1.1 “Land & Brand New Homes” means R W Hilder & Co Limited trading as Land & Brand New Homes of Unit B1 Yeoman Gate, Yeoman Way  Worthing, West Sussex,  BN13 3QZ

1.2 "Client" means the client named in the project document and includes any other company, partnership or person (whether or not an employee of the client) who acts on behalf of the client named above in signing or otherwise  entering into any agreements, contracts or arrangements with any other party on behalf of the client named above

1.3 “Services” means the professional services agreed to be supplied by Land & Brand New Homes to the Client in providing to the Client the site location services as more particularly detailed in the Project Document.

1.4 “Commission” means the fee payable by the Client to Land & Brand New Homes in accordance with the provisions of clause 3.1 of this Agreement.

1.5 "Site" any site, land, building or property which Land & Brand New Homes has located and offered to the Client in accordance with the terms of this Agreement;

2.1 Land & Brand New Homes shall submit to the Client a Project Document which shall specify the Services to be supplied and the Commission payable. The Client shall notify Land & Brand New Homes immediately if the Client does not agree with the contents of the Project Document.

3.1 The Commission for the supply of the Services is as follows:

Outright Site Purchase
3.1.1 where Land & Brand New Homes have located the Site and have brought the existence of the Site to the attention of the Client and the Client proceeds to exchange binding contracts for the purchase of the Site the Client will be liable to pay commission to Land & Brand New Homes at the rate of 1.75% of the total price paid to purchase the Site together with Value Added Tax on the commission at the then prevailing rate (“the Land Purchase Commission”); or

Option To Purchase Site
3.1.2 where Land & Brand New Homes have located the Site and have brought the existence of the Site to the attention of the Client and the Client enters into an agreement with any other party which has the effect of giving the Client an option to purchase the site at a later date the Client will become liable for a payment of £1,500 (“the Administration Fee”) upon signing any such agreement and only in the event that the Client proceeds to exchange binding contracts for the purchase of the Site the Client will become liable to pay the Land Purchase Commission in addition to the Administration Fee; or

Area Specific Search
3.1.3 Where the Client has requested Land & Brand New Homes to conduct an Area Specific Search (further details of which are available on request) then the Client will be liable to pay £1,500.00 plus Value Added Tax (“the Area Specific Search Fee”) at the then prevailing rate in advance of Land & Brand New Homes conducting the Area Specific Search and only in the event that the Client proceeds to exchange binding contracts for the purchase of the Site the Client will become liable to pay the Land Purchase Commission in addition to the Area Specific Search Fee.

3.2 Land & Brand New Homes reserve the right to vary the Commission and the Administration Fee from time to time giving not less than one month’s written notice to the Client.

3.3 Land & Brand New Homes shall invoice the Client when any commission or other payment becomes due in accordance with the provisions of clause 3.1 above.

3.4 The Client shall pay to Land & Brand New Homes the invoiced amounts (without any set-off or other deduction) which shall be due and payable within the time scales expressly agreed between the parties in writing.  In the absence of an express agreement between the parties in writing the invoiced amounts shall be due and payable within thirty days of the date of the invoice or on the date of completion of the purchase of the Site whichever is the sooner.

3.5 Land & Brand New Homes shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England. 

4.1 Land & Brand New Homes shall provide the Services to the Client subject to this Agreement.  Any changes or additions to the Services or this Agreement must be agreed in writing by the parties.

4.2 The Client shall, at his own expense, supply Land & Brand New Homes with all necessary documents or other materials, and all necessary data or other information reasonably required by Land & Brand New Homes relating to the provision of the Services within sufficient time to enable Land & Brand New Homes to provide the Services in accordance with the Project Document.  The Client is responsible for ensuring the accuracy of any information provided hereunder.

4.3 Land & Brand New Homes may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.

4.4 All Services shall be required only to conform to the specification in the Project Document.  For the avoidance of doubt no representation written or oral correspondence or statement shall form part of this Agreement and the Client acknowledges that he has not relied on any such representations as an inducement for entering into this agreement.
 
5 INSTRUCTION TO MARKET

5.1 Subject to clause 5.2 of this Agreement, the parties hereby agree that the introduction of a Site by Land & Brand New Homes to the Client has the effect of the Client automatically instructing Land & Brand New Homes to market all land, buildings or other property on the Site or the whole of the Site as the case may be (whether or not the Client has carried out any development works to the Site) to be sold or let by or on behalf of the Client on Land and Brand New Homes prevailing terms and conditions applying to such instructions.  For the avoidance of doubt it is within the sole discretion of Land & Brand New Homes as to whether or not they accept the instruction for whatever reason.

5.2 The Client has the right to opt out of the provisions of clause 5.1 above.  In order to exercise the right to opt out the Client shall serve written notice on Land & Brand New Homes at any time before the exchange of binding contracts for the purchase of the Site by or on behalf of the Client confirming that the Client wishes to opt out of the provisions of clause 5.1.  In the event that the Client instructs another agent to market the Site or any part of the Site for sale or letting or sells or lets the Site or any part of the Site on its own behalf then the Client will be deemed to have opted out of the provisions of clause 5.1 and shall become immediately liable to Land & Brands New Homes for the payment of the Opt Out Charge.

5.3 In the event that the Client effectively exercises its right to opt out of the provisions of clause 5.1 then:

5.3.1 The Client shall pay to Land & Brand New Homes a sum equal to 0.5% of the Gross Development Value on each disposal of the Site or part of the Site or (in the case of a letting of the Site or any part of parts of the Site) a sum equivalent to one month’s rent plus Value Added Tax at the prevailing rate (“the Opt Out Charge”); and

5.3.2 Land & Brand New Homes may, in its sole discretion, agree to supply an e-marketing service to the Client in respect of the land, buildings and/or properties which the Client is selling or letting individually forming part of the Site (separate terms and conditions apply details of which are available on request.)  No additional fee will be charged for this service.

5.4 The Client hereby acknowledges that the Opt Out Charge represents a genuine pre-estimate of the loss to Land & Brand New Homes if the right to opt out of the provisions of clause 5.1 is exercised by the Client and takes into account the effect of early payment, all administration costs and other expenses.

5.5 For the purposes of clause 5.3 of this Agreement the term “Gross Development Value” shall mean in relation to sale of the Site or any part of the Site, the total sale proceeds received by the Client from each such sale.

5.6 Where the Client has developed properties on the Site for individual sale or letting then the Opt Out Charge will be invoiced and payable by the Client upon the Client exchanging binding contracts for the sale or entering into any form of tenancy agreement of each of those properties.

5.7 The Client hereby agrees to furnish Land & Brand New Homes with a written report detailing the current status of every sale and letting transaction for each such property which will include details of the property, the identity of the purchaser or tenant, the agreed sale price or rent and a best estimate of the date on which binding contracts for the sale of that property will be exchanged or when the tenancy will commence (“the Sales Information Report”) by the last day of each month following the date of completion of the purchase of the Site by the Client.

7.1 Land & Brand New Homes warrants that the Services performed under this Agreement shall be performed using reasonable skill and care and of a quality conforming to generally accepted industry standards and practices.
 
7.2 Except as expressly stated in this Agreement, all warranties whether express or implied by operation of law or otherwise are hereby excluded in relation to the Services to be provided by Land & Brand New Homes.

7.3 if the Client is contracting otherwise than in the course of a business, i.e. as a consumer, then the warranty provided in clause 7.1 above is additional to any other warranty or guarantee implied by and nothing in this agreement shall effect the Client’s statutory rights in such circumstances.

8. REFERRALS

8.1 Land & Brand New Homes may direct the Client to third parties having products or services which may be of interest to the Client for use in conjunction with the Services agreed to be provided under this Agreement.

8.2 Notwithstanding the recommendation, referral or introduction by Land & Brand New Homes the Client will independently investigate and test third party products and services and will have sole responsibility for determining suitability for the use of such products or services.

8.3 Land & Brand New Homes shall have no liability whatsoever in respect of the Client relating to or arising from the use of third party products or services.

9 LIMITATION OF LIABILITY

9.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of Land & Brand New Homes to the Client in respect of any claim whatsoever or breach of this Agreement whether or not arising out of negligence shall be limited to the Commission paid by the Client to which the claim relates.
 
9.2 In no event shall Land & Brand New Homes be liable to the Client for any loss of business loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever.  This shall apply even where such a loss was reasonably foreseeable or Land & Brand New Homes had been made aware of the possibility of the Client incurring such a loss.

9.3 Land & Brand New Homes expressly does not warrant that any result or objective whether stated in this Agreement or the Project Document or otherwise shall be achieved, be achievable or be attained at all or by a given completion date or any other date.

9.4 Land & Brand New Homes expressly give no undertaking as to the structural, environmental, ecological or any other condition of the Site or the condition of any property or building situated on the Site or the availability or attainability of any consents or the operating ability or efficiency of any service systems the Client should always satisfy themselves as to the suitability or otherwise of the site by conducting its own inspection of the Site.

10  TERMINATION

10.1 This Agreement shall continue and remain in force unless and until terminated by either party giving not less than three months notice.

10.2 Notwithstanding the provision of clause 10.1 above either party may terminate this Agreement forthwith by notice in writing to the other if:

10.2.1 the other party commits a material breach of this Agreement and in the case of a breach capable of being remedied fails to remedy it within thirty calendar days of being given written notice from the other party to do so;

10.2.2  the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;

10.2.3  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;

10.2.4  the other party ceases to carry on its business or substantially the whole of its business; or

10.2.5 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  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, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.

12  SEVERABILITY

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 of this Agreement.

14  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 Project Document or such other address as such party may from time to time have communicated to the other in writing. If sent by email it shall, unless the contrary is proved, be deemed to be received on the day it was sent. If sent by fax, it shall be deemed to be served on receipt of an error free transmission report.  If given by letter it 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.

15  ENTIRE AGREEMENT

17  GOVERNING LAW AND JURISDICTION