1 Data Protection: 1.1 Any Personal Data that the Provider receives about, or from, the Client will only be used for the purposes of: + a) an audit of the Provider’s performance standards by his or her [Accreditation/Certification] Scheme (“the Scheme”). 1.2 The Provider is required by law to retain records for upto 15 years, and any personal data which needs to be retained will be kept secure and confidential. 2 The Fees will be based on the information provided by the Client and may be altered without notice by a reasonable amount if the Premises are found to be significantly different in type or description. * 4 [The Consumer Protection (Distance Selling) Regulations 2000 5 General 5.1 Subject to Clause 1.2, these terms of business and Schedule (“Terms”) are the sole defining document governing the provision of the Services (as defined in Clause 2) by JSLHIPS Ltd (“the Provider”) to the seller (“Client”) of the property to be inspected (“Premises”) . The Terms supersede any purchase order issued by the Client and all proposals, terms & conditions, statements, representations or warranties made by or between the Provider and the Client (“Parties”) relating to the Services. No variation is valid unless agreed in writing by the Parties. 5.3 Full details of the EA, Client, Services, Premises, appointment time, timetable & method of delivery of the Home Condition Survey (“HCS”) and/or Energy Performance Certificate (“EPC”) will be detailed in the Schedule of Work (“Schedule”) which will be provided and form part of the contract between the Parties. 6 The Services 6.1 The Services shall consist of an assessment of the Premises by the Provider and the commission & provision of the HCS, the contents of which will be detailed in the Schedule. 6.2 The Provider will not provide a full structural survey, property valuation, repair cost information or any professional services other than those related to the provision of the HCS. Any such additional services will be dealt with by a separate contract. 6.3 In preparing the HCS and/or EPC, the Provider will undertake a visual assessment and will not look at parts of the Premises which are covered, unexposed or inaccessible. The Provider will not pull up carpets or floor boards. Lofts will only be visually inspected if it is safe to do so, access is within 3 metres of floor level & it will not damage the Premises. 7 Statutory Terms for the Preparation of HCS (“Statutory Terms”) 7.1 The HCS and/or EPC will be prepared with reasonable skill and care. 8 Fees & Payment Terms The Fees payable for the Services will be detailed in the Schedule. Fees are to be fully paid (without deduction or set-off) [upon/within 14 days of] submission of invoice. Interest may be charged on any outstanding Fees from the due date for payment until the date payment is made at the rate of 2% per annum above the base rate from time to time of [NatWest] Bank. [The HCS and/or EPC will not be supplied until the invoice is paid.] 9 Cancellations or Postponement 9.1 If the appointment is cancelled by the Client on the day of the appointment for whatever reason, or if the Provider is required to postpone the Services on the appointment day due to the failure of the Client to abide by his or her obligations under the Terms [50%] of the Fees will be payable to the Provider for that appointment. Additional Fees will be payable for any new appointment. 9.2 The Provider may terminate the Terms if there is a conflict of interest. 10 Warranty & Complaints 10.1 The Provider warrants that the Services will be performed in accordance with the requirements of relevant legislation, the Provider’s [Accreditation/Certification] Scheme detailed in Clause 14.2 (“Scheme”) & relevant Code of Conduct. 10.2 Except as expressly set out in Clauses 3 & 6.1, all warranties, terms & conditions, whether oral or written, express or implied by statute or otherwise which might have imposed obligations on the Provider in relation to the Services will be excluded to the fullest extent permitted by law. 10.3 The Provider will provide a high level of customer care at all times. In the unlikely event of any complaint, the Provider will seek to resolve the complaint by telephone, email or in person as quickly as possible. Should the Client be unhappy with this response they should write to the Provider with full details of the complaint within 5 working days. The Provider will usually respond within 15 working days to allow for holidays. If the Client is dissatisfied with this response any complaint about the HCS and/or EPC can be escalated to the Scheme. A copy of the complaints handling process is available on request. This does not affect the Client’s legal rights. 11 Client Obligations 11.1 The Client will at his or her own expense provide all such information & co-operation as is reasonably required to enable the Provider to provide the Services. This shall include: a) provision of clear and safe access to all of the Premises, b) not leaving any child under the age of 16 alone to supervise the assessment; c) completion and signature of a written Questionnaire which will be sent to the Client in advance of the assessment, setting out information about the Premises. 12 Insurance -The Provider will maintain insurance cover in accordance with sound business practice, the requirements of the Scheme, and the minimum terms set by the DCLG. 13 Liabilities 13.1 Notwithstanding anything to the contrary in these Terms, the liability of the Provider under or in connection with these Terms, whether arising from contract, negligence or howsoever will be limited as set out in this Clause 9. 13.2 The liability of the Provider is unlimited in respect of any liability arising from: a) death or personal injury caused by the negligence of the Provider; b) any proven fraud on the part of the Provider. 13.3 The aggregate total liability of the Provider is limited to [fifty thousand pounds (£50,000)] in respect of any claim for loss of, or physical damage to, the Client’s tangible property caused by the act or omission of the Provider. 13.4 In respect of any other liability not otherwise covered by this Clause 9, the Provider’s aggregate total liability is limited to [one hundred thousand pounds (£100,000).] 13.5 The Provider will not be liable for: b) any special, consequential or indirect damages, loss of profits (including direct loss of profits), loss of business, loss of revenue, loss of goodwill or loss of anticipated savings arising out of or in connection with the Terms. 13.6 The Client accepts that the Fees have been set in relation to the risks being assumed by the Provider under the Terms, and that accordingly the limitations on the liability of the Provider detailed in this Clause are reasonable. 14 Confidentiality & Data Protection 14.1 An EPC prepared by the Provider [and supporting documents] must be [uploaded to the Scheme and thereafter] entered onto the Register of EPCs. 14.2 Subject to Clause 10.1 and any other contrary legal obligation: a) Both parties shall comply with their obligations under the Data Protection Act 1998. The Client will be entitled to see any of his or her Personal Data held by the Provider. * How the Client’s Personal Data will be used by the Provider will be detailed in the Special Conditions in the Schedule. 15 Force Majeure - Except for any payment obligation imposed on the Client, neither party will be liable for a delay in performing, or for a failure to perform, obligations if that delay or failure is caused by circumstances beyond the reasonable control of that party including errors caused by the government approved software program used by the Provider to make the EPC assessment. 16 Third Party Contractual Rights 16.1 In relation to an EPC, the Client and a potential or actual buyer of the Premises may enforce Clause 3.1. 16.2 In relation to the Searches, the Client, a potential or actual buyer of the Premises, and a mortgage lender in respect of the Premises may enforce the Statutory Terms set out in Clause 3. 16.3 In relation to any other Terms, a person who is not a party to the Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Terms. This does not affect any right or remedy of a third party that exists, or is available, apart from that Act. 17 Applicable Law - The laws of England will govern the Terms, and the Parties submit to the exclusive jurisdiction of the English courts. 18 Regulation 18.1 The Provider is [accredited/certified] under number BREC100269 to prepare EPCs under the provisions of the Housing Act 2004 and the Home Condition Survey. 18.2 [Accreditation/Certification] is administered by the following [Accreditation/Certification] Scheme BRE Certification Ltd (Buildings Research Establishment): www.breinspector.co.uk or 01923 664 829]
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