These Terms of Business (“the Terms”) apply where psbars provides a service to a client and there is no written agreement for the provision of that service or if there is, to the extent that these Terms do not conflict with the terms of that written agreement. In the case of conflict between these Terms and the terms of any written agreement, the terms of the written agreement shall prevail to the extent of the conflict. Reference in these Terms to the agreement means the written or informal agreement that incorporates these Terms (“the Agreement”).
psbars
psbars means posbars and/or any company of the International psbars group of companies., that provides any of the service under the Agreement
Standard
psbars is to provide the service to the specification and performance level stated in writing in the Agreement or, if none is stated, to the specification and performance levels that it ordinarily provides in accordance with psbars duty of care as set out below. Any variations must be agreed in writing
psbars has no responsibility for anything that is beyond the scope of the service so defined. In particular, it has neither obligation to provide nor liability for:
• an opinion on price unless specifically instructed to carry out a formal valuation
• advice, or failure to advise, on the condition of a property unless specifically instructed to carry out a formal survey
• the security or management of property unless specifically instructed to arrange it
• the safety of those visiting a property, unless that is specified in its instructions
• estimates of construction or building costs, unless it has specifically engaged a qualified cost consultant or quantity surveyor to provide such estimates
a) Duty of care
psbars owes to the client a duty to act with reasonable skill and care in providing the service and complying with the client’s instructions where those instructions do not conflict with
• these Terms, or
• the Agreement or
• applicable law and professional rules. psbars is not obliged to carry out any instructions of the client which conflict with the applicable law, regulations and professional rules
b) Liability to the client
psbars has no liability for the consequences, including delay in or failure to provide the services, of any failure by the client or any agent of the client:
• to promptly provide information or other material that psbars reasonably requires, or where that information or material provided is inaccurate or incomplete. The client warrants that, where it provides information or material to psbars, psbars is entitled to rely on its accuracy.
• to follow psbars advice or recommendations.
The liability of psbars in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise howsoever caused arising out of or in connection with the provision of services or otherwise under the Agreement is not limited for fraud or where its negligence causes death or personal injury, but otherwise its liability:
• is excluded to the extent that the client or someone on the client’s behalf for whom psbars is not responsible is responsible,
• is excluded if caused by circumstances beyond psbars reasonable control
• excludes indirect, special & consequential losses;
• (where psbars is but one of the parties liable) is limited to the share of loss reasonably attributable to psbars on the assumption that all other parties pay the share of loss attributable to them (whether or not they do); and
• In any event and in recognition of the relative risks and benefits of the project to both the client and psbars, the risks have been allocated such that the client agrees, to the fullest extent permitted by law, to limit the liability of psbars to the client for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of JLL to the client shall not exceed and is limited to the professional fees received by psbars from the client.
Apart from fraud or criminal conduct, no employee of the psbars group of companies has any personal liability to the client and neither the client nor anyone representing the client may make a claim or bring proceedings against an employee or former employee personally.
c) Liability to Third Parties
psbars owes no duty of care & has no liability to anyone but its client, unless specifically agreed in writing by psbars. No third party is intended to have any rights under the Agreement unless agreed in writing.
d) Liability for Others
psbars has no liability for products or services that it reasonably needs to obtain from others in order to provide the service.
e) Delegation
psbars may delegate to a third party the provision of the service, or part of it, only where this is reasonable but remains liable for what the third party does unless the client agrees to rely only on the third party (and the client must not unreasonably withhold that agreement). If delegation is at the client’s specific request, psbars is not liable for what the third party does or does not do.
The client shall effect and maintain adequate property and public liability insurance and general third party liability insurance providing coverage for bodily injury and property damage which will either include psbars as a joint insured or a waiver of the insurer’s subrogation rights against psbars, its employees or delegates.
a) Timetable
psbars is to use reasonable endeavours to comply with the client’s timetable but is not responsible for not doing so unless specifically agreed in writing. Even then, psbars is not liable for delay that is beyond its control.
b) Intellectual Property
All intellectual property rights in material supplied by the client belong to the client and in material prepared by psbars belong to psbars, unless otherwise agreed in writing. Each has a non-exclusive right to use the material provided for the purposes for which it is supplied or prepared. No third party has any right to use it without the specific consent of the owner.
c) Confidential Material
Each party must keep confidential all confidential information and material of commercial value to the other party of which it becomes aware but it may:
• use it to the extent reasonably required in providing the service
• disclose it if the other party agrees
• disclose it if required to do so by law, regulation or other competent authority
This obligation continues after termination of the Agreement. psbars may after six (6) years from the earlier of completion of the service or termination of the Agreement destroy any papers it retains without any obligation to notify the client.
a) Fees and taxes
Where the fees and expenses payable for the service, or for additional or extended services requested by the client are not specified in writing, psbars is entitled to the fee specified by the RICS or other applicable professional body or, if none is specified, to a fair and reasonable fee by reference to time spent and reimbursement of expenses properly incurred on the client’s behalf. Where the service is not performed in full psbars is entitled to a reasonable fee proportionate to the service provided as estimated by psbars.
Unless specified in writing to the contrary, the client must pay any additional applicable tax as will be added to such fees invoiced to the client.
b) Payment timeframe
If a duly rendered invoice is not paid in full within the timeframe in the Agreement, or within 30 days if no timeframe is so agreed, psbars may impose an additional charge on the balance due of 2% for each month the amount remains outstanding. psbars will be entitled to suspend work on the assignment where any invoice is outstanding beyond the agreed timeframe for payment.
psbars is entitled to postpone the start of or suspend work on an assignment until its initial payment as been received as stated in the Agreement.
The client will appoint for the purpose of this Agreement a representative who will act as liaison and contact person with psbars.
psbars may use electronic communication and systems to provide services, making available to the client any software required that is not generally available.
A notice is valid if in writing addressed to the last known address of the addressee and is to be treated as served:
• when delivered, if delivered by hand through a Notary Public in the UAE (if that is during normal business hours) otherwise when business hours next commence
• two business days after posting, if posted by recorded delivery
• when actually received, if sent by ordinary mail or fax
Notice may not be given by electronic mail.
The client acknowledges that unless specified as such in the Agreement and in reports or deliverables prepared by psbars, any financial estimates relating to psbars or assets are not opinions of value and may not be construed as formal valuations.Financial estimates, cash flow models and valuations may be prepared using business models and software that are the sole property of psbars. psbars has no obligation to share with the client its proprietary models.
a) Termination
The client or psbars may terminate the Agreement immediately by notice to the other if the other:
• has not satisfactorily rectified a substantial or persistent breach of the Agreement within the reasonable period specified in an earlier notice to rectify it
• is insolvent according the laws of its country of incorporation.
b) Effect of Termination on Claims
Termination of the Agreement does not affect any claims that arise before termination or the entitlement of psbars to its proper fees up to the date of termination or to be reimbursed its expenses.
In the event that the assignment is suspended or terminated by reasons outside the direct control of psbars, it shall be entitled to retain in full all payments made or due at the date of suspension or termination, including any initial payment.
c) Waiver
Failure to enforce any of these Terms is not a waiver of any right to subsequently enforce that or any other term of the Agreement.
d) Severability
The invalidity, illegality and unenforceability in whole or in part of any of the provisions of this Agreement shall not affect the validity, legality or enforceability of its remaining provisions which shall remain in full force and effect.
e) Governing Law / Arbitration
This agreement shall be governed by, construed and interpreted in accordance with the laws in force in the Emirate of Dubai, and the federal laws of the United Arab Emirates.
Any disputes or conflicts arising out of or in connection with the Agreement or otherwise between the Parties of the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally reserved by arbitration in accordance with the Arbitration rules of the DIFC-LCIA Arbitration Centre, which rules are deemed to be incorporated by reference into this clause. Arbitration shall be held in Dubai, the United Arab Emirates and shall be conducted in English by one (1) arbitrator. An award rendered by the arbitrators shall be final and binding on the parties, their successors and assigns. Such award shall not be subject to appeal to any other court or body and the parties shall forthwith give it full effect.
f) Non Competition
The client herein commits not to recruit or seek to recruit to join the client or any related company any psbars employees directly or indirectly involved in this assignment within a period of 24 months from the date of payment of the final invoice. If the client breaches this provision then the client agrees to pay psbars a sum equivalent to six months of the total remuneration of such contract based on our monthly agreed consultancy fee prevailing at the time of the breach.
g) No Partnership
Nothing contained in this Agreement shall be construed as creating a partnership or joint venture between any of the parties to this Agreement.
h) Corporate Power
Each of the Parties hereby represents and warrants to the other as follows:
• that it is duly established and is validly existing under the laws of its incorporation;
• that it has full corporate power and has taken on all corporate acts to enable it to effectively enter into and perform its obligations under this Agreement;
i) Conflict
If psbars becomes aware of a conflict of interest it is to advise its client promptly and recommend an appropriate course of action.
j) Binding Documents
The engagement letter or agreement instructing psbars as well as the preamble and its attachments, including these general terms and conditions form an integral and indivisible part of the Agreement. No amendment to this Agreement shall be valid unless executed in writing and signed by both Parties hereto. Neither Party hereto may assign its interest hereunder without the prior written consent of the other Party hereto. Words importing the singular number include the plural and vice versa. The obligations of each party shall be binding upon its heirs and assigns. The Parties hereto hereby agree and undertake to take all such steps as may be necessary to give effect to the provisions contained in this Agreement.
