General Terms and Conditions
1 Provisions of Services
1.1 Heatons shall provide services in accordance with the instructions given to them by the client in accordance with the scope of work identified in the attached letter, unless varied by agreement between us and the client. Any changes or additions to the service as specified should where appropriate and reasonable be agreed in writing between us and you.
1.2 Heatons shall provide services to its clients with reasonable skill and care and, as far as is reasonably practicable, in accordance with the instructions and scope of work referred to in our engagement letter. Where goods or services are supplied in connection with the provision of our services by any third party, we do not give any warranty, guarantee or other representation as to their quality but shall, where possible, assign to you the benefit of any warranty, guarantee or representation given by such third party supplying goods and/or services to us.
1.3 We shall have no liability to you for any loss, damage, costs, expenses or other claims for compensation arising as a result of information or instructions supplied by you which are incomplete, incorrect, inaccurate or ineligible or arising from their late arrival or non-arrival or any fault of yours.
1.4 You agree that any advice given by us or any communication from us to you is provided solely in connection with advising you and for your use and benefit and accordingly, such advice may not be used or relied on or disclosed to any other person (other than your other professional advisers) without our prior written consent.
1.5 Save as expressly stated otherwise in the attached letter, we shall accept liability to you for breach of the terms of our engagement or for our negligence for an amount of damages up to, but not exceeding, £30,000,000. On this basis we maintain professional indemnity insurance to a total level of £30,000,000 for each individual claim.
1.6 Notwithstanding 1.5 above, we shall not be liable to you or be deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of our obligations in relation to the services offered to you if that delay or failure was due to any cause beyond our reasonable control.
2 Fees
2.1 The fees which you will incur will, unless otherwise agreed between us, be as set out in the letter of engagement.
2.2 In the event that we are required to make payments in respect of any disbursements, please note that we have no obligation to effect such payments unless funds have been provided by you for that purpose. VAT is payable on certain disbursements.
2.3 Our fees will include a standard disbursement charge equal to 3% of the final fee. This is in respect of printing and other administration costs.
2.4 We reserve the right to charge our fees whether or not a particular matter is successfully concluded or completed (unless otherwise agreed in writing).
2.5 In the event that a fixed fee has been agreed and the transaction does not proceed to completion for any reason, then, unless otherwise expressly agreed, we shall be entitled to charge for work done on the basis of the time we have expended on your behalf.
2.6 Where fees are being raised on the basis of an hourly rate, we shall be entitled to invoice you following the end of each month in which services are provided to you or at other times agreed with you.
2.7 In the event of our charges being based on a fixed fee in transactional matters, all charges and any additional sums payable shall be paid by you at completion of the transaction, or in the event of the transaction aborting, within 30 days of the date of our invoice.
2.8 In respect of all other payments, sums payable should be paid by you within 30 days of the date of our invoice.
2.9 If payment of any invoice is not made on the due date, we shall be entitled (without limiting any other rights we may have) to charge interest on the outstanding amount at the rate of 4% above the base rate from time to time of Lloyds TSB Bank plc, from the due date until the outstanding amount is paid in full.
3 Interest Payments
If we hold money on your behalf in a general client account, we will, in accordance with the Solicitors Accounts Rules 1998 (“the Rules”), pay to you a sum in lieu of interest. The Rules provide that the amount should be calculated on the balance held over the period for which cleared funds are held at a rate of interest not less than that which would have been payable had the relevant amount been placed in a separate designated client account for the relevant period with Lloyds TSB Bank plc. There are limited exceptions to this requirement where the sums held are small and the period is short. If we hold money in a separate designated client account for you then we will account to you for all interest earned on the account.
4 Disclosure of other interests
You agree that we do not have a duty to disclose to you, or to make use for your benefit of, any information (even if it relates to you or any activity in which you may be engaged or interested) which comes to our notice or which belongs to or is confidential to another client.
5 Notices and other communications
5.1 Our normal method of communicating is by original letter sent by normal postal or, where appropriate, courier services. Where the matter is one which justifies the method of communication, or is specifically requested, we will communicate by fax to any number given to us by you.
5.2 During the engagement we may wish to communicate electronically with each other. However, the electronic transmission of information cannot be guaranteed to be secure or virus or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We each agree to use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically, but we recognise that such procedures cannot be a guarantee that transmissions will be unaffected by such hazards.
5.3 We confirm that we each accept the risks outlined above and authorise electronic communications between us. We will each be responsible for protecting our own systems and interests in relation to electronic communications and neither you nor us (in each case including our respective directors, employees, sub-contractors or agents) will have any liability to each other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between us or our reliance on such information.
5.4 The exclusion of liability above shall not apply to the extent such liability cannot by law be excluded.
6 Termination
This engagement may be terminated by either party by written notice to the other, however, any arrangement as to the payment of fees and expenses shall survive termination.
Termination of our engagement will not affect any legal rights or obligations that may already have accrued or been incurred by either of us.
7 Rights in relation to material
The property and any copyright or other intellectual property rights and any material provided by you for the purpose of our instructions and belonging to you shall be retained by yourself.
In relation to material supplied, prepared or created by us, we shall retain all copyright and other intellectual property rights therein, subject only to your right to use such material for the immediate purpose for which it was prepared.
8 Money Laundering
In common with other well-managed and reputable firms we maintain and operate procedures and controls which are intended to forestall and prevent money laundering and, more generally, all and any actions taken by any person with a view to preserving, using, investing or disposing of the proceeds of crime. In this respect, we will act at all times in accordance with and as required by the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2001 (together “the Relevant Laws”). In agreeing to engage this firm you expressly acknowledge our obligations in this respect and agree that this firm shall have no liability to you by reason of any act or omission undertaken in good faith in order to comply with the Relevant Laws (whether such liability arises in contract, tort, negligence, breach of fiduciary duties or otherwise howsoever).
9 Cash
We reserve the right not to accept cash from clients; whether to fund underlying transactions, to pay third party disbursements, to pay our costs or otherwise. Whilst the use of cash in any transaction is not illegal it is considered to be a factor giving rise to concern in relation to money laundering transactions. For these reasons, like many solicitor’s practices, we ask that clients take note that attempts to lodge cash with us are likely to be refused and indeed may lead to us having concerns under the Relevant Laws (see 8 above).
10 General
These conditions when read with the attached letter constitute the entire agreement between us and supersede any previous understanding and may not be varied except in writing between us. All other terms and conditions, express or implied, by statute or otherwise, are excluded to the fullest extent permitted by law.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provisions in question shall not be affected.
These terms and conditions and our engagement shall be governed by the laws of England and both ourselves and yourself agree to submit to the non-exclusive jurisdiction of the English courts.