1.1 “the Client” means the person(s) or company to whom the Contract are addressed and the person(s) or company receiving the Services
1.2 “JM” means Jaggard Macland LLP an English registered limited liability partnership (registered number 0C362437) whose registered address is McBride House, 32 Penn Road, Beaconsfield, Bucks, HP9 1LZ.
1.3 “the Fee” means the fees payable by the Client in consideration of JM carrying out the Services.
1.4 “the Property” means the location, site or building(s) which is the subject of the Services.
1.5 “the Services” means the service(s) provided by JM in carrying out the Client’s instructions.
1.6 “the Report” means any document, report, drawing, specification, calculation, form or table which is written, produced or created by JM in the course of carrying out the Services.
1.7 “Letter of Engagement” means the letter which has been or will be sent to the Client by JM or its predecessor Jaggard Macland and which sets out details of the Client, Services, Property and Fee together with such other details relating to the Services as may be appropriate.
1.8 “the Contract” means this document together with the Letter of Engagement.
1.9 If there is any inconsistency or contradiction between the Letter of Engagement and these Terms & Conditions, the provisions of the Letter of Engagement will prevail.
1.10 From time to time it may be necessary to amend or supersede these Terms and Conditions by new terms. Where this is the case JM will notify you of the changes and, unless we hear from you to the contrary within 7 days after such notification, the amendments or new terms will come into effect from the end of that period.
1.11 As an English registered limited liability partnership JM is a body corporate and as such has “members” and not “partners”. However, it is more usual for senior professionals to refer to themselves as “partners” and in common with other professional firms our members have decided to retain the traditional title of “partner”. Therefore, where we refer in these Contract or otherwise to a person being a “partner” that title refers to a member of Jaggard Macland LLP.
2. APPOINTMENT AND LIABILITY
2.1 The Client has instructed JM to undertake the Services and JM agrees to provide the Services in accordance with the Contract.
2.2 JM shall provide the Services with all reasonable professional skill and care.
2.3 The liability of JM for its own acts and omissions whether in contract or in tort or otherwise for any loss, injury or damage sustained shall be limited in each of the following respects:
2.3.1 JM shall not in any event be liable for more than JM’s just and equitable proportionate share of the loss, injury or damage assuming that all other professional/consultants/ specialists (either directly or sub-appointed) who are responsible are equally obliged to exercise reasonable professional skill and care and that they have been appointed on terms no less onerous and shall be deemed to have paid to the Client their just and suitable proportionate share of the liability.
2.3.2 JM shall not in any event be liable unless proceedings by way of court action or arbitration or alternative dispute resolution have been commenced within six years from completion of the Services.
2.3.3 Subject to paragraph 2.5 the maximum liability whether in contract, tort or otherwise shall be limited to a maximum of £500,000, unless stated differently in the Engagement. JM are not responsible for the first £250 of any loss claim.
2.3.4 No liability shall attach to JM either in contract or in tort or otherwise for loss, injury or damage sustained as a result of any defect in any material or the act omission or insolvency of any party other than JM and JM shall not be liable to indemnify the Client in respect of any claim made against the client for any such loss, injury or damage.
2.4 The Client will not be entitled to recover, and hereby disclaims and waives any right that it may otherwise have to recover lost profit or revenues or indirect of consequential loss or damage as a result of any breach (including without limitation, negligence) by JM of its obligations in respect of the Services.
2.5 Nothing in the Contract shall exclude or restrict JM’s liability:-
2.5.1 for death or personal injury resulting from JM’s negligence; or
2.5.2 for fraud, illegal or unlawful acts
2.6 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.
2.7 Any reports provided under this Contract together with our responsibilities for them are as descried in the Engagement. We will use all reasonable efforts to supply the Services in accordance with any timetable referred to in the Engagement or otherwise specified by the parties. However, unless specifically agreed otherwise between you and us, all dates given by you for the supply of the Services are intended for planning and estimating purposes only and are not contractually binding.
2.8 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.
2.9 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 Engagement which shall form part of the Contract and to which these Terms and Conditions shall apply.
2.10 We will seek to provide a service such as would be expected of a firm of professional consultant surveyors and we will use reasonable skill, care and diligence in the provision of the Services.
2.11 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 of Services for a purpose other than as set out in the Engagement.
2.12 We have no responsibility for anything that is beyond the scope of the Services defined in the 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).
2.13 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 use either punctually or at all or any fraudulent act, misrepresentation or wilful default on your part.
2.14 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.
2.15 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.
2.16 The duties and responsibilities owed to the Client in respect of the Services are solely and exclusively those of JM and no employee or partner of JM (whether or not a member of Jaggard Macland LLP) shall owe the Client any personal duty of care or be liable to the Client for any loss or damage howsoever arising as a consequence of the acts or omissions of such employee or partner (including any negligent acts or omissions) save and to the extent that such loss or damage is caused by the fraud, dishonesty, wilful misconduct or unauthorised conduct on the part of such employee or partner. The Client will therefore not bring any claim personally against any individual employee or partner of JM (other than in respect of those liabilities caused by fraud, dishonesty, wilful misconduct or unauthorised conduct on the part of such employee or partner). The terms of this paragraph will not limit or exclude the liability of JM for the acts or omissions of its employees or partners.
2.17 If at any time any provision contained in the Contract is or becomes illegal, invalid or unenforceable in any respect, it will not affect or impair the legality, validity or enforceability of any other provision contained in the Contract
3. PAYMENT OF PROFESSIONAL FEES
3.1 The Client undertakes to pay the Fee to JM for the performance of the Services in accordance with the Contract and at the rate set out in the Letter of Engagement (and any specific stage payment schedules).
3.2 JM shall issue an invoice for the Services (or part thereof) and this will be payable by the Client within 14 days of the date of issue of the invoice.
3.3 JM reserves the right to charge the Client interest (both before and after any Judgement) on any unpaid invoices at the rate of 3% per annum above the base rate for the time being at HSBC Bank Plc from the date which is 28 days after the date of the invoice until payment is made, or, at the sole election of JM, interest due under the Late Payment of Commercial Debts (interests) Act 1988.
3.4 Where the fee is subject to the addition of expenses and disbursements these shall be payable by the Client as invoiced and at the rates indicated by JM.
3.5 All sums charged in connection with the Services, including expenses and disbursements, will be stated exclusive of 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, subject to JM having opted to charge VAT.
3.6 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 Engagement, we shall not be responsible for providing or reviewing specialist advice or services including surveying legal, due diligence or any other services.
4. COMMENCEMENT AND TERMINATION
4.1 The commencement of instructions under the Contract will be on the date set out in the Letter of Engagement.
4.2 Either the Client or JM may terminate the JM appointment by giving 28 days’ notice in writing to the other party or immediately in the event of either party having a receiver, administrative receiver or administrator appointed over all or any part of its assets or undertaking or if either party passes a resolution to wind up or has a liquidator appointed or, in the case of an individual, is adjudged bankrupt.
4.3 In the event of termination of instructions for whatever reason, the Client shall pay all fees reasonably due to JM on receipt of an invoice.
4.4 The termination of instructions under the Contract will not affect the rights of either party that have accrued to the date of termination.
4.5 If we have already started work, then you agree that this Contract applies retrospectively from the start of our work.
5.1 The copyright in the Report and other documents produced by JM in connection with the Services (the “Proprietary Material”) shall remain vested in JM but the Client shall have an irrevocable royalty-free and non-exclusive licence to copy and use such drawings and other documents and to reproduce the designs contained in them for any purpose related to the Services, including but without limitation, the construction, reconstruction, completion, maintenance, letting, promotion, management, sale advertisement, reinstatement, repair, alteration, modification, extension and use of the Property. Such licence shall carry the right to grant sub-licences and this licence and such sub-licences shall be transferable to third parties. JM shall not be liable for any use of the Proprietary Material for any purpose other than that for which the same was prepared and provided by JM.
6.1 The Report and Services provided to the Client will be treated by JM in confidence and JM will take reasonable steps to keep such matters confidential as may be required by the Client in writing save for such information which:
6.1.1 is now or hereafter becomes available in the public domain other than through the fault of JM or any of its partners, employees sub-contractors or advisers.
6.1.2 is already or becomes known to JM or any of its partners, employees, sub-contractors or advisors at the time of its disclosure.
6.1.3 is required by law by any court of competent jurisdiction or by a governmental or regulatory authority, or whether there is a legal duty or requirement to disclose.
7. THIRD PARTY
7.1 Any advice given or report 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. You shall not provide such report or advice to any third party or refer 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 liability or responsibility to any third party to whom any advice or report is disclosed or otherwise mad available, and you will indemnify us against all claims resultant from your breach of this clause.
7.2 Except as set out in paragraph 2.6, the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
8.1 Neither party may assign any of their respective rights or obligations under the Contract to any third party without the prior written consent of the other party.
9. GOVERNING LAW
9.1 The Contract shall be governed by and construed and interpreted in accordance with the law of England and Wales and the parties agree that all matters arising out of or in connection with these Contract shall be determined by the High Court of Justice in England and the parties hereby submit the exclusive jurisdiction of that Court for such purposes.
10. COMPLAINTS PROCEDURE
10.1 JM has a formal complaints procedure in accordance with the requirements of the Royal Institution of Chartered Surveyors. A copy is available upon request to JM.
11. CLIENT’S MONEY
11.1 Amounts held by JM on behalf of the Client will be held in JM’s client account and no interest shall (save for rent deposit or service charge accounts) accrue to the Client in respect of such sums.