Terms and Conditions – MSH

TREASURE TOWER LIMITED

TERMS AND CONDITIONS OF BUSINESS

  1. Interpretation
    • Definitions. In these Conditions, the following definitions apply:
“Agent”; Treasure Tower Limited registered in England and Wales with company number 9380908.
“Area” the geographical area in which the Customer wishes to purchase property.
“Business Day”; a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Commencement Date”; has the meaning set out in clause 2.2.
“Conditions”; these terms and conditions as amended from time to time in accordance with clause 13.7.
“Contract”; the contract between the Agent and the Customer for the supply of Services in accordance with these Conditions.
“Customer”; the person purchases Services from the Agent.
“Exchange of Contracts” the legal exchange of contracts for the purchase of any property sourced under these Conditions. This includes signing Lease Agreements (Lease Options).
“Fee” the agreed fee for the Services in accordance with clause 5.;
“Intellectual Property Rights”; patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
“Order”; the Customer’s order for Services as set out in the Customer’s written acceptance of a quotation by the Agent, or as the case may be.
“Seller” the person or Company selling any property that is the subject of the Services.
“Services”; the services supplied by the Agent to the Customer as set out in the Conditions
“Written/Writing” a reference to writing or written includes faxes and e-mails except in relation to Clause 13.2
  1. Basis of Contract
    • The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
    • The Order shall only be deemed to be accepted when the Agent issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
    • The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Agent which is not set out in the Contract.
    • Any samples, drawings, descriptive matter or advertising issued by the Agent, and any descriptions or illustrations contained in the Agent’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • Any quotation given by the Agent shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
  2. Services
    • The Agent shall supply the Services to the Customer in accordance with these Conditions or as varied in writing from time to time.
    • The Agent will act as the Customer’s retained agent for the acquisition of a property in the Area and will use all reasonable care and skill in providing its services. In particular it will:
  • use its knowledge of the property market and its associations with developers and estate agents and other sources, to seek out quality investment property for sale with the aim of sourcing appropriate properties taking into account the purpose for which the property is required; and
  • negotiate with the Seller, developers and/or estate agents with regard to the purchase price of property;
  • disclose if the Agent has any interest in the purchase (for example, through ownership of an interest in the property).
    • The Services supplied under this agreement shall continue to be supplied until terminated by either party in accordance with Clause 9.
    • In addition to or as an alternative to the Services described in Clause 3.2, the Agent can also provide area research, market research, training or any other services as agreed in writing (“Additional Services”)
    • For the avoidance of misunderstanding the Agent’s role does not include the following:
      • inspection/survey of the property or the fixtures/fittings;
      • insurance arrangements;
      • sourcing funding for the purchase;
      • environmental investigations;
      • investigations of adjoining properties;
      • financial and/or investment advice of any kind; or
      • legal advice of any kind.
    • The Agent will be happy to assist the Customer by introducing them to experts (“Third Party Suppliers”) to obtain any of the above (or any other advice that the Agent does not provide) but for the avoidance of doubt, the Agent does not make any representations as to their suitability and the Customer is free at all time to use their own Third Party Suppliers.
  1. Customer’s obligations
    • The Customer shall:
      • ensure that the terms of the Order are complete and accurate;
      • co-operate with the Agent in all matters relating to the Services;
      • provide the Agent with such information and materials as the Agent may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
      • obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start including but not limited to the necessary Identification required by the Agent to comply with all Anti-Money Laundering legislation.
    • If the Agent’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
      • the Agent shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Agent’s performance of any of its obligations;
      • the Agent shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Agent’s failure or delay to perform any of its obligations as set out in this clause 2; and
      • the Customer shall reimburse the Agent on written demand for any costs or losses sustained or incurred by the Agent arising directly or indirectly from the Customer Default.
  1. Fees and payment
    • Upon acceptance of the Order by the Agent (and for each subsequent property sourced), the Agent may at its absolute discretion, request that up to 100% of the Fee to be payable ( this includes the “Reservation Fee” which is 33% of the Fee) to an Escrow account (i.e. Transpact.com ) within 7 days and if so requested, the Agent will not carry out the Services until this is received in cleared funds.
    • The outstanding balance will become due and be payable within 14 days of:
      • Exchange of Contracts for any property sourced or introduced by the Agent;
      • if within 12 months of termination of this Contract there is an Exchange of Contracts on a property which was sourced or introduced by the Agent during the term of this Contract.

For the avoidance of misunderstanding, the Fee will be payable by the Customer if the Customer does not itself purchase such a property, but instead uses another method of purchase to suit its purposes, such as the purchase by a company, other legal entity or partnership.

  • The Reservation Fee of 33% is a non-returnable fee to be retained by the Agent and will be forfeit if one of the following occur:
    • The Customer withdraws from a purchase for any reason including but not limited to any failure by Third Party Suppliers;
    • The Customer fails to obtain the necessary funds to purchase a property;
    • If the actions of the Customer result in the Seller withdrawing or cancelling the purchase of the property;
  • The Reservation Fee of 33% will be refunded to the Customer only if the following circumstances take place:
    • the property is withdrawn from sale by the seller prior to exchange of contracts (except for 5.3 (c)) ; or
    • the Customer declines to Exchange of Contracts issued because the property described by that contract is deemed, by a Third Party Supplier, to substantially and materially differs from that described by the Agent. Examples would include changes to the size, position or outlook of the property which have an adverse effect on the value of the property in excess of the relevant amount, but would not include the circumstances where Third Party Suppliers not under the control of the Agent make changes to finance options or other terms offered to the Principal.

If the Reservation Fee is refunded to the Customer then the Customer will not be allowed to purchase the property or enter in any agreement with the Property owner except for in accordance with this Contract.

  • For the avoidance of doubt, after Exchange of Contracts, then if the purchase falls through the Agent will not be liable for any losses of the Customer nor for any refund of the Fee or Reservation Fee albeit that the Agent will actively engage in helping the various parties reach satisfactory solutions to any contractual difficulties that arise.
  • In respect of any Additional Services agreed by the Agent and the Customer, 50% of the Fee will be due upon commencement, and 50% on upon completion of the Fee.
  • Interest payable on late payments In the event of late payment or non-payment of any sums owed by the Customer to the Agent pursuant to this Contract, the Customer hereby agrees that the Agent is entitled to charge interest, at a rate of 4% per annum above the Bank of England base rate, on all sums outstanding, from the date such sums become due, until such sums (including costs of recovery, legal fees etc) have been received by the Agent and until such debts have been satisfied in full (both before and after any judgment).
  1. Intellectual property rights
    • All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Agent.
    • The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Agent obtaining a written licence from the relevant licensor on such terms as will entitle the Agent to license such rights to the Customer.
  2. Confidentiality

A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.

  1. Limitation of liability
    • Nothing in these Conditions shall limit or exclude the Agent’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
      • fraud or fraudulent misrepresentation; or
      • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 1:
      • the Agent shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      • the Agent’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total sum received by the Agent from the Customer for the Services provided.
    • The Agent shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any Third Party Suppliers.
    • The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
    • This clause 8 shall survive termination of the Contract.
  2. Termination
    • Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 1 months’ written notice.
    • Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • the other party (being an individual) is the subject of a bankruptcy petition or order;
      • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
      • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
      • the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      • any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2(b) to clause 9.2(i) (inclusive);
      • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
      • the other party’s financial position deteriorates to such an extent that in the Agent’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
      • the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
    • Without limiting its other rights or remedies, the Agent may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
    • Without limiting its other rights or remedies, the Agent may suspend provision of the Services under the Contract or any other contract between the Customer and the Agent if the Customer becomes subject to any of the events listed in clause 2(b)) to clause 9.2(m), or the Agent reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
  3. Consequences of termination
    • On termination of the Contract for any reason:
      • the Customer shall immediately pay to the Agent all of the Agent’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agent shall submit an invoice, which shall be payable by the Customer immediately on receipt;
      • if the Customer cancels the Contract after the Agent has sourced a property, but before Exchange of Contracts, the Customer shall immediately pay to the Agent the balance of the Fee;
      • the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
      • clauses which expressly or by implication survive termination shall continue in full force and effect.
  1. Force majeure
    • For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Agent including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Agent or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Agents or subcontractors.
    • The Agent shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
    • If the Force Majeure Event prevents the Agent from providing any of the Services for more than 1 week, the Agent shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
  2. Personal Data
    • The Agent, who is registered with ICO (Date Protection Agency) will collect personal data and may, if required, pass this data onto the contracted lawyers, Agents of legal services and mortgage brokers as described in the analysis and for the purpose of enabling the property purchase.
    • The Customer acknowledges that such data as may be necessary to enable the Services may be collected by the Agent and transmitted to legal and financial service providers as necessary and explicitly gives permission to the Agent to do so and agrees to sign any documents necessary to enable such transfers to take place.
  3. General
    • Assignment and other dealings.

This Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.

  • Notices

A notice given to a party under or in connection with this Contract shall be in writing and sent to the party at the address given in this Contract.

    • If any provision or part-provision of the Contract 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 shall not affect the validity and enforceability of the rest of the Contract.
    • If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
  • No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  • No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
  • Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
  • Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Agent.
  • Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
  • Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

This page was last updated on 2nd April 2020. A Copy of this Terms and Conditions can also be emailed upon request.