1 DEFINITIONS
1.1 In these terms:
“Client” or “you” means the addressee of the Letter of Engagement.
“Company” or “we” or “us” or “our” means Simpson & Marwick Limited, which trades under the brands “Simpson & Marwick” and “Esson & Aberdein”, a company registered in Scotland (registered number SC773215). A list of directors is open for inspection at its registered office at Suite 2, Ground Floor, Orchard Brae House, 30 Queensferry Road, Edinburgh, United Kingdom, EH4 2HS.
“Personnel” means each and all of our partners, directors, employees, agents; and third-party providers to whom we may outsource our information technology function and their partners, directors, employees and agents.
“Services” means the services to be provided by the Company in accordance with the Letter of Engagement.
“Services Contract” means the contract between the Client and the Company, the terms of which are recorded in these terms and the Letter of Engagement, together with any documents or other terms applicable to the Services to which specific reference is made in the Letter of Engagement or in these terms.
“Letter of Engagement” means the letter of engagement we issue to you which references these terms of business, together forming the Services Contract.
2 OUR SERVICES
2.1 Where there is any inconsistency between these terms and the Letter of Engagement, the latter will prevail.
2.2 Our fee includes all the tasks necessary to complete the Services. If, however, additional work is required we will tell you this prior to undertaking the work and we will quote a fee to you.
2.3 We will discuss any other individual requirements with you. Please note that any agreed fee and the scope of our instructions will normally not include advice on tax matters, structural condition of property, or other surveys and inspections, or matrimonial matters nor does it include any other legal, tax or financial advice.
2.4 The scope of the Services is described in the Letter of Engagement, as amended, or supplemented from time to time. The Company shall not be responsible for providing any service or advice outside that scope unless it agrees to do so in writing. All the work which the Company undertakes is subject to internal review and quality assurance procedures. This extends to our accounts, human resources, technology and administrative functions which are outsourced to a third-party provider. These procedures have been developed to ensure that the Services are presented to a consistent, and high standard of quality.
2.5 From time to time, we may delegate tasks to suitably experienced employees to enable your work to be carried out in a timely and cost-effective manner. Where appropriate, work may be undertaken, subject to supervision, by a suitably qualified person who is not a solicitor.
3 OUR FEES AND DISBURSEMENTS
3.1 Basis of Fees
Our fees will be charged on the basis set out in the fee estimate which forms part of the Letter of Engagement, or, if not so set out, on the basis of any other written or verbal agreement made between us.
3.2 Disbursements and Expense
3.2.1 In addition to our fees, we may incur disbursements and expenses from time to time. Any disbursements quoted to you include all the standard disbursements for your transaction. If additional disbursements are necessary, we will endeavour to advise you of these in writing prior to incurring any expenditure on your behalf.
3.2.2 Disbursements may include, but are not limited to, property portal fees, advertising fees, property search/enquiry fees, court fees, Land Registry fees and courier charges. We will not charge for routine day-to-day photocopying or routine use of faxes (usually involving no more than a few pages at a time). We also do not charge for telephone or postage within the UK.
3.2.3 We will notify you in advance of any substantial expenses which are likely to arise in the course of your matter which you have to pay. Disbursements and/or expenses-only bills may be delivered when or at any time after the disbursement and/or expense is incurred.
3.3 Billing
3.3.1 All estimates of, or references to, fees and disbursements are exclusive of any taxes (such as value added tax) and will be subject to their addition, where applicable, at the prevailing rate.
3.3.2 Where you are selling a property, we will ask the solicitor acting on your behalf to deduct all outstanding disbursements and/or expenses together with our fee from the sale proceeds after the sale has completed. Where we have secured a property, fees, disbursements and/or expenses shall be paid no later than the completion date of the applicable transaction.
3.3.3 All invoices will be in sterling, except where another currency is specifically agreed, and are payable on delivery (or such other date as is stated in the Letter of Engagement). Any query on an invoice must be raised within 14 days of delivery. If an invoice is not paid within 30 days of the due date, the Company reserves the right to charge interest in line with the Late Payment of Commercial Debts (Interest) Act 1998, or where that Act does not apply, at a rate of 8% above the base rate of Bank of Scotland from time to time, and/or a late payment administration fee up to the sum of £100. The Company also reserves the right (where permitted) to suspend or terminate the provision of the Services if any invoice is not paid within 30 days of the due date (although we would not do so without consulting you first).
3.3.4 We may ask you to pay our fees and disbursements before we commence work on the Services. Alternatively, if there are any balance monies due to you on completion we may ask your lawyer to deduct our charges and expenses and forward the balance to you. It is a condition of our accepting instructions that until all outstanding fees and disbursements requested of you have been received by us and cleared through our bank, we will not complete the Services or, at our discretion, carry out any further work.
3.3.5 If you are dissatisfied with any aspect of your invoice you may have a right to object to the invoice by making a complaint to a Director of the company.
3.4 COMMISSION
The Company may pay and receive commission and payments for the introduction of business to and from third parties.
4 CLIENT MONIES
4.1 Any monies paid to the Company in advance of the conclusion of any matter, either by way of retainer or on account of our fees or expenses or as a security deposit, will be held in a client account unless you request otherwise, separately from the Company’s own monies.
4.2 Monies deposited with the Company on account of future fees and expenses (including accrued interest) will be available to us to transfer and use the same in payment of our invoiced fees and expenses.
5 YOUR OBLIGATIONS
5.1 To achieve the Client’s objectives, it is imperative that the Client and the Company work together as a team, and that any changes in the Client’s objectives are communicated promptly and clearly to the Company. Such changes may require amendments to the scope of the Services as described in the Letter of Engagement and the Company will issue appropriate amendments to record these changes from time to time. It is the Client’s responsibility, however, to decide the use of and the extent to which it relies on and implements the advice or recommendations of the Company.
5.2 To enable us to provide the Services to you, you agree to provide us with all relevant information, including any matter or fact which may have any bearing on our acting for you or our provision of the Services so that we can consider whether it is relevant to the conduct of the matter. It is of particular importance that:
(a) you provide us in a timely manner with all instructions, information and documents required for us to carry out the Services, and you are available to sign documents, if necessary;
(b) all information which you provide to us is true, accurate and not misleading to the best of your knowledge, information and belief (this is important as we will not verify the accuracy and completeness of the information which you supply to us unless we have agreed to do so in providing the Services); and
(c) you keep in regular contact, and if there are changes to the information provided to us, including your contact details, you notify us immediately.
5.3 Accordingly, the Company will not be responsible for any loss or damage arising from reliance on any information, or for inaccuracy or other defect in any document, supplied by you.
6 YOUR BEST INTERESTS
6.1 If we have received instructions from a third party such as a broker or introducer our direct relationship is with you and not the referrer. You are free to choose another firm of solicitors if you wish.
6.2 Any advice given by us will be independent and you are free to raise questions on all aspects of the Services. We will not be liable for any losses flowing from any advice given.
6.3 We confirm that information disclosed to us by you will not be disclosed to the introducer unless you consent.
7 CYBERSECURITY & INTERNET
7.1 Subject to condition 7.2, you agree that we may communicate with you by email sent without encryption over the internet. The Company shall not be responsible for any loss or damage arising from the unauthorised interception, re-direction, copying or reading of emails, including any attachments, nor shall we be responsible for the effect on any computer system (or any loss or damage arising from any such effect) of any emails, attachments or viruses which may be transmitted by this means (save to the extent that this is caused by our negligence or wilful default). You must notify the nominated Director responsible for providing the Services to you if you do not want us to use email. Please remember that emails have the same legal effect as a letter or fax and we will act upon your instructions received by email.
7.2 We will never send our bank account details by email as emails can be fraudulently intercepted. Should we change our bank account details we will advise you in writing or by phone. We strongly recommend that you use bank account validation software provided by your bank wherever possible and if you are in doubt, please contact the person dealing with your file.
7.3 From time to time and with your agreement we may use internet-based document management and retrieval tools in connection with the provision of the Services. You agree that any use of these facilities is subject to our specific terms and conditions which we will provide at the time.
8 COMPLAINTS AND SUGGESTIONS
8.1 At the Company we pride ourselves on the quality of our Services and we are confident that you will receive a high-quality service in all respects. However, if you have any queries or concerns about the work we are doing for you, you should try to resolve this with the person who is dealing with your matter.
8.2 If you have any concerns at all, please raise them with us. We recognise that Alternative Dispute Resolution Regulations have implemented to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however chosen not to adopt an alternative dispute resolution process.
8.3 As we continually measure our performance against customer satisfaction your feedback about our service would be welcomed. At the end of the Services you may be sent a customer service questionnaire for completion or we may, on occasion, employ a 3rd party company to contact you to carry out an independent service analysis.
9 DATA PROTECTION
9.1 Where we specifically request ID documentation from you in order to carry out client identity checks as required under the Anti-Money Laundering Legislation (as defined below), we will only use this documentation for this purpose.
9.2 Full details of our use of personal data (including our legal basis for such use) and information on the rights of data subjects in relation to that data are set out in our Privacy Policy. If you have any questions about this policy, or our use of personal data generally, then please contact our Data Protection Officer.
10 CONFIDENTIALITY
10.1 Subject to condition 10.2 the Company will treat all information which is provided to us by you or on your behalf for the purposes of providing the services as strictly confidential and we will not use or disclose this information except for the purposes of providing the services (which you acknowledge may require us to disclose information to third parties, including your other advisers). This obligation will not apply to any information which is in or comes into the public domain otherwise than as a result of a breach by us of these terms, nor does it apply to information which is already lawfully in our possession at the time it is communicated by you to us.
10.2 Notwithstanding condition 10.1, the Company will be entitled to disclose confidential information relating to or belonging to you to:
(a) our insurers, accountants and legal advisers;
(b) our auditors, providers of capital and outsourcing services and any other professional advisers appointed by us from time to time;
(c) any other third party to the extent that this is required by law or regulation.
10.3 Unless you instruct us otherwise in writing we will be entitled to state in our promotional material and tender documents that we have worked for you so long as we do not otherwise breach our duty of confidentiality to you.
10.4 This condition 10 will continue in force beyond the termination or expiry of our services
11 INTELLECTUAL PROPERTY
The Company retains all copyright, database rights and other intellectual property rights developed, designed, generated or created by us in the course of us providing the Services to you (either before the commencement of or during or after the completion of the provision of the Services) including systems, methodologies, software, know-how, documents and working papers. For the avoidance of doubt, the Company also retains all copyright, database rights and other intellectual property rights in all reports, written advice, documents and all other materials provided by the Company to you
12 DUTY OF CARE & LIABILITY
12.1 We will use all reasonable skill and care in the provision of the Services.
12.2 The Services are provided in accordance with:
(a) our understanding of current professional practice and guidelines, and
(b) the proper interpretation of the law, court decisions and regulations in existence on the date on which advice is provided.
12.3 It is possible that changes in the law and its interpretation may occur before our advice is acted upon. The Company cannot accept responsibility for any changes in the law or its interpretation which occur subsequent to our advice being delivered to you or which could not reasonably be known by us at that time.
12.4 The Services are provided to and for the benefit of you as our client, and you alone. The Company accepts liability to you, and you alone.
12.5 We recognise that, if you suffer loss as a result of any act or omission by the Company we may incur liability to you. All Services provided to you will be the responsibility of the Company only, and no personal liability shall attach to any Personnel. Our liability to you arising from our deliberate fraud or reckless disregard of our professional obligations shall not be restricted by any provision in the Services Contract nor shall anything in the Service Contract exclude our liability to the extent prohibited by law or regulation in the case of a contentious business agreement. With those exceptions, our liability shall be subject to the following:
(a) neither the Company nor any Personnel shall be liable in any circumstances for any loss, damage, cost or expense arising from any dishonest, deliberate or reckless misstatement, concealment or other conduct on the part of any other person;
(b) neither the Company nor any Personnel shall be liable for loss of profits or any indirect or consequential loss or damage suffered by you arising from or in connection with the Services;
(c) neither the Company nor any Personnel shall be liable for any inaccuracy, omission or other error in any public register upon which our search reports are based; and
(d) to the extent permitted by law, the aggregate liability of the Company in any circumstances whatsoever, whether in contract, delict, statute or otherwise, and however caused (including as a result of our negligence), for loss or damage arising from or in connection with the Services shall be limited to a sum equal to the value of the fee paid to us in relation to the matter with regards to which we are instructed.
12.6 For the avoidance of doubt, where we provide you with any guidance on tax or accounting related issues that is not expressly covered by a Letter of Engagement for tax advice this is only informal guidance and not advice which you can rely on and as such you must seek separate advice from a specialist tax adviser or accountant (as appropriate).
12.7 If you accept or have accepted any express exclusion and/or limitation of liability from any of your other professional advisers, the Company’s total liability to you in respect of or arising out of the Services Contract will not exceed the aggregate amount for which the Company would otherwise have been liable after deducting any amount which we would have been entitled to recover but are prevented from doing so as a result of any such exclusion and/or limitation of liability.
13 TERMINATION OF YOUR INSTRUCTIONS
13.1 You may terminate your instructions to us in writing at any time. Please note we will not release any papers and documents (including searches) while money is owed to us.
13.2 The Company reserves the right to cease to act on your behalf if we consider this appropriate. If we intend to do this, we shall so far as practicable, consult with you first and provide reasonable assistance in transferring the matter to another company. We will charge you for all work completed up to the date of termination of the Services, taking into account the work we have done and any costs incurred by us in closing or transferring the matter. The Company has the right to claim a lien over deeds, documents, monies and other items held for you until our fees and disbursements have been paid in full.
13.3 We will act as your agents with sole selling rights (unless otherwise agreed) in the sale of your property. This means that you will be liable to pay us the sale fee (in addition to any outlays incurred and not yet paid) in the following circumstances: a. If missives for the sale of the property are concluded during the period that we are selling agents, even if the purchaser was not found by us, but by another agent or by any other person including you; b. If our appointment as your agent has been terminated by you, we will remain entitled to our fee during the following 6 months if missives are concluded for the sale of the property to a purchaser who was introduced to you during the period of our agency or with whom we had negotiations about the property during that period. Our sale fee will be calculated in terms of the quotation given to you and due on the date of settlement.
13.4 Once we have received instructions to market the property, any private approach or a private offer that is made directly to you must be notified to us. In the event that this leads to missives being concluded, all disbursements incurred are payable along with our sale fee calculated in terms of the quotation given to you and is due on the date of settlement. We shall also continue to market the property and incur disbursements, for which you remain responsible, unless you tell us to stop marketing and/or incurring further disbursements.
13.5 If a purchaser is introduced by us and the sale terms are agreed in principle in accordance with your instructions or we receive an offer at, or in excess of, the Home Report value, we reserve the right to charge you 50% of our fee in addition to any outstanding outlays (which are due within 28 days of being requested) if you withdraw from the sale of property. Should you reinstruct us within 6 months, we will deduct this withdrawal fee from the final fee payable.
14 CONSUMER CONTRACT REGULATIONS
14.1 In relation to the cancellation of contracts made at distance or off premises, the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (“The Cancellation Regulations”) will apply.
14.2 If you instruct us as a consumer in relation to a personal matter (i.e. not in the course of your trade, business or profession), and you have entered into a qualifying contract, you have a right to cancel the contract within fourteen (14) days, if the Cancellation Regulations apply, without giving any reason by writing to us at Simpson & Marwick Limited, 4 Albyn Place, Edinburgh EH2 4NG or by email to compliance@simpsonmarwick.com.
14.3 If you do cancel the contract, after instructing us to begin providing the Services during the 14-day cancellation period, you will pay us that part of the agreed fee which is proportionate to the Services actually performed until receipt of the cancellation. If you have instructed us to begin providing the Services within the 14-day cancellation period, then you have no right to cancel after the Services have been completed.
15 MONEY LAUNDERING REGULATIONS
15.1 The Proceeds of Crime Act 2002, The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and other legislation (“Anti-Money Laundering Legislation”) places certain obligations on us and our solicitors, consultants and members of staff.
15.2 The Company has an obligation under the Anti-Money Laundering Legislation to report knowledge or suspicion of certain criminal activities to the National Crime Agency (“NCA”) and this may be done without reference to, or the consent of, you. Authority from the NCA is then required before we can continue to act for you. Even if the NCA authorises us to continue to act for you the NCA is entitled to pass any information received from us to third party agencies (such as HM Revenue & Customs) who may decide to make further investigations. The obligations upon us and our solicitors and members of staff under the Legislation can, in certain circumstances, override our duty of confidentiality to you as a client.
15.3 The Company is required to identify its clients. It is a criminal offence for us to fail to carry out various client identity checks and procedures in the course of our profession. Under the Anti-Money Laundering Legislation we are required to ask you for certain information, carry out risk assessments and formally establish your identity and permanent address as well as establish that you are not on certain “black list” databases (e.g. for politically exposed persons and also for terrorist suspects). Part of this process will involve us undertaking a third party data check and if your identity cannot be verified using this service then we reserve the right not to act for you. We reserve the right to request that you provide us with original documents to enable us to perform these mandatory checks as well as detailed background information about you, the source of any funds and your business. Please note that we must perform these checks prior to providing any advice to you. We are also legally required to carry out these checks on a regular basis to ensure that the information we hold about you is up to date. In the absence of satisfactory evidence of identity when requested the Company will be unable to act or continue to act for you.
15.4 You may be asked, including by use of electronic platform, to disclose details of the source of funds provided by you (including sort code and account number) and failure to do so may lead us to terminate your instructions or a delay in the transaction whilst further investigations are made.
15.5 The Company may in some circumstances be obliged to terminate your instructions in circumstances where we may not be able to communicate the reason for the termination.
15.6 The Company shall not have any liability whatsoever arising out of any action which we, in good faith, consider is necessary for us to comply with money laundering legislation.
16 CONSENT TO MARKETING
We may invite you to events held by us, or send out newsletters and blogs on variety of property, financial and business related topics. We may also provide updates on the services we provide. If you are a new client of the Company we would like to add you to our marketing database. If you don’t want to be added to our marketing database, please email compliance@simpsonmarwick.com. The activities we use our marketing database for are: (i) seminar and events; (ii) newsletters and blogs, and (iii) information about our services. If you would like to choose what marketing activities we contact you about, please email your preferences to compliance@simpsonmarwick.com.
17 GENERAL
17.1 APPLICABLE LAW AND JURISDICTION
The Services Contract will be governed by and interpreted according to Scots Law. You irrevocably agree that the Scottish courts shall have exclusive jurisdiction over any dispute which may arise out of or in connection with the Services Contract.
17.2 NOTICES
Any notice or other communication to be given under the Services Contract shall be given in writing and delivered by prepaid first-class post (or prepaid overseas equivalent) to, or by hand at, our respective addresses appearing in the Letter of Engagement (or such other address as may have been notified in writing). Notices shall be deemed to be given in the case of delivery personally on delivery and in the case of posting (in the absence of earlier receipt) 48 hours after posting (six days if sent by overseas first-class post equivalent).
17.3 THIRD PARTY RIGHTS
A person who is not party to the Services Contract shall have no right under the Law of Scotland to enforce any term of the Services Contract.
17.4 WAIVER
Any delays in enforcing the terms or conditions of the Services Contract will not affect or restrict any of the rights and powers arising under the Services Contract. Either party will only be taken to have released its rights under the Services Contract if it has confirmed such release in writing to the other.
17.5 FORCE MAJEURE
Neither you nor the Company can be held liable for any delay or failure to fulfil our respective obligations under the Services Contract as a result of causes beyond our reasonable control. Such causes include, but are not limited to, fire, floods, acts of God, pandemics, staff absences, acts and regulations of any governmental or supranational authority, war, riots, strikes, lockouts and industrial disputes.
Such delay that we give you notice of shall not constitute a breach of our agreement with you, but if such delay continues for a period in excess of 30 days, you shall be entitled to terminate your relationship with us.
17.6 SUBCONTRACTING AND NOVATION
In appropriate circumstances, the Company will use third parties to assist us in providing any part of the Services. Any reference to our employees in the Services Contract includes these third parties; and if the Company’s practice or substantially the whole of the Company’s practice is transferred to another entity which is controlled by Personnel and authorised and regulated by the Law Society of Scotland, the Company shall have the right to novate the Services Contract in favour of such entity by giving written notice to that effect to you.
17.7 ENTIRE AGREEMENT
The Services Contract constitutes the entire agreement between the Company and you with respect to the Services. The Company and you both acknowledge that (respectively) we and you have not entered into this Services Contract on the basis of, and have not relied upon, any statement, representation, warranty or other provision, except those expressly included in this Services Contract. No remedy shall be available in respect of any untrue statement, representation or warranty other than a remedy available under this Services Contract. The preceding two sentences shall not apply to any statement, representation or warranty made fraudulently.
18 DATE OF DRAFTING AND REVISALS
These Terms of Business were drafted in November 2023.