Terms of Appointment

1.1 In these Terms “we” means Nathaniel Lichfield & Partners Limited, whose registered office is at The Minster Building, 21 Mincing Lane, London EC3R 7AG, t/a Lichfields and “you” means the client to whom we provide the Services (as defined below).

 

1.2 In these Terms the expression “the Project” means the project in relation to which we have been engaged pursuant to the Agreement to provide the Services.

 

1.3 In these Terms, the expression “the Services” means the services provided to you by us pursuant to the Agreement.

 

1.4 In these Terms, the expression “the Agreement” means these Terms, together with our Engagement Letter, if applicable.

 

1.5 In these Terms, the expression “the GDPR” means the General Data Protection Regulation 2016.

 

2.1 You retain us as town planning consultants, to provide the Services in accordance with the Agreement.

 

2.2 In the event of any conflict between the provisions of the Engagement Letter, if applicable, and the Terms, the Engagement Letter shall prevail.

 

2.3 In retaining us to act on any matter, you are also authorising us, without imposing an obligation to do so, to take any steps that we consider necessary to protect your interests in that matter.

 

2.4 We shall be entitled to accept oral or written instructions from you or any person who appears to us to be acting on your behalf.

 

2.5 The Agreement cannot be varied except as expressly agreed in writing by one of our Senior Directors.

 

2.6 The construction, validity and performance of the Agreement shall be governed by English Law and the parties submit to the exclusive jurisdiction of the courts of England.

 

2.7 These Terms supersede all previous Terms issued by us.

 

2.8 These Terms shall form the basis of the contract between the parties. Notwithstanding anything to the contrary in your standard conditions of purchase, these Terms shall apply, except so far as expressly agreed in writing by one of our Senior Directors.

 

2.9 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Agreement which shall remain in full force and effect, and if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable and the remainder of the provision in question shall not be affected by such modification(s).

 

2.10 The Agreement constitutes the whole agreement and understanding of the parties in relation to the Project.

 

2.11 We reserve the right to alter these Terms from time to time upon written notification to you. The amended Terms shall apply to all Services provided to you after the date of such alteration.

 

2.12 The waiver by us of a right arising under the Agreement shall not be construed as a waiver of our right to future performance of such or any other right.

 

2.13 All notices to be served under the Agreement shall be served by first class pre-paid post or by email at the registered office or principal trading address of the intended recipient. Notices shall be deemed served when they would ordinarily have been received in normal business hours according to the means of transmission of such notices.

 

2.14 Where you, as the client, comprise two or more persons, then your liability to us is joint and several.

 

2.15 If there is more than one client instructing us, we assume that we may act on the instructions of any of you. There is no right of confidentiality between joint clients. If, at any stage, you find you cannot agree on a course of action, it may be necessary for one or more of you to be separately represented. If a conflict of interests arises between joint clients, we may have to cease acting for all joint clients.

 

2.16 If you or we wish to request or recommend any addition, modification or other change to the Services or performance required under this Agreement, we each agree to adhere to the following change control procedures:

 

2.16.1 The party proposing the change will submit a written request to the other party;

 

2.16.2 Lichfields will investigate the implications for the Agreement of implementing the requested change and prepare and submit to you a proposed note of Project Variation. In many cases this may be in the form of an email, requiring confirmation in return by your Authorised Signatory. Where the variation to our Services requires us to commit substantial additional resources, we may require the variation to be documented in the form of a Project Variation Order.

 

2.16.3 Neither party is obliged to proceed with any proposed change unless and until a Project Variation has been confirmed in writing on behalf of both parties.

 

2.16.4 Lichfields reserves the right to charge for all reasonable costs and expenses incurred in connection with investigating the implications of a change request, whether or not a Project Variation Order is agreed in respect of such a request.

 

3.1 We shall give you immediate notice in writing if we consider ourselves to have a conflict of interest or if there are any circumstances outside our reasonable control which make it impractical for us to perform the Services.

 

3.1.1 We shall then be entitled either to resume provision of the Services as and when we are reasonably able to do so, or may regard ourselves as wholly or partly released from our obligations to you, without liability.

 

3.1.2 If this occurs, we shall invoice you for the Services provided up to the date of cessation at our hourly rates.

 

3.2 You may cancel your instructions at any time by written notice to us. Similarly we may cease to provide the Services, by giving you reasonable notice in writing. Upon cancellation of the Project, we shall invoice you for our accrued fees by reference to our hourly rates.

 

4.1 You are deemed to have authorised us to incur reasonable disbursements in relation to the Project and to pass them on to you.

 

4.2 Our fees are normally based on hourly rates, as set out in the Engagement Letter, save where a fixed fee is provided for in the Engagement Letter.

 

4.3 Where we quote a fixed fee for the Services, we reserve the right to increase the quotation as a result of any matters beyond our control, including a change in instructions from you, a failure by you to give us adequate information or instructions or unexpected demands of third parties, such as planning authorities. In such circumstances, we will give you written notice of any intention to increase the quotation.

 

4.4 We reserve the right periodically to vary our hourly rates.

 

4.5 All sums quoted are exclusive of VAT. VAT will be payable in addition to such sums, at the rate applying at the appropriate tax point.

 

4.6 Where Projects are ongoing, we reserve the right to issue invoices on a monthly basis.

 

5.1 Invoices are due for payment 30 days following the date of invoice.

 

5.2 We reserve the right to suspend all work on the Project and any other matters on which we have been retained by you if you fail to settle any of our invoices in full within 30 days of the date of invoice.

 

5.3 If any payment which has become due is not paid within 30 days of the date of invoice, all sums payable by you to us in relation to the Agreement or otherwise shall become due and payable immediately, without requirement for any notice to be given.

 

5.4 We reserve the right to charge interest at 8% per annum above the base rate from time to time in force of Bank of Scotland Plc on all overdue accounts, together with compensation for the costs suffered by us arising from late payment, in accordance with our rights under the Late Payment of Commercial Debts (Interest) Act 1998.

 

5.5 You shall not be entitled to withhold payment of any sums after they become due by reason of any alleged right of set off or counterclaim.

 

5.6 All legal costs and expenses properly incurred by us in seeking to collect overdue invoices from you or otherwise to enforce our rights under the Agreement will be recoverable from you on an indemnity basis.

 

5.7 You agree to us retaining your files and documents until all sums due to us have been paid in full.

 

5.8 Where you receive an email request from us to pay a bill, you must, due to the high incidence of email fraud, verify the account details by telephoning our accounts department, on the number appearing on our website, rather than on any other number that you may have for us. We exclude any liability for lost funds in circumstances where you have failed to take this precaution, regardless of whether the email fraud originated either in your email system or in our email system.

 

6.1 We shall perform our obligations under the Agreement with reasonable skill, care and diligence and nothing contained in the Agreement shall impose on us any higher duty of care than assumed by this provision.

 

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

 

6.3 We do not warrant that planning permission and/or other approvals from third parties will be granted or, if granted, will be granted in accordance with any anticipated timescale and/or subject to a variety of conditions, which may or may not be acceptable to you.

 

6.4 You acknowledge and agree that our performance of the Services is dependent on the timely and effective completion of your own activities and responsibilities in connection with this engagement, as well as timely decisions and approvals by you.

 

6.5 Should the project give rise to a planning application for development which could give rise to Community Infrastructure Levy (CIL) liability, you are responsible for complying with legislation regarding the completion and submission of all CIL forms and notices, with the exception of the ‘Planning Application Additional Information Requirement form’.

 

6.6 Payment of all planning application fees, pre-application fees, CIL liability and associated charges is your responsibility.

 

7.1 No claim may be brought arising from any alleged negligence after the expiry of 6 years from the date of the last Services performed under the Agreement.

 

7.2 None of our employees or agents shall be personally liable to you for any negligence or any other default arising out of the performance of the Services as the Agreement is with us and not with any individual(s).

 

7.3 You acknowledge that you do not rely on any representation, warranty or other provision relating to the Services, unless expressly agreed in writing between us.

 

7.4 Nothing in the Agreement excludes or limits our liability for death or personal injury caused by our negligence or for any liability which it would be illegal for us to exclude or attempt to exclude.

 

7.5 Our total liability to you under the Agreement or otherwise arising in connection with the performance of the Services shall be limited to the greater of the fees paid by you for the Services or the amount which our insurers pay out in respect of your claim.

 

7.6 Unless you notify us to the contrary in writing, the majority of communications between us will be by email. We will not, however, be liable for misdirection, interception, corruption or failure of any communication sent by email.

 

7.7 We shall not be liable for any loss of profit, loss of goodwill, loss of business, loss of business opportunity, loss of anticipated saving, loss or corruption of data or information or any special, consequential or indirect loss suffered by you or by any third party in relation to the Project and you shall indemnify us in respect of any claim of any person in respect of such consequential or indirect loss.

 

7.8 This clause 7 constitutes our entire liability under the Agreement.

 

8.1 In undertaking our work we do not take any responsibility in relation to contaminative or potentially contaminative uses on any property on which we are advising. You must rely on other advisers in relation to such matters.

 

8.2 We do not provide advice or recommendations in respect of the performance of any façade treatment, whether for insulation, life expectancy, weathering, fire resistance or other element of performance. You must rely on other advisors to ensure that the use of any particular façade material meets the appropriate safety standards and building regulations.

 

8.3 We will, if requested, provide assistance in the selection of outside contractors to carry out appropriate works. In such circumstances the contractual arrangements will be between you and the contractor and we do not accept responsibility or liability for the acts or omissions of any such contractors.

 

8.4 We may assign the benefit and burden of this Agreement to a third party and we may sub-contract all or any part of our obligations to you.

 

8.5 Save as provided in the Agreement, no third party shall have the right, under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

 

9.1 Copyright in all photographs, drawings, designs, specifications, catalogues and other similar works or promotional material supplied to you by us is vested in us and you shall not copy or reproduce or allow the copying or reproduction of any such works without our prior written consent.

 

9.2 We shall be the owner of any and all intellectual property, including but not limited to copyright, patents, trademarks and designs rights in all works produced by us. You shall be entitled to use such works as licensee, but only in relation to the Project. You will not adapt, reproduce, disclose or sell any such works without our prior written consent.

 

9.3 It is agreed between us that all information and materials disclosed or supplied to the other, which are not already in the public domain, will be confidential between us.

 

9.3.1 We both agree not to disclose such information and materials to third parties without consent, unless required to do so by law.

 

9.3.2 That said, we reserve the right to disclose such information and materials to other advisers working on the Project.

 

10.1 The expressions “Data Protection Officer” (DPO), “data subject”, “personal data”, and “process” shall have the meanings given to them in the GDPR.

 

10.2 If you require any details regarding our treatment of personal data, please contact the Data Protection Officer at our office by telephone or by email (dpo@lichfields.uk).

 

10.3 We shall only process client personal data, which is any personal data provided to us by you, or on your behalf:

 

10.3.1 in order to provide our Services to you and perform any other obligations in accordance with the provisions of our Services to you;

 

10.3.2 in order to comply with our legal or regulatory obligations; and

 

10.3.3 where it is necessary for the purposes of our legitimate interests and those interests are not overridden by the data subjects’ own privacy rights.

 

10.4 Our privacy notice (found on our website at www.lichfields.uk/privacy-notice/ contains further details as to how we may process your personal data.

 

10.5 For the purpose of providing the Services to you, we may disclose your personal data to members of our regulatory body or to other third parties (for example, our professional advisors or service providers).

 

10.5.1 The third parties to whom we disclose such personal data may be located outside the European Economic Area (EEA).

 

10.5.2 Where we disclose client personal data to a third party (including a third party outside of the EEA), the disclosure will be undertaken in compliance with the GDPR.

 

10.6 We shall maintain commercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of client personal data and against accidental loss or destruction of, or damage to, client personal data.

 

10.7 Provided that we are legally permitted to do so in respect of client personal data, we shall promptly notify you in the event that:

 

10.7.1 we are served with an information, enforcement or assessment notice (or any similar notices), or receive any other material communication in respect of our processing of client personal data from a supervisory authority as defined in the data protection legislation (for example in the UK, the ICO); or

 

10.7.2 we reasonably believe that there has been any incident which resulted in the accidental or unauthorised access to, or destruction, loss, unauthorised disclosure or alteration of, client personal data.

 

10.8 Upon the reasonable request from a third party, we shall each co-operate with that third party and take such reasonable commercial steps or provide such information as is necessary to enable each of us to comply with the GDPR in respect of the Services provided to you in accordance with your engagement of us.

 

10.9 In accordance with the provisions of article 5(1)(e) of the GDPR, we may only store client data for as long as is necessary. We take the view that it is of benefit for you, as our client, for us to retain electronic documents relating to your matter for longer than 6 years. By countersigning the Engagement Letter, you are giving your consent to us storing your data for longer than 6 years, should we deem it appropriate to do so, but without any obligation on us to store your data for any longer than 6 years.

 

10.10 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency.

 

10.11 If we enter into a joint venture, or the business is sold or merges with another business entity, your information may be disclosed to our new business partners, owners and their professional advisers.

 

11.1 We have a Complaints Handling Procedure which is available on request. This Procedure will be followed in the event of any complaint against us.

 

11.2 It is our practice to store your file at the end of the Project. File storage is not chargeable to you. We reserve the right to destroy files on the date 6 years following the end of the Project. If you do not wish us to destroy your files, you must request that they be forwarded to you within this 6 year period.

 

11.3 We charge (at our standard hourly rates) for time spent by us in recovering and copying files following termination of the retainer and for addressing issues raised by you following the end of the retainer. If you require us to forward files to you prior to the expiry of the 6 year period, we are required, for insurance purposes, to retain copies of the contents of the files. In such circumstances, we will charge you for the time spent by us in copying the files.