, for conversion and delivery of accounting material.
If the Accounting Firm is not obliged to retain accounting material (either because this has not been agreed or because the obligation has ceased as a result of the Client's breach), the Accounting Firm may destroy the material 30 days after notice of destruction has been sent to the affected parties referred to in GRFS clause 4.7.
10. Change of party and frustrated assumptions
The Parties may only assign their rights and obligations under the Engagement Agreement with the written consent of the other Party. Such consent shall be granted unless there is reasonable grounds to refuse the transfer. This provision shall not prevent the Accounting Firm from assigning its receivables to others, such as in factoring.
The Engagement Agreement has been entered into on specific assumptions. In the event of material changes in the assumptions for the engagement, for example material changes in the scope of the engagement, risk, the Customer's ownership, listings, mergers, demergers, or other significant organizational changes, the Accounting Firm may terminate the engagement on notice, limited to the period before the changed assumption takes effect for the engagement.
11. Conflict and Jurisdiction
Disputes arising under the Engagement Agreement shall be resolved in accordance with Norwegian law, with the Accounting Firm’s place of business as the venue.