Terms of Business
SQUAREFOOT CAPITAL LIMITED TERMS OF BUSINESS
These terms of business (“Terms”), our Commission and Charges Sheet, and other policies referred to herein or as supplemented by us (all as applicable, available and updated from time to time and viewable at https://sqft.capital/) (collectively the “Agreement”) define the legally binding contractual basis on which Squarefoot Capital Limited, a firm registered in England & Wales with registered number 11005002 with its registered office at 1 & 2 The Barn, Oldwick West Stoke Road, Lavant, Chichester, West Sussex, United Kingdom, PO18 9A, (“SQFT” or “We,", “our” or “us”), will provide you with the Services (as defined below in clause 2.1).
INTRODUCTION AND COMMENCEMENT OF THESE TERMS
This Agreement replaces any previous terms of business covering our Services and shall (subject to completion of all internal procedures, including AML, KYC and other checks) commence upon you communicating your affirmative confirmation of their application (“Commencement Date”).
We recommend that you save or print a copy of these Terms for future reference.
If you are a partnership, or a business comprising more than one person, your liabilities under these Terms shall be joint and several. In the event of bankruptcy, winding up or dissolution of any one or more of such persons, then (but without prejudice to the above or our rights in respect of such person and his successors) the rights and liabilities of that person shall be held by the person or persons surviving in respect of whom these Terms shall continue in full force and effect.
This Agreement applies to all methods or mechanisms used to provide the Services, including, where applicable, electronic mechanisms and systems.
DEFINITIONS AND INTERPRETATION
In this Agreement the following words shall have the corresponding meanings unless the context otherwise requires:
"Applicable Law" means all laws, enactments, regulations (as may be amended, extended or re-enacted from time to time), which apply to the provision or the receipt of the Services in the United Kingdom;
“Agent” has the meaning given in clause 8;
“Associate” means any wholly or partially owned subsidiary of SQFT appointed by SQFT to perform any Services from time to time;
"Business Day" means any day which is not a Saturday, Sunday or public or bank holiday in England;
“Commencement Day” means the date on which you confirmed that you accepted and agree to these Terms pursuant to clause 1.1;
“Commission” has the meaning given to it in clause 6.2;
“Commission and Charges Sheet” means the list of our applicable fees and charges available and updated from time to time and viewable at https://sqft.capital/
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
“Introduction” means the provision by SQFT to you (or your Agent, as applicable) of the contact details of an employee at a Lender who knows one or more individuals at SQFT and is of sufficient seniority to negotiate and authorise the conclusion of a Relevant Contract with you. Introduce, Introduces, and Introduced shall be interpreted accordingly.
“Introduction Date” means for each Lender, the date during the term of this Agreement on which the Introducer first Introduces such Lender to you.
“Introduction Period” means the relevant period of time following the Introduction as set out in clause 7 below during which a Commission will be payable on a Relevant Contract being entered into;
“Lender” means a lender or investor of development finance, bridge loans, mezzanine finance or equity operating in the real estate development sector whose employees or representatives are known to one or more individuals at SQFT and whom we consider may be of assistance to you;
“Principle” has the meaning given to it in clause 8;
“Relevant Contract” means a contract for the provision by a Lender to you (or to your Agent, as applicable) of development finance, bridge loans, mezzanine finance or equity in connection with one or more real estate projects, which is entered into during the Introduction Period between the Principal (or their Agent, as applicable) and a Lender.
“Services” means each and any of the services, supplied by SQFT pursuant to this Agreement; and
"You" or "you means the counterparty in receipt of this Agreement who is seeking to borrow development finance in connection with one or more real estate projects.
A reference in this Agreement to a 'Clause', shall be construed as a reference to a clause of this Agreement, unless the context requires otherwise.
Clause headings in this Agreement are for ease of reference only.
References in this Agreement to any statute or statutory instrument or Applicable Laws include any modification, amendment, extension or re-enactment thereof.
A reference in this Agreement to a 'document' also includes electronic documents and a reference to ‘written’ or ‘in writing’ shall include communications sent by email.
References to persons include but are not restricted to bodies corporate, unincorporated, associations and partnerships.
INSTRUCTIONS & AUTHORITY
You hereby appoint SQFT to research and identify suitable Lenders on the basis of the information you provide to us regarding your development finance requirements and to make Introductions on the terms of this Agreement.
In providing the Services:
SQFT shall have no authority, and shall not hold ourselves out, or permit any person to hold themself out, or otherwise create the impression that we are authorised to bind you in any way, and shall not do any act which might reasonably create the impression that we are so authorised; and
SQFT shall not make or enter into any contracts or commitments or incur any liability for or on your behalf, and shall not negotiate any terms for the provision of finance with Lenders.
We shall be entitled to assume that by instructing us you are not prohibited from using our Services and will comply at all times with Applicable Law. Nonetheless, we shall be entitled to refuse to accept instructions.
We may refuse to act on any instruction where we reasonably believe that:
to do so might breach Applicable Law or any of our other legal duties; or
to do so would damage our reputation; or
the instruction is unclear, incomplete or not given by you or on your behalf; or
we consider that you do not meet or have not provided sufficient evidence to demonstrate that you could meet the eligibility criteria for borrowing the intended amount of development finance, whether arising from restrictions imposed by any Applicable Law or for any other reason.
AVAILABILITY AND PROVISION OF SERVICE
We will use reasonable efforts to seek to achieve the best possible result for you in accordance with the information you provide to us and your reasonable, specific instructions.
We may amend, suspend and/or terminate any or all Services at any time for any valid reason. Where reasonably practicable we will give advance notice of this but this may not always be possible and/or practical for business reasons.
We do not accept any liability for any loss or delay that you may suffer due to the unavailability of our Services as a result of maintenance or upgrade of systems or in certain market conditions.
YOUR DEALINGS WITH LENDERS
Following our Introduction, the negotiation and conclusion of Relevant Contracts is undertaken directly between you and the Lender. SQFT is not a party to the Relevant Contract.
SQFT shall not be liable for any actual or potential loss or expense you incur as a result of the refusal, suspension or cancellation of a Relevant contract by a Lender following our Introduction of that Lender to you.
Where we make an Introduction to you, and the Lender then introduces you to a third-party lender with whom you conclude a Relevant Contract, we shall, by virtue of such initial Introduction, be deemed to have Introduced the third party to you.
COMMISSION AND OTHER CHARGES
SQFT shall be entitled to a Commission whenever you enter into a Relevant Contract with a Lender introduced to you by us.
The amount of commission payable to SQFT on a Relevant Contract shall be based on the rates set out in our Commission and Charges Sheet (as amended or updated from time-to-time) (“Commission”). The amount of the Commission is subject to change at our discretion and any future Commissions shall be payable at the applicable rate as at the date of the Introduction.
Unless agreed otherwise in writing, you hereby agree that the Commission shall be invoiced to you by the Lender on our behalf (in addition to their own charges and fees associated with entering the Relevant Contract) and paid to SQFT by the Lender. You hereby authorise the Lender to process payment of the Commission to us following your entry into a Relevant Contract with the Lender.
Unless agreed otherwise in writing, the Commission shall be payable in pounds sterling.
You agree that you shall promptly notify SQFT in writing of the following:
the date on which you enter into a Relevant Contract; and
the amount of development finance granted under the Relevant Contract.
SQFT reserves the right to make reasonable charges to you to cover our reasonable disbursements and the administrative costs of the provision of any additional information, documents etc., which we agree to supply to you at your request.
All sums payable by you under these Terms are exclusive of all applicable taxes. You must pay any applicable taxes and levies or other costs in respect of the provision of the Services.
You agree that you will be liable for any costs incurred by SQFT in recovering our Commission or other charges (as described in clause 6.6 above), whether from you or from the Lender.
A Commission shall be payable whenever a Relevant Contract is entered into between you (and/or your Agent, if applicable) and a Lender / Investor from whom you have not borrowed previously:
for debt finance: during the 18 months following our Introduction;
for a debt facility (sanctioned): during the 36 months following our Introduction;
for equity or a mezzanine loan (in either case where terms are issued or a facility is loaned or invested): during the 36 months following our Introduction.
(in each case, the “Introduction Period”)
You agree to notify us before the Commencement Date of any lenders from whom you (and/or your Agent, if appliable) have borrowed real estate development finance, bridge loan, mezzanine or equity previously and to provide further details of such borrowing on request.
AGENCY AND AGENT'S LIABILITY
Save as set out below in this clause 8, you alone will be treated as our client, even if you are acting as an agent and have informed us of the identity of your principal.
If you intend to enter into this Agreement as agent (“Agent”) for certain disclosed or undisclosed principals (each a “Principle”), you shall first seek our approval which may be granted in our absolute discretion.
On entering into this Agreement for a Principal, the Agent personally warrants to the best of their knowledge, acting in good faith and in a commercially reasonable manner that:
each and every Principal has the capacity and authority to perform its obligations under this Agreement and that this Agreement is legal, valid, binding and enforceable against the Principal;
the Agent has the power and authority to, and have been duly authorised to, enter into this Agreement as Agent for the Principal and to perform, on behalf of the Principal, their obligations arising under this Agreement;
the obligations arising under this Agreement will not conflict with, or result in a breach of default under: (1) the laws of the Principal’s jurisdiction of incorporation or establishment; (2) any agreement or instrument to which the Principal is party or by which the Principal is bound (including the agreement between you and the Principal); (3) any provision of the Principal’s constituent documents; and (4) the rules of any regulatory authority with supervisory authority over the Principal;
where the Agent is acting on behalf of a Principal which is undisclosed at the Commencement Date, the Agent shall provide full details of the Principal as soon as possible; and
the Agent shall also remain personally liable to SQFT for Commission in the event that the Agent subsequently (whether in their own name or via a special purpose vehicle or corporate entity with which they are affiliated) enters into a Relevant Contract with a Lender during the Introduction Period.
INFORMATION AND INVESTMENT OBJECTIVES
- SQFT may contact you to verify that the information that you have provided to us remains accurate. If you believe that SQFT's record is incorrect or requires updating, it is your responsibility to request SQFT to amend such record. You agree that, in the absence of any such request by you, the record will be deemed to be accurate and you will have no claim against SQFT for making Introductions based on inaccurate information.
- All intellectual property rights arising in connection with providing you with the Services, including in any materials provided to you, remain the property of SQFT or where applicable, the relevant third party provider.
We will use any personal data you provide to us:
to provide the Services;
to process payments for the Services; and
to undertake marketing and communicate with you about other services that we and/or selected partners provide. You may stop receiving these at any time by contacting us.
- SQFT and you and any agents shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (BA 2010).
We will communicate with you in English. We shall be entitled to communicate with you by letter, facsimile, any forms of electronic communication or other virtually instantaneous communication medium (including email and text message) and by telephone.
You must inform us immediately of any changes to your details, including your postal address, email address and registered company information. We will not be liable to you for any loss you may suffer as a result of you not receiving correspondence or payments where you have not informed us of any change in your contact details. All communications sent to you by post, will be sent at your own risk to the last known postal address that we hold for you.
DELEGATION AND OUR USE OF AGENTS
We may, at our discretion, delegate all or any of our functions hereunder to third parties, with power of sub-delegation. We will act in good faith and use reasonable skill and care in our choice of any third-party service provider.
Where we delegate any of our functions to an Associate, we shall be liable for the acts of that Associate as if they were our own in accordance with these Terms. Where we delegate any critical or important operational function to a third party other than an Associate, we shall remain responsible for the discharge of any obligations to you under Applicable Law. When we delegate any other function to a third party, who is not an Associate, neither we, nor our directors, officers or employees shall be liable for any loss arising from any act or omission of any agent or third party who performs services pursuant to these Terms except to the extent that such loss is caused by our wilful default, fraud or gross negligence in the selection of such agents or third parties on the part of SQFT or its directors, officers or employees.
- You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
- We do not provide tax advice and will not be responsible for the tax consequences of any transactions you are seeking to enter into. You acknowledge that neither we nor any associated companies are providing tax advice to you and will not be responsible for considering the tax implications for you of any potential transactions.
REPRESENTATIONS & WARRANTIES
We warrant to you that the Services will be provided using reasonable care and skill.
You represent, warrant and undertake to us that, both at the date of this Agreement and at the time of any transaction we may enter into with or for you:
- you are entering into this Agreement for business and commercial purposes and understand and agree that we do not provide the Services to individuals acting as consumers; 2.you (and your Agent, as applicable) have full power and authority to enter into this Agreement and to perform all your obligations hereunder and, in respect of the Services, to instruct us to execute or arrange any transaction in investments as set out herein;
- all information you have given, or shall give, to us is true and complete as of the date of this Agreement and during its term and any changes to such information will be promptly notified to us.
LIMITATION OF OUR LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Terms shall limit or exclude any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence; and
fraud or fraudulent misrepresentation.
Subject to clause 18.1, neither we nor any person connected with us, nor any of our agents shall be liable for any loss, costs or expenses (including tax consequences of any transaction or taxation charges arising for any other reason) that may be suffered or incurred by you as a result of, or in connection with the provision of any Services to which this Agreement applies, including any loss of opportunity.
Subject to clause 18.1, and except to the extent mandated by Applicable Law, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
any indirect or consequential loss.
Subject to clause 18.1, our total liability to you arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the lower of £7,500 and the commission we charge in respect of the Relevant Transaction in respect of which any liability arises.
Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
Nothing in these Terms limits or affects the exclusions and limitations set out in our Website Terms and Conditions (available at sqft.capital/terms-of-service.
- In the event of any failure, interruption or delay in the performance of our obligations, resulting from acts, events or circumstances outside our reasonable control (which circumstances shall include, but not be limited to industrial disputes, acts or regulations of any governmental or supranational bodies or authorities, acts of God, threats or acts of terrorism, pandemics or epidemics, fire, war, civil commotion, insurrection, embargoes, breakdowns, failures, malfunctions or delays caused by any public utility, telecommunications or computer service or systems, and any third party provider of trading or other technology) we shall not be liable for any loss or damage incurred or suffered by you.
You are entitled to terminate this Agreement between us at any time by giving written notice to us, such termination to be effective on the first Business Day after the notice has been received by us or at any time specified in such notice, whichever is later, subject, in either case, to the completion of outstanding transactions.
We may terminate this Agreement at any time, by giving you notice in writing, or orally or by facsimile, electronic or other virtually instantaneous communication medium. Such termination will be effective from the date specified in the notice.
Termination will not affect any rights, remedies or obligations have already accrued or arisen between us as at Termination, including in connection with Introductions already made to you.
Termination will not affect clauses 2, 6, 18, 20.3, 21 -29 or any other provision of these Terms which is expressly stated to survive termination.
NO PARTNERSHIP OR AGENCY
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between you and SQFT, constitute either party the agent of another party, or authorise a party to make or enter into any commitments for or on behalf of any other party except as expressly provided in these Terms.
ASSIGNMENT AND TRANSFER
We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on our website https://sqft.capital/ if this happens.
You may only assign or transfer your rights or your obligations under this Agreement to another person with our prior written consent.
VARIATION OF AGREEMENT
- We may amend or revise this Agreement or these Terms by notice to you, specifying the proposed amendments or by sending you a full updated version of the Agreement or Terms. Such notified amendments shall become effective on the date specified in the notice, which will be at least ten Business Days after the notice is sent, save that if you wish to trade with us following receipt of any such change, your continued use of our Services will be deemed acceptance of the updated Agreement or Terms.
This Agreement, together with the other documents referred to in it, 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.
You acknowledge that in entering into this Agreement you have not relied on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Nothing in this clause shall limit or exclude any liability for fraud.
THIRD PARTY RIGHTS 1.This Agreement is between you and us. No other person has any rights to enforce any of its terms without our written consent.
- If we do not insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
- Each provision of this Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
NOTICES AND COMPLAINTS
All notices to be served on us should be in writing and sent to Tom Wolfe at our registered office (1 & 2 The Barn, Oldwick West Stoke Road, Lavant, Chichester, West Sussex, United Kingdom, PO18 9A). All complaints can be communicated in writing or verbally to Tom Wolfe. Any notice served by us on you will be sent to your last known address, email address or by text message to your last known number as shown in our records. Details of our complaints handling procedures are available at any time from Tom Wolfe.
You undertake to inform us promptly of any change in postal address, email address or telephone numbers.
GOVERNING LAW & JURISDICTION
- This Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the English courts.