DeVono Cresa Terms applicable to the Acquisition of Property (DT262017)

1. Definitions

In these Terms the following words shall have the following meanings:-

“the Acquisition” means the purchase by or transfer to or leasing by the Client of any freehold or leasehold or commonhold interest in property or the purchase of shares or other interest in a company or other entity which holds a freehold, leasehold or commonhold interest in property;

“the Appointment” means the appointment of DeVono Cresa by the Client to provide the Services on the terms of the Engagement Letter and these Terms;

“the Client” means any person, firm or company or other entity who has engaged DeVono Cresa to provide the Services and includes any individual working for the Client who shall be deemed to have been authorised by the Client to act on the Client’s behalf and shall include any person, company or other entity associated or affiliated with it;

“DeVono Cresa” means DeVono Property Limited, whose principal place of business is Langham House, 302 -308 Regent Street, London, W1B 3AT and any person or firm affiliated or connected to DeVono Cresa as defined in the Estate Agents Act 1979 as amended or re-enacted from time to time;

“the Engagement Letter” means the letter or other written documents including e-mail which set out (in addition to these Terms) the fees payable to DeVono Cresa under the Appointment and the scope of the engagement;

“Exclusive” has the meaning given in sub-clause 3.1 below;

“Exclusivity Period” means the period in respect of which the Client appoints DeVono Cresa as its Exclusive agent pursuant to the terms of the Engagement Letter and these Terms;

“the Fee” means the fee for the Services as set out in the Engagement Letter (or as calculated in accordance with these Terms) and any additional fees or expenses;

“Landlord’s Terms” means the terms contained within the landlord’s published sales particulars (as updated from time to time) or, if no such particulars exist, such equivalent terms as are communicated to the Client by DeVono Cresa (as updated from time to time), in either case prior to the request for or making of a formal offer by the Client or the landlord, and in any event excluding any rent free period or other comparable saving incentives, premium or capital contribution;

“the Lease” means the lease of the Property as varied, supplemented, novated and/or replaced in any manner from time to time;

“Non-Exclusive” has the meaning given in sub-clause 3.2 below;

“the Project Term” means the period from engagement of DeVono Cresa to the later of the date of expiry of the Client’s lease or occupation over the property that is directly responsible for DeVono Cresa’s engagement.

“the Property” means the property that the Client selects to buy or lease or in respect of which the Client selects to have transferred to it shares or other interest in a company or other entity holding the relevant property interest;

“the Seller” means the person or body that sells or leases the Property or sells the shares or other interest or is potentially willing to sell or lease a potential Property or sell the shares or other interest to the Client; and

“the Services” means the estate agents services to locate a Property for the Client in accordance with these Terms and the Engagement Letter.

2. Preliminary

2.1 The Client appoints, and DeVono Cresa agrees to be appointed to provide the Services to the Client.

2.2 The Engagement Letter and these Terms represent the entire agreement of the parties in relation to the subject matter of the Appointment, save for any variations agreed by the parties in writing.  Variations agreed to by DeVono Cresa must be signed by a director of DeVono Cresa.

2.3 The Client shall notify DeVono Cresa without delay where an offer for a Property introduced by DeVono Cresa is arranged privately or by another estate agent.

2.4 The Client consents to DeVono Cresa communicating by e-mail.

2.5 References to “in writing” shall include e-mai

3. The Appointment

3.1 The Appointment will be “Exclusive” if the Engagement Letter is countersigned and returned to DeVono Cresa on or before the date falling 30 working days from the date of the Engagement Letter or such later date as DeVono Cresa may agree in writing with the Client. 

3.2 The Appointment will be “Non-Exclusive” if the Engagement Letter is not countersigned and returned to DeVono Cresa.               

3.3 By accepting services from DeVono Cresa the Client agrees that these Terms apply.

3.4 If the Appointment is or was Exclusive the Client shall be liable to pay the Fee if at any time prior to the expiry or permitted termination (as the case may be) of the Exclusivity Period the Client views the Property and/or commences negotiations which lead to the exchange of unconditional contracts for the purchase or lease of the Property and/or the creation of a property interest in the Property in favour of the Client, regardless of whether DeVono Cresa introduces the Property to the Client.

3.5 If the Appointment is Non-Exclusive, DeVono Cresa will only be entitled to the Fee if DeVono Cresa arranged a physical inspection of the Property for the Client (or any other floor in the building of which the Property forms part) or introduced the Seller or its agent to the Client.  

4. Services

4.1 DeVono Cresa undertakes to perform the Services with reasonable care and skill and to act in good faith when advising or making recommendations to the Client as to any matter falling within the scope of the Appointment. 

4.2 The duties of DeVono Cresa shall be limited to those set out in the Engagement Letter and these Terms, but DeVono Cresa will, where required, provide additional services, at additional costs and on such terms and conditions as may be agreed in writing. 

4.3 DeVono Cresa may, in the course of providing the Services, introduce the Client to independent service providers.  These introductions are made in good faith, but with no liability attaching to DeVono Cresa.  On occasion, DeVono Cresa is paid an introductory commission by such service providers

5. Fees andExpenses

5.1 DeVono Cresa shall be entitled to be paid the Fee by the Client in the following circumstances:-

5.1.1 completion by the Client of the Acquisition of the Property;

5.1.2 exchange by the Client of contracts for the Acquisition of the Property;

5.1.3 the Client taking possession of the Property prior to exchange of contracts; or

5.1.4 where a third party takes possession of or acquires an interest in the Property following an introduction of that third party to the Property by the Client.

5.2 DeVono Cresa shall be entitled to the higher of (a) 50% of the anticipated Fee and (b) the minimum fee specified in sub-clause 5.12 below if, after Heads of Terms have been agreed and solicitors instructed on behalf of the Seller and the Client:

5.2.1 the Seller withdraws from the proposed transaction because of unreasonable delay(s) in proceeding with the transaction on the part of the Client; or

5.2.2 the Client withdraws from the proposed transaction save in the circumstances set out in the remainder of this sub-clause:-

(a) where, during the legal process, it becomes clear that, for whatever reason, the Seller’s title to the Property is such that no prudent tenant or buyer would proceed with the proposed Acquisition on the agreed terms;

(b) material representation(s) made by the Seller about the Property prove(s), on further examination, to be untrue; or

(c) the Client withdraws from the proposed transaction because of unreasonable delays in proceeding with the transaction on the part of the Seller.

5.3 Where Fees are based on a percentage of one year’s annual rental, any rent free or concessionary rental period and any landlord contribution is to be ignored.  Where rent is stepped at pre-determined rates, the steps are averaged, for the purposes of establishing the annual rental value, ignoring the existence of a break clause.

5.4 In the event that a rent free period is negotiated and then subsequently used to reduce the overall rent payable (i.e. amortised over a period of the lease), then the fees are to be calculated on the negotiated rent free period prior to the amortisation.

5.5 In the event that the Client acquires additional space within the Property within a 12 month period following completion of the Acquisition then an additional fee will be payable, calculated on the same basis as the Fee. 

5.6 VAT shall be payable on the Fee, at the prevailing rate from time to time. 

5.7 Invoices are due upon receipt.  Where any invoice to the Client by DeVono Cresa remains unpaid for more than 30 days after the due date, DeVono Cresa shall be entitled to charge the Client interest at the higher of the rate of 4% per cent above the base rate from time to time in force by Royal Bank of Scotland plc or at the rate applicable under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).

5.8 All legal costs and expenses properly incurred by DeVono Cresa in seeking to collect overdue invoices from the Client or otherwise to enforce its rights under this contract will be recoverable from the Client on an indemnity basis.

5.9 All Fees shall be paid to DeVono Cresa without any deduction or set-off, whether equitable or otherwise. 

5.10 Our Non-Exclusive fees are a sum equal to 10% of one year’s rent plus a sum equal to 5% of the value of any rent free period, any premium and/or capital contribution paid to the Client.

5.11 Our Exclusive fees are as set out in the Engagement Letter.

5.12 The minimum fee payable in respect of the Services, in accordance with sub-clauses 5.1 and 5.2, is £15,000 plus VAT

6. Termination of Exclusivity

6.1 Where the period of exclusivity is defined as the Project Term the Exclusivity Period will continue until the later of date of expiry of the Client’s lease or occupation of the property that is either specifically named in this agreement or directly responsible for DeVono Cresa’s engagement.

6.2 If the Exclusivity Period is terminated in accordance with the Engagement Letter our Non-Exclusive fees will apply in respect of any Property introduced to you by DeVono Cresa, whether such introduction was made before or after the Exclusivity Period has ended.

6.3 If the Exclusivity Period expires our Non-Exclusive fees will apply in respect of any Property introduced to you by DeVono Cresa after the Exclusivity Period has ended.

6.4 This clause 6 shall only apply where the engagement is or was on an Exclusive basis.

6.5 Termination shall not affect the accrued rights of the parties

7. Indemnity and Limitation of Liability

7.1 Save for the obligation of the Client to pay the Fees and Expenses, neither party shall be liable to the other for loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of data or any indirect or consequential loss; and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. 

7.2 Nothing in these Terms shall operate to limit or exclude any liability if such a provision is prohibited by law. 

7.3 The maximum liability of DeVono Cresa under the Appointment shall not exceed the Fee, save in respect of liabilities for personal injury or death.

8. No Warranties

8.1 DeVono Cresa gives no warranties in relation to any property, including in relation to the Property, as to:-

8.1.1 whether it meets the Client’s requirements or is suitable or appropriate for the Client;

8.1.2 the accuracy of any information or photographs supplied, including any claims as to the square footage of the Property;

8.1.3 title, encumbrances, compliance with planning laws, Building Regulations and/or health and safety requirements;

8.1.4 structural integrity, value, rating liability, services, service charge, capital or rental value, contamination or environmental matters;

8.1.5 whether any necessary consents have been obtained in respect of the Property, its management, repair, insurance or security arrangements;

8.1.6 whether there will be vacant possession of the Property at completion.

8.2 The Client confirms that in relation to the matters set out in sub-clause 8.1 it shall not rely on any statement or representation made by DeVono Cresa but shall rely on its own judgment and/or that of its professional advisers.

8.3 It is the Client’s responsibility to determine if any particular property is suitable for the Client and to take responsibility for the exact size of the Property.

9. General

9.1 If DeVono Cresa has any personal interest in any Property it will notify the Client of this fact as soon as possible.

9.2 Any notice required to be served by one party to the other shall be deemed to have been properly served when served on the other party’s address as set out in the Engagement Letter (or at such other address as may have been notified to the other party) and shall be deemed to have arrived at the time of delivery if delivered by hand or by fax, and 48 hours from the date of posting if by post, provided that if deemed receipt is not on a business day or delivery is after 5.00pm on a business day, then the notice shall be deemed to have been served on the following business day.  A business day is any day which is not a Saturday, Sunday or a public holiday in London. 

9.3 The Appointment shall be governed by and construed in accordance with English Law.

9.4 In the event of any conflict, or apparent conflict, between the Engagement Letter and these Terms, the Engagement Letter shall prevail.

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