General Terms and Conditions of Business
Version 1.2 November 2019
1.1. These Terms together with any Engagement set out the terms on which Brennan Associates will provide the Service to the Client. Each of the provisions provided in the Agreement are severable and distinct from the others.
1.2. The Engagement shall prevail to the extent of any conflict between the Terms, and the Engagement. The Agreement supersedes any previous arrangement concerning its subject matter. Unless the Parties agree otherwise, these Terms shall apply to any future instructions from the Client, although such instructions may be subject to a separate Engagement.
“Agreement” means the agreement between the Client and Brennan Associates for carrying out the Service incorporating the Terms;
“Brennan Associates” means Forensic Surveys Limited whose registered office is at Jubilee House, 3 The Drive, Brentwood, Essex, CM13 3FR and any company which is the same group of companies as that company;
“Client” means the person to whom Brennan Associates is to provide Service in accordance with the Terms and includes the person to whom the Engagement is addressed;
“Director” means any person whose title includes the word ‘director’ whether or not a statutory director;
“Engagement” means the agreement, letter of engagement or engagement agreement or email and any schedules/appendices sent to the Client by Brennan Associates which sets out details of the Service to be provided to the Client pursuant to the Agreement;
“Force Majeure” means any circumstances beyond the reasonable control of Brennan Associates including without limitation, war or threat of war, actual or threatened terrorist activity, any form of industrial action, disaster, adverse weather, act of God or act of governmental or other regulatory bodies;
“Insolvent” means in relation to;
(a) a company (including any body corporate), that it:
(i) is unable to pay its debts as they fall due;
(ii) becomes or is deemed insolvent;
(iii) has a notice of intention to appoint an administrator filed at Court in respect of it, has an administrator appointed over, or has an administration order in relation to it, or has appointed a receiver or an administrative receiver over, or an encumbrancer takes possession of or sells the whole or part of its undertaking, assets, rights or revenue;
(iv) passes a resolution for its winding up or a court of competent jurisdiction makes an order for it to be wound up or dissolved or it is otherwise dissolved (other than a voluntary winding up solely for the purpose of a solvent amalgamation or reconstruction); or
(v) enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or making an application to a court of competent jurisdiction for protection of its creditors;
(b) a partnership, that it is dissolved by reason of the bankruptcy of one or more of its partners;
(c) an individual, that he is bankrupt; and
(d) a Party based outside England and Wales, that it is considered insolvent by the laws applicable to that Party;
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and Service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Materials” means all materials, equipment, documents and other property of Brennan Associates;
“Party” means either the Client or Brennan Associates (as the context requires) and “Parties” shall mean both of them;
“Property” means the property which is the subject of the Client’s instructions to Brennan Associates (and includes any property being or to be constructed altered, repaired or modified as part of the Service);
“RICS” means the Royal Institution of Chartered Surveyors;
“Scope of Service” means the schedule setting out the scope of service appended to or otherwise referred to in the Engagement;
“Service” means the service to be performed by Brennan Associates under the Engagement;
“Terms” means the terms and conditions set out in this document and (unless the context otherwise requires) includes any other terms and conditions set out in the Engagement or any other letter or document from Brennan Associates accompanying, supplementing or varying the Terms.
2.2. In these Terms;
2.2.1. a reference to any provision of a statute or regulation shall be construed as a reference to that provision as it is in force at the relevant time taking account of any amendment, re-enactment or extension;
2.2.2. except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any gender include all genders and any reference to a “person” includes an individual, firm, corporation and/or other legal entity;
2.2.3. a reference to writing or written unless otherwise specified includes email.
2.2.4. the headings are for convenience only and shall not affect the interpretation of these Terms.
3.1. The Agreement shall be made when the Client receives a copy of the Terms or gives instructions to Brennan Associates, whichever shall be the later, and shall be subject to the Terms, which shall also apply to all or any part of the Service carried out prior to such date.
3.2. Brennan Associates shall perform all Service on the basis of the Terms only, which shall apply to the exclusion of any other terms and conditions which the Client may seek to impose.
3.3. No variation of the Terms shall be binding unless previously agreed in writing by a Director of Brennan Associates and in entering into the Agreement the Client acknowledges that it has not relied on any statement, promise or representation which has not been confirmed in writing by a ‘Director’ of Brennan Associates.
3.4. In the event of any ambiguity or conflict between any of the documents comprising the Agreement, the Engagement shall take precedence over any of the other Terms.
3.5. Nothing in the Agreement shall confer or purport to confer on any third party any benefit or right to enforce any terms of the Agreement. No term of the Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement, although this shall not affect any right or remedy of any third party which exists or is available other than under such Act.
3.6. Brennan Associates’s duties under the Agreement shall be limited to those set out in the Terms. Brennan Associates shall be entitled to accept and act on any instruction given to Brennan Associates by any person who is an employee of, or agent, advisor or sub-contractor to, the Client.
3.7. If any provision of the Terms shall become or be declared illegal, invalid or unenforceable for any reason such provision shall be divisible and shall be deemed to be deleted, from the Terms.
3.8. Nothing in this Condition 3.7 shall exclude or limit Brennan Associates’s liability for fraud or fraudulent misrepresentation.
3.9. The Client shall provide its authority, instructions or information required to Brennan Associates promptly
3.10. It is a Condition of the Client’s agreement with Brennan Associates that (save where Brennan Associates instructs independent experts, consultants or other third parties on the Client’s behalf) the duties and responsibilities owed to the Client are solely and exclusively those of Brennan Associates and that no employee of Brennan Associates 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 (including 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.
3.11. Brennan Associates may subcontract the Service or deal in any other manner with all or any of its rights or obligations under the Agreement to any third party. Where this third party has been appointed at the specific request of the client Brennan Associates shall have no liability for actions taken by them.
3.12. Brennan Associates is not permitted to carry out any activity regulated by the Financial Services and Markets Act 2000 and no communication made by Brennan Associates should be construed as such.
3.13. Both parties shall comply with all applicable laws, statutes, regulations, relating to anti-bribery and the Bribery Act 2010.
4.1. Brennan Associates shall perform the Service with all reasonable care and skill and shall act in good faith at all times.
4.2. Brennan Associates reserves the right to carry out the Service in accordance with such procedures, principles or methodologies as Brennan Associates deems to be appropriate. Where appropriate, Brennan Associates shall comply with the relevant Practice Statements and Guidance Notes published by the RICS;
4.3. Brennan Associates shall have the right to make any changes to the Service which are necessary to comply with any applicable law, regulation, safety requirement, or which do not materially affect the nature or quality of the Service and Brennan Associates shall notify the Client in any such event;
4.4. Where agreed in writing Brennan Associates shall use reasonable endeavours to meet any performance dates. Brennan Associates shall not be responsible for any failure to meet performance dates;
4.5. Brennan has no obligation to provide any service other than the Service and has no obligation to provide nor any liability for (unless specifically agreed in writing);
4.5.1. any inspection of parts of the Property that require opening up or invasive investigations or of concealed or inaccessible areas or under any duty to identify or deal with any concealed defects;
4.5.2. carrying out any inspection of external parts of the Property above 2 metres high to the extent that a fixed and safe form of appropriate access is not available;
4.5.3. testing of any building materials including the fabric of the Property or any constituent parts or Service including the availability of broadband or other communications or information technology infrastructures;
4.5.4. undertaking audit of the Property such as may be required under the Disability Discrimination Act 1995, Equality Act 2010 or the Control of Asbestos at Work Regulations 2012 or with respect to any other statutory regulations;
4.5.5. an opinion on the value or price of a property;
4.5.6. provide estimates for any likely cost of works or quantities or other such advice;
4.5.7. the safety of any third-party entering any premises; or
4.5.8. the management or payment of any third-party suppliers.
4.6. Except where disclosed to Brennan Associates in writing, Brennan Associates shall be entitled to assume the following as appropriate;
4.6.1. the Property has the benefit of full planning consent or established use rights and building regulations and other statutory, regulatory or contractual approvals;
4.6.2. the Property complies with all relevant statutory requirements including Fire Regulations;
4.6.3. the Property is not contaminated or potentially contaminated. Unless specifically instructed, Brennan Associates shall not undertake any investigation into the past or present uses of either the Property or any adjoining or nearby land, to establish whether there is any potential for contamination from these uses and shall assume that none exists.
4.7. Unless otherwise agreed by Brennan Associates in writing;
4.7.1. Brennan Associates shall not be responsible for making any local search or other enquiries of local or any other authorities or third parties.
4.7.2. Brennan Associates shall not provide any advice, approval or representation regarding the legal meaning or effect of any lease or contract. Any such advice shall be limited to matters upon which it is suitable for a Chartered Surveyor to advise and shall not constitute advice regarding legal interpretation or drafting issues.
4.7.3. all risks and/or liabilities in relation to toxic mould, deleterious materials, asbestos, contamination, radon gas, HAC or calcium chloride shall remain with the Client and the Client shall take such steps as it deems necessary to insure against or otherwise address such risks and liabilities.
4.8. Without prejudice to the termination rights, if Brennan Associates becomes aware of a conflict of interest in providing the Service, it shall advise the Client and take reasonable steps to recommend a course of action.
5. CLIENT OBLIGATIONS
5.1. The Client warrants, represents and undertakes to Brennan Associates that;
5.1.1. it will notify Brennan Associates promptly if it considers that any details or requirements set out in the Engagement are incomplete or inaccurate;
5.1.2. it will promptly provide Brennan Associates with such information and materials as it may reasonably require in order to supply the Service, and warrants that such information is complete and accurate; and
5.1.3. it shall make arrangements for the inspection of or attendance at the Property by Brennan Associates on reasonable notice in order to carry out the Service.
5.1.4. there are no facts known to the Client which ought to be brought to the attention of Brennan Associates to enable it to ensure that access to or inspection of the Property by any person is safe and without risks to health.
5.1.5. it is responsible for effecting and maintaining adequate property and public liability insurance in relation to its activities and any relevant properties owned or occupied by it and shall be responsible for the safety of any person entering the relevant property.
5.2. The Client shall indemnify and keep indemnified Brennan Associates from and against all and any liability, losses, damages, penalties, fines, costs and expenses (including legal costs and expenses) suffered or incurred by Brennan Associates arising out of or by virtue of;
5.2.1. the breach by the Client of any of its obligations under the Terms;
5.2.2. the Client’s instructions to Brennan Associates other than any losses, damages, costs and expenses arising by virtue of the negligence or wilful default of Brennan Associates or its employees or agents; or
5.2.3. any allegation that the Property (including without limitation the means of access to or egress from the same or any plant or substances in such premises provided for the use of any person) were not safe or posed a risk to health except where Brennan Associates had been notified in writing of all facts necessary to bring to the attention of Brennan Associates the fact that the Property (including without limitation the means of access to or egress from the same or any plant or substances in such premises) was not safe or posed a risk to health.
6. FEES AND COSTS
6.1. Fees shall be charged at the rate set out in the Engagement or as otherwise agreed in writing between Brennan Associates and the Client. In the event of a change in the Scope of Service or Brennan Associates being required to carry out additional Service, Brennan Associates reserves the right to charge an additional fee.
6.2. In addition to the fees referred to in Clause 6.1 the Client shall be responsible for out of pocket expenses and disbursements which may include without limitation photography, travel, mileage, messenger delivery and copying of documents and plans.
6.3. If it is agreed with the Client, in connection with the Service, that the resolution of a dispute with a third party is referred or if such dispute is otherwise referred to an adjudicator, arbitrator, expert, mediator, court or tribunal, all costs in connection with such referral shall be the sole liability of the Client and will either be paid for direct by the Client or be recharged to the Client as a disbursement and the Client will indemnify Brennan Associates in respect of any liability or costs in such matters.
6.4. Unless specifically provided for in the Terms or Engagement or as otherwise agreed in writing between Brennan Associates and the Client the fees do not include remuneration for acting as expert witness for which service a separate fee shall be required.
7.1. Unless otherwise stated in the Engagement the Client shall be liable to pay Brennan Associates its remuneration or a due proportion of its remuneration at intervals to be determined by Brennan Associates or on completion of the Service at Brennan Associates’s discretion. Payments are due on issue of the invoice and the final dates for payment by the Client shall be 28 days’ from the date of issue of the invoice.
7.2. Unless stated otherwise in the Engagement all amounts payable by the Client under the Agreement are exclusive of value added tax (VAT) or similar taxes which the Client shall pay at the applicable rate.
7.3. If no fee is specified in the Engagement Brennan Associates may charge a fair and reasonable fee by reference to time spent undertaking the Service; and reimbursement of any expenses properly incurred by Brennan Associates on the Client’s behalf.
7.4. Brennan Associates reserves the right to charge the Client interest (both before and after any judgment) on any unpaid invoice at the rate of 4% per annum above the base lending rate of the Bank of England. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.5. If any sum due to Brennan Associates from the Client remains unpaid for more than 28 days after the date of issue of the invoice and no withholding notice has been issued in respect of such sum Brennan Associates shall be entitled to suspend all further work for the Client until the outstanding sum is paid to Brennan Associates in full. In these circumstances Brennan Associates shall not be liable for any delays, losses or expenses resulting from such suspension.
7.6. If termination of the Agreement takes place prior to the Service being completed, Brennan Associates shall, without limitation to its other rights and remedies under these Terms or at law, be entitled to receive from the Client a reasonable and proportionate fee for the part of the Service performed to the date of termination.
7.7. Where there are two or more clients in the case of a joint or multiple instruction by multiple parties invoices for an appropriate share of any fees or disbursements as determined in Brennan Associates’s sole discretion shall be issued to all or any client simultaneously or otherwise and each client shall be jointly and severally liable for the full amount of Brennan Associates’s fees or disbursements in the event that payment is not received from one or more clients.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. All Intellectual Property Rights in or arising out of or in connection with the Service including the intellectual property rights in Materials shall be owned by Brennan Associates unless otherwise expressly agreed in writing.
8.2. Each Party, its employees, agents and subcontractors has a non-exclusive right to use any material provided by the other Party for the purposes for which it is supplied or prepared. No third party has any right to use any such materials without the specific consent of the owner. The licence granted by Brennan Associates shall be perpetual but is subject to Brennan Associates having received all fees in full.
8.3. The Agreement is not assignable by the Client without the prior written consent of Brennan Associates.
9. LIMITATION AND LIABILITY
9.1. Nothing in this Agreement shall limit Brennan Associates’s liability for death and/or personal injury caused by Brennan Associates’s negligence.
9.2. Subject to clause 9.1 above Brennan Associates total liability to the Client whether arising from negligence, tort, breach of contract or other obligation or duty or otherwise shall be limited to one million pounds sterling (£1,000,000.00).
9.3. Subject to clause 9(i) above, Brennan Associates shall not be liable for any claim to the extent that such claim is or can be characterised as a claim for (or arising from);
9.3.1. loss of revenue or profits;
9.3.2. loss of business opportunity or loss of contracts;
9.3.3. loss of goodwill or injury to reputation;
9.3.4. indirect, consequential or special loss or damage; or
9.3.5. anticipated savings.
9.4. Except where Brennan Associates has entered into a specific agreement with a third party, Brennan Associates’s advice is provided solely for the purpose of the Service and is to the Client. Should the Client disclose any part of Brennan Associates’s advice, including any part of any document to any third party, the Client shall notify such third party in advance of the disclosure and in writing that Brennan Associates does not owe a duty of care to such third party. The Client shall indemnify Brennan Associates and hold Brennan Associates harmless against all liabilities, costs, expenses, damages and losses suffered or incurred by Brennan Associates arising out of or in connection with such disclosure by the Client.
10. TERMINATION OF INSTRUCTIONS
10.1. Without limiting its other rights or remedies, either Party may terminate the Agreement by giving the other Party 28 days’ written notice.
10.2. Without limiting its other rights or remedies, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if;
10.2.1. the other Party commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that Party being notified in writing to do so;
10.2.2. a conflict of interest arises which prevents Brennan Associates continuing to act for the Client; or
10.2.3. the other Party becomes Insolvent.
10.3. Without limiting its other rights or remedies, Brennan Associates may suspend provision of the Service under the Agreement or any other contract between the Client and Brennan Associates if the Client becomes Insolvent, or Brennan Associates reasonably believes that the Client is about to become Insolvent, or if the Client fails to pay any amount due under the Agreement on the due date for payment.
10.4. On termination of the Agreement for any reason;
10.4.1. the Client shall immediately pay to Brennan Associates all of Brennan Associates outstanding unpaid invoices and interest and, in respect of Service supplied but for which no invoice has been submitted and associated expenses, Brennan Associates shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.4.2. the Client shall return any Materials which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement. Where all fees have been paid the Client shall be entitled to retain such Materials and they shall be licensed;
10.4.3. Brennan Associates may, to comply with legal, regulatory or professional requirements, keep one copy of all material it then has that was supplied by or on behalf of the Client in relation to the Service;
10.4.4. the accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
10.4.5. clauses which expressly or by implication survive termination shall continue in full force and effect.
10.5. Brennan Associates may destroy any papers it has after six years from the earlier of completion of the Service or termination of the Agreement.
11.1. Brennan Associates operates a complaint handling procedure which is required by the RICS. a copy of the policy is available from Brennan Associates on request.
11. FORCE MAJEURE
11.2. Neither Party shall be liable to the other Party as a result of any delay or failure to perform its obligations under the Agreement as a result of any event beyond the reasonable control of either Party including strikes, lock-outs or other industrial disputes (whether involving the workforce of Brennan Associates or any other party), failure of a utility service or transport network, act of god, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.3. If such an event prevents either Party from providing any of the Service for more than four weeks, the affected Party shall, without limiting their other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Party.
11.4. This clause does not apply to the payment of fees due to Brennan Associates by Client.
12. GOVERNING LAW AND JURISDICTION
12.1. The Agreement and any disputes arising from it (including non-contractual claims and disputes) are governed by English Law.
13. DATA PROTECTION / PRIVACY NOTICE
13.1. EU Regulation 2016/679 – General Data Protection Regulation
13.1.1. Brennan Associates is fully committed to the principles of securing sensitive personal data and privacy by default as required by EU Regulation 2016/679 – General Data Protection Regulation (GDPR).
In undertaking our duties as Chartered Surveyors, we will of necessity be required to record details of our Client, including names, addresses and where appropriate, telephone and email details for use in the discharge of our obligations under the brief.
In certain circumstances, we will also of necessity collect and compile similar details of project team members, adjoining owners or premises that would be affected by any proposals and by our clients’ intentions to develop, so that appropriate information can be served.
We therefore routinely search the public record, such as the Land Registry or the Local Authority Planning portal for the names and addresses of owners of any properties so affected and make records of such data (including telephone numbers and email addresses if provided) solely for the purpose of fulfilling our duties and obligations, including those under the Party Wall etc Act 1996.
13.1.2. Under these Terms we will only use your personal information for the following purposes:
• to administer and manage our relationship with you, including to set up and maintain your account;
• to process orders from you for our Service;
• to deal with any enquiries we receive from you;
• for the purposes of any corrective action which may be required in respect of any of the Service we supply to you; and
• to comply with applicable laws, regulations and rules.
13.1.3. We may also disclose your personal information to third parties in certain circumstances, in particular:
• if we are under a duty to disclose or share your personal information to comply with any legal obligation;
• if it is necessary for operating our business and/or providing you with our Service;
• it is necessary for the performance of contracts to which you are a party with us; and
• in response to a request from a governmental authority (including a regulator).
13.1.4. External recipients of the data will be limited to those required to progress the Service, and more specifically in seeking Local Authority and other statutory bodies’ information and approvals, and in the tendering and administration of projects where we are required to disclose contact information.
13.1.5. We will not keep your personal information longer than is necessary, taking into account information needed for applicable legal and insurance requirements and limitation periods.
13.1.6. You have the right to request a copy of any data we hold about you, its amendment if erroneous, and deletion (subject to our duties having been fulfilled). You also have the right to object to its processing and the right to lodge a complaint with the Information Commissioner’s Office.
13.1.7. Brennan Associates will respond promptly, and within 30 days, to any written request for disclosure of data held.