Terms & Conditions
These are Our Terms and Conditions to which You will be subject when instructing Us to act for You.
Where We are instructed by two or more individuals, Your obligations and liabilities towards Us will be joint and several. If You instruct Us on behalf of another individual or a company, partnership or other entity, (whether already formed or to be formed in due course),(entity) and Our bill is addressed to that entity You will still be personally responsible for payment of Our charges, disbursements and VAT as principal if that entity does not pay Us promptly.
The definitions used in the Letter of Engagement apply to these Terms and Conditions.
In these Terms and Conditions, the following definitions apply:
1.1. “Asset” means the freehold and/or leasehold premises referred to in the Letter of Engagement.
1.2. “Letter of Engagement” means the letter of engagement setting out Our specific arrangements with you including our remuneration package in connection with the Services.
1.3. “Our, Us and We” means Brotherton Real Estate Limited and its directors.
1.4. “You” means the person or person(s) who sign the Letter of Engagement as well as:
1.4.1. any principal disclosed or undisclosed on whose behalf You are acting.
1.4.2. (where You sign on behalf of a Limited Company), the Limited Company, the Directors, Shadow Directors and Shareholders of that Company.
1.4.3. any person, partnership, company or other legal entity that benefit directly or indirectly in any way from the Services .
1.5. “Shareholders” includes the ultimate beneficial owner or owners of the shares.
1.6. “Services” directly or indirectly introducing You to a source of funds which makes a satisfactory offer and if required by You negotiating and advising on the principle terms of the offer.
1.7. “Fee” any fee or other remuneration referred to in the Letter of Engagement.
1.8. “Source of Funds” means the party of parties that are put in touch with You directly or indirectly as a result of Our introduction.
1.9. “Party or Parties” means the Source of Funds.
2.1. We shall not make or enter into any contracts or commitments to incur liability for or on your behalf without your written consent.
2.2. We shall use all reasonable endeavours to meet any performance dates that You require, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Service.
2.3. We warrant to You that the Service will be provided using reasonable care and skill but We do not guarantee that We will be able to provide satisfactory funding.
3.1. You agree to pay Our fee and any VAT plus any expenses and disbursements or otherwise remunerate Us as set out in the Letter of Engagement
3.2. If You, Your employees, agents, or a company in the same group as You enter into or implement a binding agreement with the party or parties directly or indirectly introduced by Us the full fee referred to in the Letter of Engagement will be payable to Us.
3.3. If We cease to act for You, notwithstanding anything in the Letter of Engagement, any payment due to Us will be paid on the date the binding agreement is entered into or implemented, whichever is the earlier.
3.4. Our fee excludes any other legal, surveyor or other professional fees that may be payable.
3.5. Unless otherwise agreed in the Letter of Engagement or any subsequent written agreement the fee is payable on a legally binding commitment being entered into or implemented (whichever is the earlier) between You and the source of funds.
3.6. In the event that You obtain further funding from the party or parties introduced by Us in connection with the arrangement set out in the Letter of Engagement a further fee of 0.5% (or such other percentage or form of commission as may be set out in the Letter of Engagement) of the amount of the facility plus VAT will be due and payable by You to Us on You benefiting therefrom, on a legally binding commitment being entered into or implemented (whichever is the earlier) between You and the source of funds
If You fail to make any payment due to Us under Our agreement with You within 14 days of the due date for payment, then, without limiting Our remedies under clause 4, You shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster PLC's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
5.1. Without limiting Our other rights or remedies terminate or otherwise We may terminate Our agreement with You by giving You not less than one months' written notice.
5.2. Without limiting Our other rights or remedies We may terminate this agreement with immediate effect by giving written notice to You if:
5.2.1. You fail to pay any amount due under this agreement with You within 14 days of the due date for payment; or
5.2.2. You commit a material breach of Your obligations under this agreement with You and (if such breach is remediable) fails to remedy that breach within five days after receipt of notice in writing to do so; or
5.2.3. You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or admit an inability to pay Your debts or (being a company or limited liability partnership) are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) are deemed either unable to pay Your debts or have no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) have any partner to whom any of the foregoing apply.
6. CONSEQUENCES OF TERMINATION
6.1. On the termination of this agreement, except for clause 1 and Our obligation to provide the Service in the Letter of Engagement, the remainder of the agreement shall continue in force.
6.2. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
7. EXCLUSION OF LIABILITY
7.1. Nothing in these Terms and Conditions shall limit or exclude Our liability for:
7.1.1. death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors; or
7.1.2. fraud or fraudulent misrepresentation.
7.2. Subject to clause 6.1, We shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this agreement.
7.3. This clause 6 shall survive termination of the agreement.
8. DATA PROTECTION
8.1. Your name, address and other details which You give to Us will be stored by Us on computer to enable Us to deal efficiently with Your case and to communicate with You.
8.1. You consent to Us processing and using data relating to You and the Asset for the purposes of the Introduction and the provision of the Service.
8.2. We may use the information We have on computer to communicate other matters to You which We think may be of interest or importance or We may direct third party correspondence to You in this regard. If You do not wish Us to do so please notify Us when responding.
8.3. If this firm merges or is acquired by another entity then the information which We have about You on computer will be supplied to that entity. This is standard practice in such situations but We are obliged to notify You and Your signature to these Terms and Conditions will be deemed Your agreement that We may disclose such information.
9. FINANCIAL SERVICES
9.1. We are not authorised by the Financial Conduct Authority.
9.2. The Service provided by Us does not extend to any regulated activity (as defined in the Financial Services and Markets Act 2000) save to the extent that We are authorised in the future or the activity is excluded or exempt.
10. NO PARTNERSHIP OR AGENCY
10.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
10.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
11. ENTIRE AGREEMENT
11.1. These Terms of Condition and the Letter of Engagement constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
11.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.4. Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13. ASSIGNMENT AND OTHER DEALINGS
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
15.2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Any notice given to a party under or in connection with this contract shall be in writing and shall be:
16.1. delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
16.2. sent by fax to its main fax number.
17. THIRD PARTY RIGHTS
No one other than by ourselves or Our authorised representative and by You and any one on Your behalf who We shall except as Your authorised agent or Your principle to this agreement shall have any right to enforce any of its terms.
18. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) without Our written consent which can be withheld by Us without giving any reason.