| 1. |
INTERPRETATION |
| 1.1 |
In these Conditions:
“Authorised HIP Documents” means documents which may be included in a HIP under the HIP Legislation;
"Business Day" means any day from Monday to Friday (inclusive) on which banks in London are open as normal;
"Commencement Date" means the date of these Conditions;
"Confidential Information" means any information obtained as a result of entering into of these Conditions which would be regarded as confidential by a reasonable business person relating to the business, clients, suppliers, operations or affairs of a Party (or any of the respective Group Companies) including, without limitation, information relating to strategies, techniques, financial information, methodology, software and processes of or used by a Party;
“Conveyancing Report Agency Customer” means a vendor who owns or lawfully controls a Property and who does not wish to purchase a HIP from You but rather to do so directly from Us;
Conveyancing Report Agency HIP" means a HIP produced by Us pursuant to these Conditions which includes Required HIP Documents and such Authorised HIP Documents as may be agreed between Us and You from time to time;
“Customer” means the end user or party relying on the HIP or Search content;
"Fees" means Our fees quoted to You electronically by our system each time you place an Order and any of our administration fees;
“First Point of Marketing” shall be afforded the meaning ascribed to it at Part I section 3 of the Hip Regulations.
"Force Majeure" means, in relation to either Us or You, any circumstances beyond the reasonable control of that Party (excluding any strike, lock-out or other industrial action);
"Group Company" means any associated company, holding or subsidiary undertaking from time to time and "Group Companies" shall be construed accordingly;
"HIP" means a home information pack to be provided by a “responsible person” as those terms are defined in the HIP Legislation which includes Required HIP Documents and may include certain Authorised HIP Documents and "HIPs" shall be construed accordingly;
"HIP Legislation" means Part 5 of the Housing Act 2004 and any regulations made under that Act or otherwise regulating HIPs (including, without limitation, the Home Information Pack (No 2) Regulations 2007) as enacted, amended or supplemented from time to time;
“HIP Services” means services which solely pertain to HIPs;
“Market” means the market for sale of the Property whether by open market sale or a private sale;
"Operative Date" means 2 July 2007;
"Order" means an order received by Us from You for the supply of Conveyancing Report Agency HIPs and/or Searches to You;
"Party" means a party to an Agreement, subject to these Conditions (unless the context means otherwise) and "Parties" shall be construed accordingly;
“Property” means the property specified in the Order which is to be the subject of a Conveyancing Report Agency HIP or Search;
“Required HIP Documents” means documents which must be included in a HIP under the HIP Legislation;
“Search” or “Searches” means a search report or other reports, save for those pertaining to parish liability or credit reference information which are supplied by Us pursuant to an Order;
"Services" means our creation and delivery of HIPs and/or Searches pursuant to an Order;
“Us” or “We” or “Our” or “Conveyancing Report Agency” means Watervale Limited;
"Vendor" means a person who is the proprietor of the Property or has lawful rights to market and sell the same;
"Year" means the period of 12 months from the Operative Date and each consecutive period of 12 months thereafter during the period of these Conditions;
“You” or “Your” means the person for whom we have agreed to provide HIPs or Searches in accordance with these Conditions. |
| 1.2 |
In these Conditions, unless otherwise stated, words denoting the singular include the plural and vice versa, words denoting one gender include the others, and words denoting persons include firms, corporations or other legal entities; |
| 2. |
PROVISION OF SEARCH AND/OR HIP SERVICES |
| 2.1 |
You appoint Us on a non-exclusive basis to supply and manage the production and delivery of Searches and/or HIPs to You in accordance with these Conditions. |
| 2.2. |
With effect from the Operative Date, We agree to provide the Services: |
2.2.1 |
supply, manage and co-ordinate the delivery of Conveyancing Report Agency HIPs and/or Searches in respect of Orders received from You from time to time;
|
2.2.2 |
ensure that the Conveyancing Report Agency HIPs conform with the HIP Legislation (including without limitation any prescribed quality standards) in all material respects.
|
| 2.3 |
You acknowledge that each Order constitutes a separate severable contract with You. |
| 2.4 |
We may from time to time agree to co-brand HIPs, subject to written agreement. |
| 2.5 |
If any of the Required HIP Documents are not included in a Conveyancing Report Agency HIP produced for You or to your Order on or within 28 days of the First Point of Marketing of the Property We will disclose which documents are missing and if requested by you in writing provide reasons for their absence. |
| 2.6 |
If after making all reasonable efforts and enquiries, We consider that the Required HIP Documents will be unobtainable, those Required HIP Documents will not be included in the Conveyancing Report Agency HIP which shall be deemed complete in any event. |
| 3. |
THE CLIENT’S OBLIGATIONS |
| 3.1 |
You shall not amend or supplement any Conveyancing Report Agency HIP or Search without Our prior written consent. You shall ensure that any products or services which are offered to a Vendor in addition to the Conveyancing Report Agency HIP or Search shall be clearly distinguished as separate, and not forming part of, the Conveyancing Report Agency HIP or any Search. |
| 3.2 |
Except as required by law, You shall not, without Conveyancing Report Agency’s prior written consent (such consent not to be unreasonably withheld or delayed), make or give any representations, warranties or other promises concerning the HIPS or Searches beyond those authorised by Us in writing and any terms & conditions on which you resell a Conveyancing Report Agency HIP or create a HIP containing the Searches shall comply with the HIP Legislation. |
| 3.3 |
You shall be the responsible person as provided for in the HIP Legislation and undertake all the obligations concerned in fulfilling that role. |
| 3.4 |
You shall at all times remain liable to pay our Fees and any additional fees which are agreed between us. |
| 3.5 |
You shall ensure that you and the Vendor shall (where applicable) supply us with all information which needs to be supplied by either of you relating to the production of the Conveyancing Report Agency HIP and/or any Search within sufficient time to enable us to provide the Conveyancing Report Agency HIP in accordance with these Conditions. You shall be responsible for the accuracy of all information provided to us by you. |
| 3.6 |
If we have supplied a Conveyancing Report Agency HIP or a Search which you notify us in writing when placing the Order shall form part of a HIP you create and despite using our reasonable endeavours, there is any Required HIP Document which is unavailable at the point of supply, we shall continue to use our reasonable endeavours to obtain the Required HIP Document or Search content required by the HIP Legislation until such time as we determine the Required HIP Documents or Search Content to be unobtainable in accordance with the HIP Legislation and notify you accordingly. |
| 3.7 |
If you place an oral order for a Conveyancing Report Agency HIP then we shall not be responsible for any liability arising from any misunderstandings (by either us or you) in relation to your oral instructions. |
| 3.8 |
In the event You are a provider of the HIP Content or you have nominated a third party whom Conveyancing Report Agency are required to use as a supplier in the course of producing the HIP or Search, You agree to hold Conveyancing Report Agency harmless against any delay or inaccuracy in compliance or content of the relevant Required HIP Documents. |
| 3.9 |
You will not Order a Conveyancing Report Agency Search which you will include in a HIP any earlier than three months before the First Point of Marketing in accordance with the HIP Legislation. |
| 3.10 |
You may not include any advertising or marketing materials within the Conveyancing Report Agency HIP. |
| 3.11 |
You are responsible at your cost for providing the Vendor with copies of all or part of the Conveyancing Report Agency HIP if any further copies are requested, over and above those provided by Conveyancing Report Agency. |
| 3.12 |
It is mandatory that you remain a member of an authorised redress scheme for complaints, as then required by the Department for Business, Enterprise & Regulatory Reform. |
| 4 |
FEES |
| 4.1 |
The Fees payable to Us in respect of each Conveyancing Report Agency HIP or Search may only be varied by our giving 1 month’s written notice to You. |
| 4.2 |
Should Conveyancing Report Agency need to engage a third party to enable the production of the HIP or Search and such engagement will cause an increase in the initially quoted Fee, Conveyancing Report Agency shall communicate the Fee increase to You. The variation will be reasonably agreed. In the event that you fail to reject the notified increase within 24 hours, you will be deemed to have accepted the Fee increase. |
| 4.3 |
On a weekly or monthly basis as agreed with you, We shall produce a schedule of all Fees due to Conveyancing Report Agency and shall send it, together with an invoice for the Fees (collectively the "Invoice"), to You. VAT will be payable in addition to the Fees where appropriate. |
| 4.4 |
You will promptly pay our Invoices, within: |
4.4.1 |
thirty days of the date of Invoice if We agree to Invoice you weekly pursuant to Condition 4.3; or
|
4.4.2 |
fifteen days after the end of the month in which the Services were performed if We agree to Invoice you monthly pursuant to Condition 4.3.
|
| 4.5 |
You shall promptly arrange a direct debit facility with your bank with Us as the beneficiary and keep that facility in place. Pursuant to that arrangement, We shall be entitled to take payment by means of direct debit of all Fees which are then due. |
| 4.6 |
You agree to give us notice within seven days of any of the events which are conditions precedent for payment of the Fee, such events include but are not limited to: |
4.6.1 |
if you are the Responsible Person and not the Vendor, the Vendor notifying you (or you becoming aware or reasonably ought to be aware) that you are no longer instructed on the sale of the Property;
|
4.6.2 |
the date of completion of the sale and purchase of the Property.
|
| 4.7 |
In the event that you fail to provide Conveyancing Report Agency with notice of the occurrence of a payment event arising pursuant to Condition 4.6, then we may take payment of all Fees, including an administration fee of twenty five pounds in each instance, then due by means of direct debit pursuant to Condition 4.5. |
| 4.8 |
To the extent that You fail to pay the Fees in accordance with these Conditions or any conditions subject to which we afford you an extended payment arrangement and the same has not been paid within 10 Business Days of receipt by You of a further written notice demanding the same then: |
4.8.1 |
We may suspend performance of the HIP Services until such time as all amounts outstanding in respect of Fees are paid in cleared funds;
|
4.8.2 |
We may revoke all credit afforded to you and demand immediate payment of Fees for all Orders being processed by us (whether or not due under Condition 4.4); and
|
4.8.3 |
We shall be entitled to charge interest at the rate permitted by the late payment of Commercial Debts (Interest) Act 1998 from the due date for payment to the date that cleared funds are received both before and after judgment.
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| 5. |
DATA PROTECTION |
| 5.1 |
Each party to these Conditions undertakes to comply with all legislation relating to data protection in the United Kingdom. No party shall be liable to any third party for the other Party’s failure to comply with such data protection legislation and each Party indemnifies the other Parties for all claims, costs, expenses and/or other losses incurred by that Party as a result of the other Party’s failure to comply with such legislation to the extent required for the purposes of these Conditions and each Party warrants and represents that they have established procedures to ensure continued compliance with all such legislation including, without limitation, obtaining all necessary consents. |
| 6. |
CONFIDENTIALITY |
| 6.1 |
Neither You nor We shall (and shall procure that their Group Companies shall not) disclose to any person any Confidential Information of the other Party or the contents of these Conditions at any time, whether before or after the termination of these Conditions, without the written consent of the other Party, except such disclosure: |
6.1.1 |
which is required by law to be disclosed to any person who is authorised by law to receive the same;
|
6.1.2 |
to any professional advisers to the disclosing Party who are bound to the disclosing Party by a duty of confidence which applies to any information disclosed.
|
| 6.2 |
6.2. Each Party undertakes that it will not make use of any Confidential Information disclosed by the other Party, except for the purposes of performing these Conditions or for any purpose authorised in writing by the other Party. |
| 7. |
LIMITATION OF LIABILITY |
| 7.1 |
We will prepare the Search and/or HIP for You and any Order shall give rise to an agreement solely between You and Us, and that agreement expressly excludes the Contracts (Rights of Third Parties) Act 1999. Only where rights are granted to third parties pursuant to the HIP Legislation will we be liable to third parties who are not party to the relevant agreement. |
| 7.2 |
Except as set out in these Conditions, all conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Services are excluded to the extent permitted by law. For the avoidance of doubt, obligations of the HIP Legislation as applicable are not excluded. |
| 7.3 |
We cannot accept any liability for any error in a Report, which is based on any error or inaccuracy in a public register. Nor will We be liable for any information contained within a HIP or Search, which is based on information that We have obtained from a third party (not being information derived from the public register). |
| 7.4 |
We cannot accept any responsibility for any inaccuracy or error in a Search or HIPs produced using Searches and/or Conveyancing Report Agency HIPs that are based on incomplete or inaccurate information supplied by You. |
| 7.5 |
Subject to any other provisions in these Conditions, We will not be liable to You and/or Customer for any loss, damages, costs or expenses caused directly or indirectly by a delay in delivery of a Conveyancing Report Agency HIP or Search. |
| 7.6 |
We will not be liable for any loss of actual or anticipated profits or savings, loss of business, loss of opportunity or for any special, indirect or consequential loss whether arising in performing or failing to perform the Services, even if We were advised of or knew of likelihood of such loss occurring. |
| 7.7 |
Subject to the foregoing, Our entire liability to You will not exceed the aggregate Fees paid or payable by You for Conveyancing Report Agency HIPS and Searches within the previous twelve months of the cause of loss first arising in each instance. |
| 8 |
FORCE MAJEURE |
| 8.1 |
Notwithstanding any other provision of these Conditions, neither We nor You shall be deemed to be in breach of these Conditions, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under these Conditions, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other and the time for performance of that obligation shall be extended accordingly. |
| 9 |
TERMINATION |
| 9.1 |
This Agreement will continue in force for a period of twelve months (“Initial Term”) and continue thereafter on an annual rolling basis. After the expiry of the Initial Term, either Party can terminate these Conditions on 30 days’ notice. Any Party may terminate this Agreement with immediate effect by giving a written notice to the other Party if: |
9.1.1 |
the other Party commits a material breach of these Conditions and, if the breach is capable of remedy, fails to remedy it within 30 days after being given a written notice containing full particulars of the breach and requiring it to be remedies; or
|
9.1.2 |
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of any of the other Party; or
|
9.1.3 |
the other Party becomes subject to an administration order or makes a voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986); or
|
9.1.4 |
the other Party goes into liquidation (except for the purpose of amalgamation or re-construction and provided that the resulting company effectively agrees to be bound by these Conditions or assume the obligations imposed on the other Party under it); or
|
9.1.5 |
any of the other Party ceases, or threatens to cease, to carry on business.
|
| 9.2 |
We may terminate these Conditions with immediate effect by given written notice if You fail to pay the Fees in accordance with the terms of these Conditions and the same are still outstanding seven Business Days after receipt or deemed receipt by You of a written notice from Us demanding payment. |
| 10 |
EFFECTS OF TERMINATION |
| 10.1 |
In the event of termination of these Conditions, all the rights and obligations of the Parties shall cease forthwith, except for those provisions expressly stated to continue without limit in time. Termination of these Conditions shall not affect any rights, liabilities or remedies arising under these Conditions prior to such termination. |
| 11 |
NOTICES |
| 11.1 |
A notice relating to these Conditions will be validly given only if it is in writing and delivered personally or by courier, or sent by first class post, recorded delivery or fax, to the intended recipient at the address or fax number set out in these Conditions or such other address or fax number as the Party in question may specify by notice. |
| 11.2 |
If a notice is deemed to have been given on a day other than a Business Day, that notice shall instead be deemed to be given on the next Business Day. |
| 11.3 |
We will serve notice to you by post to the address on the Hip Supply Agreement, email or fax and the address and fax number for you to send us notice is 61 Northgate, Almondbury, Huddersfield, HD5 8RX. Fax no. 01484 535900 |
| 12 |
GENERAL |
| 12.1 |
We may perform our obligations and exercise our rights under these Conditions through any of our Group Companies and the acts and omissions of any such Group Company shall be deemed to be the acts and omissions of that Party. |
| 12.2 |
Subject to condition 12.1 and the terms of these Conditions, these Conditions are personal to the Parties and no Party may assign any of its rights, or sub-contract or otherwise delegate any of its obligations, under these Conditions. |
| 12.3 |
Subject to condition 12.1, a person who is not a Party to these Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Conditions other than as may be prescribed by the HIP Legislation. |
| 12.4 |
No variation of these Conditions shall be valid unless agreed in writing by Us and the Supplier. |
| 12.5 |
If any part of these Conditions is held illegal or unenforceable by a court of competent jurisdiction, that part shall be deemed not to form part of these Conditions and the enforceability of the remainder of these Conditions shall not be affected. |
| 12.6 |
In the event that any of these terms and conditions conflict with the front sheet of the Conveyancing Report Agency HIP Supply Agreement to Intermediaries, then the front sheet shall prevail. |
| 12.7 |
The Parties agree that no public announcement shall be made in respect of any of the content of these Conditions without the prior written consent of all Parties. |
| 12.8 |
Nothing in this Agreement shall create, or be deemed to create, a partnership, agency or the relationship of employer and employee, between the parties. |
| 12.9 |
English law shall apply to these Conditions and the Parties shall submit to the exclusive jurisdiction of the English Courts. |
| 13 |
REQUIREMENTS IN EVENT OF VENDORS BEING REFERRED BY THE INTERMEDIARY TO PURCHASE HIPS DIRECTLY FROM RICHARDS GRAY |
| 13.1 |
You may, in certain instances, elect not to purchase a HIP from Us and alternatively refer the Vendor to us for us to supply them directly. In the event that You refer the Vendor to us, they will be a Conveyancing Report Agency Customer. You warrant that the prospective Conveyancing Report Agency Customer shall complete our then current order form incorporating these Terms & Conditions. You will also ensure the Conveyancing Report Agency Customer receives these Terms & Conditions. |
| 13.2 |
You warrant that you will accurately represent the nature and purposes of a Conveyancing Report Agency HIP to the Conveyancing Report Agency Customer and use your best endeavours to accurately explain the Fees and how the Conveyancing Report Agency HIP will be delivered and paid for by the Conveyancing Report Agency Customer. |
| 13.3 |
You acknowledge that all obligations set out in our HIP Supply Agreement including but not limited to those obligations for you to keep us informed pursuant to Condition 4.6 shall continue to apply in any event whether you refer the Vendor to purchase a HIP directly from us or whether you Order a HIP from us on your own account. |
| 14 |
HOME INFORMATION PACK THIRD PARTY FUNDING PROVISIONS |
| 14.1 |
We have made provision with a third party funding provider to enable Conveyancing Report Agency Customers purchasing HIPs from Conveyancing Report Agency to be able to benefit from alternative payment arrangements. In the event that a Conveyancing Report Agency Customer elects not to pay us the Fees for the HIP immediately, they may enter into a contractual arrangement with the nominated third party funding provider. |
| 14.2 |
You agree to follow all procedures, obtain and hold all necessary licences and authorisations required to enable you to introduce Conveyancing Report Agency Customers to the funding provider and comply with any rules regarding the process of introducing the Conveyancing Report Agency Customers to the funding provider. |
| 14.3 |
You will indemnify and hold us harmless for any claims, costs, loss or damage arising from your misrepresenting or misselling the funding providers products or acting contrary to any guidelines or advice provided by Conveyancing Report Agency or the funding provider to introduce the Conveyancing Report Agency Customer to the funding provider. |
| 14.4 |
You will use your best endeavours to assist Conveyancing Report Agency Customers electing to take funding from the third party funding provider to complete and return the funding provider’s application forms. |
