Except where there is a fully executed written contract between Burgess and the Client, the following terms and conditions (the 'Conditions') shall constitute the entire terms and conditions between Burgess and the Client and shall supersede and override all discussions, warranties and representations whether express or implied, oral or written.
'Burgess' means Nigel Burgess SAM and all of its associated, related and subsidiary companies (and including their respective employees, agents and sub-contractors).
'Client' means the person at whose request or on whose behalf Burgess undertakes the Services.
'Services' means the services that Burgess provides to the Client under Clause 3.
These Conditions shall apply to the provision of the Services until such time as agreed otherwise between the Client and Burgess in writing.
3.1 Burgess will perform the services requested by the Client and as agreed by Burgess, or as proposed by Burgess and agreed by the Client (the 'Services').
3.2 Burgess shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous information or instructions from the Client.
3.3 Unless Burgess has otherwise agreed in writing, the Client shall pay for the Services in accordance with the Burgess standard charge or fee (including commission) then applicable for the relevant Services.
3.4 Burgess shall be entitled to presume that any person Burgess deals with has power and authority to represent and/or bind his or her principal.
4.1 Without prejudice to Clause 4.2, Burgess shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect and howsoever arising unless same is proved to have resulted solely from the negligence, gross negligence or wilful default of Burgess.
4.2 In the event that the Client proves that the loss, damage, delay or expense suffered by the Client was caused by the negligence, gross negligence or wilful default of Burgess, then, save where loss, damage, delay or expense has resulted from a personal act or omission committed by Burgess or any of its employees or agents or sub-contractor with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result, the liability of Burgess (unless otherwise agreed in writing) for each incident or series of incidents giving rise to a claim or claims shall never exceed £200,000 (two hundred thousand pounds).
4.3 The limitations in Clauses 4.1 and 4.2 above shall apply however the liability arises, including by breach of any term, condition or warranty expressed or implied by statute, common law or otherwise, arising in tort or arising by breach of statutory duty, provided that Clause 4.1 and this Clause 4.3 shall not exclude or limit liability for death or personal injury caused by the negligence of Burgess or fraud or fraudulent misrepresentation.
4.4 Burgess gives no warranty, guarantee or representation as to the accuracy or nature of any information provided to the Client, or as to the financial standing or creditworthiness of any person.
4.5 The Client warrants and represents to Burgess that it does not and will not rely upon any information provided to the Client by Burgess and as warranted, guaranteed or represented by Burgess as being accurate or otherwise endorsed by Burgess as to its content.
4.6 Without prejudice to Clauses 4.1 and 4.2 above, Burgess shall not be liable for loss of or damage (or any consequences of such loss or damage) to physical equipment and property placed at its disposal by, or on behalf of, the Client however such loss or damage occurs, unless such loss or damage was caused by the act or omission of Burgess committed with intent to cause same or recklessly with knowledge that such loss or damage would probably result.
Except to the extent and solely for the amount set out in Clause 4.2 that Burgess would be liable under Clause 4, the Client hereby undertakes to keep Burgess indemnified and to hold Burgess harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against Burgess or which Burgess may suffer or incur, and against and in respect of all costs, loss, damages and expenses (including, but not limited to, legal costs and expenses on a full indemnity basis) which Burgess may suffer or incur (either directly or indirectly) in relation to the provision of the Services.
6. Force majeure
Burgess shall not be responsible nor have any liability for any loss, damage, delay or failure in performance of the Services arising or resulting from any act of God (including, but not limited to earthquake, flood, tsunami, volcano, hurricane, tropical storm, cyclone, blizzard or other similar event), act of war, terrorist attack, nuclear contamination, seizure under legal process, disease or virus or similar (whether epidemic, pandemic or otherwise) or quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people, or from any other occurrence or matter outside the control of Burgess.
7. Time bar
Any claims against Burgess by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the occurrence or event alleged to give rise to such claims against Burgess.
8. Jurisdiction and governing law
These Conditions and the Services (including any non-contractual obligations arising out of or in connection with the same) shall be governed by and construed in accordance with English law and the courts of England shall have exclusive jurisdiction over all disputes which may arise out of or in connection with them.