The following are the terms and conditions (the “Terms and Conditions”) on which we, Record Associates (as defined in clause 13.8 below), will provide certain services (the “Services”) to you as set out within the attached Letter of Engagement. The Letter of Engagement and the Terms and Conditions are together referred to as the “Contract” or “the Engagement”.
1. The contract between us
1.1 This Contract represents the entire understanding and constitutes the entire agreement between the parties in relation to its subject matter and supersedes any previous agreement between the parties as to such subject matter. Each of the parties acknowledges and agrees that in entering into this Contract it has not relied on any representation or warranty or undertaking other than those expressly set out in this Contract and, except in relation to any liability for fraudulent misrepresentation, neither party shall be under any liability or shall have any remedy in respect of misrepresentation or untrue statement unless and to the extent that a claim lies under this Contract.
1.2 If we have already started work (e.g. by gathering information, project planning or giving initial advice) then you agree that this Contract applies retrospectively from the start of our work.
2.1 No party will disclose to any third party without the prior written consent of the relevant party any confidential information which is received from the relevant party for the purposes of providing or receiving Services which if disclosed in tangible form is marked confidential or if disclosed otherwise is confirmed in writing as being confidential or, if disclosed in tangible form or otherwise, is manifestly confidential. Each of us agrees that any confidential information received from the other party shall only be used for the purposes of providing or receiving Services under this Contract. These restrictions will not apply to any information which:
(a) is or becomes generally available to the public other than as a result of a breach of an obligation under this Clause 2.1;
(b) is acquired from a third party who owes no obligation of confidence in respect of the information; or
(c) is or has been independently developed by the recipient or was known to it or prior to receipt.
2.2 Notwithstanding Clause 2.1 above each party will be entitled to disclose confidential information of the other:
(a) to their respective legal advisers,
(b) to their respective directors, officers, members, partners or employees;
(c) to any subcontractors we use to provide the Services (or more generally in support of our office administration); and
(d) to a third party to the extent that this is required by any court of competent jurisdiction or by a governmental or regulatory authority or where there is a legal or professional duty or requirement to disclose it.
2.3 Unless otherwise set out in the Letter of Engagement, we shall be entitled to disclose, advertise and publicise our Engagement although we shall use our reasonable endeavours to inform you of any publicity or advertisement in advance of its release.
3. Reports and advice; communications
3.1 Reliance on Drafts or oral advice: You shall not place reliance on oral advice or draft reports, conclusions or advice, issued by us as the same may be subject to further work, revision and other factors which may mean that such drafts are substantially different from any final report or advice issued.
3.2 Use and Purpose of Advice, Reports and Models: Any advice given or report or model issued by us is provided solely for your use and benefit and then only in connection with the purpose in respect of which the Services are provided. Unless you are permitted to do so pursuant to clause 2.2 above, you shall not provide such report or model or advice to any third party or refer to us or the Services without our prior written consent, which we may at our discretion grant, withhold or grant subject to conditions. In no event, regardless of whether consent has been provided, shall we assume any liability or responsibility to any third party to whom any advice or report or model is disclosed or otherwise made available, and you will indemnify us against all claims resultant from your breach of this clause 3.2.
3.3 Electronic Communications: During the Engagement we may wish to communicate electronically with each other. However, the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We each agree to use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, but we recognise that such procedures cannot be a guarantee that transmissions will be virus free. Accordingly, we shall each be responsible for protecting our own interests in relation to electronic communications and for ensuring that an electronic communication is not misaddressed.
3.4 In providing the Services to you or otherwise in connection with the Services, we may need to collect hold and use information (e.g. contact details) about identifiable individuals (“Data Subjects”). We may also use such information as part of our client opening and general administration process (e.g. in order to carry out anti-money laundering, conflict and financial checks or debt recovery). Further, we may occasionally contact you with details of events/seminars we are holding, or we may send you publications or newsletters, which we believe may be of interest to you. If you do not wish to receive this information, please let us know by informing the partner responsible for the Services.
3.5 In providing some of the Services to you we may be processing information about Data Subjects on your behalf for the purposes of the Data Protection Act 1998. In these circumstances, we will only process personal data in accordance with your lawful and reasonable instructions.
3.6 In the course of providing the Services, we may make references to spreadsheets or computer models (together “models”) that you may provide to us or ask us to rely upon (“Your Models”) or that we may have developed or used in connection with the Services (“Our Models”). All models have limits and may not produce valid results for all possible combinations of input data; errors and potential errors may therefore go unnoticed. Unless otherwise expressly agreed in the Letter of Engagement, (i) we will not be responsible for reviewing, testing or detecting any errors in any of Your Models and (ii) we will not provide you with a copy of any of Our Models for your use. In some cases it may be expedient for us to provide you for your convenience with a copy of one or more of Our Models by way of explanation or illustration of our Services or related advice. Where we agree to do so, any such model will have been developed solely for our internal use and incidental to our providing the Services, rather than being a deliverable itself. Consequently, without in any way qualifying the Services, in providing you with any of Our Models, we make no representation, warranty or undertaking (express or implied) in relation to and take no responsibility for the accuracy, suitability, adequacy, completeness or reasonableness of any of Our Models for your own use. Prior to manipulating or placing any reliance on any models – Our Models or Your Models – you are advised to carry out appropriate checks on them.
4. The services and our respective responsibilities in relation to them
4.1 The scope of the Services and any reports to be provided under this Contract together with our responsibilities for them are as described in the Letter of Engagement. We will use all reasonable efforts to supply the Services in accordance with any timetable referred to in the Letter of Engagement or otherwise specified by the parties. However, unless specifically agreed otherwise between you and us, all dates given or specifi ed by you for the supply of the Services are intended for planning and estimating purposes only and are not contractually binding.
4.2 Whilst we will attempt to comply with your request for specific individuals, the appointment of all personnel to perform the Services and the nature and duration of their assignment shall be made as we consider appropriate. We may at any time replace or reassign any personnel assigned by us to the Services. In such circumstances we will endeavour to give you reasonable notice.
4.3 You will give us all the information and access that is necessary for the performance of the Services. Further, where needed to assist us in performing the Services, you will (i) take decisions and obtain management approvals promptly; (ii) give us full and prompt access to your personnel and premises and those of your affiliates and to your other advisers associated with the Engagement (if any), together with all necessary administrative support; (iii) obtain any approvals, licences and security clearances promptly (including any relating to third parties, our personnel and any subcontractors).
4.4 You agree that (except as otherwise specifically notified to us by you in writing) that all information provided by and on your behalf in respect of the Services is complete and accurate and is not misleading (either on its face or by inference or omission) and that there are no other material facts known to you that may be relevant to us in carrying out the Services and further that we may rely on such information. Any reports issued or conclusions reached by us may be based upon information provided by and on your behalf. Accordingly, we assume no responsibility and make no representations with respect to the accuracy or completeness of any information provided by you and on your behalf.
4.5 You agree that you will apply your independent business judgment to evaluate any report we produce, including any advice or recommendations we give you. You will be responsible for deciding whether our recommendations make sense in the context of your business and whether you wish to rely on, implement or act on them, including the actions necessary to realise any expected benefits.
4.6 Where you are using third parties to provide information, materials or other assistance in support of the Services, or you are employing other suppliers whose work may affect our ability to deliver the Services, you will be responsible for the management of such persons and their performance, including the timeliness and quality of their input and work.
4.7 Unless the Letter of Engagement specifies otherwise, you agree that any report prepared pursuant to the Services will be deemed accepted by you (and the Services, or the relevant part of them, completed) when it is delivered to you in its final form.
5. Intellectual property
5.1 All intellectual property rights including copyright, database rights, design rights (whether registered or unregistered), trade mark rights (or patent rights) in any materials created or produced by us in relation to the Services (including any reports, forecasts, drawings, spreadsheets, plans or other material) shall remain our property absolutely unless otherwise expressly stated in the Letter of Engagement provided always that we hereby grant to you a revocable licence to use and copy such materials for your own internal use subject to clause 3.2 above.
6.1 Fee Basis: Our fees will be charged on the basis set out in the Letter of Engagement or as otherwise notified to you.
6.2 Payment of Fees: The timing for payment of fees and expenses shall be of the essence. If we do not receive payment of any invoice within 30 days of the invoice date or such other time detailed within the Letter of Engagement we shall be entitled, without prejudice to any other rights that we may have, to charge you interest accruing on the sum due to us at the rate of 3% above the base rate of the Royal Bank of Scotland Plc from time to time calculated on a daily basis from the date of the relevant invoice until the date of payment in full. If any invoice remains unpaid (whether in whole or in part) for a period of 30 days or more, we shall be entitled to suspend provision of the Services in accordance with Clause 9.1 below until all sums due are paid in full.
6.3 Payment of Tax: All sums charged in connection with the Services, including expenses and disbursements, will be stated exclusive of any taxes. You will be responsible for paying any taxes arising from the Contract for which you are legally liable as well as Value Added Tax at the rate in force at the date the liability arises.
7. Other consultants
7.1 Your Responsibility for Other Parties: You shall be solely responsible for the work and fees (which shall be paid directly by you) of any other party (including co-consultants and contractors) engaged by you, or by us on your behalf, to participate in the Engagement regardless of whether such party was introduced to you by us. Except as provided in the Letter of Engagement, we shall not be responsible for providing or reviewing specialist advice or services including surveying, legal, due diligence or any other investigative services.
7.2 Subcontracting the Services: Notwithstanding clause 7.1, we may delegate the provision of our Services, or part of them, to a third party that is not a Record Associates Party where this is reasonable, but we shall also remain liable for the acts and omissions of that third party unless you agree in advance to rely on the services and products provided by that third party, such agreement not to be unreasonably withheld or delayed. If delegation is at your specific request, we will not be liable for the actions of the third party.
7.3 We will have no liability for services or products that we reasonably need to obtain from others in order to provide our Services.
8. Changes To Services and to The Contract
8.1 Any party may request changes to the Services. We shall work with you to consider and, if appropriate, to vary any aspect of the Engagement, subject to payment of reasonable additional fees and a reasonable additional period to provide any additional Services. Any variation to the Contract, including any variation to fees, services or time for the performance of the Services, shall only be effective if set forth in a supplemental letter of engagement signed by an authorised signatory of Record Associates which shall form part of the Contract and to which these Terms and Conditions shall apply.
9. Suspension of contract
9.1 Suspension of the Contract: At any time during the term of the Contract, any party may give immediate notice to the other suspending the performance of its duties and obligations under the Contract in the event that:
(a) circumstances exist or arise which, in the reasonable opinion of that party, materially and adversely affect the performance of, or the ability to perform, that party’s duties and obligations under the Contract;
(b) any party becomes aware that another party has failed (whether before or after the date of the Letter of Engagement) to disclose to it information which in the reasonable opinion of that party is material to the performance of its duties and obligations under the Contract.
9.2 We shall be entitled to suspend the Services and performance of our duties and obligations under the Contract in the event that any invoice remains unpaid (whether in whole or in part) for a period of 30 days or more and except as provided by Clause 9.1(b), we shall not be liable for any delays, losses, costs, damages or expenses resulting from such suspension.
9.3 Variation Following Suspension: If we suspend the performance of the Contract pursuant to Clauses 9.1 or 9.2, we shall be entitled reasonably to vary our fees for the resumed performance of the Contract.
10.1 The Contract may be terminated:
(a) by any party on written notice with immediate effect if another party commits a material breach of any term of this Contract which is irremediable or, if remediable, is not remedied within 30 days of a written request to remedy the same;
(b) by any party upon written notice if the period of suspension of the Contract referred to in Clause 9.1 continues for 30 days or more;
(c) by any party upon notice if the other party becomes the subject of insolvency proceedings or calls any meeting of its creditors;
(d) should any action by you create a situation which amounts to a professional conflict of interest under the rules of the professional and/or regulatory bodies, we may terminate this Contract without penalty on written notice. We will inform you as soon as reasonably practicable of any situation that occurs that we become aware of that may create a professional conflict of interest which could result in termination in accordance with this clause 10.1(d).
10.2 Upon termination of the Contract:
(a) each party shall upon written request from the other return to the other all property and documentation of the other that is in its possession or control except that we shall be entitled to retain a reasonable number of copies of such documents that we require to maintain a record of our involvement in the Engagement;
(b) we shall be entitled to retain all fees, expenses and disbursements previously paid by you to us and you shall pay forthwith all fees, disbursements and expenses due in respect of the Services provided up to the date of termination together with our reasonable costs and expenses incurred in connection with the termination of the Contract;
(c) the terms of the Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind all parties.
11.1 Limitation of our liability:
(a) We will seek to provide a service such as would be expected of a firm of Chartered Surveyors and we will use reasonable skill, care and diligence in the provision of the Services.
(b) Nothing in this Contract shall exclude, restrict or prevent a claim being brought in respect of any liability arising from fraud or other liabilities which cannot lawfully be limited or excluded.
(c) We shall not accept liability for any loss, damage, cost or expense arising from (i) any breach by you of your agreement with us or any act or omission of any other person or (ii) any use by you of our reports or Services for a purpose other than as set out in the Letter of Engagement.
(d) Our liability to you and to all other persons who we both have agreed may have the benefit of and rely on our work on the terms hereof (you and they each “a Beneficiary”) to pay damages as a direct result of breach of contract or negligence or any other tort by us in connection with or arising out of the Engagement or any addition or variation thereto shall be limited to that proportion only of your actual loss which was directly caused by us and in any event our liability shall in no circumstances exceed in aggregate the amount specified in the Letter of Engagement or, if no amount is specified in there, £250,000. In any event, we will not be liable for any indirect, special and consequential loss, and/or any loss which is caused by circumstances beyond our reasonable control.
(e) Any liability which we may have to you under or in connection with this Contract for losses suffered by you shall (so far as permitted by law) be limited to such an amount as is finally determined to be just and equitable, having regard to the extent of responsibility for those losses of us, you (including your directors, officers, employees or agents), and any person other than us who is jointly or severally liable to you for all or part of the same losses, provided always that our liability to you shall not under any circumstances exceed in aggregate the amount set out in this contract. Any limitation or exclusion or restriction on the liability of any such other person under any jurisdiction, whether arising under statute or contract or resulting from death, bankruptcy or insolvency, or any settlement of such liability agreed with you, shall be ignored for the purposes of determining whether that other person is liable to you and the extent of responsibility of that other person to you.
(f) Where there is more than one Beneficiary of the Services, the limit of liability specified in clause 11.1(d) above will have to be allocated between all Beneficiaries. No Beneficiary shall dispute or challenge the validity, operation or enforceability of this clause on the grounds that no such apportionment has been so agreed or on the grounds that the agreed share of the limitation amount so apportioned to any Beneficiary is unreasonably low.
(g) We have no responsibility for anything that is beyond the scope of the Services defined in the Letter of Engagement. In particular, we have no obligation to provide, nor any liability for either an opinion on price (unless specifically instructed to carry out a Valuation as covered by the RICS Red Book) or advice, or failure to advise, on the condition of a property (unless specifically instructed to carry out a formal building survey).
11.2 Liability Limitation and the Provision of Information: Notwithstanding clause 11.1(b) and 11.1(d), but subject always to clause 11.1(a), in no circumstances shall we be liable to pay any damages to you for losses arising out of or in any way connected with the provision of information to us by you or your failure to provide information to us either punctually or at all or any fraudulent act, misrepresentation or wilful default on your part.
12.1 No party shall directly solicit the services of any employee, agent or representative of the other who is involved in the Engagement without the prior written consent of the relevant party during the term of the Contract or for the period of six months after the termination of the Contract. If during the term of the Contract or for the period of six months after the termination of the Contract any employee of any party accepts an offer of employment made by another party as a result of an introduction in the course of the Engagement, the party shall pay to the other a sum equivalent to six months gross salary of the employee concerned including any monetary bonuses payable to that employee during the term of the Contract or for the period of six months after termination of the Contract.
13. Miscellaneous provisions
13.1 Actions Required by Law: Nothing in the Contract shall prevent us from taking all such action as may be required by law or statute or to comply with the regulations of any relevant professional or regulatory bodies. This includes compliance with Anti-Money Laundering Regulations.
13.2 Conflict: In the event of any conflict between the Terms and Conditions and the Letter of Engagement, the Terms and Conditions shall prevail except where amended by specific reference to the relevant paragraph of the Terms and Conditions. In the event and only to the extent of any conflict between the Letter of Engagement and any referenced or attached document other than the Terms and Conditions the Letter of Engagement will take precedent. 13.3 Force Majeure: Neither party shall be liable for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event outside of that party’s reasonable control.
13.4 Waiver of Remedies: No forbearance, delay or indulgence by either party in exercising or enforcing the provisions of this Contract shall prejudice or restrict the rights (whether provided by this Contract or by law) of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party or available by law is exclusive of any other right, power or remedy available to that party (whether under this Contract or at law) and each such right, power or remedy shall be cumulative.
13.5 Severability: If any provision in this Contract is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part thereof shall to that extent be deemed not to form part of this Contract and the enforceability and validity of the remainder of this Contract shall not be affected. Provided always that if any such deletion substantially affects or alters the commercial basis of these Terms and Conditions the parties shall negotiate in good faith to amend and modify them as may be necessary or desirable in the circumstances.
13.6 Rights of Third Parties: No person who is not a party to this Contract other than our subcontractors, if any, shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
13.7 Assignment: Neither of us may assign or otherwise transfer the benefit of this Contract without the prior express written consent of the other, save that we may assign the benefit of this Contract to any successor to our business. Further, neither of us will directly nor indirectly transfer any claim against the other arising out of this Contract to any other person.
13.8 Interpretation: “Record Associates” refers to a trading name of Record Associates 2012 Limited. Unless otherwise stated herein, “Record Associates”, “we” and “us” refers to Record Associates 2012 Limited, a limited company registered in England and Wales with number 8068851 and whose registered office is at Heath Farm, Cardeston, Shrewsbury, SY5 9NN, and references to “Addressee(s)”, “you” and “your” refers to the Addressee(s) on whose behalf this Contract was acknowledged and accepted. “Addressee” means you, the original addressee(s) of the Letter of Engagement together with any other persons whom we have agreed in writing may have the benefit of the Services or to whom we have assumed a duty of care in respect of the Services under written arrangement with them, provided that such other persons have agreed to the terms of this Contract.
13.9 Governing Law: This Contract (including all contractual and non-contractual rights and obligations arising out of or relating thereto) shall be governed by and interpreted in accordance with English law. Each party hereby irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales in respect of any claim, dispute or difference of whatever nature concerning the Contract and any matter arising from it.
13.10 Dispute Resolution: The parties will attempt to resolve any dispute that may arise under or in connection with this contract by negotiation. If after a reasonable time any dispute has not been resolved by negotiation, then subject to both parties’ consent in writing, the parties may refer the dispute to mediation.
July 2012 © Record Associates 2012 Limited (trading as Record Associates). All rights reserved.