GENERAL TERMS & CONDITIONS OF BUSINESS ( 30/11/2020 )
1. DEFINITIONS
In these Terms & Conditions:
1.1 “the Agreement” has the meaning given to it in the Letter of Engagement;
1.2 “the Client” means the person(s) or company receiving the Services;
1.3 “Disbursements” means any expense incurred by Pearce Property in carrying out the Client’s instructions including (but not limited to) all reasonable out of pocket expenses and marketing costs;
1.4 “the Fee” has the meaning given to it in the Letter of Engagement;
1.5 “Intellectual Property Rights” means copyright and related rights, moral rights, trade marks, business names and domain names, goodwill, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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;
1.6 “Letter of Engagement” means the letter accompanying these Terms & Conditions setting out in more detail the particulars of the Services and the Fee;
1.7 “Pearce Property” means Pearce Property Consultants Limited, a private limited company registered in England (Company Number 12968738) whose registered address is Arcott, South Zeal, Okehampton EX20 2JS;
1.8 “the Property” has the meaning given to it in the Letter of Engagement;
1.9 “the Proprietary Material” means any report, document, calculation or specification (of any type or format) created by Pearce Property in connection with the
Services;
1.10 “Ready, Willing and Able purchaser or tenant” means a party that is prepared and able to exchange unconditional contracts (or conditional contracts that subsequently become unconditional) for the purchase and/or letting of the Property;
1.11 “the Services” means the service(s) provided by Pearce Property in implementing the Client’s instructions in connection with selling and/or leasing the Property;
1.12 “Sole Selling Rights” means the rights granted by the Client (whether on an exclusive basis or non-exclusive basis) to Pearce Property to market, advertise and sell or lease the Property and perform the Services; and
1.13 “the Terms of Engagement” means these Terms & Conditions together with the Letter of Engagement.
2. APPOINTMENT
2.1 In requesting the Services, the Client has instructed Pearce Property to undertake the Services and Pearce Property agrees to provide the Services in accordance with the terms of the Agreement, using reasonable skill and care.
2.2 The Client grants Pearce Property Sole Selling Rights in respect of the Property.
3. PAYMENT OF THE FEE
3.1 The Client shall pay the Fee to Pearce Property where any of the following apply:-
3.1.1 During the period when Pearce Property has Sole Selling Rights: upon completion of unconditional contracts (or conditional contracts that subsequently become unconditional) for the sale or letting of the Property to a purchaser or tenant found by Pearce Property, the Client or any other person or other agent.
3.1.2 After the expiry of the period during which Pearce Property has Sole Selling Rights: upon exchange of unconditional contracts (or conditional contracts that subsequently become unconditional) for the sale/letting of the Property to a purchaser or tenant who during the period in which Pearce Property had
Sole Selling Rights was (i) introduced by Pearce Property OR (ii) in respect of which Pearce Property had negotiations.
3.1.3 Occupation of the Property by prospective purchaser or tenant prior to agreement to purchase or let: upon the earliest occurring of either the date of occupation of the Property or exchange of contracts for sale or agreement to lease in respect of the Property, the Client will pay 75% of the Fee with the balance payable on the earliest occurring of (i) completion of sale or lease of the Property, or (ii) the date which falls three months from the first date of occupation of the Property by the prospective purchase or tenant.
3.1.4 If a Ready, Willing and Able purchaser or tenant is introduced by Pearce Property at any point during Pearce Property’s appointment (including the expiry of the notice period if the Client wishes to terminate the appointment under clause 7.1 below) and the Property is subsequently purchased or leased by them, irrespective of whether Pearce Property has Sole Selling Rights at that time or not.
3.1.5 If a Client terminates the Agreement within six months of the date of the Letter of Engagement the Client will pay £[●] by way of abortive costs.
4. LIABILITY
4.1 Subject to clause 4.2, the liability of Pearce Property 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:
4.1.1 no liability shall attach to Pearce Property 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 Pearce Property;
4.1.2 the maximum aggregate liability of Pearce Property shall be limited to £1,000,000 in total for all claims arising in connection with the Services.
4.2 Nothing in the Agreement shall limit Pearce Property’s liability in relation to:
4.2.1 death or personal injury resulting from Pearce Property’s negligence;
4.2.2 fraud and fraudulent misrepresentation;
4.2.3 illegal or unlawful acts; and
4.2.4 any other matter in respect of which liability may not be lawfully limited.
4.3 The Client will not be entitled to recover and Pearce Property shall not be liable for any loss which was not foreseeable at the date of the Agreement including (but not limited to), for the avoidance of doubt, any lost profit or revenues or indirect or consequential loss or damage as a result of any breach by Pearce Property of its obligations in respect of the Services.
4.4 In the event the Client instructs another estate agency business to perform services identical or similar to the Services, Pearce Property’s liability (whether in contract, tort or otherwise) shall not be joint and/or severable with the other estate agency business (whether acting as joint agents or not). Instead Pearce Property’s liability shall be strictly limited to the acts and omissions of itself to the Client and the Client shall indemnify Pearce Property in respect of any and all liabilities, costs, expenses, damages, demands, claims and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by Pearce Property arising out of or in connection with any act or omission of the other estate agency business and/or any claim made by the other estate agency business against Pearce Property in connection with Pearce Property’s provision of Services under this Agreement.
5. CLIENT’S WARRANTY & INDEMNITY
5.1 The law in England and Wales prohibits the provision of false or misleading statements about specified matters in relation to a property. Therefore, the Client:
5.1.1 undertakes to verify and check all marketing materials sent to the Client by Pearce Property for approval and warrants to notify Pearce Property immediately if any detail is or becomes inaccurate or misleading;
5.1.2 represents and warrants that all information regarding the Property provided by them or on their behalf by professional advisers is complete and correct;
5.1.3 represents and warrants that there are no other material facts known to the Client that may be relevant to Pearce Property in implementing the Client’s instructions; and
5.1.4 undertakes to indemnify Pearce Property against all losses, costs, expenses, damages and legal fees arising out of or by virtue of the Client’s instructions to Pearce Property including those arising from the Client’s failure to check information sent to them by Pearce Property for verification or approval and information verified by the Client (except where losses, damages, costs and expenses arise due to the default or negligence of Pearce Property).
5.2 As at the date of the Letter of Engagement the Client confirms that there is no prospective purchaser or tenant from any source who has expressed an interest in acquiring or leasing the Property.
6. PAYMENT
6.1 Pearce Property will provide estimates of all Disbursements including marketing costs payable by the Client and will seek approval from the client prior to incurring expenditure.
6.2 The Client shall pay all invoices issued by Pearce Property within 28 days of the date of the invoice.
6.3 If an invoice is not paid in accordance with clause 6.2, interest will be charged at Pearce Property’s election at a rate of either 3% per annum above the base rate of NatWest Bank plc from the date which is 28 days after the date of the invoice until payment is made, or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.4 Pearce Property will be entitled to receive and retain the commissions and discounts relating to any orders for goods and/or services placed on the Client’s behalf in performing the Services.
7. TERMINATION OF SERVICES
7.1 Either the Client or Pearce Property may terminate the Agreement:
7.1.1 by giving 28 days’ notice in writing to the other party in accordance with clause 15; or
7.1.2 immediately in the event of either party being unable to pay their debts as they fall due or 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.
7.2 The termination of the Agreement will not affect the rights remedies, obligations or liabilities of either party that have accrued up to the date of termination.
7.3 On termination of this Agreement, the following clauses shall continue in force: clause 1 (Definitions), clause 3 (Payment of the Fee), clause 4 (Liability), clause 5 (Client’s Warranty & Indemnity), clause 6 (Payment), clause 7 (Termination of Services), clause 9 (Confidentiality), clause 11 (Copyright) and clause 15 (General).
8. DATA PROTECTION AND DATA RETENTION
8.1 In this clause 8 the following words shall have the following meanings:
8.1.1 “Controller” and “Personal Data” shall have the meanings given to those words and phrases in the Data Protection Legislation;
8.1.2 “Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and
8.1.3 “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
8.2 Both parties will comply with all applicable requirements of the Data Protection Legislation.
8.3 The parties acknowledge that for the purposes of the Data Protection Legislation, Pearce Properties is a Controller in connection with the provision of the Services. The Client may also be a Controller of certain Personal Data where they are a corporate client.
8.4 Pearce Property may, subject to first obtaining any necessary and appropriate consent of the Client, add the Client’s Personal Data (or the Personal Data of the Client’s employees in the event of a corporate client) to its marketing database in order to market its services to the Client.
8.5 Pearce Property will only use Personal Data in accordance with its privacy policy, a copy of which is available on request.
9. CONFIDENTIALITY
9.1 In this clause 9 the following words shall have the following meanings:
9.1.1 “Confidential Information” means all confidential or proprietary information (however recorded or preserved) relating to the Agreement that is disclosed or made available whether before or after the date of this Agreement (in any form or medium), directly or indirectly, by the Provider to the Recipient including (but not limited to) the terms of this Agreement (including its pricing), details of offers received in respect of the Property and any other items or information which may be deemed confidential.
9.1.2 “Provider” means a party to this Agreement which discloses or makes available directly or indirectly Confidential Information; and
9.1.3 “Recipient” means a party to this Agreement which receives or obtains directly or indirectly Confidential Information.
9.2 The Recipient undertakes to the Provider that it shall:
9.2.1 keep the Confidential Information secret and confidential;
9.2.2 not use or exploit the Confidential Information in any way, except for or in connection with, the Purpose; and
9.2.3 only make disclosure of the Confidential Information in accordance with clauses 9.3 and 9.4. Any other disclosure can only be made with the Provider's prior written consent.
9.3 Each party may disclose the Confidential Information to any of its officers, employees and advisers that need to know the relevant Confidential Information for the purposes of enabling the provision of Services under this Agreement, provided that it procures that each such person to whom the Confidential Information is disclosed complies with the obligations set out in this this Agreement as if they were the Recipient.
9.4 Each party may disclose the Confidential Information to the minimum extent required by:
9.4.1 any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction; or
9.4.2 the laws or regulations of any country to which its affairs are subject.
9.5 The obligations set out in clause 9.2 shall not apply, or shall cease to apply, to Confidential Information which the Recipient can show to the Provider's reasonable satisfaction:
9.5.1 is, or becomes generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient in breach of this
Agreement; or
9.5.2 was already lawfully known to the Recipient before it was disclosed by the Provider; or
9.5.3 has been received by the Recipient from a third party source that is not connected with the Provider and that such source was not under any obligation of confidence in respect of that information.
9.6 If requested by the Provider at any time, the Recipient shall immediately destroy or return to the Provider all documents and other records of the Confidential
Information that have been supplied to or generated by the Recipient. If the Confidential Information is stored in electronic form, the Recipient shall permanently erase all such Confidential Information from its computer and communications systems and devices used by it (to the extent technically practicable).
9.7 Without prejudice to any other rights or remedies that each party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other party. Accordingly, each party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this Agreement.
10. ASSIGNMENT
10.1 Neither party may assign any of their respective rights or obligations under the Agreement to any third party without the prior written consent of the other party.
11. COPYRIGHT
11.1 Pearce Property shall retain ownership of all Intellectual Property Rights in the Proprietary Material.
11.2 All Intellectual Property Rights in any material created in the performance of the Services shall automatically vest and remain vested in Pearce Property.
12. COMPLAINTS PROCEDURE
12.1 Pearce Property has a formal complaints handling procedure in accordance with the requirements of the Royal Institution of Chartered Surveyors. A copy is available upon request.
12.2 Any complaint regarding the performance of the Services by Pearce Property should initially be addressed to Andrew Pearce of Pearce Property (via andrew@pearceproperty.com or 07971 278 386) who will deal with the complaint in accordance with Pearce Property’s formal complaints handling procedure.
13. LIMITATION AND DISCLAIMERS
13.1 Pearce Property will not be responsible for structural surveys, physical inspections, testing of services, investigating potential contamination, instigating local searches or other enquiries in respect of the Property, or investigation of the title deeds of the Property.
13.2 Any information about a potential asking price or rent provided by Pearce Property does not represent a formal opinion of value and will not be carried out in accordance with the formal valuation requirements of the Valuation Manual published by The Royal Institution of Chartered Surveyors and may not be relied upon by the Client or any other party.
13.3 The Estate Agents Act 1979 requires Pearce Property to inform any prospective purchaser/lessee of any connected business, or family relationship which the Client may have with Pearce Property, any of Pearce Property’s employees, or any associated company. Pearce Property will undertake independent checks, but the Client is required to inform Pearce Property in writing immediately if the Client is aware that any such relationship exists.
13.4 Any advice, approval or representation made by Pearce Property regarding the legal meaning or effect of any title deeds or other legal documents will not be relied on by the Client and such advice will be limited to estate agency matters and will not constitute advice regarding legal interpretation or drafting issues which will at all times remain a matter for the Client’s solicitor whether or not any advice, approval or representation is given by Pearce Property.
13.5 Pearce Property are entitled to assume that regarding the Property:
13.5.1they have been told by the client of all onerous encumbrances, easements, covenants, restrictions, outgoings or conditions attached which may affect its marketability;
13.5.2 all ownership information provided is complete and correct;
13.5.3 all relevant statutory requirements have been complied with and that is not contaminated; and
13.5.4 it has been constructed and occupied in accordance with valid planning and building regulations approval.
13.6 Responsibility for property management and appropriate security remains the sole responsibility of the Client.
13.7 Pearce Property may offer estate agency or professional services to any prospective purchaser or lessee including the sale or letting of a prospective tenant or purchaser’s existing property.
14. KEYS
14.1 If Pearce Property holds keys to the Property, these may be loaned to prospective purchasers, tenants or their agents for the purposes of inspecting and viewing the Property, unless the Client withholds consent to this in writing. Pearce Property will exercise reasonable care in loaning keys, but accepts no liability arising from actions of third parties.
15. GENERAL
15.1 Where it is necessary to amend or supersede these Terms and Conditions, Pearce Property will notify you of any changes and 7 days after such notification the
amendments or new terms will come into effect, unless we hear from you to the contrary.
15.2 In the event there is an inconsistency between any of the provisions of the General Terms & Conditions of Business and the provisions of the Engagement Letter, the provisions of the Engagement Letter shall prevail.
15.3 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
15.3.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if Pearce Property) or its main residential address (if the Client); or
15.3.2 sent by email to andrew@pearceproprty.com in respect of Pearce Property and if the Client would like to receive notices by email, then sent by email to the email address provided by the Client to Pearce Property as a means of communication.
15.4 Any notice shall be deemed to have been received:
15.4.1 if delivered by hand, at the time the notice is left at the proper address;
15.4.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day (being Monday to Friday, other than public holidays in England and Wales) after posting; or
15.4.3 if sent by email, at the time of transmission, or, if this time falls outside business hours, when business hours resume. In this clause 15.4.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
15.5 This clause 15 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.6 If any provision of the Agreement is or becomes illegal, invalid or unenforceable such provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
15.7 The Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of England and Wales.
Company Number 12968738 VAT No 362325513