Gordon Brothers International, LLC and GB Europe (2010) Limited
STANDARD TERMS OF BUSINESS
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
“Abortive Fee” shall have the meaning given to that term in the Engagement Letter.
“Agreement” means the agreement between the Parties for the supply of the Services comprising of these Terms, the Engagement Letter and any other terms agreed in writing between the Parties in respect of the Services from time to time.
“Client” means, collectively, each person, organisation, firm or company instructing Gordon Brothers as set out in the Engagement Letter.
“Engagement Letter” means the document setting out the Services and attaching these Terms.
“Fees” means the fees and/or commissions payable by the Client to Gordon Brothers in consideration for the performance of the Services, and subject to these Terms.
“Gordon Brothers” means: (i) Gordon Brothers International, LLC, a limited liability company incorporated under the laws of the State of Delaware and registered in England as a foreign company under number FC022279, whose principal place of business is at 11 Soho Street 4th Floor, London, United Kingdom, W1D 3AD; or (ii) GB Europe (2010) Limited, a limited liability company incorporated under the laws of England & Wales with registered office address 11 Soho Street 4th Floor, London, United Kingdom, W1D 3AD, as applicable.
“Intellectual Property Rights” means the copyright, database rights, design rights, patents, trade or service marks (whether registered or unregistered), business names or domain names (whether or not any of the same are registered and including the goodwill attaching to them and any applications for registration of any of them), and confidential information, know-how and all other intellectual property rights or forms of protection of a similar nature or having equivalent or similar effect to any of the same which may subsist anywhere in the world.
“Materials” means valuations, reports (including, but not limited to, a Report) or other material provided by Gordon Brothers under the Agreement.
“Parties” means the Client and Gordon Brothers.
“Report” means a valuation report prepared by Gordon Brothers for the Client.
“Services” means the services to be provided by Gordon Brothers to the Client under the Agreement as set out in the Engagement Letter.
“Subject Company” means the relevant company which owns the assets which are the subject of the Services and/or the Report.
“Terms” means these Standard Terms of Business.
1.2. Rules for interpretation
1.2.1. The titles and headings of these Terms are for reference only and shall not be used for its construction or its interpretation.
1.2.2. In these Terms, words in the singular includes the plural, the masculine includes the feminine and vice versa, when so results from the context.
1.2.3. References to the Parties and clauses are references respectively to the parties and clauses of these Terms.
1.2.4. Reference to any act, regulation, statute, norm or rules, including those of technical character, will be construed as a reference to that act, regulation, statute, norm or rule in its actual wording, and also to the act, regulation, statute, norm or rule that derogates, modifies or substitutes it (whether before, on or after the date of these Terms).
1.2.5. In the event of any inconsistency between an Engagement Letter and these Terms, the Engagement Letter shall take precedence.
2. INTRODUCTION
2.1. Subject to clause 2.2, these Terms and the Engagement Letter together are the terms and conditions under which Gordon Brothers shall provide the Services to the Client.
2.2. It is recommended that the Client reviews these Terms carefully as these Terms and the Engagement Letter will, together with any additional terms agreed between the Parties in writing in respect of the Services from time to time to the Client, govern the relationship between Gordon Brothers and Client in respect of the Services.
3. ACCEPTANCE OF THESE TERMS AND STATUS
3.1. Subject to clauses 3.2 and 3.3, if Gordon Brothers indicates that it is prepared to provide the Services to the Client by issuing an Engagement Letter to the Client, the Client shall signify its acceptance that the Engagement Letter and these Terms shall apply to the Client in relation to the Services by countersigning the Engagement Letter and returning the countersigned copy of the Engagement Letter to Gordon Brothers.
3.2. If the Client provides instructions to Gordon Brothers on or after the date of the Client’s receipt of the Engagement Letter from Gordon Brothers, the Client will be deemed to have accepted that the Engagement Letter and these shall Terms apply to the Client in relation to the Services.
3.3. If the Client has received the Engagement Letter from Gordon Brothers but has not (i) returned a countersigned copy; or (ii) confirmed its rejection of the Engagement Letter in writing, to Gordon Brothers within seven days from the date of the Client’s receipt of the Engagement Letter, the Client will be deemed to have accepted that the Engagement Letter and these Terms shall apply to the Client in relation to the Services.
3.4. These Terms replace any previous terms of business issued by Gordon Brothers. If there is a conflict between these Terms and the Engagement Letter, then the terms of the Engagement Letter shall prevail.
3.5. Subject to any variation agreed pursuant to clause 23.5 (Variation of these Terms), the Agreement between the Client and Gordon Brothers shall be on these Terms and the terms of the Engagement Letter to the exclusion of all other terms and conditions and any previous verbal and written instructions and/or communications between the Parties.
3.6. The Client acknowledges and agrees that the Client has not relied on any statement, promise or representation made or given by, or on behalf of, Gordon Brothers which is not set out in these Terms or the Engagement Letter.
4. SERVICES
4.1. The Services that Gordon Brothers provides to the Client shall be as set out in the Engagement Letter.
4.2. Gordon Brothers shall perform the Services in a professional manner, with reasonable care, skill and diligence, using appropriately skilled, qualified and experienced personnel and in compliance with all applicable laws, enactments, orders and regulations.
4.3. Gordon Brothers is not subject to regulation by the Royal Institution of Chartered Surveyors (“RICS”). However, unless otherwise stated, Gordon Brothers will deliver the Services in accordance with the RICS valuation standards as contained in the current edition from time to time of RICS Valuation ‐ Global Standards (‘Red Book’), or such other authority as appropriate.
4.4. The Client agrees and acknowledges that:
4.4.1. in view of the limited scope of the Services, Gordon Brothers will not necessarily identify all matters that will be of interest to the Client as such matters may be outside the scope of the Services;
4.4.2. if the Services include a valuation, the relevant valuation is not prepared for any purpose other than as specified in the Engagement Letter, including, without limitation, insurance purposes (which would or may require a different basis of valuation);
4.4.3. if the Services include a valuation, the Client will not rely on the valuation for any purposes save as specified in the Engagement Letter;
4.4.4. any valuation stated in the Report will be statements of opinion only and not warranties and/or representations that such valuation(s) would be achieved on a disposal of the relevant assets; and
4.4.5. Gordon Brothers may engage consultants, agents, contractors and/or sub-contractors in relation to provision of the Services.
4.5. Gordon Brothers will use its reasonable endeavours to meet any performance dates specified in the Engagement Letter, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.6. Any amendments to the Services and/or the Engagement Letter, including but not limited to additional instructions given by the Client, shall be agreed between the Parties in writing.
4.7. Gordon Brothers will not undertake, commission, advise or report on any matters outside the scope of the Services, including the following non-exhaustive list of matters, which the Client agrees are outside the scope of the Services:
4.7.1. technical surveys of condition;
4.7.2. technical inspections;
4.7.3. physical stock takes, save for any sample stock takes specified in the Engagement Letter;
4.7.4. issues of law (including, without limitation, validity and effectiveness of contracts, licences, title deeds including those for property, investments, encumbrances, compliance with relevant laws and regulations, all matters relating to product liability, validity and status of renewal fees of intellectual property assets and infringement and enforceability of intellectual property assets);
4.7.5. the commercial merits of any provision of financial facilities;
4.7.6. the technical merit of any technology or the market for it;
4.7.7. the safety of the assets;
4.7.8. environmental matters;
4.7.9. insurance review (although Gordon Brothers may provide general, high level comments, if requested to);
4.7.10. investigation or legal review/analysis of title or encumbrances (although Gordon Brothers may provide general high-level comments);
4.7.11. specialist industry advice;
4.7.12. directors’ CVs or backgrounds or activities;
4.7.13. regulatory issues, such as, but not by way of limitation, compliance with CE marking rules or trade description regulations;
4.7.14. systems compliance for accounting issues; and
4.7.15. tax matters.
4.8. Gordon Brothers is only obliged to carry out such inspections and investigations as are, in its professional judgement, appropriate and possible in the particular circumstances and as are expressly described in the Engagement Letter.
4.9. In providing the Services, Gordon Brothers shall be entitled to rely and act on any instruction given to Gordon Brothers by any person who appears to be acting on the Client’s behalf, including but not limited to the Client’s directors, employees or advisors, unless agreed otherwise between the Parties in writing.
5. CLIENT’S OBLIGATIONS
5.1. The Client shall provide to Gordon Brothers in a clear and timely manner such instructions as may be reasonably required by Gordon Brothers from time to time to perform the Services in accordance with these Terms and the Engagement Letter.
5.2. The Client warrants that, in respect of all information, documentation and any other materials provided by the Client, it is entitled to provide the same to Gordon Brothers for Gordon Brothers’ use without recourse to any third party.
5.3. The Client undertakes to promptly carry out all such actions and provide all such resources (if any) as may be required of the Client in the Engagement Letter.
5.4. The Client shall make available to Gordon Brothers (free of charge and in a prompt manner) all assistance, information, documentation and other materials which is reasonably required by Gordon Brothers to deliver the Services. The Client acknowledges and agrees that Gordon Brothers shall, in providing the Services: (i) not be obliged to audit, corroborate or verify such information, documentation and other materials; and (ii) be able to rely on, and accept as being correct and accurate, all information, documentation and any other materials provided to it by the Client.
5.5. The Services will be provided at Gordon Brothers’ premises when the nature of the work permits. If any of Gordon Brothers’ personnel are to perform any Services at the Client’s premises, the Subject Company’s premises or and third party premises, the Client shall, or the Client shall procure that the Subject Company shall (i)ensure that such personnel are allowed access to such premises upon reasonable prior notice during normal business hours and (ii) take full responsibility for the safety and security of Gordon Brothers’ personnel whilst at such premises.
5.6. If the Services include the sale of goods or intellectual property assets on the Client’s behalf, the Client acknowledges and accepts that such sales will be concluded on Gordon Brothers’ standard terms and conditions of sale by auction and private treaty (as set out on Gordon Brothers’ website at https://www.gordonbrothers.com/emea-terms-conditions/), a copy of which is available on request.
5.7. If the Services include the sale of a property, the Client shall provide Gordon Brothers with all necessary information about the Client or the Subject Company (as applicable) and the purchaser of the property to enable Gordon Brothers to carry out the due diligence required under the Money Laundering Regulations 2007 and the Money Laundering Regulations 2017, the Proceeds of Crime Act 2002, the Terrorism Act 2000 and other subordinate and/or related legislation as detailed in clause 13 (Anti-Money Laundering). The Client shall notify Gordon Brothers of a change of identity of the purchaser at any stage in the transaction and provide the necessary information about that new purchaser to Gordon Brothers promptly on request.
6. FEES AND EXPENSES
6.1. The Fees, or the basis of calculation of the Fees, payable by the Client for the Services will be set out in the Engagement Letter.
6.2. Gordon Brothers reserves the right to charge the Client an additional fee in the event of: (i) an amendment to the scope of the Services and/or the Engagement Letter; or (ii) Gordon Brothers being required to carry out any additional services under the terms of the Agreement. This additional fee would be agreed in writing between Gordon Brothers and the Client.
6.3. All Fees are exclusive of:
6.3.1. Value Added Tax (“VAT”) and may be subject to VAT in accordance with current VAT regulations; and
6.3.2. all reasonably incurred expenses and disbursements.
6.4. Where any taxable supply for VAT purposes is made under the Agreement by Gordon Brothers to the Client, the Client shall, on receipt of a valid VAT invoice from Gordon Brothers, pay to Gordon Brothers such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.5. The Client shall reimburse Gordon Brothers for all reasonably incurred expenses and disbursements (together with VAT thereon where applicable) in connection with the provision of the Services. Gordon Brothers shall be entitled to charge reasonable interest on all disbursements incurred on behalf of the Client whether invoiced or not at the same commercial lending rate as Gordon Brothers’ bankers from time to time.
6.6. Gordon Brothers shall be entitled to charge reasonable interest on all disbursements incurred on the Client’s behalf whether invoiced or not at the same commercial lending rate as charged by Gordon Brothers’ bankers from time to time.
6.7. If Gordon Brothers is providing Services to the Client in the Client’s capacity as an administrator, liquidator or other related insolvency appointment, the Client agrees and acknowledges that the Fees payable to Gordon Brothers on account of those Services (together with Gordon Brothers’ expenses and disbursement) will be payable as an expense of the administration, liquidation or other relevant insolvency proceedings.
6.8. Gordon Brothers shall be entitled to increase its standard fee rates, provided that such rates cannot be increased more than once in any 12-month period. Gordon Brothers will give the Client written notice of any such increase not less than one month before the proposed date of the increase. If such increase is not acceptable to the Client, the Client shall notify Gordon Brothers in writing within two weeks of the date of Gordon Brothers’ notice and Gordon Brothers shall have the right, without limiting its other rights or remedies, to terminate the Agreement in accordance with clause 21.3.5.
6.9. If the Services relate to the sale of a property or an intellectual property asset, the Fees shall be payable in the following circumstances:
6.9.1. If unconditional contracts for the sale, or the acquisition, of the relevant property or intellectual property asset or the sale, or the acquisition, of the company which owns the relevant property or intellectual property asset (or conditional contracts that subsequently become unconditional) are exchanged prior to the Termination Date even if the purchaser, the property, intellectual property asset or the company was not found by Gordon Brothers but by another agent or by any other person (including the Client);
6.9.2. If unconditional contracts for the sale, or acquisition, of the relevant property, intellectual property asset or the sale, or acquisition, of the company which owns the relevant property or intellectual property asset (or conditional contracts that subsequently become unconditional) are exchanged after the Termination Date but with a purchaser, property or intellectual property asset or company who was introduced to the Client by Gordon Brothers or another agent or by any other persons, including by way of the Client’s own actions, or with whom Gordon Brothers had negotiations concerning the property or intellectual property asset or company, prior to the Termination Date; and
6.9.3. If there is no sale of the relevant property or intellectual property asset, the Fees shall be payable if an offer is made to the Client by any person who is “ready, willing and able” to purchase the property or intellectual property asset or the company which owns the relevant property or intellectual property asset at the sale price or at a price agreed with the Client but the Client subsequently withdraws the property or the company which owns the relevant property from sale, irrespective of the reason for such withdrawal. A person is “ready, willing and able” to purchase the property or intellectual property asset or the company which owns the relevant property or intellectual property asset if it is prepared and able to exchange contracts unconditionally for the purchase of the property or the company which owns the relevant property.
6.10. If the Services relate to the sale of a property or intellectual property asset and the Client withdraws the relevant property or intellectual property asset or company which owns the relevant property or intellectual property asset from sale for any reason the Abortive Fee (if one is set out, and as defined, in the Engagement Letter) will be payable immediately on the Client’s notification to Gordon Brothers that the property or intellectual property asset or the company which owns the relevant property or intellectual property asset is to be withdrawn from sale.
6.11. If the Services relate to the sale of a property or intellectual property asset and the Client wishes to sell an additional or an alternative property/properties or intellectual property asset/assets to those referred to in the Engagement Letter, either as part of the same transaction or a separate transaction, then the Fees set out in the Engagement Letter shall apply to the additional or alternative property/properties or intellectual property asset/assets unless the Parties agree otherwise in writing.
7. INVOICING AND PAYMENT
7.1. Gordon Brothers shall at any time prior to commencing the Services be entitled to require the Client to make an advance payment on account of the Fees (either in full or in part) and any specific expenses and disbursements which Gordon Brothers expects to be incurred, plus VAT on any such items. Where applicable, such requirement shall be notified to the Client in the Engagement Letter, verbally or in writing.
7.2. Gordon Brothers shall be entitled to require the Client to make full payment of its Fees for the Services and any associated expenses and disbursements (and any VAT payable thereon) prior to the release of any Materials to the Client.
7.3. Gordon Brothers shall invoice the Client for the Fees and/or expenses and disbursements on terms as set out in the Engagement Letter and these Terms (an “Invoice”). Payment of all amounts set out in an Invoice in respect of the Services shall be the responsibility of the Client (unless otherwise agreed in writing between the Parties). The Client must make payment of amounts set out in an Invoice within 14 days of the relevant Invoice date. Time for payment of amounts set out in an Invoice shall be of the essence.
7.4. All payments by the Client to Gordon Brothers in respect of Invoice amounts shall be made in cleared funds by bank transfer only. Payment shall be deemed to be received only when Gordon Brothers has received cleared funds. Unless otherwise agreed in writing by the Parties, payment of amounts set out in an Invoice must be made by the Client to Gordon Brothers without any deduction by way of set-off, counterclaim, discount or otherwise. Gordon Brothers may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Gordon Brothers to the Client.
7.5. Subject to any agreement to the contrary between the Parties, Gordon Brothers shall be entitled to raise interim Invoices during the course of the Agreement in respect of disbursements incurred and/or Services already carried out.
7.6. If Gordon Brothers is providing Services in relation to the sale of property or other assets, the Client agrees:
7.6.1. that any Fees, commissions, expenses and/or disbursements due and payable to Gordon Brothers in respect of the sale, may be deducted by Gordon Brothers from any such realisations Gordon Brothers receives on the Client’s behalf in relation to the relevant sale; and
7.6.2. notwithstanding that the primary obligation to pay such amounts rests with the Client, to give the appropriate authority to the Client’s solicitors for payment of such Fees, commissions, expenses and/or disbursements due and payable to Gordon Brothers in respect of the sale directly to Gordon Brothers upon completion of the sale, if required.
7.7. If the Client disputes that payment of any item in the Invoice is due, the Client must serve notice in writing to Gordon Brothers within 14 days of the date of the relevant Invoice stating the reason(s) for such dispute. Gordon Brothers will make every effort to resolve the dispute promptly. If no such notice is given by the Client to Gordon Brothers within 14 days of the date of the relevant Invoice then the relevant Invoice will be deemed to have been accepted by the Client in full.
8. OVERDUE AMOUNTS
8.1. Without prejudice to any other right or remedy that Gordon Brothers may have, if the Client fails to make any payment of any due and payable amount pursuant to an Invoice delivered to the Client by Gordon Brothers pursuant to clause 7 (Invoicing and Payment) (an “Overdue Amount”), Gordon Brothers reserves the right to charge the Client interest on any Overdue Amount from the date upon which payment was due pursuant to the relevant Invoice and calculated at the rate set by the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) or at the rate of 4% per cent per annum above Barclays Bank Plc’s base rate from time to time, whichever is the higher Interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. For the avoidance of doubt, the Client must pay interest together with the Overdue Amount in full.
8.2. In the event of any amount set out in an Invoice becoming an Overdue Amount:
8.2.1. Gordon Brothers may suspend all Services until payment of such Overdue Amount has been made in full;
8.2.2. Gordon Brothers may instruct an external agency to collect the relevant Overdue Amount owing to it and will be entitled to pass on all costs incurred in respect of such collection exercise to the Client and, in addition, in respect of each such collection exercise will be entitled to charge the Client an administration fee of £750 plus VAT (if applicable); and
8.2.3. the Client shall not be entitled to rely on, or use, any Materials provided to it by Gordon Brothers under the Agreement. In such circumstances, if instructed to do so by an authorised representative of Gordon Brothers, the Client shall within 7 days of receipt of such instructions: (i) return or destroy the Materials; and (ii) certify to Gordon Brothers that such instructions have been complied with and that it has not used, or relied on, the Materials.
9. INSURANCE
9.1. Gordon Brothers shall have and keep in effect professional indemnity insurance in respect of the performance of the Services.
9.2. Gordon Brothers will, on written request by the Client provide evidence by way of a verification of insurance certificate that professional indemnity insurance has been effected and remains in effect.
10. LIABILITY
10.1. Subject to this clause 10 (Liability), each Party shall be liable, vis-à-vis the other Party, for the breach of their obligations pursuant to Agreement.
10.2. None of Gordon Brothers’ or its affiliates’ respective employees, directors, officers, agents or consultants individually has a contract with the Client or owes the Client a duty of care or any personal responsibility. The Client agrees that it will not bring any claim against such individuals personally in connection with the Services.
10.3. Gordon Brothers shall not be liable in respect of any services performed outside the scope of the Terms unless Gordon Brothers has agreed to perform such services in writing in advance.
10.4. Gordon Brothers will not be liable for any losses attributable to the provision of false, incomplete or misleading information by the Client or any other party acting on the Client’s behalf or losses due to acts or omissions by the Client or any other party acting on the Client’s behalf.
10.5. Gordon Brothers and its affiliates, and their respective employees, directors, officers, agents and consultants, shall not be liable to the Client, under or in connection with the Agreement, in contract, tort (including negligence or breach of statutory duty), misrepresentation, wilful default or otherwise for any of the following:
10.5.1. indirect, special or consequential loss;
10.5.2. loss of profits;
10.5.3. loss of contracts;
10.5.4. loss of income or revenue;
10.5.5. loss of business or business opportunity;
10.5.6. loss of, or damage to, goodwill or reputation;
10.5.7. loss arising from third party claims;
10.5.8. loss arising as a result of the subsequent performance of any funding granted in reliance on the provision of the Services; or
10.5.9. loss of anticipated savings,
in each case whether or not Gordon Brothers has been advised of the possibility of such loss or it was reasonably foreseeable, and in each case as referred to in clauses 10.5.1 to 10.5.9 (inclusive), whether direct or indirect.
10.6. All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the fullest extent permitted by law, expressly excluded from the Agreement.
10.7. In certain cases, it may be necessary for Gordon Brothers to provide preliminary advice or opinion to the Client orally which is not subsequently confirmed in writing, whether in the Materials or otherwise. In such circumstances Gordon Brothers excludes all liability arising from the Client’s reliance on such preliminary oral advice or opinion, save for liability arising from Gordon Brothers’ gross negligence or fraud.
10.8. In the event of suspension of the Services by Gordon Brothers under clause 8.2.1, Gordon Brothers shall not be liable for any delays, losses, expenses or any other costs suffered by the Client howsoever arising from such suspension.
10.9. Each Party’s total liability to the other Party in respect of any claims, demands, actions or proceedings for any loss or damage suffered by another Party and arising under or in connection with the Agreement shall be limited: (i) to a just and equitable portion of the relevant Party’s loss having regard to the extent of responsibility of any other party; (ii) in respect of any claim, to such actual losses or damages suffered by the relevant Party; and (iii) in aggregate with other claims, to an aggregate total amount not to exceed the lower of: (a) Gordon Brothers insurance cover under its professional indemnity policy; and (b) the sum of the Fees. Each Party waives the right to request a higher amount as a compensation from that established in this clause 10.9. This clause 10.9 will not apply in the event that the Party responsible has caused the damage with gross negligence or wilful misconduct.
10.10. This clause 10 sets out the entire financial liability of Gordon Brothers (including any liability for the acts or omissions of its employees, agents and/or sub-contractors) to the Client in respect of: (i) any breach of the Agreement; (ii) any use made by the Client of any Materials provided by Gordon Brothers under the Agreement; and (iii) any representation, statement or tortious act or omission (including negligence) arising under, or in connection with, these Terms and/or the Agreement.
10.11. Gordon Brothers shall have no liability to the Client under the Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement or from carrying on its business by acts, events, or omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock- outs or other industrial disputes (whether involving the workforce of Gordon Brothers or any other party) or any measures and/or guidelines, declarations, orders, regulations or other analogous actions effected by any competent international, national, regional or local authority in respect of any epidemic or pandemic (including, but not limited to, novel coronavirus disease 2019 and/or COVID-19).
10.12. Nothing in these Terms limits or excludes (or is intended to limit or exclude) the liability of Gordon Brothers for death or personal injury resulting from negligence, or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Gordon Brothers, or for any other liability which cannot be excluded or limited by law.
10.13. Each of Gordon Brothers’ subsidiaries, directors, employees and agents providing the Services through it, is entitled to enforce these Terms pursuant to the Contracts (Rights of Third Parties Act 1999). Gordon Brothers reserves the right to rescind or vary these Terms without requiring the permission of such third parties.
10.14. This clause 10 shall survive termination of the Agreement.
11. INDEMNITY
11.1. The Client shall indemnify and keep indemnified Gordon Brothers against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Gordon Brothers arising out of or in connection with:
11.1.1. information, documentation and other materials that are material to the Services being withheld or concealed from Gordon Brothers by the Client or any person acting on the Client’s behalf or in connection with the Services;
11.1.2. inaccurate, incomplete or misleading information, documentation and other materials provided to Gordon Brothers by the Client or any person acting on the Client’s behalf or in connection with the Services;
11.1.3. the use of or reliance on all or any part of the Materials by a third party where such Materials have been made available to the third party by the Client, whether or not the Client has obtained Gordon Brothers’ prior written consent to do so; and
11.1.4. the recovery of any sums owed to Gordon Brothers by the Client as a result of the Client’s non-payment of Invoices.
11.2. This clause 11 shall survive termination of the Agreement.
12. CONFLICTS OF INTEREST
12.1. Gordon Brothers checks for conflicts of interest before accepting instructions. The Client accepts however that Gordon Brothers offers a wide range of services to clients and thereby the Client acknowledges and agrees that Gordon Brothers’ determination of conflicts of interest is based on the Services, as opposed to the parties involved, and there can be no certainty that all situations where a conflict of interest may arise will be identified by Gordon Brothers and that some of Gordon Brothers’ past, present or future clients may have disputes with, and other matters relating to, the Client during the course of and subsequent to the provision of the Services.
12.2. The Client shall notify Gordon Brothers promptly of any conflict or potential conflict of interest it is, or becomes, aware of in relation to the provision of the Services.
12.3. The Client agrees that Gordon Brothers may be engaged by parties with interests that are adverse to and may not be consistent with the interests of the Client and that Gordon Brothers will not be required to advise the Client of such engagements in the future.
12.4. If the Services include the sale of a property, under the Estate Agents Act 1979, Gordon Brothers is required to disclose to prospective purchasers any family relationship or business association between the vendor and any employee or director of Gordon Brothers. If Gordon Brothers is aware of such declarable interest, Gordon Brothers will notify the Client and will make the relevant disclosure in all sales and marketing particulars. If the Client becomes aware of such relationship, the Client must notify Gordon Brothers as soon as possible with full details.
13. ANTI-MONEY LAUNDERING
13.1. Gordon Brothers complies with the Money Laundering Regulations 2007 and the Money Laundering Regulations 2017, the Proceeds of Crime Act 2002, the Terrorism Act 2000 and other subordinate and/or related legislation and has procedures and controls in place designed to prevent money laundering. If, in the course of providing the Services, Gordon Brothers suspects that any money laundering offences are being, or have been, committed, in accordance with its legal responsibilities, Gordon Brothers will disclose its suspicions to the appropriate authorities. The Client accepts that Gordon Brothers’ legal obligations will take precedence over any and all instructions received from the Client where such instructions, if carried out would result in a breach of Gordon Brothers’ duties under the law.
13.2. The Client shall supply to Gordon Brothers such information and documentation as Gordon Brothers reasonably requires to comply with its legal obligations relating to money laundering legislation.
13.3. In certain circumstances Gordon Brothers will require proof of identity and/or proof of income from the Client before accepting or acting on instructions.
13.4. If the Services include the sale of a property, Gordon Brothers may also require the Client to request (or the Client hereby gives Gordon Brothers permission to request directly) that the purchaser of a property or properties which the Client is selling provides information (including proof of identity or income) before the transaction completes. For the avoidance of doubt this may require Gordon Brothers to request and retain information relating to the directors and the “beneficial owners” of the Client and any purchaser of a property or properties which the Client is selling.
13.5. Any failure to provide information required under this clause 13 within 7 days of such a request shall give Gordon Brothers the right to terminate this Agreement immediately in accordance with clause 21.3.1.
14. ANTI-BRIBERY
14.1. In order to comply with the Bribery Act 2010, either party must inform the other if it becomes aware of any person (employee, agent, intermediary, contractor, private individual, commercial organisation or public official) connected (in any way) with this Agreement and/or the Services having committed an offence under the Bribery Act 2010 (or any equivalent legislation).
14.2. Gordon Brothers reserves the right to terminate this Agreement immediately in accordance with clause 21.3.1. should it reasonably believe that a breach or likely breach of the Bribery Act 2010 (or any equivalent legislation) has occurred.
15. NO MISLEADING OR INACCURATE STATEMENTS IN PROPERTY SALES PARTICULARS
15.1. It is a criminal offence for an agent to make misleading or inaccurate statements about a property in sales particulars or any other marketing material, including omitting information or facts about a property. In relation to property sales, Gordon Brothers will send draft particulars to the Client for approval and the Client’s assistance is essential to ensure that all information contained in the particulars is factually accurate in every respect. The Client must notify Gordon Brothers if (i) any part of the materials is incomplete, inaccurate or misleading in any way; and (ii) any part of the property does not comply with any relevant stator requirements or if the property is subject to any unusual or onerous encumbrances, easements or conditions.
15.2. Information received from the Client or their representatives or any other person will not be independently verified by Gordon Brothers. This information will be incorporated into any marketing material prepared by Gordon Brothers on the condition that Gordon Brothers is not liable for an error, omission or inaccuracy in those materials.
16. CLIENT MONEY AND INTEREST
16.1. Gordon Brothers shall use its reasonable endeavours to pay any sums due to the Client in connection with the Services in cleared funds within 28 days of receipt by Gordon Brothers.
16.2. Gordon Brothers holds all client money in its general client bank accounts, in which amounts for different clients are pooled. Gordon Brothers is not obliged to place client monies in interest bearing accounts and is under no obligation to account to the Client for any interest accrued in relation to any monies it holds on the Client’s behalf, unless otherwise agreed in writing in advance.
17. CONFIDENTIALITY
17.1. The Parties shall keep in strict confidence all technical or commercial know-how, proprietary information, analyses, compilations, forecasts, studies, correspondence, memoranda, business and/or financial information, specifications, processes or initiatives which are of a confidential nature (whether or not expressly marked as such) provided by a Party in relation to the Services and/or the Agreement (“Confidential Information”), unless otherwise expressly authorised by the other Party in writing.
17.2. Each Party will, and will direct its directors, officers, employees, representatives, consultants, agents, contractors or sub-contractors to, take all reasonable steps to minimise the risk of disclosure of Confidential Information, including without limitation ensuring that only employees, representative or agents whose duties require them to possess Confidential Information or materials have access thereto, exercising at least the same degree of care that such Party uses for such Party’s own Confidential Information, and providing proper and secure processing and storage for such Confidential Information.
17.3. The Parties shall restrict disclosure of Confidential Information to such of their directors, officers, employees, representatives, agents or sub-contractors as need to know the same for the purposes of the Agreement or as is required to be disclosed by law or any body or authority of competent jurisdiction, or which is public knowledge or substantially becomes public knowledge other than by breach of this clause 17.
17.4. Each Party shall maintain confidentiality over any Confidential Information received from the other Party for a period of two years following termination of the Agreement.
18. OWNERSHIP AND RETENTION OF DOCUMENTS
18.1. In this clause 18 “client file” means any collection of papers or other materials relating to the work Gordon Brothers is undertaking for the Client, which includes without limitation documents, correspondence, reports (whether prepared by Gordon Brothers or any third party), whether in paper or electronic form.
18.2. Gordon Brothers retains client files without charge (and without liability) for at least six years after which Gordon Brothers will confidentially destroy them.
18.3. Gordon Brothers may store the client file in electronic form and destroy the physical client file. If the Client then requires material from the client file, Gordon Brothers may supply it to the Client in electronic form. If Gordon Brothers stores the physical client file, it shall do so only for such period of time as it considers reasonably necessary in the circumstances. The Client authorises Gordon Brothers to destroy the physical client file after that period and Gordon Brothers will be entitled to assume that the Client has kept copies of all important parts of the client file held by Gordon Brothers and that nothing in the client file is of unique importance or of special value.
18.4. Gordon Brothers’ custody of the client file is subject to any risks beyond its reasonable control. The Client authorises Gordon Brothers to store the client file on or off its premises or in the custody of whatever storage company Gordon Brothers may use from time to time. Gordon Brothers is not liable for any negligence or misfeasance of a storage company.
18.5. If Gordon Brothers holds a document specifically in safe custody for the Client it will take reasonable care to look after it, but the Client authorises Gordon Brothers to destroy it after it appears to Gordon Brothers to have become obsolete.
18.6. If the Client requests that Gordon Brothers sends any part of the client file to the Client or anyone else, Gordon Brothers shall send it to anyone, or allow it to be collected by anyone, who appears to have the Client’s authority to receive it. Gordon Brothers will not be responsible for it after it leaves Gordon Brothers’ physical possession or liable for any loss if it is lost or damaged. Gordon Brothers may send it by any normal means which seem to be appropriate.
19. USE OF MATERIALS & INTELLECTUAL PROPERTY
19.1. As between Gordon Brothers and the Client, all Intellectual Property Rights and other rights in any Materials provided to the Client by Gordon Brothers shall be owned by Gordon Brothers.
19.2. Subject to clause 19.4 and payment by the Client of all Fees and other sums due to Gordon Brothers under the Agreement, Gordon Brothers hereby grants to the Client a royalty free worldwide non-exclusive licence to such extent as is necessary to enable the Client to make reasonable and proper use of the Materials.
19.3. The Client will have the right and licence to use copies of certain materials that Gordon Brothers creates for it, including the Report, for the purpose for which they were prepared. However, all copyright and other Intellectual Property Rights in all documents, reports, written advice or other materials provided by Gordon Brothers to the Client will remain the property of Gordon Brothers. If the Client wishes to use copies of these for purposes other than those for which they were prepared, then it must first seek Gordon Brothers’ written permission. In particular, neither the whole nor any part of the Report, nor any reference to it, is to be included in any document, circular or statement or published in any way without the prior written approval of Gordon Brothers regarding the form and context in which it may appear.
19.4. The Client acknowledges and agrees that:
19.4.1. the Services and/or Materials provided by Gordon Brothers for the Client pursuant to the Agreement are strictly for use by the Client only and may not be copied, distributed or otherwise shared with or relied on by any other individual or organisation, including any direct or indirect holding company or entity of the Client, any direct or indirect subsidiary of such holding company or entity or any other affiliate, without Gordon Brothers’ prior express written permission. Where Gordon Brothers gives such permission, this will be on the basis that Gordon Brothers does not thereby assume any duty of care, liability or other obligations towards the relevant third party (unless Gordon Brothers specifically agrees to do so in writing) and the Client shall notify such third party in writing that Gordon Brothers does not assume any duty of care in respect of, liability or other obligations in relation to, the relevant third party prior to sharing the Report, any other Materials or any other Gordon Brothers’ work product related to the Services with that third party; and
19.4.2. should a third party suffer any losses, damages or costs based on the Report, Materials or other or any other Gordon Brothers’ work product related to the Services provided in breach of this clause 19.4, the Client shall indemnify Gordon Brothers against any and all such actions, demands, costs, claims, liabilities, damages, fines and settlements.
19.5. This clause 19 shall survive termination of the Agreement.
20. QUALITY CONTROL
20.1. Gordon Brothers is committed to ensure that quality is applied and managed in every aspect of the administration of Gordon Brothers and the Services undertaken on behalf of clients.
20.2. In the event that the Client is not satisfied with the Services, it shall inform Gordon Brothers of the nature of the problems and Gordon Brothers shall reasonably promptly re-perform any parts of the Services as required. If Gordon Brothers so corrects the problems, it shall have no further liability to the Client for such problems.
20.3. If at any time the Client wishes to discuss with Gordon Brothers how the Services could be improved, or the Client is in any way dissatisfied with the Services, it may contact Gordon Brothers in writing at the following address Gordon Brothers International, LLC, 11 Soho Street 4th Floor, London, United Kingdom, W1D 3AD Gordon Brothers will review any matter carefully and promptly and endeavour to resolve the position to the Client’s reasonable satisfaction.
21. TERMINATION
21.1. The Agreement shall remain in full force and effect until it terminates in accordance with this clause 21 and the date on which the Agreement terminates shall be the “Termination Date”.
21.2. Unless provided otherwise in the Engagement Letter, a Party may terminate the Agreement at any time by providing at least 10 working days’ written notice to the other Party.
21.3. Gordon Brothers may terminate the Agreement immediately on giving written notice to the Client:
21.3.1. pursuant to clause 13.5 or clause 14.2;
21.3.2. in the event that any invoiced and undisputed Fees and/or disbursements remain unpaid following the 14-day payment period;
21.3.3. if Gordon Brothers reasonably anticipates that invoiced Fees and/or disbursements will remain unpaid following the 14-day payment period;
21.3.4. if Gordon Brothers reasonably considers that it is not in either its or the Client’s best interest to continue to act on the Client’s behalf;
21.3.5. if Gordon Brothers cannot agree with the Client an increased Fee arising from the circumstances described in clause 6.8;
21.3.6. if the Client fails to provide the information, documentation and other materials reasonably required by Gordon Brothers to deliver the Services or if such information, documentation and other materials are subsequently found to be inaccurate, incomplete or misleading;
21.3.7. if the Client fails to provide clear instructions or gives instructions that conflict with the rules of professional conduct in place from time to time which apply to Chartered Surveyors;
21.3.8. if a conflict of interest arises between the Client and any of Gordon Brothers’ other clients, or between the Client and Gordon Brothers, or in the reasonable opinion of Gordon Brothers such a conflict is likely to arise; or
21.3.9. if performance of the Services has been suspended for reasons beyond the reasonable control of either Party for a period of more than 28 consecutive days.
21.4. In the event that Gordon Brothers terminates the Agreement pursuant to clause 21.3 the Client shall remain liable for payment of all Fees earned, and disbursements incurred, by Gordon Brothers in respect of the Services up to the Termination Date pursuant to the terms of the Agreement.
21.5. Either Party, unless provided otherwise in the Engagement Letter, may terminate the Agreement (without liability to the other save as provided for under this clause 21 immediately on giving written notice to the other if:
21.5.1. the other Party commits a material breach of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach;
21.5.2. the other Party ceases, or threatens to cease, to trade;
21.5.3. a petition is filed, a notice is given, a resolution is passed, or an order is made for the winding up of the other Party, or circumstances arise which entitle a Court of competent jurisdiction to make a winding up order of the other Party;
21.5.4. an order is made for the appointment of an administrator, liquidator, or other similar office holder to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other Party, or notice of intention to appoint an administrator is given by the other Party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986);
21.5.5. a receiver is appointed of any of the other Party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party, or if any person takes possession of or sells the other Party’s assets;
21.5.6. the other Party makes any arrangement or composition with creditors, or makes an application to a court of competent jurisdiction to propose such an arrangement or to seek protection from its creditors in any way; or
21.5.7. the other Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
21.6. Gordon Brothers shall be entitled to terminate the Agreement (without liability to the Client) immediately on giving written notice to the Client if it has reasonable grounds to think that the Client will, or is likely to be, the subject of any of the situations set out in clause 21.5 within the next six months.
22. CONSEQUENCES OF TERMINATION
22.1. If the Agreement is terminated in accordance with its terms:
22.1.1. the Client shall remain liable, and obliged, to pay any outstanding Invoices issued to the Client by Gordon Brothers on or before the Termination Date; and
22.1.2. Gordon Brothers shall be entitled to issue to the Client, and the Client shall be liable, and obliged, to pay, an Invoice for any Fees and/or any expenses and/or disbursements, plus VAT thereon, in connection with the performance of the Services up to and including the Termination Date and, in the case of termination by the Client, such Invoice shall include any out-of-pocket expenses incurred by Gordon Brothers as a direct result of the Client’s termination.
22.2. If for any reason it is not possible to calculate the amount of the invoice under clause 22.1.2 by reference to an Engagement Letter (for example, because Gordon Brothers’ Fee is based on the sale price of property or other assets which remain unsold at termination), then the amount of such Invoice shall be calculated by reference to Gordon Brothers’ standard fee rates, subject to clause 6.8.
22.3. If the Agreement is terminated other than by reason of cancellation by Gordon Brothers under clause 21.2 or breach by Gordon Brothers under clause 21.5, then notwithstanding the foregoing provisions of this clause 22 Gordon Brothers reserves the right to claim the difference between: (i) any sums due to it under clause 22.1.1 or clause 22.1.2; and (ii) the total Fee or commission Gordon Brothers would have been entitled to receive had the Agreement not been terminated by the Client.
22.4. Termination of the Agreement shall be without prejudice to any other accrued rights or remedies which the parties may have. In particular, but without limitation to the generality of the foregoing, any invoice rendered under this clause 22 shall not prejudice Gordon Brothers’ right to damages.
22.5. This clause 22 shall survive termination of the Agreement.
23. GENERAL PROVISIONS
23.1. Notices
23.1.1. Any notice required to be given to a Party under or in connection with the Agreement shall be in writing and shall be:
23.1.1.1. delivered by hand or by pre-paid first-class or other next working day delivery service at the address of the party specified in the Engagement Letter (or at any other address notified to the notifying party); or
23.1.1.2. sent by email to the party’s email address set out in the Engagement Letter.
23.1.2. Any notice shall be deemed to have been received:
23.1.2.1. if delivered by hand, at the time the notice is left at the proper address;
23.1.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
23.1.2.3. if sent by email, at the time of sending (provided this is in business hours, otherwise it will deemed to be 9:00am on the next working day transmission).
23.1.3. This clause 23.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23.2. Entire Agreement
The Agreement, together with all schedules, exhibits and all such additional attachments, constitutes a single, integrated written contract expressing the entire agreement of the Parties. All prior agreements, discussions and negotiations, written or oral are entirely superseded by the Agreement.
23.3. Severance
If any term or provision (or part of a provision) of the Agreement or these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provisions or term will be limited to the minimum extent necessary so that the terms and provisions of the Agreement and these Terms will otherwise remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal. The determination that any term or provision of the Agreement or these Terms is invalid, illegal, unenforceable or inoperative will not affect any other term or provision of the Agreement or these Terms.
23.4. Assignment
The rights and obligations assumed by the Parties by virtue of the Agreement shall not be assigned to third parties without the express written consent from the other Party.
23.5. Variation of these Terms
23.5.1. Gordon Brothers may in its absolute discretion vary these Terms at any time and for any reason. Such amendments shall be posted on Gordon Brothers’ website www.gordonbrothers.com/emea-engagement-terms and shall be effective immediately provided that such amendments shall not affect any contract already concluded in respect of the Agreement.
23.5.2. Except as set out in these Terms, no other variation of these Terms, including the introduction of any additional terms and conditions, shall be effective unless agreed in writing signed by Gordon Brothers.
23.6. Waiver
No failure or delay by a Party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.7. No Joint Venture
The Agreement does not constitute and will not be construed to constitute an agency, a partnership or a joint venture between the Client and Gordon Brothers. Neither Party will have any right to obligate or to bind the other Party, its parent, subsidiaries, affiliates and/or related companies, in any manner whatsoever.
23.8. Rights of Third Parties
The Agreement is made for the benefit of the Parties and (where applicable) their successors and permitted assigns and, save as expressly provided for in these Terms, it is not intended to benefit or be enforceable by anyone else, whether under The Contracts (Rights of Third Parties) Act 1999, or otherwise.
23.9. Governing Law
The Agreement and these Terms and any dispute or claim arising out of, or in connection with, them or their subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales, in respect of any proceedings arising out of or in connection with the subject matter of the Agreement.