Terms and Conditions

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Terms and Conditions (effective from 11 January 2022)

Thank you for considering Sircle to provide services, these are the terms and conditions on which we supply services. Please read these terms and conditions carefully and check that the details in the estimate and any other correspondence is complete and accurate. If you require clarity on anything please contact us as soon as possible, so that we can discuss.

1 Definitions and Interpretations

1.1 In these conditions the following words have the following meanings:

“Client” the person, firm, company or organisation for which Sircle is performing the Services;

“Applicable DP Laws” means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or (b) to the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data;

“Contract” the contract between Sircle and the Client for the supply of our Services comprising these terms and conditions and each accepted Estimate;

“Deliverables” all documents, drawings, reports and other materials that Sircle has agreed to provide to the Client as part of the Services;

“Disbursements” the additional costs which we incur whilst delivering the Services, such as but not inclusive, postage, printing, photocopying, travel, subsistence and hotel accommodation;

“Effective date” the date when Sircle will commence or commenced providing the Services following formation of a Contract in accordance with condition 2.5;

“Estimate” the written document outlining the Services to be supplied;

“EU GDPR” the General Data Protection Regulation ((EU) 2016/679);

“Fee” the fee including any VAT and disbursements where applicable, payable by the Client to Sircle for supplying Services;

“IPR” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Materials” documents, information, items and materials;

“RFP” the written request for a proposal from the Client outlining your request for the supply of our Services;

“RICS” the Royal Institution of Chartered Surveyors based at 12 Great George Street, London, SW1P 3AD;

“Services” the Services to be supplied by Sircle as described in the Estimate;

“Sircle” the provider of the Services, Topscan (UK) Ltd trading as “Sircle” with company registration number 04513312 and whose registered office is at 17 Lancaster Road, Sarum Business Park, Salisbury SP4 6FB and “we”, “our” and “us” shall be interpreted accordingly;

“Site” the place where Services are to be provided by Sircle as set out in the Estimate;

“Specific terms” the terms set out in the Estimate;

“Suspension Period” shall mean a period during which the Services are temporarily suspended by Sircle or the Client in accordance with condition 11;

“UK GDPR” has the meaning give to it in the Data Protection Act 2018; and

“Writing or written” to include email unless we state otherwise.

1.2 A reference to a statue or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular shall include the plural and vice versa.

1.4 A reference to one gender includes a reference to the other gender.

2 Application of Terms

2.1 These terms and conditions apply to all the Services provided by Sircle and any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by Sircle. Without prejudice to condition 12.1, the Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Sircle which is not expressly set out in the Estimate.

2.2 Prior to commencement of the Services, Sircle shall issue an Estimate to the Client based on the Client’s requirements for the Services as set out in an Instruction.

2.3 An Estimate is valid for a period of 30 calendar days only from its issue date, but Sircle may withdraw it at any time prior to acceptance by the Client with no further obligation to the Client.

2.4 The Client shall confirm its acceptance of the Estimate in writing to Sircle no later than 30 days calendar days from issue of the Estimate by Sircle.

2.5 Subject to condition 2.6, following acceptance of an Estimate by the Client, a Contract shall be formed on the earlier of: (i) Sircle providing confirmation in writing to the Client; OR (ii) Sircle commencing the provision of the Services to the Client.

2.6 Nothing in condition 2.5 shall require Sircle to perform Services on the basis of an Estimate that has been altered or amended by the Client, including any counter-offer which shall not be accepted by Sircle.

3 Sircle obligations

3.1 Sircle shall provide the Services including Deliverables with reasonable skill, care and diligence in a timely manner and in accordance with the Estimate.

4 Client obligations

4.1 The Client shall provide in a timely manner any assistance, access to its premises, documents, information, data, materials and other facilities required by Sircle to enable it to perform the Services.

4.2 The Client confirms that the terms of its RFP are true, complete and accurate.

4.3 The terms of the RFP are informative only and shall not form part of this Contract or be binding on the parties to it.

5 Fee

5.1 Unless otherwise agreed by Sircle in Writing, the Fee and any payment stages shall be as set out in the Estimate.

5.2 Unless stated otherwise, the Fee shall be exclusive of VAT which the Client shall pay in addition.

6 Payment

6.1 Subject to the remainder of this condition 6, payment of the Fee shall be in pounds sterling on strict 28 day payment terms as set out in each invoice issued by Sircle.

6.2 Sircle shall issue an invoice for Services rendered prior to or on the dates specified in an Estimate or, if not stated, at the end of each calendar month.

6.3 All payments must be paid by the Client to Sircle in cleared funds on or before the payment due date as set out in the Sircle invoice (“Payment Due Date”). *

6.4 All payments payable to Sircle under an Estimate shall become due immediately on completion of the Services therein (as reasonably determined by Sircle) despite any other provision therein.

6.5 The Client shall make all payments due under the Contract in full and without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Sircle to the Client.

6.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Sircle any sum due under the Contract by the Payment Due Date:

(a) the Client shall pay interest on any overdue sum under this condition 6 from the due date until payment of the overdue sum, whether before or after judgment. Interest under this condition 6.5 will accrue at the statutory rate for interest on late commercial payments from time to time; and
(b) Sircle may suspend all or part of the Services until all outstanding payments have been made in full.

7 Health and Safety

7.1 The Client shall ensure that the Site is safe and suitable for Sircle, its employees and agents. The Client shall comply with all statutory requirements as regards health and safety at work and any other relevant rules and regulations. The Client shall inform Sircle of all health and safety rules and regulations and any other reasonable security requirements that apply to the Site (or any part of it).

8 Intellectual Property

8.1 All IPR in Materials created or developed by the Client prior to entry into, or wholly independently from (in Sircle’s reasonable opinion), a Contract, shall for the avoidance of doubt, remain vested in the Client.

8.2 All IPR in Materials created or developed by Sircle or any employee, agent or sub- contractor of Sircle:

(a) prior to or in the course of supplying the Services, including the Deliverables, shall remain vested in Sircle; and

(b) non-exclusively for the Client and used in the course of supplying the Services, including the Deliverables shall belong to Sircle at all times,
and the Client agrees to assign to Sircle with full title guarantee and free from all third party rights, any such IPR set out in conditions 8.2(a) and 8.2(b) that becomes vested in it and shall comply with Sircle’s requirements to effect such assignments.

8.3 The Client:

(a) hereby grants to Sircle a fully paid-up, non-exclusive, royalty-free licence to use the Client’s IPR in Materials provided to Sircle under the Contract to enable Sircle to provide the Services to the Client; and

(b) shall indemnify and keep indemnified Sircle against, and hold it harmless from, all claims, liabilities, costs (including reasonable legal fees and disbursements) expenses, demands or damages brought or made against or incurred by Sircle pursuant to any claim by a third party that any intellectual property, information, material and/or data supplied by or on behalf of the Client and used or processed by Sircle or any of its sub-contractors in connection with the Contract or Services infringes the intellectual property of any third party.

9 Access to the Site(s)

9.1 For the duration of the Contract, the Client grants Sircle, its employees, agents and sub- contractors a right of access to, and as necessary to occupy, the Site for the purposes of carrying out its obligations under the Contract.

10 Sub-Contractors

10.1 Sircle may at any time sub-contract the supply of the Services to (in its reasonable opinion) a responsible and experienced sub- contractor.

10.2 Where any Services are supplied by a sub-contractor Sircle shall be wholly responsible for the acts and omissions of such sub-contractor as though they were its own acts and omissions.

11 Suspension of the Services and Termination

11.1 Sircle shall be entitled to immediately suspend performance of the Services if the Client is in breach of any of the provisions of the Contract, including condition 6.6 (b) or any other contract with Sircle.

11.2 If the Client wishes to temporarily suspend the Services it shall provide notice in writing to Sircle no less than 72 working hours (Monday to Friday, 08:00 to 17:00) prior to the planned suspension.

11.3 If the Client wishes to resume the Services following a suspension under condition 11.2 it shall provide notice in writing to Sircle no less than 72 working hours (Monday to Friday, 08:00 to 17:00) prior to the requested time of resumption. Following receipt of a resumption notice under this clause, Sircle shall confirm the earliest possible resumption date for the Services and may at its discretion delay the resumption date indefinitely with no liability to the Client.

11.4 Sircle shall be under no obligation to refund any part of the Fees already paid or any other sums paid in advance in respect to the Services or additional services not provided during a Suspension Period and all payments due up to the Suspension Period shall be due and payable by the Client.

11.5 In consideration for ongoing administration by Sircle during a Suspension Period, Sircle may issue an invoice to the Client for payment of a pro-rated proportion of the Fee (as reasonably determined by Sircle).

11.6 Should Sircle be unable to enter, refused entry or safely enter a Site or complete work at a Site in accordance with this Contract on a day and date that has been agreed with a Client for whatever reason, Sircle has the right to recover from the Client 100% of its losses and costs incurred as a result of the failed entry and the Client shall indemnify Sircle for such losses and costs.

11.7 If a Suspension Period continues for 3 calendar months:
(a) either party may give notice in writing to terminate the Contract immediately thereafter; or
(b) the parties may agree to resume the Services on the terms of a new Estimate, which may be subject to increased Fees.

11.8 Either party may terminate the Contract and all active Services under any Estimate at any time for any reason by providing the other with ten days (excluding Saturdays, Sundays and bank and public holidays) notice in writing.

11.9 Without affecting any other right or remedy available to it, either party may terminate the Contract and all active Services under any Estimate with immediate effect by giving written notice to the other party if:

(a) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(b) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(c) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(c) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(d) the other party ceases, or threatens to cease, to trade; or
(f) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

11.10 Nothing in conditions 11.5(a), 11.6 or 11.7 shall affect the Client’s obligation to pay the Fees in each Estimate in full up to the date of termination of the Contract.

11.11 (save where such suspension or termination is due to Sircle being in breach) all reasonable costs, disbursements, loss and expense incurred by Sircle (including and costs incurred in suspending and/or resuming performance of the Services) as a direct result of such suspension or termination will be met by the client.

12 Limitation of liability

12.1 The following provisions of this condition 12 set out the entire financial liability of Sircle (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client for any breach of contract and any representation, guarantee, warranty, indemnity, statement or tortious act or omission including negligence arising under or in connection with the Contract.

12.2 Nothing in the Contract excludes or limits the liability of Sircle in respect of:

12.2.1 Death or personal injury caused by its negligence;
12.2.2 Fraud or fraudulent misrepresentation; or
12.2.3 Any other liability that cannot be limited or excluded under law.

12.3 Subject to Condition 12.2, Sircle shall not be liable to the Client whether in contract (whether by way of guarantee, warranty, and indemnity or otherwise), tort (including negligence), misrepresentation (other than fraudulent misrepresentation), and breach of statutory duty or otherwise in respect of the Contract for any:

12.3.1 Indirect or consequential loss or damage;
12.3.2 Loss of profit; or
12.3.3 Loss of business or depletion of goodwill;
however caused which arises out of or in connection with the Contract.

12.4 Subject to Condition 12.2 and without prejudice to Condition 12.3, Sircle’s total liability in contract (whether by way of guarantee, warranty, indemnity or otherwise), tort (including negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise, arising from any single event, or series of connected events, in connection with the Contract shall be limited to the lower of an amount equal to the Fees paid by the Client to Sircle in the preceding 12 calendar months under this Contract.

12.5 The provisions of this clause 12 shall survive the termination or expiry of the Contract for any reason.

13 Assignment

13.1 Sircle shall not assign any of its right or obligations under this Contract without the prior consent in writing from the Client (consent is not to be unreasonably withheld or delayed).

13.2 The Client shall not assign or sub-contract any of its right or obligations under this Contract without the prior consent in writing from Sircle.

14 Force Majeure

14.1 Sircle shall not be liable, and reserves the right to defer the date of delivery or to cancel the Contract or suspend or reduce the Services, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, failures in utility supply, supplier failures, systems interruption, power surges, network unavailability, equipment failures, virus attack, pandemic or epidemic or any comparable circumstances.

15 General

15.1 Each right or remedy of Sircle under the Contract is without prejudice to any other right or remedy of Sircle whether under the Contract or not.

15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

15.3 Failure or delay by Sircle in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

15.4 Any waiver by Sircle of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

15.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

16 Communications

16.1 All communications between the parties about the Contract shall be sent in writing:

(a) (in case of communications to Sircle) to its registered office or such changed address as shall be notified to the Client by Sircle; or
(b) (in the case of the communications to the Client) to the registered office of the
addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to Sircle by the Client.

16.2 Communications shall be deemed to have been received:

(a) If sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) If delivered by hand, on the day of delivery.
(c) If by email, time and date of successful transmission during normal working hours on a working day in England and if outside of normal working hours, by 9am the next working day in England.

17 Confidentiality

17.1 Both parties agree that publication of the Services carried out can be made on websites, customer presentations, case studies and sales collateral provided we have both given consent in writing (such consent not to be unreasonably withheld). No information regarding the Fees will be shared.

17.2 Both parties will:

(a) hold the other’s confidential information concerning the business, affairs, customers, clients or suppliers or the other party in confidence and, unless required by law, not make the other’s confidential information available to any third party, or use the other’s confidential information for any purpose other than the implementation of this Contract; and
(b) take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed in violation of the terms of this Contract.

18 Client care

18.1 Should for whatever reason the Client have concerns with the services delivered this should be brought to the attention of Sircle at the earliest opportunity so that the matter can be explored.

19 Conflicts of Interest

19.1 Sircle considers Conflicts of Interest on all potential instructions, in line with the RICS guidance. If the Client becomes aware at any time of a potential conflict of interest this should be brought to the attention of Sircle so that it can be considered, and a decision taken on continued delivery of Services.

20 Data Protection

20.1 For the purposes of this condition 20, the terms “processed” and “personal data” shall have the meaning given to them in the UK GDPR.

20.2 The parties acknowledge and agree that it is our intention that no personal data shall be processed in connection with the Services under this Contract. If at any time personal data is processed, the parties agree to:

(a) in good faith enter into a data processing annex to set out the scope, nature and purpose of any processing of personal data; and

(b) comply with all applicable requirements of the Applicable DP Laws in relation to personal data processed in connection with this Contract.