Issue Date: Autumn, 2008
These terms and conditions have been drafted on the basis that there is a separate Services Agreement or Agreements which will incorporate these by reference


Stanley Fleming LLP (“SF”) Terms and Conditions

1: DEFINITIONS

1.1: In these Terms and Conditions the following terms shall have the meanings ascribed to the below:


“The Agreement” means the agreement between the Solicitor and SF which incorporates these General Conditions.


“The Approved Format” means the format designed and utilised by SF for all correspondence and transactions with the Service Providers


"The Charges" means all sums payable in accordance with these Terms and Conditions, the Agreement and, in the case of the the Services Agreement, in Appendix 2 thereto


"Commencement Date" means the date that on which the Services commence, as set out in the Agreement, or such other date as may be agreed in writing by the parties.


"Confidential Information" means the Agreement and all other documentary, electronic or oral communications exchanged between the parties relating to it, including all invoices, and all information relating to the business and affairs of each of the parties, their customers, clients and suppliers and all other information in whatever form which is of a confidential nature which the Parties may obtain in connection with the Services provided under the terms of the Services Agreement


“Estimates” mean the process by which SF provides the specification for the provision of a Specialised Service to a Service Provider, and requests the completion of a tender, in the Approved Format, from a Service Provider


“The Estate” means the aggregate of a deceased person's property, considered as a legal entity, to which or for which the Solicitor has been formally empowered to obtain probate


"The SF Services" means the provision of a service management function, including procuring and analysing Estimates, reporting to and taking instructions from the Solicitor, managing the service Provider’s delivery of the services and providing the Solicitor with detailed records, reports and accounts to support each of the Services which have been procured.


"The Solicitor" means the person to whom SF is to supply the Services


"The Services" means each of the Services specified in Appendix 1 of the Services Agreement.


"The Services Agreement" means the agreement between the Solicitor and the Service Provider by which, inter alia, and following the receipt of Estimates, SF engages the Service Provider, on behalf of the Solicitor, to provide Specialised Services to the Solicitor and/or the Estate


“The Services Providers” means such individuals, firms and other professional organisations from whom SF may from time to time may request, on behalf of the Estate and with the agreement of the Solicitor, the provision of Specialised Services.


“Specialised Services” means such services including, but not limited to, valuation of assets, care and maintenance of assets and the sale of assets forming part or all of of an Estate


“The Stanley Fleming Case Management System” (“SFCMS”) means the proprietary electronic system utilised by SF to transact its business and communicate with Solicitors and Service Providers

1.2: Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time consolidated or re-enacted.


1.3: Reference to clauses are, unless otherwise provided, references to clauses of these Terms and Conditions.


1.4: The headings and sub-headings are inserted for convenience only and do not form part of this Agreement.


1.5: These Terms and Conditions form part of the Services Agreement. The Solicitor acknowledges and agrees that the Terms and Conditions shall apply to the provision of the Services, unless the context expressly states otherwise, and shall take effect from the Commencement Date.

1.6: In the event of a conflict between any provision of the Services Agreement and a provision of the Terms and Conditions, the Terms and Conditions shall prevail unless the context expressly states otherwise.


1.7: The Solicitor agrees and acknowledges that the provision of these Terms and Conditions is not intended to form the basis of any offer to the Solicitor to provide the Services. The provision of the Services is subject to SF and the Solicitor entering into a Services Agreement.


2. RIGHTS AND OBLIGATIONS OF SF LLP

2.1: SF shall provide the Services to the Solicitor upon the terms of the Agreement which incorporate these General Conditions.


2.2: SF shall use all reasonable care in the selection of Service Providers and the compilation of the information which forms any part of the Services.


2.3: SF shall endeavour whenever possible to ensure that the Solicitor is presented with at least three (3) Estimates, in the Approved Format, in respect of each Service designated by the Solicitor in Appendix 1 of the Services Agreement.


2.4: SF shall not enter into any contract or Services Agreement with a Service Provider on behalf of an Estate except upon written instructions from the Solicitor

3. RIGHTS AND OBLIGATIONS OF THE SOLICITOR

3.1 The Solicitor shall:


3.1.1 Respond promptly to all Estimates and to all other request for information and approvals from SF


3.1.2 Utilise the SFCMS for all communications with SF and with any Service Provider


3.1.3 Pay the Charges to any Service Provider in accordance with the terms of the invoice rendered by that Service Provider and to SF in accordance with Para 4.

4. THE CHARGES

4.1: The Charges are set out in the Agreement and in Appendix 2 of the Services Agreement


4.4: All Charges shall be paid in full in cleared funds without set off, deduction or abatement on any grounds within 30 (thirty) days of invoice. Time for payment shall be of the essence.


4.5: Where applicable, VAT on the Charges shall be payable by the Solicitor at the same time as the Charges at the rate from time to time prescribed by law and shall be deemed to form part of the Charges.

5. REPRESENTATIONS AND WARRANTIES

5.1: Although SF has used its diligent efforts to ensure the Service Providers are capable of providing the Services to an appropriate professional standard, Solicitor agrees that SF shall have no liability whatsoever, for the selection of Service Providers to whom requests for Estimates are sent, nor for any decision made or action taken by Solicitor in reliance upon any proposal to provide Specialised Services, or the Specialised Service themselves.


5.2: All other implied warranties, conditions and terms, be they implied by statute or law or otherwise are excluded to the fullest extent permitted by law.

6. LIMITATIONS OF LIABILITY

6.1: Solicitor acknowledges that SF has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.


6.2: SF's maximum aggregate liability and the Solicitor's sole remedy in respect of all claims made against SF arising out of or in connection with the Agreement or the Services Agreement Services shall be damages which shall not exceed the amount payable by the Solicitor in accordance with the terms of the Agreement.


6.3: SF shall not be liable for any special, indirect or consequential loss suffered by the Solicitor. SF shall not be liable to the Solicitor for any loss of profits, loss of business, loss of contracts, loss of savings, loss of use or any other economic loss

6.4: Any limitation of liability set out in the Services Agreement shall not apply either so as to restrict or limit SF’s liability for death or personal injury caused by its' negligence, or where to do so would be contrary to any applicable law


6.5: SF shall have no liability to the Solicitor for claims which are made by the Solicitor more than two years after the date of the Agreement.

7. CONFIDENTIALITY

7 .1: The parties shall keep the Confidential Information confidential unless;


(a) The Confidential Information was already lawfully known, or became lawfully known to either of the parties independently


(b) The Confidential Information is in, or comes into, the public domain other than due to wrongful use or disclosure by SF or the Solicitor


(c) Disclosure or use of the Confidential Information is necessary to carry out the Services Agreement


(d) Disclosure is required by law to any government, government department, agency, regulatory or fiscal body or authority and their authorised agents and professional advisers.


7.2: Each of the Parties shall ensure that their employees, agents and sub‑contractors comply with this clause. If requested by either Party, SF and the Solicitor shall ensure that employees, agents, and sub‑contractors sign a reasonable ,direct confidentiality undertaking in a form approved by the other Party


7.3: The obligations in this clause will continue without limit in time but will not apply in the circumstances described in clauses 7.1(a) and (d).


7.4: Neither Party may not make any press announcement or publicise the Agreement in any way without the prior written consent of the other.

8. OWNERSHIP

8.1 SF and/or its suppliers own all right, title and interest in and to the SFCMS, and all other software, hardware and other technology used in connection with SF’s provision of the Services, including all worldwide intellectual property rights therein.

8.2 Nothing herein shall be construed as granting to Solicitor a licence or any other right under any patents, trademark, trade secret, or copyright which SF may have or obtain relating to the SFCMS, except as expressly provided herein.


9. DATA PROTECTION

9.1 Both parties acknowledge and agree that they have and will comply with all legal requirements relating to the storage transfer provision and use of the Data and personal data.


10. TERMINATION

10.1 Without prejudice to any of its rights in this Agreement, SF may immediately suspend all or any part of the provision of the Services if the Solicitor fails to pay any of the Charges on the due date

10.2 The Agreement may be terminated by either party forthwith on notice in writing to the other party if;


(a) The other party commits a material breach of any term of the Agreement (other than one falling under clause 10.1 above) and (in the case of a remediable breach) fails to remedy the breach within twentyeight days of a written request by the party not in breach to do so.


(b) a resolution is passed or an order is made for the winding up of the other (other than for the purpose of solvent amalgamation or reconstruction) or the other becomes subject to an administration order or a receiver or administrative receiver is appointed or an encumbrancer takes possession of any of the other property or the other suffers any analogous process under any foreign law

11. CONSEQUENCES OF TERMINATION

11.1 Any termination of the Agreement for any reason shall not affect the rights or obligations accruing or accrued to either party prior to its' termination.


11.2 Upon the termination of the Agreement for whatever reason;


(a) The provision of the Services shall terminate automatically


(b) The Solicitor shall immediately pay to SF all outstanding Charges


12. FORCE MAJEURE

12.1 Neither party shall be liable to the other for any abatement of Charges, delay or non-performance of its obligations under the Services Agreement arising from any cause or causes beyond its' reasonable control (a "Force Majeure Event") including, without limitation;


(a) A flood, storm, or other natural disaster; or


(b) any war, hostilities, revolution, riot or civil disorder; or


(c) any destruction, breakdown (permanent or temporary) or malfunction of, or damage to, any premises, plant, equipment or materials (including any computer hardware or software or any records) belonging to SF; or


(d) The introduction of, or any amendment to, any law or regulation, or any change in its interpretation or application by any authority; or


(e) any action taken by a governmental or public authority or any agency of the European Economic Community, including any failure to or delay in granting a consent, exemption or clearance; or


(f) Any strike, lockout or other industrial action; or



(g)any breach of contract or default by, or insolvency of, a third party, excluding an agent or sub contractor of the party relying on the relief and a company in the same group as the party relying on the relief which may be provided by this clause; or


12.2 The party relying on the Force Majeure Event shall;


(a) give notice in writing of the Force Majeure Event to the other party as soon as reasonably possible stating the commencement and extent of the Force Majeure Event, the cause thereof and its' estimated duration


(b) Use all reasonable endeavours to mitigate the effects of the Force Majeure Event upon the performance of its’ obligations under the Services Agreement

(c)Resume performance of its obligations as soon as reasonably possible after the termination of the Force Majeure Event.


13. ASSIGNMENT

A party to the Agreement may only assign or otherwise transfer any of its' rights or obligations under the Agreement in whole or in part with the prior written consent of the other

 

14. STATUTORY INTEREST

If any payment is not made in full by the Solicitor in accordance with this Agreement, SF may charge interest on the outstanding amount from the due date until full payment is made, at the rate of 2% above the base lending rate from time to time of HSBC Bank plc.

15. GENERAL

15.1 No forbearance, delay or granting of time by either party in or before enforcing the Agreement shall operate as a waiver of that party's rights under the Agreement nor shall it operate to bar the enforcement or exercise of that party's rights under the Agreement.


15.2 Nothing in the Agreement shall constitute or be construed as constituting or establishing any partnership, joint venture or agency relationship between the parties for any purpose.


15.3 The illegality, invalidity or unenforceability of any terms, conditions or provisions of the Agreement shall not affect the legality, validity or enforceability or the remaining terms, conditions or provisions. If any terms, conditions or provisions are found by any competent court, arbitrator or authority to be illegal, invalid or unenforceable the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without rendering them illegal, invalid or unenforceable.


15.4 The Solicitor shall have no authority to bind SF in any way.


15.5 This agreement may be executed in one or more counterparts each of which when taken together shall constitute one agreement.


15.6 Save in respect of the Solicitor’s obligations under clause 4 above, time shall not be of the essence for the Agreement.


15.7 The rights and remedies of each party under the Agreement are cumulative and shall not operate to exclude any rights or remedies provided by law or otherwise.


15.8 Upon any breach or default of this Agreement by either party, the non-breaching or defaulting party shall be entitled to recover, in addition to other relief allowed by law, all costs and expenses of litigation and attorney’s fees incurred as a result of such breach or default.

15.9 Nothing in this clause 15 shall operate to limit the liability of either party for fraud.


16. NOTICES

16.1 A notice to a party served pursuant to the Agreement shall be sent by hand or by first class pre-paid post (or airmail if sent internationally) or by fax or by courier. A notice may not be given by email, and any such notice will be deemed to be ineffective.


16.2 A notice shall be sent to the address of a party as set out in the Agreement. However, if the party has notified the serving party in writing of another address for the service of notices under the Agreement, the notice shall be sent to that address.


16.3 A notice posted in Great Britain to an address in Great Britain is deemed to have been served on the second business day following its posting. A notice posted in one country to an address in another country is deemed to have been served on the tenth business day following its posting.


16.4 Clause 16.3 does not apply to a notice if there is a national or local suspension, curtailment or disruption of postal services which affects the collection of the notice or is such that the notice cannot be reasonably expected to be delivered within two business days after the next collection.


16.5 Subject to Clause 16.6, a notice sent by fax is deemed to have been served;

(a) On the date of the dispatch, if dispatched on a business day before 3.00 p.m. in the country of the recipient subject to a transmission report confirming dispatch; or

(b) In any other case, on the business day after the day of dispatch.


16.6 Clause 16.5 does not apply;


(a) if before the time at which the notice would otherwise be deemed to have been served, the receiving party informs the sending party that the notice has been received in a form which is unclear in a material respect; and


(b) if the receiving party does that by telephone, it dispatches a confirmatory fax within two hours.


16.7 A party shall not attempt to prevent or delay the service on it of a notice under the Agreement.


16.8 In this Clause;


(a) 'Address' includes a fax number


(b) 'Notice' includes any demand, consent or other communication


(c) "Business day" means a day on which banks are open in the city or other location to which the notice is sent.


17. VARIATION

SF may, at our discretion, vary or amend from time to time these Terms and Conditions and any schedule, appendix or other document which is stated to form part of these Terms and Conditions. All such amendments or variations will be effective immediately upon notification of such amendment or variation is otherwise notified to the Solicitor. The amendment or variation shall apply to the provision of these Terms and Conditions. All such amendments or variations will be effective immediately upon notification of such amendment or variation, unless stated otherwise in the notification.


Except as provided for in the preceding paragraph, these Terms and Conditions may not otherwise be amended or varied except in writing signed by both parties.


18. ENTIRE AGREEMENT

18.1 The Agreement, constitutes the entire understanding between the parties with respect to the subject matter of the Agreement and there are no conditions, warranties, terms, representations, collateral contract, promises or other obligations whether written, oral or implied other than those contained expressly in the Agreement


18.2 Nothing in this Clause shall operate to limit the liability of either party for fraud.


19. LAW AND JURISDICTION

19.1 The Agreement is governed by and shall be construed in accordance
with the laws of England and Wales


19.2 The Solicitor submits to the exclusive jurisdiction of the Courts of England and Wales in respect of any disputes, matters or claims which may arise out of or in connection with the Services. SF submits to the non-exclusive jurisdiction of the Courts of England and Wales in respect of any disputes, matters or claims which may arise out of or in connection with the Agreement.