. In these Conditions, the following definitions apply:
The party who is designated in these terms and conditions to arbitrate disputes concerning payment between the Customers. Unless otherwise agreed by the Customers, the Arbitrator in the first instance shall be SI.
“Business Conversation Area”
The conversation tool within the Sourcing Investments website used primarily for conversation between parties and for the transfer of documents related to the transaction and process.
The two Parties to the Transaction, who agree to use the Services in accordance with these Terms and Conditions. “Customer” refers to either of the two parties
The relevant held in the Escrow Account, held at all times in a ringfenced and insured client bank account of Sourcing Investments Ltd.
; The date of registration and acceptance of these Terms and Conditions by both Customers
; the contract between the Payee and Payer for the supply of goods and services, for which payment will be controlled and provided via this Sourcing Investments Escrow Service and in accordance with these Terms and Conditions.
“Intellectual Property Rights”
; patents, rights to inventions, copyright and related rights, trademarks, 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.
; The identified and registered provider of funds to the Escrow Account in relation to the Works Contract, who has accepted these Terms and Conditions
; The identified and registered recipient of funds from the Escrow Account in relation to the Works Contract who has accepted these Terms and Conditions
the Property relevant to the Works Contract
“Sourcing Investments Escrow Service”
Sourcing Investments Escrow Service provides an independent contractual money holding service between Payer and Payee
; the services supplied by the SI to the Payer and Payee as set out in these Terms and Conditions
the company Sourcing Investments Limited, registered in England and Wales, Company No: 09920397. Registered Office: C/O Rothmans LLP, Fryern House, 125 Winchester Road, Chandlers Ford, Hampshire, SO53 2DR
“Terms and Conditions”
; these terms and conditions as amended from time to time
The reason for the transfer of money between the Customers using the Sourcing Investments Escrow Service. SI acts solely as a money transfer service to transfer monies to the payee when instructed by the Payer, or as directed by a court of competent authority.
The website at www.sourcinginvestments.co.uk
and all derivations of that website.
a reference to writing
1. Basis of Contract
1.1 The Contract constitutes an agreement by the Customers to purchase and utilise Services in accordance with these Terms and Conditions.
1.2 The Contract shall only be deemed to be accepted when the Payer and Payee in relation to a Works Contract both digitally accept the Terms and Conditions, at which point and on which date the Contract shall come into existence (“Commencement Date”
1.3 The Contract constitutes the entire agreement between the parties in relation to the Sourcing Investments Escrow Service. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of SI which is not set out or specifically referred to in the Contract.
1.4 SI can, at its entire discretion decline to contract and provide services to any potential customer, for whatever reason it sees fit, and shall not be required to disclose such reason to any party, other than a court or regulatory body of competent authority.
1.5 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.
1.6 The management and operational activity of the Sourcing Investments Escrow Service will be conducted in the UK and subject to the laws and regulations of the UK. All transactions take place in the UK and all Escrow Funds are held in bank accounts in the UK. Payers from outside of the UK can submit Escrow Funds into the Sourcing Investments Escrow Service subject to meeting the requirements outlined in these Terms and Conditions.
1.1 SI shall supply the Services to the Customers in accordance with these Terms and Conditions or as varied in writing from time to time.
1.2 SI will provide services to Customers using the Sourcing Investments Escrow Service. This service will enable Customers to register with the service and then agree and document within the system the payments schedule related to the Works Contract. Subject to agreement by both the Payer and Payee such agreed payment schedule will also be able to be amended from time to time. The Payee will then be able to use the system request that the Payer place Escrow Funds on deposit within the Escrow Account, to provide comfort to the Payee that funds are available before a works stage is commenced. Upon completion of the relevant works stage, the Payee will be able to request payment for that stage. Once the stage works are agreed by the Payer, SI will remit the funds to Payee on instruction.
1.3 Escrow funds will always be held in ringfenced and insurance backed, segregated client bank accounts. SI will maintain adequate insurance for fraud or theft by internal or external parties. SI will have appropriate undertakings with the relevant bank that, in the event of the insolvency of SI, Escrow funds are ringfenced from the assets of SI and therefore not subject to claim by the creditors of SI, and that in such an event, these monies shall be returned by the bank to the owner or beneficiary of the Escrow Funds. Escrow funds will not be mixed with SI’s own money or own day to day trading accounts.
1.4 SI aims to make payment to Payees no later than 24 business hours after instruction to pay funds.
1.5 SI will only release Escrow funds to Payees on instruction from the Payer or as directed by a Court of Law. SI will return Escrow Funds to the Payer at the request of the Payer but only after the Payee has either agreed to the release of Escrow Funds or has not objected to the notice of the return of Escrow Funds to the Payer within 48 business hours of such a request being posted on the Sourcing Investments Escrow Service. An administration charged may be levied on any return of Escrow Funds to the Payer.
1.6 SI may delay or refuse to act on instructions or make payment if:
- SI reasonably believe that the Customers did not give us the instruction;
- Customers instructions are unclear or not in the required form;
- SI reasonably suspect fraudulent activity;
- SI believes that the transaction may be contrary to a relevant law or regulation; or
- SI, acting reasonably have any other valid reason for not acting on your instructions.
If SI refuse to make a payment we will, where legally permitted to do so, notify you and, if possible, give our reasons for refusal.
1.7 SI is not involved in any way in the selection of the party delivering the Works Contract or for the performance of delivery of the Works Contract or the provision of goods or services related to a Works Contract. SI is only involved in the provision of payments related to the Works Contract. SI does not offer relief for any consequential loss that parties suffer from non-performance related to the underlying works, or goods, or services and the Works Contract.
3. Customer’s obligations
3.1 Customers agree that they will separately enter into a Works Contract directly between each of the Payer and Payee. Such Works Contract should set out and clearly define, amongst other things the scope of the project and works to be undertaken, all conditions of the contract, any relevant working drawings, bills of quantities and specifications. Furthermore, the Works contract should clearly define the relevant stages for payments to be made by the Payer and be very specific about what is required in order for a release of a stage payment to become due.
3.2 Customers are required to agree between them that the relevant works have been completed to the required standard in order for the payment for such stage payment to be released by SI. Agreements for stage payments are a matter between the Payer and Payee.
3.3 Payers agree that when a works stage has been completed, to efficiently proceed with the steps on the Sourcing Investments Escrow Service to enable appropriate payment to be made to the payee.
3.4 Customers agree that once SI receives and process an agreed payment instruction from both the Payer and Payee and once payment is made, that such instruction cannot be reversed. Customers must only authorise payment if they are satisfied that all terms of the Works Contract have been met. The decision to authorise payments rests entirely with the Customers.
3.5 Customers will be required to comply with all KYC and AML procedures as required by SI from time to time. SI reserve the right to refuse to contract with any party or to transfer any Escrow Funds if it is in any way unsatisfied by any party’s compliance with regards to Anti Money Laundering Regulations or other law, regulation or code. Should any relevant Government authority request that payment is delayed pending Money Laundering or Anti-Terrorism checks or similar, or if SI suspects any wrongdoing or potential wrongdoing, then SI may delay payment until such checks are completed. SI accepts no liability for such delays.
3.6 SI may be required to provide details about any Payer or Payee to relevant Governmental authorities or by law.
3.7 You accept that any interest earned on Escrow Funds will belong to SI. Costs and charges of operating the Sourcing Investments Escrow Service will be borne by SI, but any specific charges related to operating a Customer’s payments shall be borne by the customer, including any bank transfer fees, foreign exchange charges, penalties and refund fees.
3.8 Overseas customers shall be responsible for their own foreign exchange exposure. Amounts made and lost on an exchange shall be for the account of the Customer. All dealing with the Sourcing Investments Escrow Service with be considered in UK GBP only.
3.9 If a payment is made to a Payer or Payee in error then such party agrees to immediately return any relevant sum to SI on its request.
3.10 The Payer is responsible for ensuring that the bank account details that it has agreed to send funds to are correct and that the Payee is the owner such bank account. SI has no responsibility to Customers to ascertain the identity of the other party to a transaction. It is important that Customers confirm the identity of the other party to a transaction before agreeing to a transaction, and, where relevant, undertake their own KYC and AML procedures.
3.11 In order to protect your account against misuse, you must: (a) keep your security details secret and take all reasonable stringent precautions to prevent unauthorised or fraudulent use of them; and (b) tell us immediately if you think someone else may know any of your security details or if you suspect unauthorised use of your account; and (c) act with great and reasonable care, including taking reasonable steps to prevent unauthorised use of your security details; and (d) not act fraudulently. If you suspect someone knows your security details you must contact us immediately. If you fail to do so, you will be liable for any unauthorised payments on your account confirmed by use of the security details. If you breach any of your security duties you may be liable for transactions even if you did not authorise them.
3.12 You will be responsible for all losses (including the amount of any transaction carried out without your authority) if you have acted without reasonable care so as to facilitate that unauthorised transaction, or you have acted fraudulently. We will not be liable to you for any breach of (or failure to perform) our obligations where you have failed, intentionally or with negligence, to comply with any term of our agreement with you relating to the issue or use of security details You will be responsible for all losses caused by your gross negligence
3.13 Customers are strongly advised, where they have access to it, to keep all conversations and records of conversations on the Business Conversations Area and the Sourcing Investments Escrow Service and not to use other forms of contact – this area provides a full and complete record of the business transaction and can be used by parties, their advisers and any important third party (such as The Property Ombudsman) in the event it is required for dispute resolution. Business dealings done outside of the Business Conversation Area are less likely to be stored and available for use in dispute resolution, which may weaken a party’s position in the event of a dispute.
4. Dispute Resolution
4.1 Customers are required to attempt to agree between them the release of Escrow Funds from Payer to Payee. If the parties cannot agree they can request that SI act as Arbitrator in the first instance. If such arbitration becomes necessary, then such arbitration will only relate to payment of sums held in the Escrow Account and not to any other matter. SI is not an expert in construction matters and can only make an arbitration where it is competent to do so. SI will, where it feels able to do so, make a recommendation to the Customers, and such recommendation shall not be binding on either party. SI will only release disputed Escrow Funds if both Payer and Payee agree with SI’s recommendation.
4.2 In the event that SI arbitration fails to bring about the agreement between the Payer and Payee then we would recommend that both parties agree to submit to the recommendation of a RICS surveyor. If both parties agree, SI will recommend a RICS surveyor, whose appointment will need to be agreed to by both parties, to then inspect the work. The RICS surveyor will be paid in advance equally by both parties and the parties should agree that the surveyor’s recommendations shall be binding on both parties. Should either party then refuse the recommendations of the surveyor (despite having contractually agreed to be bound by such recommendation) then we would expect the only outcome will be legal action by the parties to bring about resolution.
5. Fees and payment
5.1 Fees will be charged by SI all Escrow Funds at the advertised rate shown on the website from time to time. Once a project has commenced the fee rate shall remain the same throughout such a project. For each stage payment, the fee amount will be fully visible to customers prior to payment. Fee payment for each stage will be taken by SI at the point of any payment being made from Payer to Payee for a stage. Customers authorise SI to take the fees due to SI under this agreement from the Escrow Funds held.
5.2 In the event that the amount held in Escrow Funds is less than the total amount to be paid to the Payee plus SI’s fees, then no remittances will be made until the total amount is available in Escrow Funds. No part payments shall be made and no fees will be charged until payments to Payees are made in whole for an agreed stage payment.
5.3 SI may reject any funds which are not received from the bank account registered with SI, or if not for the exact amount instructed. Administration fees may be deducted from any funds that are returned.
5.4 SI will provide VAT invoice/receipts for the total fees remitted related to a Works Contract after the final payment has been made.
6. Intellectual property rights
6.1 SI is the owner or licensee of intellectual property rights in the Website, information and content available on the Website, any database operated by SI, any proprietary software utilised by SI to enable you to use this Website ("Software") and the underlying source code and the Sourcing Investments Escrow Service. Much of this information and content is protected by copyright, trademark, database rights, design rights (including in the "look and feel" and other visual or non-literal elements), and/or other intellectual property rights (whether registered or unregistered). Our logos, together with our trademarks and/or service marks, may not be copied or reproduced without our prior written consent. All rights are reserved.
6.2 We grant you a non-exclusive, non-transferable licence to use the Software and the Sourcing Investments Escrow Service solely in executable form and only to the extent necessary for use of the Website, and for no other purpose.
6.4 You may not reproduce, republish, transmit or distribute any material, information or content on this Website, or that form part of our services, without our prior written consent. However, you are granted a limited right to access and use the Website and our services and retrieve, display and print content pages, for your own personal, non-commercial use and to the extent necessary for use of the Website and our services only. We reserve the right, in our sole discretion and without notice to you, to terminate your licence and to prevent future access by you to this Website.
7.1 Any party (the “receiving party”) shall keep in strict confidence all information that has been disclosed to the receiving party by the other party (the “disclosing party”), its employees, its agents or its subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services or the Property 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 this Contract or the Works 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 relevant 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.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude SI’s liability for
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) SI 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
(b) SI’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 SI from the Customer for the Services provided.
8.3 SI 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 or in relation to and good or services provided by any other party, including all goods and services provided in any Works Contract.
8.4 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.
9.1 Without limiting its other rights or remedies, any of the parties may terminate this Contract by giving the other party 14 days’ written notice.
9.2 Without limiting its other rights or remedies, parties may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) 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;
(g) an application is made to the 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);
(h) 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;
(i) 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;
(j) 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 9.2(b) to clause 9.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(m) 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.
9.3 Without limiting its other rights or remedies, the SI 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.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to SI and outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SI shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) 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
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
(d) if termination is after payment has been received from a Payer SI will return each payment received to the bank account from which it was paid in accordance with the terms above.
11. Force majeure
11.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the parties 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.
11.2 SI 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.
11.3 If the Force Majeure Event prevents SI from providing any of the Services for more than 7 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice SI.
12. Personal Data
12.2 SI may be required to provide details about any Payer or Payee to relevant Governmental authorities or by law.
13.1 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.
A notice given to a party under or in connection with this Contract shall be in writing or by email and sent to the party at the address or email address given under this Contract.
(a) 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.
(b) 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.
13.5 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.
13.6 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.
13.8 Governing law and Jurisdiction
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 and 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).