- INTERPRETATION
i) The following definitions and rules of interpretation apply in these Terms:
“Agreement” means the agreement between the Client and Fourth Wall Building Consultancy for carrying out the Service incorporating the Terms;
“Client” means the person to whom Fourth Wall Building Consultancy is to provide services in accordance with the Terms and includes the person to whom the Engagement is addressed;
“Director” means any person whose title includes the word ‘director’ whether or not a statutory director;
“Engagement” means the agreement, letter of engagement or engagement agreement or email and any schedules/ appendices sent to the Client by Fourth Wall Building Consultancy to the Client setting out the basis on which it will carry out the Service;
“Force Majeure” means any circumstances beyond the reasonable control of Fourth Wall Building Consultancy including without limitation, war or threat of war, actual or threatened terrorist activity, any form of industrial action, disaster, adverse weather, infectious disease, act of God or act of governmental or other regulatory bodies;
“Fourth Wall Building Consultancy” means Fourth Wall Building Consultancy Limited whose registered office is at International House, 61 Mosley Street, Manchester, M2 3HZ registered in England and Wales with company number 12967060 and/or and affiliate of Fourth Wall Building Consultancy that provides services to the Client;
“Property” means the property which is the subject of the Client’s instructions to Fourth Wall Building Consultancy (and includes any property being or to be constructed altered, repaired or modified as part of the Service);
“RICS” means the Royal Institution of Chartered Surveyors;
“Scope of Service” means the schedule setting out the scope of service appended to or otherwise referred to in the Engagement;
“Service” means the service to be performed by Fourth Wall Building Consultancy under the Agreement;
“Terms” means the terms and conditions set out in this document and (unless the context otherwise requires) includes any other terms and conditions set out in the Engagement Letter or any other letter or document from Fourth Wall Building Consultancy accompanying, supplementing or varying the Terms.
“Data Protection Legislation” shall mean GDPR and any national implementing laws, regulations and secondary legislation in the United Kingdom from time to time;
“GDPR” shall mean the General Data Protection Regulation ((EU) 2016/679) and in this agreement: “controller”, “processor”, “data” subject”, “personal data”, “personal data breach”, “supervisory authority”, and “processing” shall have the meaning set out in the GDPR, and references to “personal data” shall in addition mean personal data related to the agreement.
ii) In these Terms:
(a) A reference to “writing” includes facsimile transmission but not electronic mail;
(b) A reference to any provision of a statute or regulation shall be construed as a reference to that provision as it is in force at the relevant time taking account of any amendment, reenactment or extension;
(c) Except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any gender include all genders and any reference to a “person” includes an individual, firm, corporation and/or other legal entity;
(d) References to a numbered Condition are to that condition in these Terms;
(e) The headings are for convenience only and shall not affect the interpretation of these Terms.
- GENERAL
i) The Agreement shall be made when the Client receives a copy of the Terms or gives instructions to Fourth Wall Building Consultancy, whichever shall be the later, and shall be subject to the Terms, which shall also apply to all or any part of the Service carried out prior to such date.
ii) Fourth Wall Building Consultancy shall perform all Services on the basis of the Terms only, which shall apply to the exclusion of any other terms and conditions which the Client may seek to impose.
iii) No variation of the Terms shall be binding unless previously agreed in writing by a Director of Fourth Wall Building Consultancy and in entering into the Agreement the Client acknowledges that it has not relied on any statement, promise or representation which has not been confirmed in writing by a ‘Director’ of Fourth Wall Building Consultancy.
iv) In the event of any ambiguity or conflict between any of the documents comprising the Agreement, the Engagement shall take precedence over any of the other Terms.
v) Nothing in the Agreement shall confer or purport to confer on any third party any benefit or right to enforce any terms of the Agreement. No term of the Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement, although this shall not affect any right or remedy of any third party which exists or is available other than under such Act.
vi) Fourth Wall Building Consultancy’s duties under the Agreement shall be limited to those set out in the Terms.
vii) Fourth Wall Building Consultancy shall be entitled to accept and act on any instruction given to Fourth Wall Building Consultancy by any person who is an employee of, or agent, advisor or sub-contractor to, the Client.
viii) If any provision of the Terms shall become or be declared illegal, invalid or unenforceable for any reason such provision shall be divisible and shall be deemed to be deleted, from the Terms.
ix) Nothing in this Condition 2 shall exclude or limit Fourth Wall Building Consultancy’s liability for fraud or fraudulent misrepresentation.
x) The Client shall provide its authority, instructions or information required to Fourth Wall Building Consultancy promptly.
xi) It is a Condition of the Client’s agreement with Fourth Wall Building Consultancy that (save where Fourth Wall Building Consultancy instructs independent experts, consultants or other third parties on the Client’s behalf) the duties and responsibilities owed to the Client are solely and exclusively those of Fourth Wall Building Consultancy and that no employee of Fourth Wall Building Consultancy shall owe the Client any personal duty of care or be liable to the Client for any loss or damage howsoever arising as a consequence of the acts or omissions of such employee (including negligent acts or omissions) save and to the extent that such loss or damage is caused by the fraud, dishonesty, wilful misconduct or unauthorised conduct on the part of such employee.
3. SERVICE
Fourth Wall Building Consultancy shall seek to provide a service such as would be expected of a firm of consultant surveyors in a proper professional manner and shall perform the Service with all reasonable care and skill and shall act in good faith at all times.
The Service shall, however, be provided on the basis that: i) Fourth Wall Building Consultancy reserves the right to carry out instructions in accordance with such procedures, principles or methodologies as Fourth Wall Building Consultancy deems to be appropriate. Where appropriate, Fourth Wall Building Consultancy shall comply with the relevant Practice Statements and Guidance Notes published by the RICS;
ii) Fourth Wall Building Consultancy should carry out a visual inspection of all accessible internal and external parts of the Property available at the time of the inspection only and Fourth Wall Building Consultancy shall not be obliged and shall usually not carry out any inspection of parts of the Property that require opening up or invasive investigations or of concealed or inaccessible areas and Fourth Wall Building Consultancy shall not be under any duty to identify or deal with any concealed defects or generally any closed up areas or spaces and Fourth Wall Building Consultancy shall not be obliged and will not usually carry out any inspection of external parts of the Property above 2 metres high and, in any event, will only carry out external inspections to the extent that a fixed and safe form of appropriate access is available or if the Client instructs Fourth Wall Building Consultancy and Fourth Wall Building Consultancy agrees to hire specialist access equipment at the Client’s expense.
iii) The Client shall indemnify Fourth Wall Building Consultancy in the event that Fourth Wall Building Consultancy are required or if it is reasonably necessary to carry out any form of opening up or invasive investigation to the Property or in the event that Fourth Wall Building Consultancy agree to hire or procure specialist access equipment and such indemnity is in respect of all actions, claims, demands, expenses and proceedings arising out of or in connection with or incidental to the carrying out of such inspections with or without specialist access equipment in respect of the Client’s Property or any third party or third party’s property other than those arising by virtue of the negligent or wilful default of Fourth Wall Building Consultancy or its employees or agents and the Client shall specifically indemnify Fourth Wall Building Consultancy against the cost of any remedial or reinstatement works required following the carrying out of such investigations.
iv) No building materials including the fabric of the Property or any constituent parts or services shall be tested or analysed unless specifically requested and agreed by Fourth Wall Building Consultancy.
v) Fourth Wall Building Consultancy shall not be under any obligation to inspect any service media, conduits, drains or shafts including lift shafts, service ducts, suspended ceilings or floors and any advice or comments made by Fourth Wall Building Consultancy about any such areas must not be relied on by the Client without specialist survey.
vi) The Services shall be limited to matters upon which it is suitable and usual for a Chartered Building Surveyor to advise and unless the Client specifically instructs and Fourth Wall Building Consultancy accepts such instruction in writing, Fourth Wall Building Consultancy will not undertake any detailed engineers, service installations, plant and machinery or structural inspections or reports regarding the Property.
vii) Fourth Wall Building Consultancy shall not be obliged and will not usually carry out any assessment or advice in respect of environmental or contamination issues relating to the Property and in all cases a specialist shall be instructed to this purpose.
viii) Fourth Wall Building Consultancy shall not be obliged to provide estimates for any likely cost of works or quantities or other such specialist advice unless the Client instructs Fourth Wall Building Consultancy and Fourth Wall Building Consultancy agree in writing to perform such services and Fourth Wall Building Consultancy shall not be obliged and will not usually carry out any service including the certification or approval of works or stages of works or payments to contractors or due under any form of contract or otherwise unless the Client instructions Fourth Wall Building Consultancy to do so and Fourth Wall Building Consultancy agrees in writing to perform such services.
ix) Fourth Wall Building Consultancy will not provide advice regarding IT management infrastructure or services including computers, data chip information sensitivity, compliance issues, software or hardware in connection with climate control or other facility management systems.
x) Estimates of times for performance of all or any part of the Service have been made upon the basis of information available to Fourth Wall Building Consultancy at the time and are approximate only so that Fourth Wall Building Consultancy shall not be bound by any such estimate;
xi) Fourth Wall Building Consultancy may, if it considers it appropriate, secure performance of any or all Services by instructing one or more other persons (whether as subcontractor or in any other capacity) upon such terms as Fourth Wall Building Consultancy considers appropriate. In circumstances where Fourth Wall Building Consultancy secures the performance of another person, no additional fee shall be payable by the Client in the absence of prior agreement to such additional fee but the Client shall be liable to pay all fees and other sums payable to Fourth Wall Building Consultancy as if all Services had been performed by Fourth Wall Building Consultancy;
xii) The Client shall provide Fourth Wall Building Consultancy (or ensure that Fourth Wall Building Consultancy is provided) with details of any other consultants or contractors appointed or to be appointed by the client relevant to the Service and shall provide Fourth Wall Building Consultancy with details and shall facilitate access to the Property and the Clients shall be liable to pay Fourth Wall Building Consultancy for any abortive time incurred in travelling, waiting or otherwise in connection with access and inspection arrangements.
4. THE PROPERTY:
i) The Client warrants, represents, and undertakes to Fourth Wall Building Consultancy that, unless specifically notified in writing to Fourth Wall Building Consultancy:
(a) Fourth Wall Building Consultancy is entitled to rely on the information and documents provided by or on behalf of the Client, including information related to Health & Safety, the Asbestos Register, tenure, tenancies, use, contamination, building costs, costs of development, town planning consents, building regulation consents, and similar matters. The Client confirms that, to the best of their knowledge, information, and belief, the provided information and documents are accurate and not misleading, either on their face or by inference or omission. The Client is obligated to inform Fourth Wall Building Consultancy and instruct any advisor to inform Fourth Wall Building Consultancy if they receive notice or become aware in any other way that any information given to Fourth Wall Building Consultancy is or may be misleading or inaccurate.
(b) It shall provide legible true copies of any relevant documents reasonably required by Fourth Wall Building Consultancy including all/any Court Orders and directions where Fourth Wall Building Consultancy are appointed as expert witness.
(c) It shall make arrangements for the inspection of or attendance at the Property by Fourth Wall Building Consultancy on reasonable notice in order to carry out the Service.
(d) there are no facts known to the Client which ought to be brought to the attention of Fourth Wall Building Consultancy to enable it to ensure that access to or inspection of the Property by any person is safe and without risks to health.
ii) Assumptions Except where disclosed to Fourth Wall Building Consultancy in writing, Fourth Wall Building Consultancy shall be entitled to assume the following as appropriate: (a) Fourth Wall Building Consultancy shall not take account of any item in the nature of the tenant’s fixtures and fittings, improvements, plant equipment, and machinery and Fourth Wall Building Consultancy may (without any obligation to do so) make any reasonable assumptions to identify if any fixtures and fittings are part of the Property and which would pass, with the Property, on reversion, back to the landlord and that all such tenant’s improvements or fixtures and fittings have all necessary consents and are not subject to any onerous conditions.
(b) The Property has the benefit of full planning consent or established use rights and building regulations and other statutory, regulatory or contractual approvals;
(c) The Property complies with all relevant statutory requirements including Fire Regulations and that a Fire Certificate if required will be issued if it has not already been issued;
(d) The Property is not contaminated or potentially contaminated. Unless specifically instructed, Fourth Wall Building Consultancy shall not undertake any investigation into the past or present uses of either the Property or any adjoining or nearby land, to establish whether there is any potential for contamination from these uses and shall assume that none exists.
iii) Other matters Unless otherwise agreed by Fourth Wall Building Consultancy in writing: (a) Fourth Wall Building Consultancy shall not be responsible for making any local search or other enquiries of local or any other authorities, including town planning enquiries or investigation of title regarding the Property, which shall be the Client’s sole responsibility, and Fourth Wall Building Consultancy may rely on any such information provided by the Client or the Client’s advisors without further enquiry. If Fourth Wall Building Consultancy shall make oral or other enquiries regarding the Property to third parties, the results of such enquiries shall not be relied on by the Client unless the Client has been separately advised by its solicitor that they may be relied on;
(b) Subject to agreement of the terms of any subsequent instruction, Fourth Wall Building Consultancy shall not be responsible for making any structural or site survey or audit of the Property such as may be required under the Equality Act 2010 or the Control of Asbestos at Work Regulations 2002 or with respect to any other statutory regulations or recommendations or for testing any services to or on the Property, including the availability of broadband or other communications or information technology infrastructures;
(c) The advice, approval, or representation made by Fourth Wall Building Consultancy regarding the legal meaning or effect of any lease or contract should not be relied upon by the Client. The advice is limited to matters suitable for a Chartered Surveyor to advise on and does not constitute advice on legal interpretation or drafting issues. Fourth Wall Building Consultancy is not obligated to advise on the interpretation or drafting of any draft agreements, leases, or other legal or technical documents unless agreed in writing between the Client and Fourth Wall Building Consultancy.
(d) Unless the Client specifically commissions a formal management arrangement with relevant obligations and Fourth Wall Building Consultancy accepts the instruction on agreed terms, the Client remains responsible for the insurance of the Property and notifying its insurers if the Property becomes vacant. Fourth Wall Building Consultancy is not responsible for the management, security, or deterioration of the Property, except in cases of death or personal injury caused by the negligence of Fourth Wall Building Consultancy or its employees or agents. Fourth Wall Building Consultancy is not liable for any other matter or loss unless caused by negligence. If Fourth Wall Building Consultancy holds the keys for the Property, they are authorized to supply keys to persons wishing to inspect the Property or carry out works or inspections, and Fourth Wall Building Consultancy accepts no responsibility for the actions of such persons. The Client is required to maintain full insurance coverage against any claims made by Fourth Wall Building Consultancy, its representatives, employees, or any third party in respect of any loss, damage, or injury arising directly or indirectly under or in respect of the Agreement.
(e) Fourth Wall Building Consultancy is not responsible for advising on or effecting the service of any notice or schedule required under statute, contract, lease, or any other provisions. They are not liable for advice, interpretation, or compliance with any time periods or provisions under statute, regulation, or contract, including any notice of appeal. Fourth Wall Building Consultancy is not responsible for making payments or carrying out any other actions in accordance with such time periods or provisions unless agreed in writing. They are also not responsible for any form of certification or approval of works unless agreed otherwise in writing.
(f) Fourth Wall Building Consultancy will endeavor to treat all relevant information as confidential but may, at its sole discretion, provide information to other professionals or third parties associated with the instruction. They may also be required to provide such information to a court, tribunal, or the other party in any proceedings.
(g) Fourth Wall Building Consultancy is not obligated to carry out conflict checks in relation to any third party, other than the Client or any other relevant party notified in writing by the Client to Fourth Wall Building Consultancy.
5. TERMS OF PAYMENT:
i) Unless otherwise stated in the Engagement Letter the client is liable to pay Fourth Wall Building Consultancy its remuneration or a proportion of its remuneration at intervals determined by Fourth Wall Building Consultancy or upon completion of the service at Fourth Wall Building Consultancy’s discretion. Payments are due upon issuance of the invoice, and the final payment date by the Client is 7 days from the date of the invoice.
ii) Fourth Wall Building Consultancy is entitled to submit accounts for disbursements at the time they are incurred or ordered by Fourth Wall Building Consultancy. The Client is required to pay these accounts for disbursements, regardless of whether the Client withdraws its instructions. Accounts for disbursements are due for settlement upon presentation. Alternatively, Fourth Wall Building Consultancy may arrange for the suppliers to directly invoice the Client for the services provided.
iii) Value Added Tax (VAT) will be payable on all applicable fees and disbursements at the prevailing rate.
iv) Fourth Wall Building Consultancy reserves the right to charge the Client interest (before and after any judgment) on any unpaid invoice. The interest rate will be 3% per annum above the base lending rate of the Bank of Scotland. The interest will be calculated on a daily basis starting from 14 days after the date of issue of the invoice until the date of full settlement.
v) If any amount due to Fourth Wall Building Consultancy remains unpaid for more than 14 days after the invoice date, and no withholding notice has been issued, Fourth Wall Building Consultancy has the right to suspend all further work for the Client until the outstanding amount is paid in full. In such circumstances, Fourth Wall Building Consultancy will not be liable for any delays, losses, or expenses resulting from the suspension.
vi) The Client is not allowed to withhold any payment after the final payment date unless written notice is provided to Fourth Wall Building Consultancy by the Client at least seven days before the final date. The notice should specify the amounts to be withheld and the reasonable grounds for withholding payment. If there are multiple grounds, each ground and the corresponding amount should be specified.
vii) In the case of joint or multiple instructions by multiple parties or multiple instruction by multiple parties invoices for an appropriate share of any fees or disbursements as determined in Fourth Wall Building Consultancy’s sole discretion shall be issued to all or any client simultaneously or otherwise and each client shall be jointly and severally liable for the full amount of Fourth Wall Building Consultancy’s fees or disbursements in the event that payment is not received from one or more clients.
6. FEES AND DISBURSEMENTS
i) Fees shall be charged at the rate set out in the Engagement Letter or as otherwise agreed in writing between Fourth Wall Building Consultancy and the Client. In the event of a change in the Scope of Service or Fourth Wall Building Consultancy being required to carry out additional Services, Fourth Wall Building Consultancy reserves the right to charge an additional fee.
ii) In addition to the fees referred to in Clause 6i), the Client shall be responsible for the out of pocket expenses and disbursements in respect of the Property which may include without limitation photography, travel, mileage, messenger delivery and copying of documents and plans. Such costs shall be passed on to the Client at gross cost unless otherwise stated. Fourth Wall Building Consultancy shall be entitled to retain any discounts or commissions which are available or paid to Fourth Wall Building Consultancy in order to offset administrative expenses. A copy of Fourth Wall Building Consultancy’s rates where applicable shall be made available upon request, such rates being subject to amendment from time to time by Fourth Wall Building Consultancy on written notice.
iii) If it is agreed with the Client, in connection with the service, that the resolution of a dispute with a third party is referred or if such dispute is otherwise referred to an adjudicator, arbitrator, expert, mediator, court or tribunal, all costs in connection with such referral shall be the sole liability of the Client and will either be paid for direct by the Client or be recharged to the Client as a disbursement and the Client will indemnify Fourth Wall Building Consultancy in respect of any liability or costs in such matters.
iv) Unless specifically provided for in the Terms or Engagement Letter or as otherwise agreed in writing between Fourth Wall Building Consultancy and the Client the fees do not include remuneration for acting as expert witness for which service a separate fee shall be required.
7. COPYRIGHT
i) Copyright in any information, documents, or other material provided by the Client to Fourth Wall Building Consultancy in relation to the Property shall remain the property of the Client.
ii) The copyright in all reports, forecasts, drawings, accounts, and other documents originated by Fourth Wall Building Consultancy in relation to its instructions shall remain the property of Fourth Wall Building Consultancy, and no text or document may be produced or amended without the written permission of Fourth Wall Building Consultancy, including in respect to the proposed use and context of any such document or amendment.
iii) If, in each case, an appropriate license shall be granted to the other to use any copyright referred to above, it shall be for the purposes and duration of the Agreement only. Fourth Wall Building Consultancy shall be entitled to use, in perpetuity and on a royalty-free basis, any information, documents, or other material provided by the Client and incorporated in documents produced by Fourth Wall Building Consultancy in connection with the Services for the purposes of advertising or promoting Fourth Wall Building Consultancy and its business.
iv) The parties to the Agreement shall have a license to copy and use the materials referred to in clauses 7i) and 7ii) but only for purposes related to the Property. Such purposes shall include the operation, maintenance, repair, alteration, extension, promotion, reinstatement, leasing, and/or sale of the Property, provided that:
(a) The designs in any such materials shall not be used for any extension of the Property or for any other project; and
(b) Fourth Wall Building Consultancy shall not be liable for the use of any such materials for a purpose other than that for which they were prepared.
8. INDEMNITY
i) The Client shall indemnify and keep indemnified Fourth Wall Building Consultancy from and against all and any liability, losses, damages, penalties, fines, costs, and expenses (including legal costs and expenses) suffered or incurred by Fourth Wall Building Consultancy arising out of or by virtue of:
(a) The breach by the Client of any of its obligations under the Terms;
(b) The Client’s instructions to Fourth Wall Building Consultancy, other than any losses, damages, costs, and expenses arising by virtue of the negligence or willful default of Fourth Wall Building Consultancy or its employees or agents; or
(c) Any allegation that the Property (including, without limitation, the means of access to or egress from the same or any plant or substances in such premises provided for the use of any person) were not safe or posed a risk to health, except where Fourth Wall Building Consultancy had been notified in writing of all facts necessary to bring to the attention of Fourth Wall Building Consultancy the fact that the Property (including, without limitation, the means of access to or egress from the same or any plant or substances in such premises) was not safe or posed a risk to health.
9. LIMITATION AND LIABILITY
) Nothing in this Agreement shall limit Fourth Wall Building Consultancy’s liability for death and/or personal injury caused by Fourth Wall Building Consultancy.
ii) Subject to clause 9(i) above, in respect of this Agreement, the aggregate liability of Fourth Wall Building Consultancy to the Client, whether arising from negligence, tort, breach of contract, or other obligation or duty or otherwise, shall be limited to one million pounds sterling (£1,000,000.00).
iii) Subject to clause 9(i) above, Fourth Wall Building Consultancy shall not be liable for any claim to the extent that such claim is or can be characterized as a claim for (or arising from):
(a) Loss of revenue or profits;
(b) Loss of business opportunity or loss of contracts;
(c) Loss of goodwill or injury to reputation;
(d) Indirect, consequential, or special loss or damage; or
(e) Anticipated savings.
iv) In the event of the Client engaging Fourth Wall Building Consultancy together with other advisers, service providers, and/or suppliers, Fourth Wall Building Consultancy’s liability shall, in addition to the limitations contained in clauses 9(ii) and 9(iii) above, be limited to that proportion of any loss or damage suffered by the Client as it would be just and equitable for Fourth Wall Building Consultancy to bear, having regard to Fourth Wall Building Consultancy’s responsibility for it, and on the basis that all other advisers, service providers, and/or suppliers shall be deemed to have paid such proportion of the relevant loss or damage suffered by the Client, which is just and equitable for them to have paid, having regard to the extent of their respective responsibilities.
v) Except where Fourth Wall Building Consultancy has entered into a specific agreement with a third party, Fourth Wall Building Consultancy’s advice is provided solely for the purpose of the Service and to the Client. Should the Client disclose any part of Fourth Wall Building Consultancy’s advice, including any part of any document, to any third party, the Client shall notify such third party in advance of the disclosure and in writing that Fourth Wall Building Consultancy does not owe a duty of care to such third party. The Client shall indemnify Fourth Wall Building Consultancy and hold Fourth Wall Building Consultancy harmless against all liabilities, costs, expenses, damages, and losses suffered or incurred by Fourth Wall Building Consultancy arising out of or in connection with such disclosure by the Client.
vi) All risks and/or liabilities in relation to toxic mold, deleterious materials, contamination, radon gas, HAC, or calcium chloride shall remain with the Client, and the Client shall take such steps as it deems necessary to insure against or otherwise address such risks and liabilities.
vii) The Consultant is not qualified to and will not provide any advice or services in connection with asbestos. The Client acknowledges that all risks relating to asbestos, however arising, remain with the Client, who shall take such steps as it deems necessary to address such risks. If appropriate, the Client will arrange for the appointment by the Client of specialist asbestos consultants.
viii) Should the Client want Fourth Wall Building Consultancy to undertake a more extensive potential liability than the limit of one million pounds sterling (£1,000,000.00), the Client must inform Fourth Wall Building Consultancy in writing, and Fourth Wall Building Consultancy will consider such request. Fourth Wall Building Consultancy will endeavor to procure insurance cover to cover such increased liability, but the increased costs of any insurance premium resulting from the additional insurance cover will be paid for by the Client in addition to the fees and charges payable under this Agreement.
ix) Fourth Wall Building Consultancy shall have no liability for the consequences, including delay in or failure to provide the services:
(a) due to any failure by the Client or any representative or agent of the Client to provide information or other material that Fourth Wall Building Consultancy reasonably requires promptly, or where that information or material provided is inaccurate or incomplete;
(b) to the extent that the Client or someone on the Client’s behalf for whom Fourth Wall Building Consultancy is not responsible is responsible, and where Fourth Wall Building Consultancy is one of the parties liable in conjunction with others, Fourth Wall Building Consultancy’s liability shall be limited to the share of loss reasonably attributed to Fourth Wall Building Consultancy on the assumption that all other parties pay the share of loss attributable to them (whether or not they do); or
(c) due to any failure by the Client or any representative or agent of the Client to follow Fourth Wall Building Consultancy’s advice or recommendations.
10. TERMINATION OF INSTRUCTIONS
i) The instruction from the Client to Fourth Wall Building Consultancy may be terminated by the Client by giving not less than 30 days’ notice in writing to Fourth Wall Building Consultancy, whereupon Fourth Wall Building Consultancy shall be entitled to charge (at Fourth Wall Building Consultancy’s option):
(a) A fair and reasonable proportion of the full fee, which would have been payable if the work had been carried through to a conclusion and as if Fourth Wall Building Consultancy had become entitled to payment in accordance with Conditions 5 and 6; or
(b) A reasonable sum for all the work undertaken up to and including the date of termination based on quantum meruit; or
(c) The fee as Fourth Wall Building Consultancy is entitled to under Conditions 5 and 6, together with marketing expenses and disbursements already incurred.
ii) The instruction from the Client to Fourth Wall Building Consultancy may be terminated by Fourth Wall Building Consultancy on the following terms by giving not less than 30 days’ notice in writing:
(a) If, as a result of circumstances outside the control of both parties, it becomes impossible to perform the Services within a reasonable period. In these circumstances, the Client shall pay to Fourth Wall Building Consultancy a fee for all work which has been done up to and including the date of termination on a quantum meruit basis; or
(b) If the Client has made it impossible to complete the instruction within a reasonable period or has not made payment by the due date of any sum payable by the Client to Fourth Wall Building Consultancy. In these circumstances, the Client shall pay to Fourth Wall Building Consultancy the full fee that would have been charged if the work had been carried through to a conclusion; or
(c) The fee as Fourth Wall Building Consultancy is entitled to under Conditions 5 and 6, together with marketing expenses and disbursements already incurred.
iii) Any outstanding fees, out-of-pocket expenses, and disbursements owed to Fourth Wall Building Consultancy must be paid in full by the Client on or before the expiration of the notice period for termination of instructions. It is clarified that in the event of termination of instructions, whether by Fourth Wall Building Consultancy or by the Client, Fourth Wall Building Consultancy will not be obligated to refund any fees, out-of-pocket expenses, or disbursements previously paid by the Client to Fourth Wall Building Consultancy.
iv) In cases where fees are to be charged on a quantum meruit basis, such fees will be calculated based on Fourth Wall Building Consultancy’s hourly charges at the relevant time. Detailed information regarding these charges is available upon request from Fourth Wall Building Consultancy.
11. COMPLAINTS
i) Fourth Wall Building Consultancy aims to carry out any instructions received from the Client in an efficient and professional manner. Fourth Wall Building Consultancy, therefore, hopes that the Client will not find cause for complaint but recognizes that in an isolated circumstance there may be complaints. These should be addressed initially to the Head of the Fourth Wall Building Consultancy office dealing with the instruction. ii) Fourth Wall Building Consultancy adopts the complaints handling procedures that are required by the RICS. A copy of which is available from Fourth Wall Building Consultancy on request.
12. ASSIGNMENT
The Agreement is not assignable by the Client without the prior written consent of Fourth Wall Building Consultancy.
13. DATA PROTECTION
i) The Client hereby consents to Fourth Wall Building Consultancy’s use of personal data (as defined in UK Data Protection Legislation) provided by the Client to Fourth Wall Building Consultancy to the extent necessary to provide the Services. The Client further consents to Fourth Wall Building Consultancy using the personal data provided by the Client to provide the Client with information relating to the products and/or services of Fourth Wall Building Consultancy and its affiliated companies. Any such information may be provided by email. If the Client does not wish to receive any marketing information relating to Fourth Wall Building Consultancy and/or its affiliated companies, the Client should notify Fourth Wall Building Consultancy in writing.
ii) Personal data provided by the Client to Fourth Wall Building Consultancy may be disclosed to third parties where necessary to enable Fourth Wall Building Consultancy to perform the Services. In addition, such personal data may be disclosed by Fourth Wall Building Consultancy to any person that may acquire that part of Fourth Wall Building Consultancy’s business which performs any Services on behalf of the Client.
iii) If Fourth Wall Building Consultancy is provided with personal data relating to any prospective purchaser or tenant of the Property, Fourth Wall Building Consultancy shall use that data only for the purposes of the Client’s instructions and for no other purpose unless directed by the Client to do so, and the Client shall comply in all respects with the Data Protection Act 2018 in respect of any such personal data.
14. GOVERNING LAW AND JURISDICTION
The Terms, and the Agreement of which they form part, shall be governed by and construed in all respects in accordance with English Law. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the English Courts in relation to any dispute or proceedings arising out of, or in connection with, the Terms or any such Agreement. However, this submission does not affect Fourth Wall Building Consultancy’s right to take proceedings in any other jurisdiction in order to enforce payment of any sums owed to Fourth Wall Building Consultancy.
