1.Introduction
2. Services
3 Your responsibilities
4 Fees
5 Confidentiality
6 Intellectual property rights
7 Data protection
8 Liability
9 subcontractors
10 Materials
11 Termination
12 Dispute resolution
13 General
14 Interpretation
- Introduction
- Terms – These terms apply to the services you have engaged us to provide. If anything in these terms is inconsistent with any engagement correspondence, these terms take precedence, unless a formal engagement letter specifically amends any of them.
- Commencement – The agreement will start on the earlier of (i) the date set out in any formal engagement letter (or email) and (ii) the commencement of the services by us.
2 Services
2.1 Services – We will perform the services we have agreed to undertake in our correspondence with you with reasonable skill and care. You confirm to us that you have satisfied yourself that the scope of the services offered is sufficient for your purpose and that you understand how our fees will be calculated. The services (including deliverables) are provided solely for you for the purpose specified in our correspondence at the time of accepting your instructions.
2.2 Deliverables – You may not disclose a deliverable or make the benefit of the services available to anyone else or refer to the contents of a deliverable or the findings of our work, except (i) as stated in the engagement letter, (ii) with our prior written consent on terms to be agreed, (iii) where required by law or regulation, or (iv) to your lawyers as long as you tell them, in advance, that we accept no liability to them and that no onward disclosure may be made.
2.3 Liability to you alone – We accept no liability to anyone, other than you, in connection with our services, unless otherwise agreed by us in writing. You agree to reimburse us for any liability (including legal costs) that we incur in connection with any claim by anyone else in relation to the services.
2.4 Changes – Either we or you may request a change to the services or the agreement. A change will be effective only when agreed in writing.
2.5 Extent of services – In performing the services, we will not accept responsibility for detecting fraud or other wrongdoing on the part of any third party.
2.6 Oral advice and draft deliverables – You may rely only on our final written deliverables and not on oral advice or draft deliverables. If you wish to rely on something we have said to you, please let us know so that we may prepare a written deliverable on which you can rely.
2.7 Deemed knowledge – In performing the services we will not be deemed to have information from any other services.
3 Your responsibilities
3.1 Information – In order for us to advise you properly you and to provide the services you will make sure that (i) any information given to us by you, or anyone else working with or for you, is (a) given promptly, (b) accurate and (c) complete; and (ii) any assumptions are appropriate. We will not verify any information given to us relating to the service unless verification is expressly included in writing in the scope of services to be provided.
3.2 Your obligations – Our performance depends on you performing your obligations under the agreement. We are not liable for any loss arising from you not fulfilling your obligations.
4 Fees
4.1 Payment for services – You agree to pay us for our services in accordance with our fee structure set out below in appendix 1. Any initial estimate we may give you is given in good faith based on the available information provided to us at the time but is not binding. We will advise you promptly if we become aware of new information coming to light at any time during the delivery of the services that would require us to vary our estimate.
For the avoidance of doubt “new information” includes a change in service required by you that is over and above the initial service for which the estimate was provided. Where information you provide is incomplete, not presented in a useable format or presented in a format that requires significant administrative time for Planning Direct to reformat, we will charge an additional fee to cover the additional work involved.
4.2 Basis of fees – Our fees may reflect not only time spent, but also such factors as complexity, urgency, inherent risks, use of techniques, know-how and research together with the level of skills and expertise required of the personnel needed to perform and review the services. Our fees may include any time spent travelling for the purpose of the services within a 50 mile radius of our offices.
4.3 Expenses – You will pay any reasonable expenses that we incur in connection with the services.
4.4 Taxes – You will also pay any taxes, including VAT, that are due in relation to our goods and services. You will pay us the full amount of any invoice, regardless of any deduction that you are required by law to make.
4.5 Invoices and payment – We may invoice you on a monthly basis. All invoices are payable 7 days after the date on the invoice. If you do not pay an invoice within 30 days of the date of the invoice, we may charge you interest at the rate set by law for the late payment of invoices.
5 Confidentiality
5.1 Confidential information – We and you agree to use the other’s confidential information only in relation to the services, and not to disclose it, except where required by any relevant law or regulation.
5.2 Referring to you and the services – We may wish to refer to you and the services we have performed for you when marketing our services. You agree that we may do so, as long as we do not disclose your confidential information.
5.3 Performing services for others – You agree that we may perform services for your competitors or other parties whose interests may conflict with yours, as long as we do not disclose your confidential information and we comply with our ethical obligations.
7 Data protection
7.1 Personal data – You agree that we may process your personal data for the purposes of any of (i) providing the services, (ii) maintaining our administrative or client relationship management systems, including the use of IT outsource providers, (iii) quality and risk management reviews, and (iv) providing you with information about us and our range of services. We may transfer personal data to our subcontractors in relation to any of these purposes.
7.2 Data processor – Where we act as your data processor, we will act only on your lawful instructions and we will comply with obligations equivalent to those imposed on you by the seventh principle of the Data Protection Act 1998 (as may be amended).
7.3 Data transfers – We may, for the purposes in clause 7.1, permit the transfer of the personal data outside the European Economic Area (but only to a recipient who is (i) in a country which provides an adequate level of protection for personal data, (ii) US ‘Safe Harbor’-certified or (iii) under an agreement which covers the EU requirements for the transfer of personal data to data processors outside the EEA).
8 Liability
8.1 Specific types of loss – You agree that we will not be liable for (i) loss or corruption of data from your systems, (ii) loss of profit, goodwill, business opportunity, anticipated savings or benefits or (iii) indirect or consequential loss.
8.2 Our liability – You agree that our total liability (including interest) for all claims connected with the services or the agreement (including but not limited to negligence) is limited to 3 times the fees payable for the services (excluding VAT) or £1,000,000, whichever is the greater.
8.3 Sharing of limit – Where we agree in writing to accept liability to more than one party, the limit on our liability in clause 8.2 will be shared between them, and it is up to those parties how they share it.
8.4 Unlimited liability – Nothing in the agreement will limit a person’s liability for (i) death or personal injurycaused by that person’s negligence, (ii) that person’s fraud or (iii) anything else that cannot by law be limited
8.5 No claims against individuals – You agree to bring any claim (including one in negligence) in connection with the services only against us, and not against any individual.8.6 Proportionality – If we are liable to you under the agreement, and another person would be liable to you in respect of the same loss (save for your contractual arrangements with them), then (i) the compensation payable by us to you in respect of that loss will be reduced; (ii) the reduction will take into account the extent of the responsibility of that other person for the loss; and (iii) in determining the extent of the responsibility of that other person for the loss, no account will be taken of (a) any limit or exclusion placed on the amount that person will pay or (b) any shortfall in recovery from that person (for whatever reason).
9.subcontractors
9.1 Subcontractors – We may use other consultancy firms (each of which is a separate and independent legal entity) or subcontractors to provide the services. We remain solely responsible for the services.
9.2 Restriction on claims – You agree not to bring any claim (including one in negligence) against our subcontractors in connection with the services.
10 Materials
10.1 Policy – We may retain copies of all materials relevant to the services, including any materials given to us by you or on your behalf.
10.2 Release – We do not release materials which belong to us (including our working papers) unless we have specifically agreed to do so. We may require a release letter from the recipient as a condition of disclosure.
11 Termination
11.1 Immediate notice – Either we or you may end the agreement immediately by giving written notice to the other if (i) the other materially breaches it and does not remedy the breach within 14 days, (ii) the other is or appears likely to be unable to pay its debts or becomes insolvent or (iii) the performance of it (including the application of any fee arrangements) may breach a legal or regulatory requirement.
11.2 30 days’ notice – Either we or you may end the agreement on 30 days’ written notice.
11.3 Fees payable on termination – You agree to pay us for all services we perform up to the date of termination. Where there is a fixed fee for services, you agree to pay us for the services that we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee. Any contingent element of the fees will remain payable in accordance with the engagement letter. If a contingent fee cannot be paid for regulatory reasons, you agree to pay for the work carried out under the contingent fee arrangement on the basis of time spent, unless alternative arrangements have been agreed
12 Dispute resolution
12.1 Mediation – If a dispute or unresolved complaint arises, the parties will attempt to resolve it by discussion, negotiation and mediation before commencing legal proceedings.
12.2 Law and jurisdiction – The agreement and any dispute arising from it, whether contractual or non-contractual, will be governed by English law and be subject to the exclusive jurisdiction of the English courts.
12.3 Limitation period – Any claims must be brought no later than 2 years after the date the claimant should have been aware of the potential claim and, in any event, no later than 4 years after any alleged breach.
13 General
13.1 Matters beyond reasonable control – No party will be liable to another if it fails to meet its obligations due to matters beyond its reasonable control.
13.2 Entire agreement – The agreement forms the entire agreement between the parties in relation to the services. It replaces any earlier agreements, representations or discussions. Subject to clause 8.4, no party is liable to any other party (whether for negligence or otherwise) for a representation that is not in the agreement.
13.3 Your actions – Where you consist of more than one party, an act or omission of one party will be regarded as an act or omission of all.
13.4 Assignment – No party may assign, transfer or deal with their rights or obligations under the agreement without prior written consent, but we may novate the agreement to a transferee of all orpart of our business. This novation will take effect on written notice from us so that (i) the transferee will be substituted for us with effect from the date specified in the notice and we will no longer have any rights and obligations under the agreement except in respect of work performed prior to that date and (ii) the combined aggregated liability of us and the transferee will not exceed the limit of our liability before the novation took place.
13.5 Rights of third parties – Except as set out in clauses 8.5, and 9.2 a person who is not a party to the agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (as may be amended) to enforce any term of the agreement. Their consent is not required to vary or rescind the agreement.
13.6 Quality of service – We take the qualities of our services seriously If you are not satisfied with the services, or have suggestions for improvement, please set out the unresolved issues in writing and send them to Andrew Cann at our offices at The Maltings, Princes Street, Ipswich, IP1 1SB. We will look carefully and promptly at any complaint and will acknowledge receipt of any complaint letter within 5 working days and seek to resolve it within a reasonable period
13.7 Survival – Any clause that is meant to continue to apply after termination of the agreement will do so including, but not limited to, 2.3, 2.4, 2.6, 2.7, 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14.
14 Interpretation In the agreement the following words and expressions have the meanings given to them below:‘services’ – the services specified in the engagement letter or email‘the agreement’ – these terms and the engagement letter to which they relate (including any schedules)‘we’, ‘us ‘or ‘our’– refers to Cicero Communications Limited trading as Planning Direct, a company registered in England and Wales under company number 07986959‘you’, ‘your’ – the party or parties to the agreement (excluding us)‘agreed in writing’ includes email correspondence between us and you.
Appendix 1
Fees Schedule 2018
- A Day rate of £595 plus VAT (7 hours work) is charged for each full day spent delivering the services.
- For consultations or services totalling less than a full day, an hourly rate of £90 per hour is payable.
- Unless specified otherwise, 50% of all fees (and 100% of any identified disbursements) will be paid in advance. Payment of this initial fee shall be taken as confirmation of instruction for Planning Direct to work on your behalf. The balance shall be chargeable at the point of submission of any application, appeal or other matter.
- All fees exclude VAT disbursement or other expenses.. Disbursement may include but are not limited to application fees, search fees, land registry fees, technical reports procured on your behalf, printing and copying costs.
- Any mileage travelled is charged at HMRC current business rates (currently 45p per mile)
- In some cases we may accept instructions and deliver services on a fixed fee basis which we will clearly set out in the form of a fixed fee quotation with our additional terms and conditions.
- Where agreed in writing a fee structure linked to a defined successful outcome may be agreed by way of variation to our standard terms and conditions of business.
- All fees other than success fees may be invoiced monthly.
- We reserve the right to require disbursements to be paid in advance of delivering the services.
- Expenses: In some exceptional circumstances it may be necessary for us to incur additional expenses, for example where you require us to attend a planning appeal outside a reasonable commuting distance (over 2 hours drive each way from our offices) resulting in an overnight stay. We will not incur these expenses unless we have notified you of these in advance. Expenses will be either added to your monthly invoice or invoiced separately.