1

INTERPRETATION  

In these terms and conditions (Conditions) the following words and expressions shall have the following meanings:

Contract means your acceptance of an Engagement Letter under condition 2.2.

Deliverables means all Documents and materials develope by us in relation to the Services, including data, reports, planning applications and submissions and specifications (including drafts).

Document includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. 

Engagement Letter means the letter from us to you identifying the Services to be provided and the price payable 

Services means the services to be provided by us under the Contract as set out in the Engagement Letter, together with any other services which we provide or agrees to provide to you. 

we/our/us means Wilbraham Associates Limited

VAT means value added tax chargeable under English law for the time being and any similar additional tax

you/your means the person, firm or company who purchases Services from us.

1.2

Condition, schedule and paragraph headings shall not affect the interpretation of these Conditions.

1.3

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

1.4

The schedules form part of the Contract and shall have effect as if set out in full in the body of these Conditions and any reference to the Contract includes the schedules.

1.5

Words in the singular shall include the plural and vice versa.

1.6

A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

2

APPLICATION OF CONDITIONS

2.1

These Conditions shall:

2.1.1 apply to and be incorporated into the Contract; and

2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Client's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.

2.2

Your purchase order or your acceptance of the Engagement Letter constitutes an offer by you to purchase the Services specified in it in these Conditions. No offer placed by you shall be accepted by us other than:

2.2.1 by a written acknowledgement issued and executed by us; or

2.2.2 (if earlier) by us starting to provide the Services,

when a contract for the supply and purchase of those Services on these Conditions will be established. Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.

2.3

We issue Engagement Letters on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any Engagement Letter is valid for a period of 30 days from its date, provided that we have not previously withdrawn it.

3

COMMENCEMENT AND DURATION

3.1

The Services supplied under the Contract shall be provided by us to you from the date of our acceptance of your offer in accordance with condition 2.2.

3.2

The Services supplied under the Contract shall continue to be supplied until the task which is the subject of the Services is completed unless the Contract is terminated in accordance with condition 9.

4

OUR OBLIGATIONS

4.1

We shall use reasonable endeavours to provide the Services.

4.2

We shall provide the Services with reasonable skill and care

4.3

We shall use reasonable endeavours to meet any performance dates specified by you, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

5

YOUR OBLIGATIONS

5.1

You shall:

co-operate with us in all matters relating to the Services; and

provide, in a timely manner, such information as we may request and ensure that it is accurate in all material respects.

5.2

If our performance of our obligations under the Contract is prevented or delayed by any act or omission by you, your agents, sub-contractors or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.

5.3

You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or that we incur (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to us confirming such costs, charges and losses to you in writing.

6

CHARGES AND PAYMENT

6.1

The total price for the Services shall be the amount set out in our Engagement Letter. This may be invoiced in stages, the sum not exceeding the total price stated. The toral price shall be paid to us without deduction or set-off, together with disbursements and VAT where appropriate.

6.2

We reserve the right to vary the price for the Services if during the course of provision of the Services, it becomes apparent that the amount of work that we are required to carry out is substantially different to that which we were aware of or could reasonably have predicted at the outset of the matter in question.

6.3

You shall pay each invoice submitted to it by us in full and in cleared funds, within 21 days of receipt.

6.4

Without prejudice to any other right or remedy that you may have, if you fail to pay us on the due date, we may:

6.3.1 charge interest on such sum from the due date for payment at the rate of 2% over the base rate of HSBC Bank plc from time to time, both before and after any judgment; and

6.3.2 suspend all Services until payment has been made in full.

6.5

Time for payment shall be of the essence of the Contract.

6.6

All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

6.7

We may, without prejudice to any other rights it may have, set off any liability that you may have to us against any liability that we may have to you.

7

LIMITATION OF LIABILITY

YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION

7.1

This condition 7 set out our entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of:

7.1.1 any breach of the Contract;

7.1.2 any use made by the Client of the Services, the Deliverables or any part of them; and

7.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

7.2

All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

7.3

Nothing in these Conditions limits or excludes our liability:

7.3.1 for death or personal injury resulting from negligence; or

7.3.2 for any damage or liability incurred by you as a result of any fraud or fraudulent misrepresentation by us.

7.4

Subject to condition 7.2 and condition 7.3 we shall not be liable to you for any: indirect, consequential, special or punitive loss, damage, costs and expenses, loss of profit, loss of business, loss of reputation, depletion of goodwill, or loss of, damage to, or corruption of data.

7.5

Our total liability in contract, tort (including negligence or breach of statutory or fiduciary duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to £1,000,000 for any one claim or £100,000 in respect of any claim based upon or arising out of or in consequence of or in any way involving seepage, pollution or contamination.

8

DATA PROTECTION

8.1

You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on our behalf in connection with the Services.

9

TERMINATION

9.1

Subject to condition 9.3, the Contract shall terminate automatically on completion of the Services

9.2

Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

9.2.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

9.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

9.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

9.2.4 a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

9.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

9.2.6 the other party ceases, or threatens to cease, to trade; or

9.2.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

9.3

On termination of the Contract for any reason:

9.3.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt; and

9.3.2 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

10

FORCE MAJEURE

10.1 

We shall have no liability to you under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. 

11

VARIATION 

11.1 

No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties. 

12 

WAIVER 

12.1 

A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. 

12.2

Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law. 

13 

SEVERANCE 

13.1

If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.

13.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

13.3

The parties agree, in the circumstances referred to in condition 13.1 and if condition 13.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

14

STATUS OF PRE-CONTRACTUAL STATEMENTS

14.1

Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

15

ASSIGNMENT

15.1

You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

15.2

We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. 

16 

NO PARTNERSHIP OR AGENCY 

16.1

Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

17

RIGHTS OF THIRD PARTIES

17.1

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

18

NOTICES

18.1

Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 18 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

19

OUR SERVICES

19.1

If at any time you would like to discuss with us how our service to you could be improved or if you are dissatisfied with the Services please let us know by speaking to the individual with overall responsibility in relation to any particular matter. We will look into any complaint carefully and promptly and will do all we can to explain the position to you.

19.2

If we have given you a less than satisfactory service we will do everything reasonable to put it right and, if you are still not satisfied, you may take the matter up with The Royal Town Planning Institute. The Royal Town Planning Institute may be contacted on 020 7929 9494 or via their website www.rtpi.org.uk

20

GOVERNING LAW AND JURISDICTION

20.1

The Contract, the Engagement Letter and any dispute or claim arising out of or in connection with either of them or their subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

20.2

The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.