1. General
1.1 In these terms:
Agreement: means your Service Agreement;
Application: an application for payment, grant or loan assistance;
Fees: subject to any variation pursuant to clause 6, the fees and expenses to be paid by you and detailed in your Service Agreement;
Obligations: the specific obligations that you have agreed to undertake, together with such additional obligations as we, acting reasonably, may request from you from time to time;
Scheme: the rural grant and payment schemes including Environmental Land Management Schemes, other Defra programmes and non-Defra grants (each as may be replaced and/or updated from time to time);
Services: the services to be provided by us.
1.2 In the event of a conflict between these Terms and Conditions and the Service Agreement, then these Terms and Conditions shall prevail to the extent of the conflict.
1.3 References to including or includes shall be deemed to have without limitation inserted after them.
2. Our obligations
2.1 We will:
a. use our reasonable efforts to carry out the Services in a prompt and diligent manner;
b. notify you as soon as reasonably possible of any issues we have with the Services including any Application;
c. notify you if we believe that the Services will exceed the Fees and, where possible, give you a revised estimate.
2.2 In the event that we notify you pursuant to clause 2.1.c., we will cease to undertake the Services until you confirm that you agree to the revised fees.
3. Your obligations
3.1 You will promptly:
a. carry out all of your obligations (including the Obligations) in a prompt and diligent manner;
b. notify us of any concerns or problems you have with the Services;
c. provide us with such documentation and/or information as we may request from time to time;
d. ensure that all documentation and/or information is accurate and complete to the best of your knowledge and belief;
e. provide us with all necessary access, consents and permissions as we require in order to provide the Services including submitting any Application;
f. notify us immediately if you become aware of any error or defect in any documentation and/or information (including an Application) that we have provided to you or you have provided to us;
g. notify us immediately if any circumstance arises which does or is likely to impact on your Application;
h. pay all Fees without set-off or deduction.
3.2 You recognise that any failure by you to comply with the above may result in a delay or failure by us to carry out the Services. We will not be liable for any breach of this Agreement or any failure with an Application that arises as a consequence of your failure to carry out your obligations.
4. Your acknowledgement and acceptance
4.1 You acknowledge and agree that:
a. whilst we will use our reasonable efforts to identify the most suitable Scheme available to you, we make no warranty, guarantee or give any representation or assurance that:
(i) this is the most suitable and appropriate Scheme for you; and
(ii) any Application will be successful;
b. you have read and understood any information we send to you (including links to third party sites about grant and/or funding information schemes) is for information purposes only and we do not give warranty, representation, guarantee or assurance that it is accurate, complete and/or up to date;
c. you are fully responsible for complying with the terms of any Scheme including acceptance of any such Scheme, meeting all required deadlines and grant requirements, record keeping and submitting appropriate payment claims (whether capital or income);
d. all Fees are estimates only. In the event that we believe that our Fees are likely to exceed those set out in your agreement then we will notify you of the same as soon as reasonably possible;
e. all Fees are payable IRRESPECTIVE of whether any Application is successful;
f. in entering into this Agreement, you are not relying on any representation, warranty, assurance or other provision (made innocently or negligently) except as expressly provided in this Agreement.
5. Limitation of our Liability
5.1 We do not limit our liability for death or personal injury or for any liability we are prohibited by law from limiting.
5.2 Save as set out above or unless otherwise expressly stated in the instruction form, our liability is limited to the Fees charged by us (and paid by you) in respect of the matter giving rise to the claim.
5.3 We are only liable for direct losses and costs arising from our negligence. All indirect, consequential losses and costs, loss of profit, data and/or goodwill are excluded.
5.4 All implied warranties or conditions are expressly excluded to the fullest extent possible.
6. Fees
6.1 Our Fees are subject to any applicable VAT; and (unless set out in your agreement to the contrary) due within 30 days of the date of our invoice.
6.2 In addition, you will be responsible for all Other Costs we incur provided that we will (wherever reasonably possible) agree these with you advance.
6.3 We will levy interest at the rate of 4% above the prevailing Bank of England Base Rate on any invoices that are outstanding after the relevant due date. Such interest will accrue from the date that payment was due to the date of actual payment (whether before or after judgement).
7. Data protection, confidentiality, intellectual property and freedom of information
7.1 For full details on how we use and process your data please view the privacy policy on our website at Privacy and Cookies Policy | Farming and Wildlife Advisory Group South West Limited (fwagsw.org.uk).
7.2 Subject to the remainder of this clause, we will treat your information in strict confidence and will only use it for the purposes on which you have supplied it to us. We may disclose your confidential information if we are required by law or to enable us to carry out the Services.
7.3 We process your personal data for the purposes of carrying out the Services, to comply with applicable laws, recovering debts owed to us and notifying you of any marketing events or information we think may be of interest to you. You may choose not to receive such information at any time by letting us know in writing. Full details are set out in our privacy policy at Privacy and Cookies Policy | Farming and Wildlife Advisory Group South West Limited (fwagsw.org.uk).
7.4 For the purpose of processing your personal data we are the data controller.
7.5 When you supply any information to us (including personal data) you will ensure that:
a. such data is not subject to any restriction which would prevent or restrict you from disclosing it to us or prevent or restrict us from using it in accordance with this Agreement;
b. you have notified any relevant individuals on the disclosure of their data and have all necessary consents permitting you to supply the data to us and allow us to use it (including where applicable disclosing to third parties) in order to carry out our obligations to you.
7.6 In the event of a breach by either you or us of our respective obligations under relevant data protection legislation or confidentiality, the party in breach will be liable to the other party for all or any losses incurred by the other party, or for which the other party may become liable, in each case to the extent arising as a result of such breach. Nothing in this agreement shall exclude or limit liability under these Terms and Conditions.
7.7 Whilst we are not subject to Freedom of Information legislation, we may be required to supply information to public bodies as part of our charitable status and as part of our funding requirements. You acknowledge and accept that we are entitled to provide such information as we deem necessary to public bodies to comply with our legal obligations and that such information could be disclosed by such public body under applicable legislation including the Freedom of Information Act.
7.8 You confirm that you have all necessary permissions, licenses and consents in respect of any information that you provide to us. All intellectual property rights in any information we supply to you shall remain with us and you shall not use it other than for the purpose it was provided.
8. Termination and suspension
8.1 Our agreement with you will end on completion of the Services. You will pay for all Fees incurred up to the point of termination.
8.2 We may terminate this Agreement at any time on giving you 14 days’ notice.
8.3 We may terminate or suspend this Agreement at any time if you fail to comply with your obligations (including the Obligations) as set out above, a conflict of interest arises, you fail to pay any Fees by the relevant due date and/or in order to comply with any statutory obligations.
9. Any Queries and Concerns
If you have any concerns about the work that we undertake for you then in the first instance please raise this with the adviser that has completed work for you. This is without prejudice to any rights you may have in addition.
10. Miscellaneous
10.1 We shall not be liable to you for any failure or delay in performing our obligations (including the Services) where such failure or delay results from cause(s) beyond our reasonable control.
10.2 No failure or delay by either you or us in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either you or us of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
10.3 Each party to this Agreement shall execute and do all such things as may be necessary to carry the provisions of this Agreement into full force and effect.
10.4 Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between you and us other than the contractual relationship expressly provided for in the Agreement.
10.5 Unless expressly stated otherwise, no part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
10.6 This Agreement contains the entire agreement between you and us with respect to its subject matter and may not be modified except in writing signed by the duly authorised representatives of you and us.
10.7 This Agreement will be construed in accordance with the laws of England and Wales and all disputes will be subject to the exclusive jurisdiction of the English Courts.
10.8 If any court or competent authority finds that any clause (or part clause) in this Agreement is invalid, illegal or unenforceable, that clause (or part clause) shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
10.9 may assign or novate any or all of our rights and obligations under this Agreement.
11. Notices
11.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the party giving the notice.
11.2 Notices shall be deemed to have been duly given when sent, if transmitted by email and a return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.
11.3 In each case notices shall be addressed to the most recent address or e-mail address notified to the other party.