In these Terms and Conditions, the following words shall have the following meanings: ‘Client’ means the person or persons requesting the Services as named on the Order Form and includes Vendor Clients and Professional Clients ‘Company’ means Allhip Limited (company registration number 05969651) whose registered office is at Woodland View House, 675 Leeds Road, Huddersfield, West Yorkshire, HD2 1TT ‘Contract’ means the Order Form together with these Terms and Conditions once the Order has been accepted by the Company. ‘Fee’ means the amount stated on the Order Form subject to any increase due to an election to utilise any payment option or any other term or condition contained in the Contract. ‘Order’ means the request for the provision of the Services as detailed on the Order Form. ‘Order Form’ means the form sent or delivered to the Company requesting the Services and shall include forms sent in paper form or via the Website. ‘Professional Client’ means a Client ordering Services from the Company where they act as an agent to a vendor customer in relation to the sale of a property, including estate agents. ‘Reports’ means all reports, documentation, presentations, software or drawing in whatever format that the Company shall or may create or deliver to the Client as part of the Services provided by the Company. ‘Services’ shall include, but shall not be limited to, the provision of Reports and services including home surveying, Energy Performance surveys and the provision of Home Information Packs to the Client by the Company. ‘Vendor Client’ means a private Client ordering Services directly from the Company in relation to the sale of his personal property. ‘Website’ means www.allhip.co.uk.
In the Contract unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses and schedules are references to the relevant clause in or schedule to these Terms and Conditions;
reference in any schedule to these Terms and Conditions to numbered paragraphs relate to the numbered paragraphs of that schedule;
any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
the headings to the clauses, schedules and paragraphs of these Terms and Conditions are not to affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
where the word 'including' is used in these Terms and Conditions, it shall be understood as meaning 'including without limitation'.
Request for Services
The Company shall provide the Services to the Client, subject to the provisions of these Terms and Conditions.
Prior to the commencement of the Services, the Client shall submit to the Company a request for the Services using an Order Form using the contact details provided on the front of the Order Form or via the Website.
Further Services may be requested only by the submission of a further Order Form or by written agreement between the Parties.
Any Order received will only be accepted by us when we confirm to you in writing either by email, facsimile or post that we have accepted your order. Until you receive that confirmation there will not be a binding contract between you and us. Sending an Order Form to us in any manner does not, and is not intended to, constitute a binding contract between you and us. Only on our confirming the Order will we be entering into a binding contract with you.
Performance of the Services
The Company shall use reasonable endeavours to complete the Services within a reasonable time.
Time shall not be of the essence:
for any times for when the Services are to be performed, whether given or agreed to by the Company; or
for the length of time that any of the Services are to take, whether specified in the Order Form or otherwise.
Fee and payment
Vendor Clients shall make payment of the Fee for the Services in one of the following manners following prior agreement between the Company and the Vendor Client:
by payment of the Fee on submission of the Order Form; or
by payment of the Fee by way of an initial deposit on submission of the Order Form followed by five equal monthly payments. An administrative charge will be payable by the Vendor Client if electing to use this payment option.
Professional Clients
Professional Clients shall make payment of the Fee for the Services in one of the following manners following prior written agreement between the Company and the Professional Client:
by way of monthly accounts;
by way of monthly accounts with deferred payments; or
by way of a ‘no sale, no fee’ arrangement.
An administrative charge will be payable by the Professional Client if electing to use the payment option in clause 4.2.1.2. The Fee under any ‘no sale, no fee’ arrangement under clause 4.2.1.3 shall be agreed between the Parties prior to performance of the Services.
Fees to be paid under the options given in clauses 4.2.1.2 and 4.2.1.3 remain payable at all times, including where the vendor customer removes their home from the market or transfers to a different agent.
In the event that a Professional Client's vendor customer removes their property from the market where that Professional Client has elected to use the ‘no sale, no fee’ option in clause 4.2.1.3, the Professional Client must supply the Company with a copy of their letter of intention before the Contract can be terminated.
All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client.
If payment of the Fee is not received by any due date, the Company shall be entitled (without prejudice to any other right or remedy):
to charge interest on the outstanding amount at the rate of 4% per annum above the base lending rate of Barclays Bank plc, accruing daily;
to require that the Buyer make a payment in advance of any Services or part of the Services not yet made supplied;
not to provide any further Services or part of the Services; or
not to provide any Reports due on completion of the Services (until such payment is made).
In the event that the Services or any part of them are no longer required due to amendment or repeal of The Home Information Pack Regulations 2006, all Fees due and payable shall remain due and payable.
All payments shall quote the Company's invoice number and other reference numbers (including where applicable) the Order Form reference number.
The Client's obligations
The Client acknowledges and agrees that for the Company to be able to provide the Services the Client shall:
co-operate with the Company as the Company reasonably requires;
provide to the Company such information and documentation as the Company reasonably requires, including a management report on the sale of a leasehold property;
make available to the Company the facilities, resources, and working space as specified in the Order Form and/or as the Company reasonably requires from time-to-time; and
instruct the Client's staff and agents to co-operate and assist the Company
and the Client acknowledges that failure to comply with any provision of this clause 5.1 may result in a delay in the production of the Reports.
The Company may charge the Client for any additional reasonable costs and expenses incurred by the Company caused by the Client's instructions, failure to provide instructions, or failure to comply with Clause 5.1.
Reporting requirements
The Order Form shall specify the Reports that are to be produced.
Where required on the Order Form to provide Reports, the Company shall supply two copies of the Reports to the Client. The Company grants to the Client a non-exclusive licence (without the right to sub-licence) to use the Reports. The Company shall own all copyright, database and other intellectual property rights in the Reports. The Reports may not be copied or reproduced without written consent from the Company.
The Company will produce additional Reports to the Client where requested. The additional Reports are not covered by the original Fee and the Company will charge an additional fee for each copy made. The additional fee to be charged shall be determined by the Company at its absolute discretion.
Protection of confidential information
Each Party ('Receiving Party') shall keep the Confidential Information of the other Party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the Confidential Information of the Supplying Party for the purpose of providing the Services and for performing the Receiving Party's obligations under the Contract. The Receiving Party shall inform its officers, employees and agents of the Receiving Party's obligations under the provisions of this Clause 7, and ensure that the Receiving Party's officers, employees and agents meet the obligations.
The obligations of Clause 7.1 shall not apply to any information which:
was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;
is, or becomes, publicly available through no fault of the Receiving Party;
is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
is required to be disclosed by order of a court of competent jurisdiction.
This Clause 7 shall survive termination of the Contract.
Notwithstanding the above provisions of this clause 7, the Company may pass on the Client's details to other persons unless the Client has indicated that they do not wish the Company to do so by marking the appropriate box on the Order Form.
Warranties, liability and indemnities
The Company warrants that it will use reasonable care and skill in performing the Services and to a standard which conforms to generally accepted industry standards and practices.
If any part of the Services is performed negligently or in breach of the provisions of the Contract then the Company will re-perform the relevant part of the Services, provided that the Client has notified the Company in accordance with clause 8.8 below.
The Company expressly does not warrant that any result or objective whether stated in the Contract or not shall be achieved, be achievable or be attained at all or within any specified period.
Except in the case of death or personal injury caused by the Company's negligence, the Company's liability under or in connection with the Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Company under the Contract. The provisions of this Clause 8.4 shall not apply to Clause 8.6.
Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 8.5 shall not apply to Clause 8.6.
The Client shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Company, its employees or consultants, or supplied to the Company by the Client within or without the scope of the Contract. 'Claims' shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and 'Losses' shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
Each of the Parties acknowledges that, in entering into the Contract, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in these Terms and Conditions, and any conditions, warranties or other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law. Nothing in these Terms and Conditions excludes liability for fraud.
If the Reports delivered are in any way defective or inaccurate or not to the Client's satisfaction, the Company shall have no liability to the Client unless the Client notifies the Company in writing at the Company's address as stated on the Order Form of the problem within 10 working days of the delivery of the Reports in question.
Termination
Without prejudice to other remedies or rights, either Party may terminate the Contract at any time by written notice to the other Party ('Other Party') and the notice taking effect as specified in the notice:
if the Other Party is in material breach of its obligations under these Terms and Conditions, and where a breach is capable of remedy within seven days, the breach is not remedied with seven days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party's assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
General
Force majeure
Neither Party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate the Contract by written notice to the other Party.
Amendments
These Terms and Conditions may only be amended in writing signed by duly authorised representatives of the Parties.
Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under these Terms and Conditions without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under these Terms and Conditions.
Entire agreement
The Contract contains the whole agreement between the parties in respect of the provision of the Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject-matter. The parties confirm that they have not entered into the Contract on the basis of any representation that is not expressly incorporated into these Terms and Conditions or the Order Form. Nothing in these Terms and Conditions excludes liability for fraud.
Waiver
No failure or delay by the Company in exercising any right, power or privilege under the Contract shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights and remedies provided by law.
Agency, partnership etc
The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Contract. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
Further assurance
Each Party to the Contract shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of the Contract or to make it easier to enforce.
Severance
If any provision of the Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Contract and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.
Notices
Any notice to be given under the Contract shall be in writing and shall be sent by first class mail or air mail, or by facsimile or e-mail (confirmed by first class mail or air mail), to the address or facsimile number of the relevant Party set out on the Order Form, or such other address or facsimile number as that Party may from time to time notify to the other Party in accordance with this clause.
Notices sent as above shall be deemed to have been received three working days after the day of posting (in the case of inland first class mail), or seven working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender's facsimile machine recording a message from the recipient's facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted).
In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
Law and jurisdiction
The validity, construction and performance of the Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these Terms and Conditions the Contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
