Terms of engagement
This document together with any engagement letter provided to you at the commencement of a matter set out the terms on which Brightwells Limited accepts instructions and charges for its services. If there is any conflict between these terms and the engagement letter then the engagement letter will take precedence.
Any reference in this document to the "company" is a reference to Brightwells Limited.
Right to withdraw instructions
You have the right to withdraw, without charge, any new matter on which you instruct within seven working days of the date of original instruction. Please note that this right will cease if the company starts work with your consent within that time.
If it is necessary to engage other professionals on your behalf (such as lawyers or accountants) whether in the UK or abroad we will do so as your agent. The company cannot be responsible for any act or omission of such a professional unless otherwise agreed in writing.
Fees and disbursements
At the outset of a matter we will agree the basis on which the company will charge you and arrangements concerning its fees will be set out in the engagement letter.
Charges are calculated primarily by reference to the time spent on the matter. The company maintains a detailed record of this time. Hourly rates are subject to revision every year, and may be revised at other times. You will be notified of any changes to the company's hourly rates.
Billing and payment
VAT at the rate applicable will be added to bills unless zero rating or an exemption applies.
Unless otherwise agreed in writing, all bills are for payment in sterling within one month from the delivery of the invoice. The company reserves the right to charge interest for late payment at the higher of 2 per cent over Barclays Bank plc base rate from time to time, the rate payable from time to time on judgement debts or the rate payable pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
Where payments have been made by you, on dates and in amounts different from those agreed by the company, and the company has suffered exchange rate losses in excess of 5 per cent of the sums due, the company reserves the right to charge additional amounts to cover its costs.
The company may, at its discretion, accept payment by credit card. If it does then it is on the basis that you will be charged a handling fee equal to 2% of the value of the invoice (including VAT). However, if the invoice is more than 30 days old then the handling fee will be increased to 3.75%.
Payments on account of fees and disbursements
The company may require a payment in advance in respect of its fees and disbursements. Such payments will be placed into a Clients’ Account and will be applied together with interest earned, against future bills.
You will be credited with any commission the company receives from a third party in relation to a matter it is handling for you.
Client’s monies paid to us will be held in Brightwells Limited Client’s Land Agency and Brightwells Limited Client’s ISA Account at Barclays Bank plc, Hereford branch. Clients will not be entitled to any balances in these accounts.
Papers held by Brightwells Limited
On completion of a matter and payment of all fees, the company will return to you, at your request, any documents provided to it for the purposes of that matter and any other papers to which you are entitled. The company will retain all other papers but cannot undertake to retain files for any specific period of time but will endeavour to keep all files for a minimum of six years, after which time it reserves the right to dispose of them.
If the company is required for any reason (whether during the course of a matter or after it has terminated) compulsorily to disclose documents or to give information orally or in writing relating to a matter or your affairs pursuant to a court order, notice or demand served by an entity or person with the authority to compel such disclosure, then it shall comply. The company will be entitled to be paid for the costs of such compliance by you at its hourly rates then in force. If any documents or information are subject to legal professional privilege the company will let you know and advise you of the opportunity to waive privilege. If you decide not to waive privilege and this is challenged, the company will be entitled to be paid by you for the costs incurred in preserving privilege on your behalf.
Unless you tell the company otherwise, any documents prepared by a third party for you on the company's instructions in which you own the copyright or have a licence to use may be stored on the company's database in any format for future reference by the company.
The liability of Brightwells Limited
The instructions given by you to the company create a contract for the provision of services between you and the company. The company owes you a duty to provide the services with reasonable care and skill.
There is no contract between you and any director, associate, employee or consultant of the company. Any advice given to you, or any other work done for you, by a director, associate, employee or consultant of the company is given or done by that person on behalf of the company and not in his or her individual capacity and no such person assumes any personal responsibility to you for the advice or work.
You agree that if, as a matter of law, a duty of care would otherwise be owed to you by any director, associate, employee or consultant of the company, such duty is hereby excluded and you agree that you will not bring any claim against any director, associate, employee or consultant of the company for any matter arising in any way out of the provision of the services to you.
Accordingly, any claim that you wish to make can only be made against the company and not against a director, associate, employee or consultant of the company.
Any consequential or indirect loss (whether or not it might have been foreseeable at the commencement of the matter) is also excluded.
Where the company is acting for more than one person, the limit of liability will have to be allocated among you. If this allocation is not expressly stated in the engagement letter, such allocation will be a matter entirely for you. If for whatever reason no such allocation is agreed by you, then you will not dispute the limit of liability on the grounds that no such allocation was agreed.
The liability of the company to you shall also be limited to that proportion of the loss or damage (including interest and costs) suffered by you, which is ordered against it by a Court of competent jurisdiction after taking account of the contribution to the relevant loss and damage of any other person responsible and/or liable to you for such loss or damage.
For the purpose of assessing such contribution of any other person, no account shall be taken of any limit imposed on the amount of liability of such person by any agreement made before the loss or damage occurred.
The limitations and exclusions on liability in this section shall have no application to any liability for death or personal injury caused by our negligence or for any other liability which cannot lawfully be excluded or limited.
Termination of instructions
Once instructed, the company will normally continue to act for you in the matter until its conclusion. If circumstances arise where it is appropriate for either the company or you to terminate the arrangement you will be responsible for the firm's fees and disbursements up to the date of termination, and any fees and disbursements necessarily associated with it ceasing to act or the transfer of the work to another adviser of your choice.
Information passed to the company is kept confidential and will not be disclosed to third parties except as authorised by you or required by law. If on your authority the company is working in conjunction with other professional advisers it will assume that it may disclose any relevant aspect of your affairs to them.
Where you provide the company with fax or computer network addresses to which material is to be sent, it shall assume, unless you tell us otherwise, that your arrangements are sufficiently secure and confidential to protect your interests.
It should be recognised that the Internet is not secure and that there are risks if sensitive information is sent in this manner by you or you request the company to use the same system. Data sent by the company by email is not routinely encrypted and so if you do not want the company to use email as a form of communication with you or if you require data to be encrypted then please advise us.
The company will use its best endeavours to protect the integrity of computer systems by screening for viruses on email sent or received and would expect you to do the same.
Privacy and data protection
The company is committed to respecting the data which it holds on you. Your details will be kept on its database for administration and accounting purposes, to enable it to undertake credit searches and so that it can send you relevant information on its services and on events which may be of interest to you. Your details will be processed and kept securely in accordance with the Data Protection Act 1998. The data will not be disclosed to third parties except for the purposes mentioned above. If you have any questions or concerns regarding our use of your data then please address these to the Joint Managing Directors.
The Proceeds of Crime Act 2002 and the Regulations made pursuant to such Act, which are aimed at preventing money laundering, require that the company obtain proof of identity from clients for whom it acts in connection with relevant financial business. Accordingly you may be asked to supply the company with the necessary details. In certain circumstances, the company is required by law to report to the National Criminal Intelligence Service any evidence or suspicion of money laundering. The company is prohibited from notifying you of the fact that a report has been made.
Contracts (Rights of Third Parties) Act 1999
For the purpose of section 1(2) of the Contracts (Rights of Third Parties) Act 1999, it is agreed that no term of this agreement with you shall be enforceable by a third party, save that the directors, associates, employees or consultants of the company may enforce the exclusions contained in the section above headed "The Liability of Brightwells Limited".
The relationship of Brightwells Limited with you will be governed by English law and will be subject to the exclusive jurisdiction of the English courts.