In these terms the following expressions shall where the context so admits be deemed to have the following meanings.
1 “JKS” means Jarvis Keller Stephens and where appropriate any subsidiary or associated company or firm.
2 “Client” means the person, firm or company to whom JKS are to provide services in accordance with these Conditions of Engagement.
3 “Property” means the Property that is the subject of the Client’s instructions to JKS.
4 “Sole Selling Rights” means the client is liable to pay remuneration to JKS in accordance with these Conditions of Engagement if either:-
4.1 Unconditional contracts for the sale/letting of the Property are exchanged in the period during which JKS have sole selling rights, even if the purchaser/lessee was not found by Jarvis Keller Stephens but by another agent or by any other person, including the Client,
4.2 Unconditional contracts for the sale/letting of the Property are exchanged after the expiry of the period during which JKS have sole selling rights but to a purchaser/lessee who was introduced to the Client during that period or with whom JKS had negotiations about the Property during that period.
5 “Sole Agency” means the Client is liable to pay remuneration to JKS, in accordance with the Conditions of Engagement if unconditional contracts for the sale of the Property are exchanged:
5.1 With a purchaser or lessee introduced by us during the period of our Sole Agency or with whom we had negotiations about the Property during that period.
5.2 Or with a purchaser or lessee introduced by another agent or intermediary during that period.
6 “Joint Sole Agency” means acting on the same basis as Sole Agency save JKS will be acting jointly with one or more other agents.
7 “Quantum Meruit Basis” means a fee charged relating to the time spent by a member(s) of JKS in providing the services required and travelling time, such time being charged at an hourly rate according to the professional status experience and/or qualifications of the member(s) concerned and the circumstances of the particular instruction.
8 “Ready, Willing and Able Purchaser” a purchaser who is prepared and able to exchange unconditional contracts for the purchase of the Property.
9 “Presale” means the sale of a property that is to be constructed, completed or refurbished pursuant to the provisions of such transaction.
10 “Preletting” means the grant of a lease over a property that is to be constructed, completed or refurbished pursuant to the provisions of such transactions.
11 “Funding” means the financing of the construction completion and/or refurbishment of a property pursuant to the provisions of such transaction, which may also include the sale of such property to the company/institution providing Funding.
12 “Surrender” means the Lessors extinguishment of an existing lease.
13 “Conditions of Engagement” means these conditions and the letter of confirmation of instructions if any sent to the Client by JKS.
1 JKS undertake all services only on the basis of these Conditions of Engagement which shall apply to the exclusion of any other terms and conditions which the Client may seek to impose.
2 No variation of these Conditions of Engagement shall be binding unless in writing between a director of JKS and the Client.
3 Unless otherwise agreed in writing JKS are instructed by the Client in respect of disposals with Sole Selling Rights.
1 The Client hereby represents and undertakes to JKS when instructing JKS to act on the disposal of the Property that all information provided by the Client and/or his professional adviser regarding the Property is complete, correct and is not misleading (either on its face or by inference or omission), that there are no other material facts known to the Client which may be relevant in carrying out its instructions. The Client undertakes to JKS to check and verify, in so far as it is reasonable for him to do so, all marketing material sent to the Client for approval and to notify JKS immediately if any matter or information contained in such material is or subsequently becomes inaccurate or misleading.
2 The Client hereby undertakes to indemnify JKS and to keep JKS indemnified against all losses, damages, costs and expenses, including legal fees on a solicitor and own client basis, arising out of or in consequence of the Client’s instructions to JKS, other than in respect of any losses, damages, costs and expenses arising as a result of the default or negligence of JKS.
3 JKS shall be entitled to make the following assumptions (which they shall be under no duty to verify) when instructed to act on the disposal of the Property:
3.1 that there are no unusual or onerous encumbrances, restrictions, easements, outgoings or conditions attaching to the Property (save as specifically notified in writing to JKS by or on behalf of the Client);
3.2 that the Property complies with all relevant statutory requirements (including but not limited to by-laws, fire and health and safety at work regulations);
3.3 that the Property has been constructed and is occupied in accordance with valid planning and building regulation approval;
1 Unless otherwise agreed in writing fees on a disposal will be calculated on the following basis:
1.1 Freehold: 1.5% of the sale price (where acting with Sole Selling Rights).
1.2. Freehold: 2% of the sale price (where acting on a Multi Agency basis).
1.3 Freehold: 1.125% of the sale price (where acting on a Joint Sole Agency basis).
1.4 Long leasehold at a nominal rent for a premium: 1.5% of the sale price where acting on Sole Selling Rights.
1.5 Long leasehold at a nominal rent for a premium: 2% of the sale price where acting on a Multi Agency basis.
1.6 Long leasehold at a nominal rent for a premium: 1.125% of the sale price where acting on a Joint Sole Agency basis.
2 On the granting of a new rack rent lease or subletting or the assignment of an existing rack rent lease or the surrender of an existing lease or leases: 10% of the annual rent (or if higher the averaged annual rent to the first review date) ignoring any rent free concessionary rental period or other inducement plus 5% of any premium receivable or payable in respect of the leasehold interest and 5% of any premium receivable in respect of goodwill and fixtures and fittings where acting with Sole Selling Rights.
3 On the granting of a new rack rent lease or subletting or the assignment of an existing rack rent lease or surrender of an existing lease or leases 7.5% of the annual rent (or if higher the averaged annual rent to the first review date) ignoring any rent free or concessionary rental period plus 5% of any premium received in respect of the leasehold interest and 5% of any premium received in respect of goodwill and fixtures and fittings where acting on a Joint Sole Agency with Sole Selling Rights.
4 Where the instruction is withdrawn an abortive fee will be charged calculated on a Quantum Meruit Basis.
5 Where JKS are instructed in connection with Presale one half of the anticipated fee will be due and payable upon exchange of contracts for the sale and save as hereinafter provided the final fee (less any amount already paid) will be due and payable upon completion of the sale or upon the purchaser taking occupation of the Property (whichever shall first occur).
6 Where JKS are instructed in connection with Preletting one half of the anticipated fee will be due and payable on exchange of the agreement for lease an save as hereinafter provided the final fee (less any amount already paid) will be due and payable upon completion of the lease or upon the tenant taking occupation of the Property (whichever shall first occur).
7 Where JKS are instructed on a Funding one half of the anticipated fee will be due and payable on exchange of the Funding agreement, and save as hereafter provided the final fee (less any amount already paid) will be due and payable upon completion of the property pursuant to the terms of the Funding agreement.
8 In the event that the Property is not completed (here meaning legal or physical completion) in accordance with the term of the appropriate agreement as referred to in Clauses 6, 7 and 8 hereof JKS shall be entitled immediately upon such failure to a full fee as if completion as aforesaid has taken place in accordance with the terms of the appropriate agreement.
9 Where either the Client or other party to such contract for sale agreement for lease or funding agreement refuses to complete or terminates the said agreement for whatever reason the final fee will be due and payable at a time when such party refuses to complete, terminate or purports to terminate.
10 In all cases JKS will be entitled to be paid a fee as aforesaid in addition to any other costs or charges agreed where JKS introduce a Ready Willing and Able Purchases if such a purchaser is introduced in accordance with the Client’s instructions and such a fee will be payable even if the Client subsequently withdraws and unconditional contracts for sale are not exchanged irrespective of the Client’s reasons.
11 JKS shall not be liable to refund to the Client any part of the fee paid on account in the event of any party to such agreement failing to complete for any reasons whatsoever.
E. TERMS OF BUSINESS
1 If after receipt from JKS of notification of the appropriate charges for work to be undertaken no written confirmation is received from the Client within 14 days it will be understood that all fee terms and conditions as advised are accepted.
2 The Client hereby agrees not to disclose the existence of these Conditions of Engagement or any of the provisions herein provided always the Client shall be entitled to disclose the existence and contents of these Conditions of Engagement to its solicitors and Accountants.
3 Where JKS submits reports, valuations or other written advice to the Client, they are provided solely for the purposes stated herein and for the sole use of the Client. Such material is confidential to the Client and his professional advisers and no part of it or any reference may be circulated in any published document, circular or statement nor published in any way without the prior express approval in writing by a director of JKS as to the form, content and context in which it may appear.
4 JKS accept responsibility to the Client alone and JKS undertake to exercise the skill, care and diligence reasonably to be expected of a competent Chartered Surveyor or Agent. Any third party relying upon written material provided by JKS to the Client will do so at the Client’s own risk and the Client is to indemnify JKS against any claims by third parties in respect of such material.
5 JKS’s duties shall be limited to those set out in the letter of confirmation of instruction sent to the Client. JKS will be pleased to provide additional services where required at fees and on other terms and conditions to be agreed with the Client.
6 JKS and the Client irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute that may arise out of or in connection with the Conditions of Engagement.
1 Fee accounts will be submitted to the Client in accordance with the terms of JKS’s letter of confirmation of instructions if any are due for settlement on presentation.
2 JKS reserve the right to charge the Client interest on any invoice that remains unpaid for 14 days both before and after any judgement at the rate of 3% per annum over the base rate for the time being of Barclays Bank from the date of the invoice until payment is made.
3 In addition to the fees specified above the Client shall pay to JKS all reasonable out of pocket expenses incurred in the performance of its instructions including without limitation travel, advertising, sign boards, mail shots, telemarketing, photography, reception and other marketing expenses. An additional inspection and insurance fee will be charged for all letting boards remaining in site for a period of more than 12 months from their erection date. Mileage will be charged at the standard AA scales. Rail and Air travel will be charged in accordance with JKS expenses policy. Accounts for disbursements and out of pocket expenses may be submitted at the time when expenditure is incurred by JKS and JKS reserves the right to arrange for suppliers to invoice the Client direct for services supplied upon their instructions.
4 Such out of pocket expenses shall be payable by the Client whether or not the Client completes the matter in connection with which JKS were instructed.
5 VAT shall be payable where applicable in addition to all amounts due by the Client to JKS.
6 Where Client monies have been advanced to JKS in respect of an agreed marketing budget in the event of any part of the agreed expenditure not having been committed prior to the disposal of the Property the remainder of the monies advanced will be refunded.
7 Acceptance of these terms and conditions by the Client shall constitute an irrevocable authority to JKS to deduct or to instruct the Client’s Solicitors to deduct and pay to JKS the fees due to JKS from the proceeds of any disposal of the Property.
8 Unless otherwise stated or agreed fees shall become due and payable upon completion of the sale or letting or upon the purchaser or tenant (or an associated company) taking occupation of the property whichever shall occur first. Occupation includes taking possession for fitting out purposes.