TERMS AND CONDITIONS OF BUSINESS OF
Professionals in Property (May 2010 Edition)
1 DEFINITIONS
The following expressions shall have the following meanings:
1.1 “Agent” means Professionals in Property Online Ltd of ; 2 Rugby Road, Hinckley, Leicestershire, LE10 0QD
1.2 “Client” means any person who purchases Services from the Agent;
1.3 “Marketing Profile” means a proposal, registration form, quotation or other similar object describing the Services;
1.4 “Services” means the agency services as described in the Marketing Profile;
1.5 “Property” means the property which belongs to the Client and is to be sold by the Agent;
1.6 “Buyer” means the person contracted to purchase the Property from the Client;
1.7 “Fees” means the agency commission due to the Agent from the Client for providing the Services;
1.8 “Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Agent;
1.9 “Agreement” means the contract between the Agent and the Client for the provision of the Services incorporating these Terms and Conditions;
2 GENERAL
2.1 These Terms and Conditions shall apply to the Agreement for the supply of Services by the Agent to the Client and shall supersede any other documentation or communication between parties.
2.2 Any variation to these Terms and Conditions must be agreed in writing by the Agent.
2.3 These Terms and Conditions shall be attached to any Marketing Profile and signed and returned to the Agent by the Client.
2.4 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agent may be entitled in relation to the Services, by virtue of any statute, law or regulation.
3 MARKETING PROFILE
3.1 The Marketing Profile is attached to these Terms and Conditions.
3.2 The Marketing Profile shall remain valid for acceptance for a period of 7 days .
3.3 The Marketing Profile must be accepted by the Client in its entirety.
3.4 The Agreement between the Agent and the Client, incorporating these Terms and Conditions, shall only come into force when the Agent confirms acceptance in writing to the Client.
4 SERVICES
4.1 The Services are as described in the Marketing Profile.
4.2 Any variation to the Services must be agreed by the Agent in writing.
4.3 The Services shall commence and finish on the dates specified on the Marketing Profile where appropriate unless terminated according to the terms of this Agreement.
4.4 Dates given for the commencement of the Services are estimates only and not guaranteed. Time for commencement shall not be of the essence of the Agreement and the Agent shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the Services.
5 TYPE OF AGENCY
5.1 Where the Agent is appointed by the Client as the sole agent to sell the Property the Client shall be liable to pay the Fees to the Agent, as well as any other agreed costs or charges, if unconditional contracts are exchanged with a Buyer for the sale of the Property.
5.2 This obligation as stated in condition 5.1 applies:
5.2.1 for any Buyer introduced by the Agent during the period of the Agreement;
5.2.2 for any Buyer introduced by another agent during the period of the Agreement.
5.3 Where the Agent is appointed on a multiple agency basis the Client will be liable to pay the Agent the Fees should a Buyer who was introduced to the Property by the Agent during the period of the Agreement enter into an unconditional contract to purchase the Property.
5.4 If the Client instructs another agent during a sole agency arrangement with the Agent the Agreement will be deemed to be changed to a multiple agency arrangement and the Client will become liable to pay the Agent the Fees due for this type of agency agreement.
5.5 All negotiations will be conducted through the Agent. In the event of the Client withdrawing the property as a result of a privately introduced Buyer, then the Client shall be liable to pay the fees unless the Agent is satisfied that the Buyer has not been introduced either directly or indirectly by any of the marketing efforts undertaken by the Agent. Indirect introductions may include any prospective Buyer who approached the Client via the Agent’s advertisements ‘for sale’ boards, particulars or word of mouth, or recommendation from anyone who has seen any of these. Declaration of a private Buyer must be made prior to the signing of this agreement otherwise it is accepted that all Buyers’ have been introduced direct or indirectly by the Agent.
6 FOR SALE BOARDS
The Seller consents to the Agent erecting a display board at the Property to assist in the marketing of the Property and the Agent shall adhere to the relevant statutory regulations relating to the display of such boards.
7 PRICE AND PAYMENT OF FEES
7.1 The price for Services is as specified in the Marketing Profile and is inclusive of any other charges as outlined in that document.
7.2 The terms for payment of the Fees and any other charges are as specified in the Marketing Profile.
7.3 The Fees shall become due on the completion of the contract of sale of the Property.
7.4 The Client shall be liable for all agreed expenses due to the Agent.
7.5 The Client must settle all payments due within 7 days from the invoice date or by electronic transfer on the date of completion of the contract of sale of the Property as determined by the Agent.
7.6 The Client will pay interest on all late payments at a rate of 4% per annum above the base lending rate of Yorkshire Bank Plc.
7.7 The Agent is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Agent is late.
7.8 The Client is not entitled to withhold any monies due to the Agent.
7.9 The Agent is entitled to vary the price to take account of:
7.9.1 any additional Services requested by the Client which were not included in the original Marketing Profile;
7.9.2 any reasonable increase in rates, if applicable;
and any variation must be intimated to the Client in writing by the Agent.
7.10 In the event that the Client seeks to cancel the Agreement for Services the Client shall be responsible to pay the Agent for any expenses incurred up to that date.
8 CLIENT OBLIGATIONS
8.1 The Client agrees to co-operate with the Agent as may be required.
8.2 The Client shall permit the Agent access to the Property for the purpose of preparing marketing materials.
8.3 The Client remains responsible for the Property throughout the period of this Agreement and is advised to take proper precautions for unoccupied dwellings.
8.4 The Client shall ensure an Energy Performance Certificate is obtained prior to the marketing of the Property or instruct and co-operate fully with the Agent in the preparation of such.
8.5 The Client is responsible for all costs relating to the provision of the Energy Performance Certificate.
8.6 The Client is responsible for delivering all keys relating to the Property to the Purchasers upon legal completion.
9 AGENT OBLIGATIONS
9.1 The Agent shall supply the Services as specified in the Marketing Profile.
9.2 The Agent shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
9.3 The Agent shall be a member of an accredited redress scheme in compliance with the Consumers, Estate Agents and Redress Act 2007.
9.4 The Agent shall forward all offers to purchase the Property to the Client or their appointed representative promptly and accurately unless the offer is of a type that the Client has specifically requested the Agent not to pass on.
9.5 The Agent shall keep a record of all submitted offers on file and shall make that record available to the Client on request.
9.6 The Agent shall take into consideration the prevailing market conditions when setting an asking price but confirms that this figure is not a formal valuation of the Property.
10 PROPERTY MIS-DESCRIPTIONS ACT 1991
It is the Clients responsibility to check the descriptions of the Property in the schedule provided by the Agent, on the website and on other relevant marketing material and notify the Agent of any amendments required. The Client shall indemnify the Agent and any other associated parties against any claim made in respect of any mis-description that arises out of the Client’s failure to adhere to this condition.
11 TERMINATION
11.1 The Client is required to give the Agent 14 days written notice to terminate this Agreement.
11.2 The Agent is required to give the Client 14 days written notice to terminate this Agreement.
11.3 The Client may terminate the Agreement if the Agent fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of 2 weeks after notification of non-compliance is given.
11.4 The Agent may terminate the Agreement if the Client has failed to make over any payment due within 2 weeks of the sum being requested.
11.5 Either party may terminate the Agreement by notice in writing to the other if:
11.5.1 the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
11.5.2 the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
11.5.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
11.5.4 the other party ceases to carry on its business or substantially the whole of its business; or
11.5.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
11.6 In the event of termination the Client must make over to the Agent any payment for work done and expenses incurred up to the date of termination.
11.7 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
12 WARRANTY
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
13 LIMITATION OF LIABILITY
Nothing in these Terms and Conditions shall exclude or limit the liability of the Agent for death or personal injury, however the Agent shall not be liable for any direct loss or damage suffered by the Client or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agent in the insurance year in which the Client’s claim is first notified.
14 INDEMNITY
The Client shall indemnify the Agent against all claims, costs and expenses which the Agent may incur and which arise directly or indirectly from the Client’s breach of any of its obligations under these Terms and Conditions.
15 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
16 ASSIGNMENT
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Agent.
17 THIRD PARTY RIGHTS
Nothing in these Terms and Conditions intend to or confer any rights on a third party.
18 SEVERANCE
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
19 WAIVER
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
20 NOTICES
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Marketing Profile or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
21 CONSUMER PROTECTION
The Agent adheres to the Consumer protection (Distance Selling) Regulations 2000 regarding the protection of Consumers in respect of distance contracts. Through this Regulation, Clients in the EU have the statutory right to withdraw from the purchase of a service from the Agents website, by email or telephone within 7 working days of making a payment. This is known as the cooling off period. Where the Agent has provided services before the usual 7 working day cooling off period expires, the Client loses the right to cancel under the Terms of the Consumer Protection (Distance Selling) Regulation 2000
You may use the cancellation form provided below only if you wish to do so.
22 DATA PROTECTION ACT
The Clients personal details and those of the property will be recorded and retained on computer and on ancillary devices for use in the promotion of the property and the administration of the sale. The Client agrees access to this information via the internet. The Client also agrees that the agent may disclose information relating to the sale of the property to the Property Ombudsman if the Client has registered a complaint and he asks for it. The Client further agrees that the Agent may disclose its details to the Property Ombudsman if they ask for it to assist in their monitoring of the Agents compliance of the Code of Practice.
23 PROVISIONS OF INFORMATION
In accordance with the Estate Agents’ ( Provision of Information) Regulations 1991 the Agent is obliged to inform the Client that it intends to offer prospective Buyers Financial Services, Insurance, Conveyancing and other ancillary services and be entitled to receive commission in respect of these services.
24 MONEY LAUNDERING REGULATIONS 2003 and PROCEEDS OF CRIME ACT 2002
The Client confirms that it is the Legal owner of the Property and that it will produce appropriate forms of identity to the Agent before marketing can commence.
25 THE ESTATE AGENTS ACT 1979
Under Section 21 of The Estate Agents Act 1979 the Agent is obliged to disclose to any prospective Buyer any business or family relationship which the Client may have with the Agent, employee of the Agent or any associated company. The Sellers should indicate this information on the attached Marketing Profile if it is aware of any such relationship.
26 COMPLAINTS PROCEDURE
The Agent is committed to providing a high quality service to all of its Clients
· All complaints should be directed to Customer Services at Professionals in Property Online Ltd, 32 Rugby Road, Hinckley, Leicestershire, LE10 0QD, Info@professionalsinproperty.com, Telephone 0845 677 3330
· Within 5 working days of receiving your complaint the Agent will write to you to acknowledge the complaint and it will be recorded in the Agents central register.
· The Agent will then investigate the complaint.
· Once the Agent has conducted all its investigations it will respond to the Client in writing. The Agent would expect to respond within 20 working days from the date on which the compliant is received. If the response is likely to take longer than 20 working days the Agent will keep the Client fully informed by telephone, email, or in writing and will ensure that the Client has full written response within a maximum of 40 working days.
· If the Client is not satisfied with the response from the Agent it may refer the Complaint to the Property Ombudsman Scheme full details of which will be provided upon request.
· The Agent will co-operate fully with the Ombudsman during the consideration of the complaint and will comply with any decision made by the Ombudsman.
27 ENTIRE AGREEMENT
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
28 GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.