These terms and conditions shall apply to the provision of Services by the Consultant to the Client. In the event of conflict between these terms and conditions and any other terms and conditions (of the Client or otherwise) the former shall prevail unless expressly otherwise agreed by the Consultant in writing.
In this Agreement unless the context otherwise requires the following expressions shall have the following meanings:
“the Client” means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which purchases services from the Consultant. Where the Client consists of two or more natural or legal persons such expression shall mean such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons;
“the Commencement Date” means the date upon which the Consultant receives written confirmation from the Client that the client accepts the Fee Proposal;
“Services” means the services to be provided by the Consultant to the Client as set out in the Fee Proposal;
“the Consultant” is Paul Barkley, Director of Paul Barkley Limited trading as Exeter Planning.
Any reference in these Conditions to a statute or provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
With effect from the Commencement Date the Consultant shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the services expressly identified in the Fee Proposal or otherwise agreed under this agreement. The Consultant will use reasonable care and skill to perform the services identified in the Fee Proposal or otherwise agreed under this agreement. The Consultant shall use all reasonable endeavours to complete his obligations under the Fee Proposal but time will not be of the essence in the performance of these obligations.
The Client agrees to pay the Fees in accordance with the terms of payment. In addition the Consultant shall be entitled to recover from the Client his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with provision of the Services. The Client will pay the Consultant for any additional services provided by the Consultant that are not specified in the Fee Proposal in accordance with the Consultant’s then current applicable hourly or daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for the Expenses. All sums payable by either party pursuant to this Agreement are exclusive of any Value Added Tax or other tax or taxes on profit, where applicable, for which that party shall be additionally liable.
All payments required to be made pursuant to this Agreement by either party shall be made within 14 days of the date of the relevant invoice in United Kingdom Pounds in cleared funds to such bank as the other party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law. The time of payment shall be of the essence of these terms and conditions. If the Client fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then the Consultant shall, without prejudice to any right with the Consultant may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 5% and the base rate of the Bank of England from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
6.Variations and Amendments
If the Client wishes to vary any details of the Fee Proposal the Client must notify the Consultant in writing as soon as possible. The Consultant shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client. If due to circumstances beyond the Consultant’s control, he has to make any change in the arrangements relating to the provision of the Services he shall notify the Client forthwith. The Consultant shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possibly in the circumstances.
The Consultant may terminate the agreement forthwith if:
the Client is in breach of any of its obligations hereunder; or
the Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or
the Client has become bankrupt or shall be deemed unable to pay its debts by virtue of section 123 of the Insolvency Act 1986; or
the Client ceases or threatens to cease to carry on business; or
any circumstances whatsoever beyond the reasonable control of the Consultant (including but not limited to the termination of the service through no fault of the Consultant) which arise that necessitate for whatever reason the termination of the provision of services.
In the event of termination under clause 7 the Consultant shall retain any sums already paid to him by the Client without prejudice to any other rights the Consultant may have at law or otherwise.
Either party may sub-contract the performance of any of its obligations under this Agreement without the prior written consent of the other party. Where either party sub-contacts the performance of any of its obligation under this Agreement to any person with the prior consent of the other party that party shall not be responsible for any act or omission of the sub-contractor as if it were an act or omission the party itself.
If the Consultant fails to perform the service with care and skill he will carry out remedial action at no extra cost to the Client. The Client shall indemnify the Consultant against all damages, costs, claims and expenses suffered by the Consultant arising from loss or damage to any equipment (including that of third parties) caused by the Client , or its agents or employees. The Consultant shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations if the delay or failure was due to any cause beyond the Consultant’s reasonable control.
Neither the Consultant nor the Client shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Agreement if the delay or failure was due to any cause beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:
act of God, explosion, flood, tempest, fire or accident;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
power failure or breakdown in machinery.
No waiver by the Consultant of any breach of these terms and conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this Agreement shall be effective only if given in wring and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given. No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
If any provision of these terms and 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 provision in question shall not be affected thereby.
The Consultant reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Consultant’s services or facilities. The Consultant reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
14.Notices and Service
Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by sending via pre-paid registered post. Any notice or information given in the manner provided by this clause which is not returned to the sender as undelivered shall be deemed to have been given on the fourteenth day after the envelope containing it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given. Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing such document to be delivered to the other party at its registered or principal office, or to such other address as may be notified to one party by the other party in writing from time to time.
15.Applicable Law and Jurisdiction
These terms and conditions shall be governed and construed in accordance with English Law and the parties shall submit to the jurisdiction of the English courts.