Supply of Services Agreements
Property Sourcing & Property Enhancement Services (Scotland)
1. Interpretation
1.1 Definitions:
Agreement the agreement between the Client and SoProperty for the supply of the Services in accordance with the Contract Details and these Conditions.
Business Day a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Charges the charges payable by the Client for the supply of the Services by SoProperty, as set out in the Contract Details.
Conditions these terms and conditions set out in clause 1 (Interpretation) to clause 12 (General) (inclusive).
Introduce the provision by SoProperty to the Client of brief particulars of a Prospective Property and the contact information of a Prospective Seller. Introduction and Introduced shall be interpreted accordingly.
Laws and Regulations all applicable laws, statutes, statutory instruments, orders, regulations and codes of practice (whether or not having the force of law) in force from time to time in all or part of the Territory. The Territory is as set out in the Contract Details.
Property Enhancement Services the property enhancement services, as described in the Contract Details
Property Enhancement Report a report produced by SoProperty for the Client to include an approximation of costs of any recommended enhancements. The report will cover (i) upgrading (i.e. new kitchen etc), (ii) redecoration (cosmetic), (iii) repairs (broken items etc) (iv) furnishing (what furniture should be sourced to enhance for rental or sale).
Property Search Services the property search services, as described in the Contract Details.
Purchase the purchase by the Client of a Prospective Property, following an Introduction to such property by SoProperty.
Purchase Price the price paid by the Client to acquire the Purchased Property.
Purchased Property a Prospective Property that has been purchased by the Client.
Prospective Property a residential property that is available for purchase and that is suitable for being used as a buy to let property. Prospective Properties shall be interpreted accordingly
Prospective Seller a person who owns or has a right to sell a Prospective Property.
Report Fee the fee of £300 payable by the Client to SoProperty to produce the Property Enhancement Report.
Retainer Fee the fee of £2000 payable by the Client to SoProperty to secure the Property Searching Services.
Scope of Work the recommended Work(s) contained in the Property Enhancement Report.
Services the services, to be provided by SoProperty pursuant to the Agreement, as described in the Contract Details.
Services Start Date the day on which SoProperty is to start provision of the Services, as set out in the Contract Details.
Tradesperson any person, persons, consultants, companies or other organisations providing Works for Client.
Upgrade Fee the fee payable by the Client to SoProperty to carry out the Scope of Work, as set out in the Property Enhancement Report.
Work(s) any work carried out by tradesperson at the Client’s request.
1.2 Interpretation:
1.2.1 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.2 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.
1.2.3 A reference to writing or written includes fax and email.
2. Commencement and term
2.1 The Agreement shall commence on the date when it has been signed and delivered in accordance with clause 12.8 by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than two months' written notice to terminate.
3. Supply of services
3.1 In exchange for payment of the Charges, SoProperty shall supply the Services to the Client from the Services Start Date in accordance with the Agreement.
3.2 In supplying the Services, the SoProperty shall:
3.2.1 perform the Services with reasonable care and skill; and
3.2.2 use reasonable endeavours to perform the Services in accordance with the service description set out in the Contract Details.
4. Client's general obligations
4.1 The Client shall:
4.1.1 co-operate with the SoProperty in all matters relating to the Services;
4.1.2 provide, for SoProperty, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Purchased Property; and
4.1.3 provide, in a timely manner, such information as SoProperty may require, and ensure that it is accurate and complete in all material respects.
4.2 If SoProperty's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, SoProperty shall:
4.2.1 not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.2.3 be entitled to recover any additional costs, charges or losses SoProperty sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Property Searching Services
This Clause 5 shall apply where it has been agreed that SoProperty shall provide Property Searching Services, as set out in the Contract Details.
5.1 SoProperty’s obligations
5.1.1 SoProperty is appointed by the Client on an exclusive basis to search for and Introduce opportunities to the Client to purchase a Prospective Property.
5.1.2 SoProperty shall have no authority, and shall not hold itself out as being authorised to bind the Client in any way, and shall not do any act which might reasonably create the impression that SoProperty is so authorised.
5.1.3 SoProperty shall not negotiate the terms of any purchase of a Prospective Property, including for the price of the Prospective Property, unless so instructed by the Client.
5.1.4 SoProperty shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Client, and must disclose to each Prospective Seller that it is an introduction agent of the Client and that it has no authority or ability to enter into any contract on behalf of the Client.
5.1.5 SoProperty shall report to the Client with a list of Prospective Properties which, in SoProperty’s reasonable opinion match the Client’s stipulated criteria and have been shortlisted following financial analysis. Such report shall be produced on a minimum fortnightly basis, commencing two weeks after the Services Start Date.
5.2 Client’s obligations
5.2.1 The Client shall provide SoProperty at all material times with the information SoProperty reasonably requires to carry out its duties including details of any stipulated criteria for a Prospective Property including budget and location.
5.2.2 The Client shall provide SoProperty with evidence of available funds within 14 days of the Services Start Date with which the Client proposes to purchase a Prospective Property.
5.2.3 It is the Client’s sole responsibility to secure funding or to produce the necessary funds to Purchase a Prospective Property.
5.2.4 The Client confirms that there is no reason that the Client shall be refused any borrowing, including but not limited to, the existence of any debt or similar.
5.2.5 The Client shall be responsible for obtaining advice from an independent mortgage advisor in connection with any Prospective Property or Purchase. SoProperty shall have no responsibility whatsoever for any advice given, or actions taken, in connection with any mortgage or borrowing by the Client.
5.2.6 The Client shall be responsible for carrying out all due diligence to satisfy itself that it has all the information it needs in respect of any Prospective Property and purchase of same and shall not rely solely upon information provided by SoProperty. This includes, but is not limited to, the Client engaging independent property experts such as surveyors, roof specialists, damp report specialists, and independent specialist legal and financial advice. SoProperty shall not be liable for any legal and/or financial advice relied upon by the Client.
5.2.7 The Client shall ensure that it is in a position to purchase a Prospective Property within the timescale agreed with SoProperty.
5.2.8 The Client acknowledges that the property market fluctuates and SoProperty has no responsibility for a Purchased Property increasing in value for the duration of the Client’s ownership. SoProperty is acting in an advisory role only.
5.2.9 SoProperty shall invoice the Client for Property Searching Services on exchange of contracts for Purchase. Such fee shall be payable by the Client to SoProperty irrespective of whether or not the Purchase completes.
5.3 Retainer Fee
5.3.1 The Client shall pay the Retainer Fee to SoProperty within 14 days of the date of this Agreement, to a bank account nominated in writing by SoProperty.
5.3.2 In the event of a Purchase, the cost of the Retainer Fee shall be deducted from the Charges due for the Property Search Services by the Client to SoProperty.
5.3.3 If, at the end of the initial six month period commencing on the date of this Agreement:
5.3.3.1 SoProperty has not Introduced the Client to a suitable Prospective Property; or
5.3.3.2 SoProperty does Introduce the Client to a suitable Prospective Property but the Client does not proceed with the Purchase SoProperty shall be entitled to retain the Retainer Fee for time and services rendered.
5.3.4 If, following the six month period specified in clause 5.3.3 the Client wishes SoProperty to continue providing the Property Searching Services, a further Retainer Fee (“Further Retainer Fee”) shall be payable within 14 days of the date of the 6 month anniversary of the date of this Agreement, to a bank account nominated in writing by SoProperty. Such Further Retainer Fee shall be on the same terms as clauses 5.3.2 and 5.3.3.
5.3.5 In the event that a Purchase fails due the Client failing to secure funding or produce the necessary funds in accordance with clause 5.2.3 an additional fee of £3,000 (“Failed Purchase Fee”) shall be due by the Client to SoProperty. The Client shall pay the Failed Purchase Fee to SoProperty on the date on which the exchange of the Purchase was to occur, as set out in the relevant conveyancing documents, to a bank account nominated in writing by SoProperty.
5.3.6 In the event that the Client does not produce evidence in accordance with clause 5.2.2, SoProperty shall retain the Retainer fee and SoProperty may terminate the Agreement by giving not less than 14 days’ written notice to the Client.
6. Property Enhancement and Decoration Services
This Clause 6 shall apply where it has been agreed that SoProperty shall provide Property Enhancement Services and/or Property Decorating and Repair Services, as set out in the Contract Details
6.1 The Client shall pay the Report Fee to SoProperty within 14 days of the date of this Agreement, to a bank account nominated in writing by SoProperty.
6.2 In the event of the Client undertaking any of the Works described in the Property Enhancement Report, the cost of the Report Fee shall be deducted from the Charges due for the Property Enhancement Services by the Client to SoProperty.
6.3 In the event of the Client instructing SoProperty to proceed with the Scope of Work, the Client shall pay the full estimated costs of the Scope of Work as set out in the Property Enhancement Report to SoProperty within 7 days of the date that the Scope of Work is agreed and in any event prior to any Work(s) commencing, to a bank account nominated in writing by SoProperty. Such funds shall be held by SoProperty and used by SoProperty for arranging and managing the Work(s), including payment of any invoices received by a Tradesperson.
6.4 SoProperty shall use its reasonable endeavours to produce a clear Scope of Work with an accurate estimation of costs in the Property Enhancement Report. The Client acknowledges that the costs are estimates only and that SoProperty shall have no liability for any of these costs being exceeded. In the event that the actual costs of the Scope of Work exceed the estimated costs, the Client shall pay to SoProperty such funds as are required to meet any shortfall immediately on notification by SoProperty of the estimated amount being exceeded.
6.5 Any expenses incurred by SoProperty in travelling to and from the Purchased Property to provide the Services shall be payable by the Client. Such expenses shall be invoiced to the Client in accordance with clause 8.3.
7. Engagement of Tradesperson and third parties
7.1 Where SoProperty suggests that upgrading, refurbishment, repairs and renovation furnishing is required in relation to a Purchased Property, SoProperty shall introduce the Client to an appropriate Tradesperson and SoProperty shall co-ordinate and manage any Work(s) and liaise with the Tradesperson for and on behalf of the Client, in accordance with clauses 7.2 to 7.6.
7.2 The Client authorises the SoProperty to negotiate and instruct contracts for Work(s) in the name of and on behalf of the Client, including:
7.2.1 Negotiate the terms of any Work(s) to be performed by the Tradesperson;
7.2.2 Negotiate the fees payable for any Work(s) to be performed by the Tradesperson;
7.2.3 Enter into any contract in respect of Work(s) with the Tradesperson; and
7.2.4 Liaise with any Tradesperson generally in connection with the Work(s).
7.3 The Client authorises SoProperty to act as an intermediary with any Tradesperson only. There shall be no contract for Work(s) between SoProperty and any Tradesperson. Accordingly, the Client should use their best endeavours to ensure that all invoices received from the Tradesperson are addressed to the Client.
7.4 The Client shall be responsible for carrying out all due diligence, investigations and research into the Tradesperson carrying out the Work(s), including satisfying themselves of the scope of Work(s) to be performed, fees payable for the Work(s) and that the Tradesperson has an appropriate insurance policy in place.
7.5 SoProperty accepts no liability in respect of any contract or agreement entered into by the Client and Tradesperson. In particular but without limitation, SoProperty accepts no liability relating to the quality or fitness of any Work(s) performed or omitted to be performed by any Tradesperson.
7.6 The Client shall be responsible for obtaining any necessary planning permission and/or building warrants and SoProperty shall not be liable for any costs, charges or losses associated with same.
8. Charges and payment
8.1 In consideration for the provision of the Services, the Client shall pay SoProperty the Charges in accordance with this clause 8.
8.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to SoProperty at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
8.3 SoProperty shall submit invoices for the Charges plus VAT if applicable to the Client on completion of each stage of the Services. In particular:
8.3.1 SoProperty shall invoice the Client for Property Searching Services on exchange of contracts of Purchase; and
8.3.2 SoProperty shall invoice the Client for the Upgrade Fee on completion of the Property Enhancement Services
Each invoice shall include all reasonable supporting information required by the Client.
8.4 The Client shall pay each invoice due and submitted to it by SoProperty, within 30 days of receipt, to a bank account nominated in writing by SoProperty.
8.5 If the Client fails to make any payment due to SoProperty under the Agreement by the due date for payment, then, without limiting SoProperty's remedies under clause 11 (Termination):
8.5.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.5.2 SoProperty may suspend all Services until payment has been made in full.
8.6 All amounts due under the Agreement from the Client to SoProperty shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Compliance
9.1 Each party will at all times comply with the Laws and Regulations in respect of its obligations under this Agreement. Nothing in this Agreement will require either party to act otherwise than in accordance with the Laws and Regulations.
10. Limitation of liability
10.1 References to liability in this clause 10 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to, liability for:
10.2.1 death or personal injury caused by negligence;
10.2.2 fraud or fraudulent misrepresentation; and
10.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.3 Subject to clause 10.2, SoProperty shall not be liable to the Client for any loss of profits, loss of sales or business, loss or damage caused to the Purchased Property, loss of agreements or contracts, loss of or damage to goodwill or indirect or consequential loss whatsoever.
10.4 Subject to clause 10.2, SoProperty’s total liability to the Client shall not exceed the Charges payable by the Client under the Agreement.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
11.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4 the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
11.2 This Agreement shall immediately terminate on completion of the Services in full by SoProperty.
11.3 Without affecting any other right or remedy available to it, SoProperty may terminate the Agreement by giving not less than 14 days’ written notice to the Client if the Client is, in SoProperty’s reasonable opinion, noncommitted to the search for a Prospective Property.
11.4 Without affecting any other right or remedy available to it, SoProperty may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment.
11.5 On termination of the Agreement for whatever reason:
11.5.1 the Client shall immediately pay to SoProperty all of SoProperty's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SoProperty may submit an invoice, which shall be payable immediately on receipt;
11.5.2 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
11.5.3 termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12. General
12.1 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 28 days' written notice to the affected party.
12.2 Assignation and other dealings.
12.2.1 The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without SoProperty's prior written consent.
12.2.2 SoProperty may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Agreement.
12.3 Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver.
12.5.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
12.5.2 A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.6 shall not affect the validity and enforceability of the rest of the Agreement.
12.7 Notices.
12.7.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
12.7.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at the address as specified in the Contract Details; or
12.7.1.2 sent by email to the address specified in the Contract Details.
12.7.2 Any notice or communication shall be deemed to have been received:
12.7.2.1 if delivered by hand, at the time the notice is left at the proper address;
12.7.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
12.7.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause 12.7.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Counterparts.
12.8.1 This Agreement may be executed in any number of counterparts.
12.8.2 Where executed in counterparts:
12.8.2.1 this Agreement shall not take effect until each of the counterparts has been delivered;
12.8.2.2 delivery shall take place when the date of delivery is agreed between the parties after execution of this agreement as evidenced by the date inserted at the start of this Agreement.
12.8.3 The Client hereby authorises the SoProperty or its agent to insert the date of delivery agreed pursuant to clause 12.8.2.1 above on the front page of this Agreement.
12.8.4 If this agreement is not executed in counterparts, this Agreement shall be delivered on the date inserted on the front page of this Agreement or, if no such date is inserted, the date on which the last party signed this Agreement.
12.9 Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of this Agreement. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
12.10 Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of Scotland.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.