© Copyright 2018 Rebuild Cost Assessment Limited - All rights reserved.

TERMS AND CONDITIONS

REBUILD COST ASSESSMENT & SITE ASSESSMENT

TERMS OF SUPPLY OF REBUILD COST ASSESSMENT LIMITED

 

PARTIES
(1)    Ardonagh Services Limited, incorporated and registered in England and Wales with company number 07476462 whose registered office is at 2 Minster Court, Mincing Lane, London EC3R 7PD; and

(2)    Rebuild Cost Assessment Limited, incorporated and registered in England and Wales with company number 09746801 whose registered office is at The Pavilion, Botleigh Grange Business Park, Southampton, Hampshire SO30 2AF.

1    APPLICABLE TERMS
1.1    These terms of supply (together with our Privacy Notice, Cookie Policy, Terms of Website Use and Website Acceptable Use Policy) sets out information about the Supplier and the legal terms and conditions (Terms) on which the Supplier will provide the Services to the Intermediary via the Website.
1.2    These Terms will apply to any contract between the Supplier and the Intermediary for the supply of the Services (Contract). The Intermediary should read these Terms together with the Basis of Assessment carefully and make sure that they understand them, before placing an Order.
1.3    The Intermediary should print a copy of these Terms or save a copy of them for future reference.


2    DEFINITIONS
2.1    In these Terms:
Acceptance: shall have the meaning given to it in clause 4.2;
Affiliate: means any direct or indirect holding company from time to time of Ardonagh (as defined) and any direct or indirect subsidiary from time to time of Ardonagh, or any direct or indirect holding company or subsidiary of any such holding company or any such subsidiary (and “holding company” and “subsidiary” shall have the meanings given to them in section 1159 of the Companies Act 2006) and which is a broker;
Assessor: means an employee or contractor appointed by the Supplier to produce a Desktop Rebuild Cost Assessment Report;
Basis of Assessment: means the instructions and basis of assessment provisions specifying what costs are included or excluded from the Desktop Rebuild Cost Assessment Report and the assumptions and basis on which the Desktop Rebuild Cost Assessment Report will be prepared (such provisions being set out on the Website and also contained in the notes to the Desktop Rebuild Cost Assessment Report);
Charges: means the charges payable by the Intermediary to the Supplier for the provision of the Services in accordance with clause 6, which are set out in the agreed Schedule to these Terms (subject to adjustment in accordance with clause 17.2)

Client: means:
(a)    the owner of the Property or the Properties; or
(b)    the lawful occupier of the Property or the Properties; or
(c)    a proposed purchaser of the Property or the Properties or a leasehold interest in the Property or the Properties;
 
Confidential Information: includes, without limitation, business information and all documents, computer records, specifications, technical descriptions, records, drawings, designs and data relating to a Desktop Rebuild Cost Assessment Report and/or the provision of the Services;
Contract: shall have the meaning given to it in clause 1.2;
Desktop Rebuild Cost Assessment Report: means the desktop rebuild cost assessment report carried out by the Supplier or on its behalf in respect of a single Property pursuant to which the Supplier estimates the rebuilding costs in the event of a total loss of that Property based on the gross external area and typical rates per square metre for the building use and type/quality of construction of that Property;
Disclaimer: means the disclaimer set out in these Terms and which shall be attached to a Desktop Rebuild Cost Assessment Report by the Supplier;
Force Majeure Event: shall have the meaning given to it in clause 17.4;
Group Company: means a company which is either a holding company or a subsidiary of a Party, or a subsidiary of that Party's holding company (as those terms are defined in section 1159 of the Companies Act 2006);
Good Industry Practice: means the exercise of such degree of skill, care, prudence and timeliness and expected from a reasonably and suitably skilled and experienced person providing the same or similar services as the Services;
Intellectual Property Rights: means copyrights, trademarks, domain names, rights in computer software and databases, know-how and any similar rights whether arising in the United Kingdom or elsewhere in the world;
Insurance Company: means an insurance company with whom the Intermediary acts as an intermediary between that insurance company and a Client;
Intermediary: means the Party (being an Affiliate approved by the Parties as an Intermediary pursuant to clause 17.9) to whom the Services are supplied, who pays for the Services and who acts as an intermediary between the Insurance Company and a Client;
Materials: means documents, drawings, working papers or similar materials and any data or other information;
Order: means a request from the Intermediary asking the Supplier to provide the Services in relation to one or more Properties;
Parties: means the parties to a Contract being, together, the Intermediary and the Supplier and their respective successors in title; and Party means either of them;
Permitted Purpose: has the meaning given in clause 11.2;

Property or Properties: means the property or properties, which must be located in the United Kingdom, Channel Islands or Isle of Man, each single property the subject of a Desktop Rebuild Cost Assessment Report, details of which are set out in the Order and for these purposes a property means an individual property together with any ancillary outbuildings
Services: means the carrying out by the Supplier of a desktop rebuild cost assessment and production of a Desktop Rebuild Cost Assessment Report in respect of a Property, as more particularly described on the Website;
Supplier: means Rebuild Cost Assessment Limited a company incorporated in England and Wales with company number 09746801 (VAT number 232242352) whose registered office is at The Pavilion, Botleigh Grange Business Park, Southampton, Hampshire SO30 2AF and whose main trading address and address for correspondence is Floor 1 Mey House, Bridport Road, Poundbury, Dorchester DT1 3QY;
Terms: shall have the meaning given to it in clause 1.1 and such terms will apply to each Contract; and
Website: means www.rebuildcostassessment.com, which website is operated by the Supplier.
2.2    The headings in these Terms are for convenience only and shall not affect their interpretation.
2.3    Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.4    Words in the singular shall include the plural and vice versa and references to one gender include the other gender.
2.5    Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.
2.6    A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.7    If there is any conflict between these Terms, any Orders and/or any other documents referred to in these Terms, save as expressly stated, the conflict shall be resolved in accordance with the following descending order of precedence:
2.7.1    these Terms (excluding the Disclaimer);
2.7.2    the Disclaimer;
2.7.3    any other documents referred to herein (including the Desktop Rebuild Cost Assessment Report); and
2.7.4    any Order.


3    USE OF THE WEBSITE
3.1    The Intermediary’s use of the Website is governed by the Supplier’s Terms of Website Use and Website Acceptable Use Policy. The Intermediary should take time to read these documents, as they include important terms which apply to the Intermediary.
3.2    The person accessing the Website and placing the Order confirms, by placing the Order, that they have authority to bind the business on whose behalf they use the Website and place the Order.
3.3    In submitting an Order the Intermediary confirms and warrants to the Supplier:
3.3.1    that it has read and understood the Basis of Assessment; and
3.3.2    that it has the requisite authority from the Client to provide the Supplier with the current sums insured for the Property or the Properties.
 
4    REQUEST FOR SERVICES
4.1    If the Intermediary wishes to purchase Services it shall place an Order via the Website through a secure link provided by the Supplier to the Intermediary. The Order constitutes an offer by the Intermediary to purchase Services in accordance with these Terms.
4.2    The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order (Acceptance), at which point and on which date the Contract shall come into existence. For the avoidance of doubt, each Order which is accepted in accordance with this clause 4.2 shall form a separate Contract between the Parties.
4.3    The Intermediary is responsible for ensuring that the information set out in the Order is complete and accurate. The order process on the Website allows the Intermediary to check and amend any errors before submitting an Order.
4.4    The Intermediary appoints the Supplier on a non-exclusive basis and the Supplier accepts its appointment on a non-exclusive basis as a provider of the Services in accordance with the Terms. The Intermediary is not providing any volume commitments in respect of the Services.


5    SUPPLY OF SERVICES
5.1    The Supplier shall provide the Services for the Intermediary subject to these Terms which shall govern the Contract to the exclusion of any other terms and conditions, express or implied.
5.2    In providing the Services, the Supplier shall:
5.2.1    use personnel who are suitably skilled, qualified and experienced to perform tasks assigned to them; and
5.2.2    perform the Services in accordance with all applicable laws and Good Industry Practice.
5.3    Subject to clause 5.4, the Supplier acknowledges and agrees that the Intermediary shall have no liability (whether in contract, tort (including negligence) or otherwise to the Insurance Company and Client arising out of, or in connection with, any use of and/or reliance placed on the Desktop Rebuild Cost Assessment Report or services provided by the Supplier. Any such aforementioned liability to the Insurance Company and Client will be as between the Supplier and the relevant Insurance Company and/or Client and will be subject to the Disclaimer and clause 11 of the Contract. For the avoidance of doubt, this clause does relieve the Intermediary of its obligations owed to the Supplier under the Contract.
5.4    Nothing in clause 5.3 shall operate to impose any liability on the Supplier greater than that which it would be liable for under the Contract had clause 5.3 not been included in the Contract.


6    PRICE AND PAYMENT
6.1    The Charges payable for the Services will be the Charges set out in the agreed schedule to these Terms. The Charges are exclusive of value added tax.
6.2    Notwithstanding clause 6.1, the Charges may change from time to time in accordance with clause 17.2, but changes will not affect any Order already placed.
6.3    The Supplier will invoice the Intermediary and payment of the Charges specified in an invoice is due thirty (30) days from the date on which the Supplier’s invoice is received by the Intermediary.
 
7    DELIVERY
7.1    Delivery of the Desktop Rebuild Cost Assessment Report by the Supplier shall be by email or post, in either case to the email address or postal address notified by the Intermediary to the Supplier in the Order. The Supplier shall not be liable for the loss, misdirection or destruction of the Desktop Rebuild Cost Assessment Report after it has been either sent to the email address provided by the Intermediary for that purpose or placed in the Royal Mail posting system to the postal address provided by the Intermediary for that purpose.
7.2    Any dates quoted for delivery of the Desktop Rebuild Cost Assessment Report are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Desktop Rebuild Cost Assessment Report that is caused by a Force Majeure Event or the Intermediary's failure to provide the Supplier with adequate information or any other instructions.


8    INTELLECTUAL PROPERTY RIGHTS
8.1    The Intellectual Property Rights in the Services and in the Desktop Rebuild Cost Assessment Report shall at all times remain with the Supplier.
8.2    The Supplier grants to the Intermediary, Insurance Company and Client a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to use the Desktop Rebuild Cost Assessment Report for the Permitted Purpose. For the avoidance of doubt, this licence shall not terminate in the event of any early termination of the Contract.
8.3    The Supplier shall indemnify the Intermediary, each Insurance Company and each Client against all liabilities, costs, expenses, damages and losses suffered or incurred by the Intermediary, an Insurance Company and/or any Client arising out of or in connection with any claim made against the Intermediary, any Insurance Company and/or any Client for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the supply, use or receipt of the Services (including the Desktop Rebuild Cost Assessment Report).


9    CONFIDENTIALITY
9.1    Neither the Desktop Rebuild Cost Assessment Report, nor any part or extract from it, may be included in any published document, circular or statement or otherwise by the Intermediary without the prior written approval of the Supplier of the form and context in which it may appear.
9.2    Subject to clauses 9.4 and 9.5, each Party shall keep confidential all Confidential Information and not use it except for the purpose of exercising or performing its rights and obligations under the Contract. Each Party may disclose Confidential Information to a Group Company and to its or their respective employees, officers, professional representatives or advisers, sub- contractors and agents, provided that such persons:
9.2.1    need to know it in connection with the exercise or performance of that Party's rights and obligations under these Terms;
9.2.2    have been informed of the confidential nature of the Confidential Information divulged; and
9.2.3    agree to act in compliance with the confidentiality requirements in these Terms.
9.3    Neither Party will disclose Confidential Information to any third party or use it except as otherwise permitted in these Terms.
9.4    Notwithstanding any other provision of these Terms, it shall not be a breach of these Terms for either Party to disclose any Confidential Information pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with power to require the disclosure of such information, provided that (to the extent it is permitted to do so) the affected Party gives all reasonable notice of such disclosure to the other Party.
9.5    Notwithstanding any other provision of these Terms, the Supplier may use the data gathered in the performance of the Services for its own business purposes but may only disclose such data to third parties in aggregated form and in a manner which does not identify a specific property or person.
9.6    Subject to the other Terms, the provisions of this clause 9 shall continue to apply notwithstanding termination of the Contract.


10    DATA PROTECTION
10.1    For the purposes of this clause:
10.1.1    Applicable Law means (a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a Party is subject and/or which is applicable in any jurisdiction that the Services are provided to or in respect of; (b) the common law and laws of equity as applicable to the Parties (or either of them) from time to time; (c) any binding court order, judgment or decree as applicable to the Parties (or either of them) from time to time; or (d) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over that Party or any of that Party’s assets, resources or business;
10.1.2    Client Personal Data means any Personal Data which the Supplier receives from the Intermediary pursuant to the performance of the Services;
10.1.3    Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time including, but not limited to, the General Data Protection Regulation (EU) 2016/679 (or GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); the Privacy and Electronic Communication Regulations 2003 (SI 2003/2426) and any national implementing laws, regulations and secondary legislation (or all equivalent and/or related legislation enacted in the UK in respect of the protection of Personal Data and privacy at the expiry of the transition period provided for in the Withdrawal Agreement (as given effect in the European Union (Withdrawal Agreement) Act 2020)) (all as amended, updated, extended or re-enacted from time to time);
10.1.4    Personal Data, Data Subject, Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation;
10.1.5    Personal Data Breach means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data;
10.1.6    Sub-Processor has the meaning given in clause 10.7; and
10.1.7    Supervisory Authority means any regulator, authority or body responsible for administering Data Protection Legislation.
10.2    Each Party agrees to comply with all applicable requirements of the Data Protection Legislation in respect of the Services.
10.3    The Parties acknowledge that for the purposes of the Data Protection Legislation, the Intermediary is the Data Controller and the Supplier is the Data Processor. Clause 10.8 sets out the scope, nature and purposing of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.
10.4    Without prejudice to the generality of clause 10.2, the Intermediary will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier for the duration of the Contract.
10.5    The Intermediary shall not unreasonably withhold, delay or condition its agreement to any change to the Services requested by the Supplier for the sole purpose of ensuring that the Services and the Supplier (and any Sub-Processor) can comply with the Data Protection Legislation.
10.6    Without prejudice to the generality of clause 10.2, the Supplier shall, in relation to any Client Personal Data processed by it in connection with the performance by the Supplier Party of its obligations under the Contract:
10.6.1    process that Client Personal Data (including with regard to any transfers of Client Personal Data outside the European Union under clause 10.6.5) only on the written instructions of the Intermediary which are set out in clause 10.8 unless the Supplier is required by Applicable Law to process Client Personal Data otherwise than in accordance with the Intermediary’s written instructions. Where the Supplier is relying on Applicable Law as the basis for processing Client Personal Data, the Supplier shall notify the Intermediary of this before performing the processing required by the Applicable Law unless any Applicable Law prohibits the Supplier from so notifying the Intermediary on important grounds of public interest;
10.6.2    immediately inform the Intermediary if the Supplier becomes aware of a written instruction given by the Intermediary under clause 10.6.1 that, in the Supplier’s opinion, infringes Data Protection Legislation and the Supplier shall be entitled to suspend the Services (or at the Supplier’s discretion just part of the Services which are impacted by the infringement) until such time as the Parties have agreed appropriate amended instructions which are not infringing;
10.6.3    ensure that it has in place appropriate technical and organisational measures:
(a)    to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; and
(b)    in so far as possible and taking into account the nature of the processing, to assist the Intermediary in the fulfilment of the Intermediary’s obligations to respond to any request from a Data Subject relating to Client Personal Data;
10.6.4    ensure that all personnel who have access to and/or process Client Personal Data are subject to a binding written contractual obligation to keep the Client Personal Data confidential except where disclosure is required in accordance with Applicable Law, in which case the Supplier shall, where not prohibited by Applicable Law, promptly notify the Intermediary of any such requirement before disclosure;
10.6.5    not transfer any Client Personal Data outside of the European Economic Area unless the prior written consent of the Intermediary has been obtained (which shall not be unreasonably withheld or delayed) and the following conditions are fulfilled:
(a)    the Intermediary or the Supplier have provided appropriate safeguards in relation to the transfer;
(b)    the Data Subject has enforceable rights and effective legal remedies;
(c)    the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Client Personal Data that is transferred; and
(d)    the Supplier complies with the reasonable instructions notified to it in advance by the Intermediary with respect to the processing of the Client Personal Data.
10.6.6    refer to the Intermediary any request from a Data Subject relating to Client Personal Data within 48 hours of receipt of the request;
10.6.7    notify the Intermediary without undue delay on becoming aware of a Client Personal Data Breach and provide the Intermediary with details of the Personal Data Breach;
10.6.8    assist the Intermediary in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.6.9    at the written direction of the Intermediary, delete or return all Personal Data and copies thereof to the Intermediary in such form as the Intermediary reasonably requests on termination of the Contract or once processing by the Supplier of any Client Personal Data is no longer required for the purpose of the Supplier Party’s performance of its obligations under the Contract unless required by Applicable Law to store the Client Personal Data, in which case the Supplier shall inform the Intermediary of any such requirement;
10.6.10    maintain written records of all categories of processing activities carried out on behalf of the Intermediary;
10.6.11    make available to the Intermediary, on reasonable notice, all information that is necessary to demonstrate its compliance with its obligations as Processor under the Data Protection Legislation and allow for and contribute to audits, including inspections, by the Intermediary or the Intermediary’s designated auditor for the purpose of verifying such compliance, subject to the Intermediary:
(a)    giving the Supplier reasonable prior notice of such information request, audit and/or inspection being required by the Intermediary;
(b)    ensuring that all information obtained or generated by the Intermediary or its auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure to a Supervisory Authority or as otherwise required by Applicable Law); and
(c)    ensuring that such audit or inspection is undertaken during normal business hours, with, so far as reasonably practicable, minimal disruption to the Supplier’s business and the business of other customers of the Supplier.
10.7    The Supplier Party shall be entitled with the prior consent of the Intermediary to engage third party processors for carrying out any processing activities in respect of Client Personal Data under any Contract (Sub-Processors). The Supplier confirms that it has entered or (as the case may be) will enter into, with each Sub-Processor, a written agreement incorporating terms which are substantially similar in effect to those set out in this clause 10. As between the Intermediary and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any Sub- Processor in relation to Client Personal Data.
10.8    The following sets out the nature and purpose of processing by the Supplier under the Contract, the duration of the processing and the types of Personal Data and categories of Data Subject:
10.8.1    Nature and Purpose: To enable the Supplier to provide the Services including the production of a Desktop Rebuild Cost Assessment Report in accordance with these Terms.
10.8.2    Duration: For so long as is necessary for the Supplier to comply with obligations under the Contract and as otherwise permitted under the Contract.
10.8.3    Data Subjects: Clients.
10.8.4    Types of Personal Data: Depending on the circumstances the Personal Data could include, identification information (e.g. name) and/or contact information (e.g. email address, postal address).
10.8.5    Special category Personal Data: None.


11    WARRANTIES AND LIABILITY
11.1    The Supplier warrants to the Intermediary that:
11.1.1    the Intermediary’s receipt of the Services and use of the Desktop Rebuild Cost Assessment Report) in accordance with these Terms will not infringe the Intellectual Property Rights of, nor any duty of confidentiality owed to, any third party;
11.1.2    it will at all times perform the Services in accordance with: (i) applicable laws; (ii) all due reasonable care and skill; and (iii) in accordance with Good Industry Practice;
11.1.3    it will at all times use personnel who are suitably skilled, qualified and experienced to perform the tasks assigned to them;
11.1.4    it shall at all times have and maintain all necessary licences and consents and comply with all relevant laws in relation to the provision of the Services;
11.1.5    subject always to clause 11.2B, each Desktop Rebuild Cost Assessment Report provided by the Supplier will be true, accurate and complete in all material respects as of the date of receipt by the Intermediary.
All other conditions, warranties and other terms which might have effect between the Parties or be implied or incorporated into these Terms, whether by statute, common law or otherwise, are hereby excluded.
11.2    The Desktop Rebuild Cost Assessment Report is produced solely for the purpose of assisting the Insurance Company, Intermediary and the Client in calculating the correct level of insurance cover for the Property prior to any loss or damage suffered at the Property (Permitted Purpose). Save for any insurance claims (including evidencing losses) relating to underinsurance, the Desktop Rebuild Cost Assessment Report cannot be used by the Insurance Company, Client or Intermediary for any other purpose (including use in respect of insurance claims and evidencing losses) without the prior written consent of the Supplier.
11.2A The Intermediary, the relevant Insurance Company and the relevant Client can each place reliance on the Desktop Rebuild Cost Assessment Report when calculating the correct level of insurance for the relevant Property prior to any loss or damage suffered at the Property. Subject always to clause 11.2B, the Supplier shall indemnify the Intermediary, each Insurance Company and each Client against all liabilities, costs, expenses, damages and losses suffered or incurred by the Intermediary, an Insurance Company and/or any Client arising out of, or in connection with, any use of and/or reliance placed on the Desktop Rebuild Cost Assessment Report.
11.2    B The Parties acknowledge and agree that the Supplier shall have no liability under clause 11.2A above in respect of any information gathered by the Supplier from third party sources, including publically available sources, where such information is used and has been relied on by the Supplier to prepare the Desktop Rebuild Cost Assessment Report provided always that the Supplier has provided the Services in accordance with clauses 11.1.2 and 11.1.3.
11.3    The Supplier shall have no liability to the Intermediary for any liability, demand, loss, damage, costs, expenses or other claims for compensation arising as a result of:
11.3.1    any Materials supplied by the Intermediary;
11.3.2    any instructions supplied by the Intermediary which are incomplete, incorrect, inaccurate, illegible, in the wrong form or late; or
11.3.3    any other fault of the Intermediary or any person acting on its behalf.
11.4    Each Desktop Rebuild Cost Assessment Report is supplied subject to the following provisos:
11.4.1    the Intermediary acknowledges that it is ordering a Desktop Rebuild Cost Assessment Report for which information is gathered online and that the Services do not include a physical survey or inspection of the Property and that neither the Supplier nor its employees, agents or Sub-Contractors will visit the Property for the purposes of carrying out the Services;
11.4.2    the Desktop Rebuild Cost Assessment Report has been prepared in accordance with and subject to the Basis of Assessment; and
11.4.3    the Intermediary acknowledges that a physical site survey or inspection of the Property is likely to produce more accurate results than the results the Services are able to produce.
11.5    Nothing in these Terms shall limit either Party's liability in respect of any claims:
11.5.1    for death or personal injury caused by the negligence of that Party and/or the employees, agents and/or sub-contractors of such Party;
11.5.2    resulting from any fraud including fraudulent misrepresentation made by such Party; and
11.5.3    for which liability may not otherwise lawfully be limited or excluded.
11.6    Subject to clause 11.5, neither Party shall be liable to the other under contract, tort (including but not limited to negligence), breach of statutory duty or otherwise for any indirect or consequential damages including loss of profits, business interruption, loss of sales, loss of turnover and loss of opportunity even if the loss was reasonably foreseeable or it had been advised by the other Party of the possibility of such damages.
 11.7    Subject to clauses 11.5 and 11.6, the aggregate liability of the Supplier arising under or in connection with each separate Desktop Rebuild Cost Assessment Report (and not aggregated as a whole for all Desktop Rebuild Cost Assessment Reports) (including but not limited to any liability for the acts and omissions of the Supplier's employees, consultants, agents or sub- contractors) whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to two million five hundred thousand pounds (£2,500,000).
11.8    The Supplier’s Group Companies and the Assessors shall be entitled to enforce the provisions of this clause 11 as if they were a Party to the Contract.
11.9    Subject to clause 11.5 and clause 11.6, the liability of the Intermediary hereunder (howsoever caused) (including but not limited to any liability for the acts and omissions of the Intermediary’s employees, consultants, agents or sub-contractors) in respect of any breach of its obligations to the Supplier (whether implied or express) arising under or in connection with the Contract whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to and shall in no circumstances whatsoever exceed the greater of:
11.9.1    a sum equal to 125% of the aggregate Charges paid under all Contracts entered into by the Intermediary within the year in which the claim arose;
11.9.2 £100,000.
11.10    This clause 11 shall survive termination of the Contract.


12    INSURANCE
The Supplier shall have put in effect and shall maintain for the duration of all Contracts concluded under these Terms and for a period of three (3) years following the termination or expiry of the last Contract, professional indemnity insurance covering all the risks which may be incurred by the Supplier arising out of the acts or omissions of the Supplier (or its officers, directors, employees, workers and agents (including any persons hired as consultants or contract staff)) in connection with the Contract.


13    ANTI-BRIBERY AND MODERN SLAVERY
13.1    The Supplier shall (and procure that any subcontractors, employees and agents shall) comply with all laws, statutes, and regulations relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010. The Supplier agrees that is shall not engage in any activity, practice or conduct abroad which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
13.2    In performing its obligations under each Contract, the Supplier shall, and shall to the best of its abilities ensure that each of its sub-contractors, personnel, subsidiaries and holding companies (“Supplier Personnel”) shall, comply with the Modern Slavery Act 2015, to the extent applicable. Supplier represents and warrants to the Intermediary that none of the officers or employees of Supplier or Supplier Personnel:
13.2.1    has been convicted of any offence involving slavery and human trafficking; and
13.2.2    having made reasonable enquiries, so far as it is aware, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of slavery or human trafficking.
13.3    Supplier shall notify the Intermediary as soon as it becomes aware of any breach of a material provision this clause 13 and shall provide all information as requested by the Intermediary in respect of the same.


14    TERMINATION
14.1    The Supplier may at any time immediately terminate the Contract in relation to one or more Properties if for any reason it is not able to fulfil the Services in relation to those Properties. This may occur for example because the Supplier considers, acting reasonably, that one or more Properties are not suitable for a desktop rebuild cost assessment.
14.2    In the event that the Supplier terminates the Contract in relation to one or more Properties in accordance with clause 14.1, a representative of the Supplier will contact the Intermediary to confirm this. The Contract shall remain in full force and effect in respect of those Properties which the Supplier is able to fulfil the Services.
14.3    Notwithstanding its other rights under the Contract, each Party may terminate the Contract on written notice to the other if:
14.3.1    the other Party commits a material or persistent breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
14.3.2    enters into and/or itself applies for, and/or calls meetings of members and/or creditors with a view to one or more of a moratorium, administration, liquidation (of any kind, including provisional), or composition and/or arrangement (whether under deed or otherwise) with creditors, and/or has any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (in each case to include similar events under the laws of other countries) or ceases or threatens to cease to carry on business.
14.4    The Intermediary may, at any time prior to the delivery of the Desktop Rebuild Cost Assessment Report, cancel any applicable Order. If at the time of cancellation the Assessor has not yet commenced work on the Desktop Rebuild Cost Assessment Report the Intermediary shall not be liable for the payment of any Charges in respect of the cancelled Order. For the avoidance of doubt, if work has commenced on the Order prior to cancellation, the full Charges for that Order will become due and payable. The Intermediary acknowledges that due to the service the Supplier is proposing to provide for the Intermediary, it is entirely possible that an Assessor will commence work on an Order within hours of an Order being received.
14.5    Termination of the Contract shall not prejudice any of the Parties' rights and remedies which have accrued as at termination.
14.6    Notwithstanding any termination of the Contract the provisions which by their nature are intended to survive such termination will remain in full force and effect.


15    THIRD PARTIES
15.1    In carrying out its obligations hereunder the Parties acknowledge that the Supplier is acting only for the Intermediary and the following shall apply:
15.1.1    the Supplier shall not be required to take instructions in relation to a Desktop Rebuild Cost Assessment Report or the Services from anyone other than the Intermediary; and
15.1.2    each Desktop Rebuild Cost Assessment Report is produced exclusively for the Intermediary, the Insurance Company and the Client only solely for the Permitted
 
Purpose and the Supplier shall not be liable to any third party (save where the third party is the Insurance Company or the Client) (whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise and howsoever arising) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Desktop Rebuild Cost Assessment Report.
15.2    Each Desktop Rebuild Cost Assessment Report shall contain a Disclaimer and the Intermediary undertakes and agrees that it shall not remove or vary, or permit the removal or variation of, the Disclaimer without the Supplier's prior written consent.
15.3    If at any time the Intermediary discloses or provides a copy of any Desktop Rebuild Cost Assessment Report or part thereof to any third party whomsoever:-
15.3.1    the Intermediary shall not alter or vary the content of such Desktop Rebuild Cost Assessment Report or the Disclaimer;
15.3.2    the Intermediary shall take all reasonable steps to ensure that no third party shall remove the Disclaimer from any Desktop Rebuild Cost Assessment Report; and
15.3.3    the Intermediary shall, save where the third party is the Insurance Company or the Client, prior to or at the time of such disclosure notify the relevant third party in writing that the third party is not entitled to rely on the Desktop Rebuild Cost Assessment Report.
15.4    Save as otherwise provided in the Terms, the Parties intend that no term of a Contract may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999.


16    CONTACTING US
If the Intermediary has any queries in relation to the Services the Intermediary may contact the Supplier by telephoning or emailing the Supplier’s customer service team using the telephone number or email address shown on the Website.


17    GENERAL
17.1    These Terms, and the documents referred to in them, constitute the entire agreement between the Parties, supersede any previous agreement or understanding and may not be varied except in writing between the Parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
17.2    No variation of these Terms shall be valid unless it is in writing and signed by a duly authorised signatory on behalf of each of the Intermediary and the Supplier, save that the Supplier may increase the Charges on or around the anniversary of the start date in each year in line with the percentage increase in Consumer Price Index in the preceding 12 month period. For the purposes of this clause the start date shall be the date that the first Contract is concluded between the Intermediary and the Supplier under these Terms.
17.3    Any notice required or permitted to be given by either Party to the other in accordance with these Terms shall be in writing addressed to the other Party at its registered office or principal place of business or at such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice and shall be delivered by hand or sent by special delivery post.
17.4    Neither Party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
17.5    No failure or delay by either Party in exercising any of its rights under these Terms shall be deemed to be a waiver of that right and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.6    If any part of the Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of any other Terms shall not be affected.
17.7    Nothing in these Terms is intended to or shall operate to create a partnership or joint venture of any kind between the Parties.
17.8    The Contract is personal to the Parties and may not be transferred or assigned in whole or in part without the prior written consent of the other Party, save that the Supplier may subcontract the provision of the Services to a third party (Sub-contractor), provided always that such Sub- contractor is approved by RICS or where this is not possible, shall have the appropriate experience and skills necessary to provide such subcontracted Services. The Supplier shall remain liable to the Intermediary for all acts and/or omissions of all Supplier Personnel and its Sub-Contractors (and the acts and omissions of those employed by or engaged by the Sub- Contractors) under or in connection with the provision of the Services as if those acts and/or omissions were its own. Any such sub-contracting shall not relieve the Supplier of its obligations to perform the Services.
17.9    Where Ardonagh and the Supplier agree in writing that an Affiliate is entitled to place Orders subject to these Terms using the zone designated to the Affiliate on the Supplier’s Website (which shall be set-up at no additional cost to the Affiliate), the Affiliate for the purpose of these Terms once a Contract is formed shall be the Intermediary. Where such Affiliate is agreed in writing, the Affiliate shall be entitled to engage the Supplier to provide the Services pursuant to an Order, which once accepted by the Supplier shall form a separate Contract between the Affiliate (as the Intermediary) and the Supplier. The Supplier hereby acknowledges and agrees that Ardonagh shall be entitled to enforce any Order on behalf of an Affiliate (where it has obtained the Affiliates prior written consent to do so) and for such purposes, the losses of such Affiliate shall be deemed to be the losses of Ardonagh so that Ardonagh can recover those losses as if they were losses incurred directly by Ardonagh.
17.10    As at the date of the last signature below the only Affiliate permitted to be an Intermediary and thus entitled to place Orders under these Terms is Towergate Underwriting Group Limited (trading as Towergate Insurance Brokers).
17.11    The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the laws of England and Wales and the Parties agree to irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
 

 
Disclaimer

 

IMPORTANT NOTICE
This rebuild cost assessment report (Report) has been prepared by Rebuild Cost Assessment Limited (company number 09746801) for the benefit of:
(a)    The Intermediary (being the entity that has commissioned this Report);
(b)    The Client (being the owner or occupier or proposed purchaser of the Property to which this Report relates); and
(c)    The Insurance Company (being an insurance company with whom the Intermediary acts as an intermediary between that insurance company and the Client);
together (the Recipients) solely for assisting all or any of the Recipients in calculating the correct level of insurance cover for the building the subject matter of the Report prior to the occurrence of any loss or damage to the building (Permitted Purpose).
The Recipients and anyone else receiving this Report must treat it as confidential.
This Report may not be copied or disclosed to any person in whole or in part or used for any purpose other than the Permitted Purpose. No one other than the Recipients may rely on this Report.
Save for the warranties given by Rebuild Cost Assessment Limited under the contract agreed with the Intermediary pursuant to which this Report has been provided, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law. Without prejudice to the foregoing, the maximum liability of Rebuild Cost Assessment Limited and its employees, officers, agents and sub-contractors for any liability and losses of whatever kind and howsoever arising (including negligence), as a result of access to, use of, or reliance upon, any information contained in this Report is limited to £2,500,000 (two million five hundred thousand pounds). Neither Rebuild Cost Assessment Limited nor its employees, officers, agents or sub-contractors shall be liable to any person for indirect, consequential or special losses. In no circumstances shall Rebuild Cost Assessment Limited or its employees, officers, agents or sub-contractors be liable (a) to any person other than the Recipients or (b) for losses incurred as a result of use of the Report outside of the Permitted Purpose.
Nothing in this disclaimer shall limit or exclude the liability of Rebuild Cost Assessment Limited to the extent that such liability cannot be lawfully limited or excluded.

 

Agreed Schedule to the Terms and Conditions
 

SITE ASSESSMENT

TERMS OF SUPPLY OF REBUILD COST ASSESSMENT LIMITED 

​1    DEFINITIONS


1.1    In these Terms:
Acceptance means the Intermediary's acceptance of a Quotation;
Acknowledgment shall have the meaning given to it in clause 2.6;
Assessor means an employee or contractor appointed by the Supplier to produce a Rebuild Cost Assessment Report;
Basis of Assessment means the instructions and basis of assessment provisions specifying what costs are included or excluded from the Rebuild Cost Assessment Report and the assumptions and basis on which the Rebuild Cost Assessment Report will be prepared (such provisions being set out on the Website, included in a Quotation and also contained in the notes to the Rebuild Cost Assessment Report);
Charges means the charges payable by the Intermediary to the Supplier for the provision of the Services in accordance with clause 4;
Client means:


(a)    the owner of the Property or the Properties; or 
(b)    the lawful occupier of the Property or Properties; or 
(c)    a proposed purchaser of the Property or the Properties or leasehold interest in the Property or Properties;


Confidential Information includes, without limitation, business information and all documents, computer records, specifications, technical descriptions, records, drawings, designs and data relating to a Rebuild Cost Assessment Report and/or the provision of the Services;
Contract means each contract entered into between the Parties for the provision of the Services;
Disclaimer means the disclaimer attached to a Rebuild Cost Assessment Report by the Supplier;
Force Majeure Event shall have the meaning given to it in clause 11.3;
Group Company means a company which is either a holding company or a subsidiary of a Party, or a subsidiary of that Party's holding company (as those terms are defined in section 1159 of the Companies Act 2006);
Insurance Company means an insurance company with whom the Intermediary acts as an intermediary between that insurance company and a Client;
Intellectual Property Rights means copyrights, trademarks, domain names, rights in computer software and databases, know-how and any similar rights whether arising in the United Kingdom or elsewhere in the world;
Intermediary means the Party to whom the Services are supplied, who pays for the Services and who acts as an intermediary between the Insurance Company and a Client;
Materials means documents, drawings, working papers or similar materials and any data or other information;
Parties means the parties to a Contract being, together, the Intermediary and the Supplier and their respective successors in title; and Party means either of them;
Property or Properties means the property or properties the subject of a Rebuild Cost Assessment Report, details of which are set out in the Request;
Quotation means a quotation provided by the Supplier to the Intermediary which sets out the Charges which shall have attached to it a copy of these Terms and the Basis of Assessment;
Rebuild Cost Assessment Report means the rebuild cost assessment report carried out by the Supplier or on its behalf in respect of a Property pursuant to which the Supplier estimates the rebuilding costs in the event of a total loss of that Property based on the gross external area and typical rates per square metre for the building use and type/quality of construction of that Property;
Request means a request from the Intermediary asking the Supplier to provide a Quotation in relation to one or more Properties;
Services means the carrying out by the Supplier of a rebuild cost assessment and production of a Rebuild Cost Assessment Report in respect of a Property, as more particularly described on the Website;
Supplier means Rebuild Cost Assessment Limited a company incorporated in England and Wales with company number 09746801 whose registered office is at The Pavilion, Botleigh Grange Business Park, Southampton, Hampshire SO30 2AF and whose main trading address for correspondence is Floor 1 Mey House, Bridport Road, Poundbury, Dorchester  DT1 3QY;
Terms means these terms and conditions which apply to each Contract; and
Website means www.rebuildcostassessment.com, which website is operated by the Supplier.


1.2    The headings in these Terms are for convenience only and shall not affect their interpretation.


1.3    Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.


2    REQUEST FOR SERVICES


2.1    On receipt of a Request the Supplier will consider whether to issue a Quotation to the Intermediary. The Supplier is not obliged to provide a Quotation in response to any Request received. 


2.2    The Intermediary is responsible for ensuring that the information set out in the Request is complete and accurate.


2.3    A Quotation issued by the Supplier to the Intermediary following receipt of a Request constitutes an offer by the Supplier to supply the Services in accordance with these Terms. 


2.4    A Quotation shall only be valid for a period of 90 days from its date of issue. 


2.5    The Quotation will be deemed accepted by the Intermediary on receipt by the Supplier of the Acceptance. 


2.6    The Supplier will issue an acknowledgement (Acknowledgment) following receipt of the Acceptance at which point and on which date the Contract shall come into existence.


2.7    In submitting a Request and issuing an Acceptance the Intermediary confirms and warrants to the Supplier:


2.7.1    that it has read and understood the Basis of Assessment;
2.7.2    that it has the requisite authority from the Client to provide the Supplier with the current sums insured for the Property or the Properties.


3    SUPPLY OF SERVICES


3.1    The Supplier shall provide the Services for the Intermediary subject to these Terms which shall govern the Contract to the exclusion of any other terms and conditions, express or implied.


3.2    The Intermediary shall, at its own expense, provide to the Supplier all necessary Materials which the Supplier may reasonably require in order to provide the Services.  The Intermediary shall retain duplicates of all such Materials and the Supplier shall have no liability for loss of, or damage to, the same.


4    PRICE AND PAYMENT


4.1    The Charges payable for the Services shall be the charges confirmed by the Supplier to the Client in the Acknowledgement which are exclusive of value added tax.


4.2    The Supplier will invoice the Client and payment of the Charges specified in an invoice is due thirty (30) days from the date of the Supplier’s invoice. 


5    DELIVERY


5.1    Delivery of the Rebuild Cost Assessment Report by the Supplier shall be by email or post, in either case to the email address or postal address notified by the Intermediary to the Supplier in the Request.  The Supplier shall not be liable for the loss, misdirection or destruction of the Rebuild Cost Assessment Report after it has been either sent to the email address provided by the Intermediary for that purpose or placed in the Royal Mail posting system to the postal address provided by the Intermediary for that purpose.


5.2    Any dates quoted for the Assessor carrying out the Services and delivery of the Rebuild Cost Assessment Report are approximate only, and time is not of the essence. The Supplier shall not be liable for any delay in carrying out the Services or delivery of the Rebuild Cost Assessment Report that is caused by a Force Majeure Event or the Intermediary's failure to provide the Supplier with adequate information or any other instructions or access to the Property.


6    RISK AND TITLE


6.1    Responsibility for, and ownership of, the Rebuild Cost Assessment Report shall pass to the Intermediary on delivery.  


6.2    The Intellectual Property Rights in the Services and in the Rebuild Cost Assessment Report shall at all times remain with the Supplier.  


7    CONFIDENTIALITY


7.1    Neither the Rebuild Cost Assessment Report, nor any part or extract from it, may be included in any published document, circular or statement or otherwise by the Intermediary without the prior written approval of the Supplier of the form and context in which it may appear.


7.2    Subject to clauses 7.4 and 7.5, each Party shall keep confidential all Confidential Information and not use it except for the purpose of exercising or performing its rights and obligations under the Contract.  Each Party may disclose Confidential Information to a Group Company and to its or their respective employees, officers, professional representatives or advisers, sub-contractors and agents, provided that such persons:


7.2.1    need to know it in connection with the exercise or performance of that Party's rights and obligations under these Terms;
7.2.2    have been informed of the confidential nature of the Confidential Information divulged; and
7.2.3    agree to act in compliance with the confidentiality requirements in these Terms.


7.3    Neither Party will disclose Confidential Information to any third party or use it except as otherwise permitted in these Terms.


7.4    Notwithstanding any other provision of these Terms, it shall not be a breach of these Terms for either Party to disclose any Confidential Information pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with power to require the disclosure of such information, provided that (to the extent it is permitted to do so) the affected Party gives all reasonable notice of such disclosure to the other Party.


7.5    Notwithstanding any other provision of these Terms, the Supplier may use the data gathered in the performance of the Services for its own business purposes but may only disclose such data to third parties in aggregated form and in a manner which does not identify a specific property or person. 


7.6    Subject to the other Terms, the provisions of this clause 7 shall continue to apply notwithstanding termination of the Contract.


8    DATA PROTECTION


8.1    For the purposes of this clause 8:


8.1.1    Applicable Law means (a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a Party is subject and/or which is applicable in any jurisdiction that the Services are provided to or in respect of; (b) the common law and laws of equity as applicable to the Parties (or either of them) from time to time; (c) any binding court order, judgment or decree as applicable to the Parties (or either of them) from time to time; or (d) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over that Party or any of that Party’s assets, resources or business;
8.1.2    Data Controller has the meaning as defined in the Data Protection Legislation; 
8.1.3    Data Protection Legislation means all applicable data protection and privacy legislation including Regulation (EU) 2016/679 (the General Data Protection Regulation or the GDPR), the Data Protection Act 2018 and any national implementing laws, regulations and secondary legislation and also the Privacy and Electronic Communications (EC Directive) Regulations 2003 or equivalent enacted legislation (or in the event that the UK leaves the European Union, all equivalent legislation enacted in the UK in respect of the protection of Personal Data and privacy) and any guidance or codes of practice issued by any Supervisory Authority from time to time (all as amended, updated or re-enacted from time to time);
8.1.4    Data Protection Losses means all liabilities, including all: (a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage) and (b) to the extent permitted by the Data Protection Legislation or any Applicable Law: (i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority; (ii) compensation which is ordered by a Supervisory Authority to be paid to a Data Subject and (iii) the costs of compliance with investigations by a Supervisory Authority; 
8.1.5    Data Subject has the meaning as defined in the Data Protection Legislation; 
8.1.6    Personal Data has the meaning as defined in the Data Protection Legislation; 
8.1.7    Privacy Notice means the Supplier’s privacy notice which can be found on the Website at www.rebuildcostassessment.com/privacy-policy;
8.1.8    Received Personal Data means any Personal Data which the Supplier receives from the Intermediary pursuant to the performance of the Services;
8.1.9    Report Personal Data means any Personal Data in the Rebuild Cost Assessment Report; 
8.1.10    Services Personal Data means any Personal Data which the Supplier receives pursuant to the performance of the Services (including Report Personal Data) but which is not Received Personal Data; and
8.1.11    Supervisory Authority means any regulator, authority or body responsible for administering Data Protection Legislation.


8.2    Both Parties agree to comply with all applicable requirements of the Data Protection Legislation in respect of the Contract and the Services. 


8.3    The Parties acknowledge that for the purposes of the Data Protection Legislation:


8.3.1    the Supplier is an independent Data Controller in respect of the:


(a)    Received Personal Data; 
(b)    Report Personal Data; and 
(c)    Services Personal Data; and


8.3.2    the Intermediary is an independent Data Controller in respect of the:


(a)    Received Personal Data; and
(b)    Report Personal Data. 


8.4    The Supplier will use Received Personal Data, Report Personal Data and Services Personal Data in accordance with the Privacy Notice. The Intermediary should take time to read the Privacy Notice and provide a copy of it to the Client. By submitting a Request to the Supplier the Intermediary confirms that it has brought to the attention of the Client the Privacy Notice.

 
8.5    Without prejudice to the generality of clause 8.2, the Intermediary will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Received Personal Data to the Supplier in accordance with these Terms.


8.6    The Intermediary shall indemnify and keep indemnified the Supplier in respect of all Data Protection Losses suffered or incurred by, or awarded against, the Supplier arising from or in connection with any: 


8.6.1    non-compliance by the Intermediary with the Data Protection Legislation; or
8.6.2    breach by the Intermediary of any of its obligations under this clause 8.


9    WARRANTIES AND LIABILITY 


9.1    The Supplier warrants to the Intermediary that the Services will be provided using reasonable care and skill but shall be subject to the provisos in clause 9.3. All other conditions, warranties and other terms which might have effect between the Parties or be implied or incorporated into these Terms, whether by statute, common law or otherwise, are hereby excluded.


9.2    The Supplier shall have no liability to the Intermediary for any loss, liability, demand, damage, costs, expenses or other claims for compensation arising as a result of:


9.2.1    any Materials supplied by the Intermediary; 
9.2.2    any instructions supplied by the Intermediary which are incomplete, incorrect, inaccurate, illegible, in the wrong form or late; or 
9.2.3    any other fault of the Intermediary or any person acting on its behalf.


9.3    Each Rebuild Cost Assessment Report is supplied subject to the following provisos:


9.3.1    the quality of the visual inspection by an Assessor shall depend upon the circumstances prevailing at the Property at the time the Services are carried out and may be affected by (by way of example only and not of limitation) limited access, working conditions, information provided which cannot reasonably be verified and health and safety considerations; and
9.3.2    the Rebuild Cost Assessment Report has been prepared in accordance with and subject to the Basis of Assessment; and
9.3.3    the conditions and circumstances described in the Rebuild Cost Assessment Report will be those prevailing at the time at which the Services are carried out and not otherwise.


9.4    The Intermediary hereby undertakes to indemnify and hold harmless the Supplier against any liability, damages, cost, expense, demand or loss which it (or any Group Company or an Assessor) may suffer together with all interest, penalties and reasonable costs and expenses which it or they may incur arising out of or in connection with any breach of these Terms or any use of a Rebuild Cost Assessment Report or reliance thereon by someone other than the Intermediary, the Insurance Company or the Client. 


9.5    Nothing in these Terms shall limit either Party's liability in respect of any claims:


9.5.1    for death or personal injury caused by the negligence of that Party and/or the employees, agents and/or sub-contractors of such Party;
9.5.2    resulting from any fraud including fraudulent misrepresentation made by such Party; and
9.5.3    for which liability may not otherwise lawfully be limited or excluded.


9.6    Subject to clause 9.5, in no event shall the Supplier be liable to the Intermediary or an Insurance Company or a Client under contract, tort (including but not limited to negligence), breach of statutory duty or otherwise for any indirect or consequential damages including loss of profits, business interruption, loss of sales, loss of turnover and loss of opportunity even if the loss was reasonably foreseeable or either Party has been advised of the possibility of such damages.


9.7    Subject to clauses 9.5 and 9.6, the aggregate liability of the Supplier hereunder (howsoever caused) (including but not limited to any liability for the acts and omissions of the Supplier's employees, consultants, agents or sub-contractors) in respect of any breach of its obligations to the Intermediary (whether implied or express) arising under or in connection with the Contract or any liability to an Insurance Company or to a Client whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to one million pounds (£1,000,000).


9.8    The Supplier’s Group Companies and the Assessors shall be entitled to enforce the provisions of this clause 9 as if they were a Party to the Contract. 


9.9    This clause 9 shall survive termination of the Contract. 


10    THIRD PARTIES


10.1    In carrying out its obligations hereunder the Parties acknowledge that the Supplier is acting only for the Intermediary and the following shall apply:


10.1.1    the Supplier shall not be required to take instructions in relation to a Rebuild Cost Assessment Report or the Services from anyone other than the Intermediary; and
10.1.2    each Rebuild Cost Assessment Report is produced exclusively for the Intermediary and the relevant Insurance Company and/or the Client only and the Supplier shall not be liable to any third party (whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise and howsoever arising) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Rebuild Cost Assessment Report. 


10.2    Each Rebuild Cost Assessment Report shall contain a Disclaimer and the Intermediary undertakes and agrees that it shall not remove or vary, or permit the removal or variation of, the Disclaimer without the Supplier's prior written consent.


10.3    If at any time the Intermediary discloses or provides a copy of any Rebuild Cost Assessment Report or part thereof to any third party whomsoever:


10.3.1    the Intermediary shall not alter or vary the content of such Rebuild Cost Assessment Report or the Disclaimer; 
10.3.2    the Intermediary shall take all reasonable steps to ensure that no third party shall remove the Disclaimer from any Rebuild Cost Assessment Report; and
10.3.3    the Intermediary shall, save where the third party is the Insurance Company or the Client, prior to or at the time of such disclosure notify the relevant third party in writing that the third party is not entitled to rely on the Rebuild Cost Assessment Report.


10.4    Save as otherwise provided in the Terms, the Parties intend that no term of a Contract may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999. 


11    GENERAL


11.1    These Terms, together with the Acknowledgement, constitute the entire agreement between the Parties, supersede any previous agreement or understanding and may not be varied except in writing between the Parties.  All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.


11.2    Any notice required or permitted to be given by either Party to the other in accordance with these Terms shall be in writing addressed to the other Party at its registered office or principal place of business or at such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice and shall be delivered by hand or sent by special delivery post.


11.3    Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. 


11.4    No failure or delay by either Party in exercising any of its rights under these Terms shall be deemed to be a waiver of that right and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.


11.5    If any part of the Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of any other Terms shall not be affected.


11.6    Nothing in these Terms is intended to or shall operate to create a partnership or joint venture of any kind between the Parties.


11.7    The Contract is personal to the Parties and may not be transferred or assigned in whole or in part save that the Supplier may assign to any third party provided that such assignee shall be bound by the terms hereof as if it were a Party.


11.8    The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the law of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English courts.

Form of Disclaimer


IMPORTANT NOTICE


This report (Report) has been prepared by Rebuild Cost Assessment Limited (company number 09746801) for the provision of a rebuild cost assessment of the building the subject matter of the Report (Purpose). The Report has been prepared for the benefit of:


(a)    The Intermediary (being the entity that has commissioned this Report);
(b)    The Client (being the owner or occupier or proposed purchaser of the building to which this Report relates); and 
(c)    The Insurance Company (being an insurance company with whom the Intermediary acts as an intermediary between that insurance company and the Client); 
together (the Recipients).


The Recipients and anyone else receiving this Report must treat it as confidential.


This Report may not be copied or disclosed to any person in whole or in part or used for any purpose other than the Purpose. No one other than the Recipients may rely on this Report. 


Save for the warranty that the Report has been prepared using reasonable skill and care, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.  Without prejudice to the foregoing, the maximum aggregate liability of Rebuild Cost Assessment Limited and its employees, officers, agents and sub-contractors for any liability and losses of whatever kind and howsoever arising (including negligence), as a result of access to, use of, or reliance upon, any information contained in this Report is limited to £1,000,000 (one million pounds). Neither Rebuild Cost Assessment Limited nor its employees, officers, agents or sub-contractors shall be liable to any person for indirect, consequential or special losses.  In no circumstances shall Rebuild Cost Assessment Limited or its employees, officers, agents or sub-contractors be liable to any person other than the Recipients or where the Report has not been used for the Purpose.


Nothing in this disclaimer shall limit or exclude the liability of Rebuild Cost Assessment Limited to the extent that such liability cannot be lawfully limited or excluded.