1.1 We are members of the Royal Institution of Chartered Surveyors (RICS) and it is a requirement of our service to you and where appropriate a legal obligation under the Estate Agents Acts (and Orders made under it) that we inform you of our terms of business, method of charging and procedure in the event that you are dissatisfied with our services.
1.2 These Terms and Conditions apply to any services provided by us to you as our Client but should be read in conjunction with the accompanying Letter of Engagement which we submit to you containing other specific and/or particular terms. In the event of any conflict between a provision contained in these Terms and Conditions and a provision contained in a Letter of Engagement then the provision(s) of the Letter of Engagement is to prevail.
1.3 When you have read these Terms and Conditions of Business and the Letter of Engagement carefully, please sign and date one copy of both and return to us. The signed Terms and Conditions of Business and the Letter of Engagement will then constitute a binding contract between us.
2. Charges and Expenses
2.1 We normally charge for our services on a time basis, and the rate charged per hour depends on the seniority of the member of staff dealing with the instruction and the complexity of the work and risk. The hourly rate for the member of staff who will be dealing with your instruction is given on the accompanying Letter of Engagement. Value Added Tax at the prevailing rate will be added to the rates stated.
2.2 The hourly charging rates are usually reviewed (but not necessarily increased) with effect from 1st April each year and will apply to work carried out thereafter. We will inform you of the change as soon as practicable. In the event that the change is more than 10% of the previous years’ rate, then we will give prior notification of that change
2.3 These rates may be varied dependent on the complexity of the job and the level of experience required. In particular these rates do not apply to work in attendance at Court or Tribunal and the associated preparation for which rates will be agreed on a case by case basis. 2.4 Unless a different arrangement has been made with you, our charges will be calculated by reference to the time actually spent by the Practitioners and other staff in respect of any work which they do on your behalf. This will include meetings with you and perhaps others, reading and working on papers and correspondence, preparation of any detailed calculations.
2.5 We normally charge for any time spent in travelling to and from appointments on your behalf.
2.6 The above charging rates apply to what we describe as standard work. If circumstances arise which make your matter significantly more complex, important or urgent, then we reserve the right to increase the charging rate. If the nature of your matter changes such that we must increase our professional insurance cover before continuing to deal with it then we reserve the right to make charge for that additional expense. We will give you prior notice of these changes.
2.7 Any estimates we may provide of our charges are to be treated as estimates and the final charges may be lower or higher unless our charges are expressly agreed and confirmed in writing to you as a fixed fee. However, if, for any reason, the matter upon which you have instructed us does not proceed to completion, we will be entitled to charge you on a time costed basis for work done and expenses incurred.
2.8 We will, upon your request, provide details of the amount of our costs incurred at any time in services being provided to you and where possible, we will provide an estimate of future costs either for the next stage of the work or completion of the matter.
2.9 In addition to fees charged we will also invoice you for any disbursements incurred on your behalf, for example planning fees or the cost of engaging other professional advisers such as solicitors. We will charge in addition for mileage at the rate of £0.50 per mile and a contribution towards our non-attributable overheads, which is normally 2.5% of our fees, subject to a minimum charge of £40.
2.10 In some instances we charge on a commission basis or a fixed fee as opposed to a time basis. If an alternative method is proposed in relation to this instruction we will agree this arrangement with you prior to commencing the instruction and the Terms of Business that are specific to it are attached hereto as an appendix.
2.11 Some public authorities and agencies make a contribution towards our fees for acting on your behalf. You should be aware that these contributions may not be sufficient to cover the whole of our time in acting on your behalf. You should also be aware that our payment terms are as set out below, notwithstanding that the public authority may not pay their contribution within that time.
3. Payment Arrangements
3.1 Our fees are due for payment when billed.
3.2 The person or persons to whom the accompanying letter is addressed (the Client) is responsible for the payment of fees and expenses unless it is clearly stated in writing that a third party is responsible. If this is the case, the name and address of the third party must be disclosed and that party must also sign. The full names and addresses of any additional guarantors should be given in writing to Berrys and failure to do so will mean that the persons who do sign will be fully liable.
3.3 We reserve the right to charge interim accounts at any time whether or not the work has been completed.
3.4 We reserve the right to account to you for all disbursements incurred on your behalf on a monthly basis, whether or not the work has been completed.
3.5 If an account is overdue for payment we reserve the right:
3.5.1 to charge interest on the amount outstanding (including any expenses and VAT) at a rate equivalent to 3% above the Bank of England’s base lending rate; and
3.5.2 to suspend the provision of services to you and to retain documents and papers belonging to you irrespective of the matter to which they relate until sums outstanding to us are paid in full.
3.5.3 if your account remains outstanding after 60 days we reserve the right without further warning to instruct our solicitors to seek settlement of the account and our costs.
4. Scope of Services
4.1 We will use all reasonable care and skill in providing services to you.
4.2 Any draft or interim advice or any oral advice provided by us at any time should not be relied upon unless we have confirmed in writing that you may do so.
4.3 Any advice provided to you in whatever form as a part of our services to you is intended for your sole benefit and shall not be copied, referred to or disclosed to any third party without our prior written agreement except where disclosure is required for your own initial purposes or for reports that are required to be disclosed by statute. Advice may also be released by you to your other professional advisors for the purpose of seeking advice from them provided that you advise them that our prior agreement is needed before any further disclosure is made by them. We accept no responsibility of liability to any of your other professional advisors in connection with the delivery of our services to you.
4.4 Unless we agree otherwise with you, we shall not be required to update any advice for events occurring after the advice has been issued to you in final form. You should ask us to review our advice if the transaction for which advice was originally given is delayed or is to be repeated. We cannot accept any responsibility or liability for changed circumstances after the original was given.
4.5 We may rely upon any instructions or requests made or notices given or information supplied whether orally or in writing by any person whom we know to be or reasonably believe to be authorised to communicate with us on your behalf for such purposes. We may communicate with you by electronic mail (or other similar electronic means) unless you instruct us to the contrary but you must recognise the inherent risks of electronic communication (including the security risks of interception of or unauthorised access to such communications, the risks of corruption and the risk or viruses or other harmful devices). You will be responsible for performing your own virus checks.
4.6 Where we receive information from you or from other sources in the course of providing our services to you then we will not seek to establish the reliability or accuracy of such information. We will not be liable to you for any loss or damage which you suffer arising from any defects or inaccuracies in any information provided.
4.7 There may be occasions in the provision of our services to you where you wish us to comment on the commercial aspects of the legal documents drafted by your lawyers or other personal advisers. We will not be involved in the drafting and/or preparation of such documents. Whilst every care will be taken in the advice we give in relation to any information contained in such documents, such advice should not be taken as settling the document. We accordingly accept no liability or responsibility for any loss or damage suffered as a result of any defect in such documents arising from their drafting, preparation, completion or being put in to effect.
5. Hours of Business
5.1 Normal office hours during week days apply. Messages can be left on an answer phone outside of office hours and appointments can be arranged at other times when this is essential.
6. Your Commitments to Us
6.1 To enable us to perform our services to you, you will:
6.1.2 use your best endeavours promptly to supply all information and assistance and all access both to documentation in your possession, custody or under your control and to personnel under your control where required by us;
6.1.3 inform us of any information which may come to your notice and which may have a bearing upon the services which we are to provide to you;
6.1.4 promptly supply information in response to our enquiries to enable us to comply with our statutory obligations including those in relation to money laundering.
6.1.5 settle all accounts rendered to you within our payment terms set out in paragraph 3 above.
7.1 It is our practice to check for conflicts of interest before entering in to engagements with clients. We cannot guarantee that we will be able to identify all situations where there may be a conflict of interest prior to entering in to a contract with you.
7.2 You should notify us promptly of any potential conflict affecting our contract with you of which you are or of which you become aware.
7.3 Where an actual or potential conflict between your interests and the interests of another client of ours is identified during the course of our providing services to you then we will discuss the position with you to establish appropriate procedures to safeguard your interests and the interests of our other client but we give you warning that a conflict is likely to disqualify us from acting for one if not both of you.
8.1 In delivering our services to you we may acquire confidential and/or sensitive information concerning your business or affairs. In relation to such information we will comply with the ethical guidelines of the Royal Institution of Chartered Surveyors and any other obligations imposed on us by authorities with whose requirements we are bound to comply.
8.2 The guidelines and other obligations referred to may require us to disclose confidential and/or sensitive information in certain circumstances particularly where money laundering is suspected or other fraud or crime is involved. Where information is disclosed to the appropriate authorities, the law obliges us not to inform anyone (including you) of that fact and, in some circumstances, may require us to stop acting for you without explanation.
9.1 The copyright and all other intellectual property rights contained in the services which we provide to you and in all documents including working papers, letters, memoranda, draft computations and returns shall belong to and be retained by us.
9.2 We do not claim any rights of ownership to any documents belonging to you which may be supplied to us in the course of our delivering our services to you.
10. Limitation in Liability
10.1 Neither you nor any third party will make any claim personally against any of our employees.
11. Data Protection
11.1 To enable us to discharge our services to you and for other related purposes including updating and enhancing client records, analysis for management purposes, crime prevention and legal and regulatory compliance, we may obtain, use, process and disclose personal data about you.
11.2 By entering into a contract with us for the provision of services you agree to us processing personal data concerning you and further agree that we may use and disclose personal information about you to third parties.
11.3 You have a right of access under Data Protection Legislation to the personal data that we hold about you. You may contact us if you require further information in this regard.
12. Files and Document Storage
12.1 Files and other papers relating to the provision of our services to you will be stored for such time as we decide is reasonable and for such time as we are required by law to do so after which we will destroy them. Files or papers may be preserved on micro-film or by other means of image processing at our discretion. Where a file is archived on completion of a job there may be costs of recovery if it is subsequently required.
13. Third Parties and Other Beneficiaries
13.1 It is hereby agreed between us that the Contracts (Rights of Third Parties) Act 1999 does not apply to the terms of this engagement or any subsequent amendment to it unless expressly confirmed in writing by us that said Act does apply.
13.2 Notwithstanding 13.1 above:
13.2.1 we may agree with you in an engagement letter the identity of a third party or other beneficiary who may benefit from the services to be provided by us;
13.2.2 these terms and conditions of business shall apply to you and your associates which include all companies which you control or if you are a company forming part of a Group all companies in that Group.
13.3 Where the services to be provided by us are to benefit any third party or other beneficiary you will remain responsible for our charges.
14. Limited Companies
14.1 When agreeing to provide services to a limited company or other organisation, or at any subsequent stage in the provision of such services, we may require any appropriate individuals to sign a form of personal guarantee in respect of our charges and expenses. If such a request is refused, we will be entitled to terminate our instructions to act.
15. Financial Advice
15.1 We are not authorised to provide financial advice. If you require financial advice as a result of our dealings with you then we will suggest that you seek advice from an authorised independent financial advisor (IFA).
16.1 You may terminate your instructions to us by written notice at any time, but please note that we may be bound to fulfil our obligation to third parties even after the termination of your instructions and so we reserve the right to charge for the time spent in so doing where appropriate.
16.2 We may terminate our agreement to act on your instructions on written notice at any time but such decisions will take into account all relevant circumstances and our professional obligations as prescribed by the Royal Institution of Chartered Surveyors.
16.3 In the event of termination of our engagement prior to completion of the services which we have agreed to provide, then we will be entitled to charge you on a time costed basis for work done and expenses incurred up to the date of termination.
16.4 Normally all outstanding fees, costs and expenses incurred or to which we are committed will be payable by you on early termination and in any event these must be paid prior to release of the relevant files.
17. Clients money
17.1 We may hold money on your behalf in our clients account. If we do so unless expressly agreed otherwise we will not return to you any interest earned upon the monies held but may retain such interest ourselves.
18.1 We have a complaints procedure in accordance with RICS requirements and further details are available on request.
19.1 Our contract for the provision of services is with you personally and you may not assign the benefit thereof without our prior written consent.
19.2 Our contract with you for the provision of services shall be governed by and construed in accordance with English Law and you agree with us to submit to the exclusive jurisdiction of the English Courts.