Terms and Conditions of Business
1. INTRODUCTION
1.1 These terms of business apply to SN Estates Limited, trading as Sarre & Company Chartered Surveyors subsequently referred to as “S & C”, which has been instructed by the Client to render services as defined under the particular Job Instructions. Payment for those services will be due to S & C, which is duly authorised to give a good and valid receipt for invoices for services supplied.
1.2 A Jersey Limited Liability Company is a body corporate that has directors. Therefore, when we refer in these terms of business, or otherwise in the course of your dealings with a person being a “director”, that title means the person is an employee of S & C. The contract is subject to Jersey Law and will be interpreted in accordance therewith.
2. TERMS APPLICABLE TO THE CONTRACT
2.1 The Client is deemed to have accepted the Terms of Business of S & C upon confirmation, either by the Client requesting S & C to undertake the Instructions, or upon S & C undertaking the Instructions. In the event that the Client subsequently withdraws the Instructions, S & C shall be entitled to recover from the Client all reasonable disbursements and properly authorised expenses which have been incurred by S & C.
2.2 S & C may decide to stop acting for the Client, but only with good reason. For example, if the Client does not pay an interim bill, or the Client gives instructions to proceed which conflict with S & C’s rules of professional conduct. S & C will notify the Client of any such decision. Further, S & C may assign the benefit of these Terms of Business to any partnership, or corporate entity that carries on the business of S & C in succession. The Client will accept the performance of such assignee of the Terms of Business in substitution for S & C.
3. CHARGES & PAYMENT
3.1 S & C’s fees and commission will be subject to applicable GST and are set out in the correspondence to the Client. Unless stated otherwise in correspondence, the Client will also indemnify S & C against all reasonable disbursements, subsistence and travelling expenses as and when reasonably incurred. If work should prove abortive as a result of a Client's decision not to proceed, or as a result of extenuating circumstances outside the control of the Client and/or S & C, abortive fees may be charged at 50% of the total fee level, or based on the hours spent.
3.2 S & C will normally invoice for remuneration when the work is complete, or based upon the hours spent at the hourly rate agreed at the time on the instruction at which time S & C will send the client a final invoice. Completion is defined as follows:-
> Agency work – on possession, or legal binding agreement.
> Rent reviews & lease renewals – on agreement of terms and documentation. Valuation work – on receipt/ publication of the final report.
> Other work – as set out in the letter of instruction.
3.3 An invoice submitted shall include in addition, expenses (where properly incurred) payable and applicable GST on the total amount. Further, the invoice will deem to be agreed, unless the Client contests it within 7 days. Invoices are due for payment within 21 days and interest may be charged on late payment of invoices at a rate of 5% above base rate of HSBC Bank at a daily rate.
3.4 In the event that S & C agrees to place orders for advice from counsel, approved marketing, advertising or planning fees or otherwise, S & C will invoice the Client for these as and when S & C incurs those costs. Further, S & C will send the Client an interim bill for services and expenses rendered by S & C at appropriate intervals while the work is in progress.
4. EXCLUSIONS AND LIMITATIONS ON OUR LIABILITY
4.1 There is a risk that S & C will be prejudiced by a limitation or exclusion of liability which the Client agrees with any other person (for example, another advisor) in connection with a matter in which S & C are advising the Client. This is because such a limitation or exclusion of liability might also operate to limit the amount which S & C could recover from that other person by way of contribution if S & C were required to pay the Client more than S & C’s proper share of the liability. Accordingly, in order that our position is not adversely affected by any limitation or exclusion of another person’s liability, the Client agrees that S & C will not be liable to the Client for any amount which S & C would have been able to recover from that other person by way of indemnity, contribution or otherwise but are unable to recover because the Client agreed, or are treated as having agreed, with them any limitation or exclusion on the Client’s liability.
4.2 The Client accepts that S & C have an interest in limiting the personal liability and exposure to litigation of employees, consultants and partners. Having regard to that interest the Client accepts that S & C are a limited liability entity and agrees that the Client will not bring any claim personally against any individual employees, consultants or Directors in respect of losses which the Client suffer or incur, directly or indirectly, in connection with our services. The provisions of this paragraph will not limit or exclude the liability of S & C for the fraudulent acts or omissions of our employees, consultants or Directors. The provisions of this paragraph are intended for the benefit of our employees, consultants and Directors provided that these Terms of Business may be varied from time to time, or terminated without the consent of all, or any of those persons.
5. INFORMATION
5.1 The Client shall provide to S & C, free of charge and within any specified time limits, all information as may be necessary or reasonably requested by S & C at such time as shall permit us to properly perform the services in accordance with S & C’s obligations under the Terms of Engagement.
5.2 The Client warrants that all and any information is accurate, complete and consistent. Accordingly, the Client agrees that S & C are not liable for (and shall indemnify us against) the direct or indirect consequences of any inaccuracies or inconsistencies contained in the information, whether prepared by the Client or by a third party, or any shortfalls in or absence of such information and whether or not supplied directly to S & C by the Client or by such a third party.
5.3 The Client will notify S & C immediately if anything occurs to render any information untrue, inaccurate or misleading and/or if any claim is made by a third party in respect of such information.
6. INTELLECTUAL PROPERTY RIGHTS AND USE OF OUR MATERIALS
All intellectual property rights in any materials prepared by S & C or otherwise generated in the course of carrying out the services shall be owned exclusively by S & C. Subject to Clause 6.3, no part of any such materials may be reproduced or transmitted or disclosed in any form or by any means without our prior written permission.
6.2 All information, advice and materials provided by S & C to you are provided for the Clients use only and solely for the purpose(s) to which they refer. Accordingly, S & C accepts no responsibility for any reliance that any third party may place on such information, advice or materials, and/or for any reliance that the Client may place on such information, advice or materials for any other purpose.
6.3 Neither the whole nor any part of the materials referred to under Clause 6.1, nor any reference thereto, may be included in any published document, circular or statement or published in any way without S & C’s prior written approval.
6.4 “Intellectual Property Rights” means patents, registered and unregistered trademarks and service marks, registered and unregistered design rights, copyright, database rights, rights in know-how and confidential information, applications for and rights to apply for any of the above, and any other similar rights recognised from time to time in any country, together with all rights of action in relation to the infringement of any of the above.
6.5 “Materials” includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk, or other device or record embodying information or date in any form.
7. CHANGES IN SCOPE OF SERVICES
7.1 The scope of the services will be limited to the matters set out in the Terms of Engagement. However, this does not preclude S & C from considering and agreeing with the Client, in writing, changes to the scope of the services from time to time.
8. TIMETABLE
8.1 S & C will discuss with the Client the nature and timing of the delivery of services and the most effective way of implementing them. The timetable for completion of the services assumes that the information will be made available in good order and in a timely manner and will be provided in accordance with the provisions of Clause 5.
8.2 Dates for performance and/or completion of the services are estimates only and shall not be construed as being of the essence to the Terms of Engagement. S & C will however, use reasonable endeavor to perform the services on or by the dates specified.
9. SERVICES
9.1 S & C undertake to perform the services using reasonable care and skill and in accordance with the professional standards to which S & C are subject.
10. OTHER CONDITIONS
10.1 A copy of S & C’s Complaints Procedure is attached, and which procedure is governed by the Royal Institution of Chartered Surveyors Rules of Conduct for firms under rule 7. However, under professional regulations, this Procedure does not apply where the job relates to Expert Witness advice.
S & C are required by data protection legislation to obtain your consent for processing information about you and your colleagues. S & C will process this information solely for the purposes of providing services to you. S & C will keep files and other papers relating to the Clients matters for a reasonable period, after which S & C may dispose of them without notice to you.
S & C may be required by statutory and other legal requirements to disclose information to governmental or other regulatory authorities. In particular, the Client should be aware that under anti-money laundering legislation S & C may be obliged to notify the JFCU if S & C know, or suspect, or have reasonable grounds for suspecting that the Client, or another person, is using the proceeds of crime. The Client should be aware that in those circumstances S & C might be precluded from seeking your consent, or informing the Client that S & C have made a notification, or disclosure.
11. COMPLAINTS
11.1 If the Client is for any reason dissatisfied with S & C’s service, S & C should be advised immediately so that S & C can deal with it and put it right. The Client agrees that the Client will not take any action or commence any proceedings against S & C before the Client has first referred the complaint to S & C in accordance with our complaints procedure, details of which are available from Alistair Sarre, Sarre and Company, 16 Gloucester Street, St Helier, Jersey, JE2 3AE. The purpose of such referral is to enable the Clients complaint to be reviewed and responded to the Client by S & C, with a view to resolving the dispute or difference in a manner satisfactory to both parties.
12. KNOW YOUR CLIENT REQUIREMENTS
12.1 In line with the requirements of the Jersey Financial Services Commission in respect of Know Your Client (KYC), in the event of a transaction(s) that requires us to undertake the Know Your Client procedure the Client will provide the relevant information within short course following formal request. In any such transaction it is highly likely the Client will have had to already undergone the KYC procedure with their duly appointed lawyers and as such the Client will authorize their lawyers to confirm such KYC procedures have been put in place and indeed are acceptable.
13. VALUATION ADVICE
13.1 The property/properties will be valued in accordance with the Royal Institution of Chartered Surveyors (“RICS”) requirements as set out in the current edition of The RICS Valuation Standards.
S & C’s Report and Valuation advice will be prepared for the Client, or its Bank, as stated in the instruction letter. Further, the following are also stated in that letter: -
> Purpose of valuation.
> Property, (or properties) and their type.
> Interest(s) to be valued.
> Date of valuation.
> Any special assumptions, or special instructions.
> Whether we are acting as an independent or external valuer.
13.3 Neither the whole nor any part of S & C’s report and valuation, nor any reference thereto may be included in any published document, circular or statement, or published in any way without our written approval, which may specify the form and context in which it may appear.
13.4 In accordance with the definition adopted by the RICS, S & C will value on the basis of Market Value (unless stated otherwise).
13.5 S & C will rely upon information supplied to S & C by the Client, or the Client’s Solicitors in relation to the legal title and the terms of the occupational leases.
13.6 In addition, where it is necessary to rely upon information provided by Local Authorities and Central Government Departments, informal enquiries only will be made and S & C’s advice will take into account information revealed as a result of such enquiries.
13.7 S & C will not carry out a building survey of the property, or a test of the building’s services but will reflect in our valuation any defects, or items of disrepair noted during the course of our inspection, or brought to our attention. S &C’s valuation is on the assumption that no high alumina cement or other deleterious materials have been used in the construction or alteration of the premises.
13.8 S & C’s report is prepared on the assumption that no contamination exists and specifically excludes any contamination, unless instructed otherwise.
14. RENT REVIEW & LEASE RENEWAL ADVICE
14.1 The Client is to be responsible for instructions to his Advocates and/or solicitors for the preparation of serving any notices within prescribed times, which are required under the terms of the lease.
15. CPO ADVICE
15.1 The advice will be given in accordance with the basis of assumptions, terms and conditions agreed with the Client, and the Client’s other professional advisors, on a case by case basis. As a general assumption, CPO compensation will be assumed taking into account current guidance, legislation and case law applicable to the individual case.
16. EXPERT WITNESS ADVICE
16.1 If a matter proceeds either to an expert, arbitration, inquiry, court or any other additional judicial body (“the Third Party”), an additional fee to cover the preparation for and attendance at contentious hearings is chargeable. This fee will normally be agreed with the Client beforehand and, where time allows, confirmed in writing.
17. AGENCY ADVICE
17.1 In providing agency advice, S & C will rely on the following assumptions and representations unless notified by the Client to the contrary.
> That all information provided to the Client, the Client’s professional advisor’s, Local Authorities, other statutory bodies and investigating agents regarding the property is complete and correct. S & C must be advised by the Client if there are any inaccuracies or changes in property information supplied to us.
> That the property is free from any onerous or unusual covenants, wayleaves and other restrictions or liabilities, which may affect the marketability of the property.
> That the property complies with all statutory requirements.
> That the property has been constructed and is occupied in accordance with valid planning and building regulation approval.
> That the property is not contaminated in any way.
17.2 S & C will have no management liability, or responsibility for the property, unless separately agreed. In particular, the Client will be responsible for the security and insurance arrangements of the property and will be responsible for the maintenance and repair, or for any damage to the property while unoccupied. The Client is advised to take preventative action to protect the property from adverse weather conditions and for securing the property.
17.3 S & C may hold keys to the property, and these may be loaned out to prospective tenants/purchasers. S & C accepts no responsibility for the actions of any third parties, including prospective tenants/purchasers.
17.4 Any marketing report produced by us should not be construed, or relied upon as a valuation whatsoever. The information contained in such a report may not have been prepared in accordance with The RICS Valuation Professional Standards.
17.5 Finally, S & C must disclose to any interested party, any personal interest. If the Client becomes aware of any such interest, S & C should be informed immediately.
18. PROPERTY MANAGEMENT
18.1 The advice and services to be given and carried out, will be given in accordance with and based on instruction assumptions, terms and conditions agreed with the Client, and the Clients other professional advisors.
S & C will normally invoice for remuneration on a quarterly in arrears basis.
19. CONFIDENTIALITY
19.1 Both parties will (and will procure that their directors, officers, agents, contractors, consultants and employees will) at all times keep in strict confidence and not use, any of the other party’s confidential information, except:
(a) In connection with the performance of the services or as reasonably necessary for the purposes of the transaction; or
(b) As expressly stated in the Engagement Letter; or
(c) As subsequently agreed to in writing by both parties; or
(d) As otherwise required or permitted to be disclosed by law; or (e) Where such confidential information is public knowledge.
20. TERMINATION
20.1 The Terms of Engagement shall terminate automatically on completion of the services.
20.2 In addition and without prejudice to any other rights or remedies which the parties may have, the Terms of Engagement may terminate by either party terminating the Terms of Engagement on 28 days written notice.
20.3 S & C may terminate the Terms of Engagement immediately on giving written notice to the Client if:
> A conflict of interest arises; or
> (ii) The Client commits a material breach of any of the
provisions of the Terms of Engagement including but not
limited to, any breach of the payment terms previously agreed.
20.4 Either party may terminate the Terms of Engagement immediately on giving written notice to the other if the other party becomes bankrupt or insolvent, or if an order is made or a resolution is passed for its winding up (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of its assets or business, or if it makes any composition with its creditors or takes or suffers any similar or analogous action in any jurisdiction in consequence of debt
20.5 On termination of the Terms of Engagement for any reason, the Client will immediately pay S & C for all outstanding unpaid sums and interest, and in respect of services supplied prior to termination but for which no invoice has been submitted, S & C may submit an invoice, which shall be payable immediately on receipt.
21. FORCE MAJEURE
21.1 S & C will not be liable to the Client for any delay or failure to fulfil our obligations under the Terms of Engagement caused by circumstances outside our reasonable control.
22. ASSIGNMENT
22.1 Neither party may transfer or assign any rights or obligations under the Terms of Engagement without prior written consent of the other party.