Lending with us
Borrowing with us
Who are we?
Credit Assessment Group(CAG)
Terms & Conditions
, govern the web-based peer-to-peer lending marketplace operated at
("the Service") by Invest and Fund Limited, whose details appear in Clause 11.1 ("we", "us" and "our"). The Service enables Lenders ("Lenders") to lend money directly to (or purchase all or part of loans already lent to) Borrowers (each a "Borrower") for the mutual benefit of both the Lender and the Borrower. This Agreement governs the use of the Service by any person whose application to use the Service we accept whether as a Lender or a Borrower ("you", "your" (such terms referring to either or both such terms unless the context requires or indicates otherwise)).
- You should read this Agreement carefully and download or print a copy for your own records. By selecting the "Activate My Account" button on the registration screen you agree to be bound by and to comply with the provisions of this Agreement. If you are acting on behalf of a limited company, a limited liability partnership (a "LLP") or other entity you confirm by such acceptance that you do so with their authority and that they agree to be bound by and to comply with this Agreement.
- This Agreement will come into effect on the date we notify you that your application to use the Service has been accepted, and shall continue unless and until terminated in accordance with the provisions of Clause 13 ("the Term").
- Our role is to facilitate the matching of Lenders and Borrowers in accordance with the terms of this Agreement. While we are a party to this Agreement, we are not a party to any loan contract agreed between each Lender and Borrower via the Service ("Loan Contract") in any capacity other than as an agent for the relevant Lenders and other persons referred to as the Finance Parties in the Loan Contract on the limited terms set out in this Agreement. We do not, by acting as agent, accept any liability to Borrowers (or Lenders) under any Loan Contract and while we provide the Service to enable you to seek lenders or borrowers (as the case may be) in accordance with the terms of this Agreement, we do not undertake to find lenders or borrowers for you.
- Any analysis, synopsis, credit assessment, development appraisal or information we or anyone else may provide in relation to any Borrower or proposed loan (including any information concerning any property or other security or guarantees being offered for the proposed loan and the providers of the same) is intended to be informative only. Each Lender must always form its own view of the credit standing of a Borrower and any guarantor (and of the benefit and value of any security or guarantees being offered) and where appropriate seek its own independent financial and legal advice. You may not rely on any such materials we prepare.
- We do not accept any responsibility for the ability or likelihood of any Borrower or Lender being able to meet its financial and other obligations whether under this Agreement or any Loan Contract or for the efficacy, value or legal effect of any security or guarantees entered into by Borrowers or others. The obligations of the Lenders whose Offers (as defined in Clause 3.1) are accepted are several obligations owed by each Lender to the relevant Borrower and are not guaranteed or underwritten by us.
- Whilst we would expect that lending with the benefit of security over real property will provide additional comfort to Lenders as to the likelihood of their being repaid, there can be no certainty that if security does need to be enforced the available proceeds will be sufficient to discharge all of the obligations of that Borrower to Lenders. If security is enforced Lenders may only be entitled to recover a proportionate share of the amounts they have lent and there may be other creditors of that Borrower that will have prior claims. The existence of security should not therefore be regarded as a guarantee of certain repayment if a Borrower fails to meet its obligations to Lenders.
- Whilst references are made to Lenders throughout this Agreement in the plural, this does not detract from or alter the fact that each Lender is under any Loan Contract making available to the Borrower a separate and several loan which is enforceable by the Lender separately and independently of any other Lender who also makes an Offer in response to the Borrower's Loan Request which the Borrower accepts. Also nothing precludes there only being a single Lender who makes an Offer to a given Borrower in response to that Borrower's Loan Request.
- References in this Agreement to a "working day" means any day other than a Saturday, a Sunday or a public holiday in England.
2. Eligibility and application process
- To be eligible to apply to use the Service as a Lender you must be a resident of the United Kingdom, excluding the Channel Islands and the Isle of Man ("UK"), who:
(a) is an individual person, a limited company or an LLP in each case with a valid bank account at a UK bank or building society;
(b) if you are lending in your capacity as an individual person, is at least 18 years old;
(c) if you are a limited company or LLP, is incorporated within the UK and is registered at Companies House;
(d) (unless first disclosed to and accepted by us) is merely investing your own money and not lending in the course of any business.
If a prospective Lender does not meet the criteria listed above, they may be permitted to become a Lender but only if we expressly agree to their doing so notwithstanding the omission (in which event you should contact us via the 'Contact us' page on our website).
- To be eligible to apply to use the Service for the purpose of borrowing money via the Service as a Borrower you must:
(a) not be an individual, a charity, a trust, or a partnership consisting of two or three persons (unless all the parties are bodies corporate) or an unincorporated body of persons which does not consist entirely of bodies corporate;
(b) if you are a body corporate, be incorporated or established in the UK; and
(c) hold a UK bank account.
- If you apply to be a Borrower we will carry out credit and fraud checks on you, your director(s) (in the case of bodies corporate) and your business.
- Lenders and Borrowers must both provide us with all information requested during the application process and comply with all our identification and anti-money laundering requirements to enable us to comply with all laws, regulations, rules and regulatory guidance applicable to the Service ("Applicable Law") and we may require you to send us copies of relevant passports or other documentation sufficient to verify your identity. As a part of the application process you must register with us the details of a bank account or building society account based in the United Kingdom and opened in your name ("your Nominated Bank Account"). If at some future date you wish to change Your Nominated Bank Account, you may need to be re-identified for anti-money laundering purposes.
- We reserve the right, in our sole discretion, to refuse to register you to use the Service as either a Lender or Borrower for any reason and may restrict the extent of your permitted activity under the Service at any time in our discretion.
- Upon completion of the registration process, including satisfaction of any required verification checks and acceptance by us of your application:
(a) if you choose to be a Lender, we will open a data account in your name in our systems with a unique account number that enables you to lend via the Service, subject to the provisions of this Agreement ("Lender Admin Account");
(b) if you choose to be a Borrower, we will open a data account in your name in our systems with a unique account number that enables you to borrow via the Service, subject to the provisions of this Agreement ("Borrower Admin Account"),
(a Lender Admin Account and a Borrower Admin Account will both be referred to as a "User Admin Account" in this Agreement).
- Your User Admin Account is used to record transactions and other information, including a list of your Lenders or Borrowers (as the case may be), amounts paid by you or owed to you, but does not hold any funds.
- If you are registered as both a Borrower and a Lender, you will be asked when logging on which of your two User Admin Accounts you wish to visit. If you should wish to visit both your Borrower Admin Account and your Lender Admin Account, you must first log-out of one before logging-in to the other. You may not borrow from yourself or lend to yourself and we may in our discretion restrict any Lender or Borrower's activities under the Service to ensure we are complying with all Applicable Laws.
- If we accept your application for a User Admin Account, you will be asked to choose a password (your "Password"). Each time you seek to access your User Admin Account we will check your identity by asking for your Password. You must therefore keep your Password secret and make sure that each Password is not stored in a way that enables others to access your User Admin Account or impersonate you. In addition, if you disclose your Password to any person whom you authorise to access your User Admin Account, you are also responsible and liable for any access, use, misuse or disclosure of that Password or your User Admin Account by such person.
- Unless and until you tell us that you believe that someone else knows the Password or can use the Service by impersonating you:
(a) as long as your correct Passwords are entered, we will assume that you are the person giving instructions and you will be liable for them;
(b) you will be responsible for any instruction which we receive and act on, even if it was not given by you; and
(c) we will not be responsible for any unauthorised access to confidential information about you in your User Admin Account.
We can refuse to act on any instruction that we believe: (i) was unclear; (ii) was not or may not have been given by you; or (iii) might cause us to breach a legal, regulatory or other duty or create any liability on our behalf; or (iv) might be damaging to our reputation or that of the Service; or (v) if we believe the Service is or may be being used for an illegal or improper purpose.
3. Lender terms - making an Offer to lend
- In this Clause 3 the term "you" refers just to Lenders. Before making an offer to lend money via the Service as a Lender (an "Offer"), you must first transfer the funds you are prepared to lend to our segregated bank account held at a duly authorised UK credit institution for the purpose of holding and disbursing funds paid by or payable to you. We may operate one or more such accounts as required to comply with applicable rules and regulations and each such account will be referred to in this Agreement as an (or the) "Invest and Fund Client Funds Account". You may only transfer such funds using a payment method specified by us and cash deposits will not be accepted. When you make an Offer, the amount of your funds in the Invest and Fund Client Funds Account that relate to that Offer ("the Offer Amount") will be reserved for that Offer. If the Offer is successful, the funds will be transferred from the Invest and Fund Client Funds Account directly to the Borrower's Nominated Bank Account. If the Offer is unsuccessful, the funds will be immediately available to fund new Offers. Whilst in the Invest and Fund Client Funds Account funds will be held by us on trust for you in accordance with Clause 7.
- You will be notified in advance of any transaction charges or other costs that we propose to charge in respect of a transfer of funds and these charges may be varied from time to time. Any such charges or costs shall be debited by us from your Lender Admin Account, and the corresponding amount will be deducted from funds held by us for you in the Invest and Fund Client Funds Account. If there is a shortfall for any reason you must pay that to us on demand.
- As a Lender you may lend in one of two ways. Either by making a loan in response to an application to borrow money via the Service initiated by a Borrower (a "Loan Request") or by purchasing loans already made by another Lender (in accordance with Clause 6).
- So long as you are logged into your Lender Admin Account and it shows you have sufficient funds available, you may (a) make Offers in relation to any Loan Requests or (b) purchase loans on the Resale Market under and as defined in Clause 6. The minimum loan amount you may Offer in relation to a Loan Request is £500 (five hundred pounds) and the minimum amount of any loan you may purchase in the Resale Market is £25 (twenty-five pounds) or (if less) the remaining balance.
- Lenders have an opportunity via an on-line question and answer forum to obtain further information from any Borrower to support their decision in relation to a Loan Request.
- Each Borrower will have a pre-determined time-frame which (unless we otherwise agree) would not exceed 10 working days in which to attract the total funds it requires, the minimum requirement being £150,000 (unless we expressly agree otherwise) and the maximum being by negotiation. The relevant Borrower then has 5 working days to decide whether or not it wishes to accept the Offers.
- The decision to lend remains exclusively with each Lender and nothing we may or may not do nor anything on the Service or our website should be considered as advice or recommendation by us or any other person for you to lend to any particular Borrower. As a Lender you must therefore satisfy yourself that you have undertaken sufficient due diligence for each Loan you make to each Borrower. If you are in any doubt, you should seek your own independent financial and/or legal advice.
- Valid Offers will be recorded in the order in which they are entered on the Service. Where Offers are on the same terms, the first in time will take precedence over the others.
- By making each Offer you acknowledge and agree that:
(a) you have read and understood the Loan Request and all documents and materials referred to therein or provided in support in relation to which you are making the Offer together with the terms of the Loan Contract included within or made available for your review alongside the Loan Request (the "Loan Conditions") and all security or guarantee documents which will together govern (along with this Agreement) the terms on which you will be making a loan to the relevant Borrower;
(b) we have not approved or endorsed the Loan Request or any statement or representation made by the Borrower or any third party in or as a part of the Loan Request or in entering into the Loan Contract;
(c) we will not be responsible to verify or audit any statements made by each Borrower in relation to its Loan Request or in entering into any Loan Contract, for which the Borrower alone is exclusively responsible;
(d) you appreciate that if a Loan Request is posted for an amount that is less than the full facility the relevant Borrower has stated in the Loan Request it will require to complete the project or transaction described in the Loan Request or related information then there is no guarantee or certainty that further Loan Requests will be successfully accepted by Lenders under the Service (and in such event the Borrower will have agreed to obtain or procure the provision of additional finance to bridge the shortfall, but we can give no guarantee that they will be able to do so);
(e) we will not supply you with any financial, legal, accounting or tax advice;
(f) we do not warrant that use of any of the documents (including the form of the Loan Contract and any standard form security or guarantee documents used) as a part of the Service or signed up to by a Borrower or others in conjunction with any Loan Request are suitable or appropriate for your needs and you must take your own independent advice on the terms of such documents.
- Expected bad debt estimates, if supplied by us, are estimates for general guidance only and we do not warrant their accuracy or reliability.
- The successful acceptance of your Offer via the Service automatically creates a Loan Contract (that incorporates the relevant Loan Conditions) as a separate, direct contractual relationship between each Lender whose Offers are accepted and the relevant Borrower. This Loan Contract can be found in a Lender’s Current Loans Summary.
- You authorise us to complete and enter into the Loan Contract and all relevant documentation as your agent in the form included with the Loan Request (subject to any minor variations we may approve) and you will enter into such documentation as we may require at any time (if any) to record or confirm your agreement to this. We are not a party to any Loan Contract in any capacity otherwise than as the agent for the Lenders and other persons referred to as the Finance Parties in the Loan Contract.
- The performance of each Borrower's obligations to you under the Loan Contract will be secured by one or more security documents ("the Security Document(s)") entered into between the Borrower and the security trustee referred to in Clause 11.2 ("Security Trustee"). The Security Trustee will hold that Security Document(s) in trust for the Lenders to that Borrower. The perpetuity period of that trust shall be 125 years. The security created by the Security Documents entered into by each Borrower or other person providing security for a Borrower's liabilities will secure all amounts borrowed by that Borrower under Loan Requests that are expressed to be secured by such Security Documents whether the Loan Request has been made at the time the Security Documents are entered into or subsequently.
- You delegate to us the role of acting as your agent under the Loan Contract for the purpose of administering the same including in determining (in our discretion) whether or not any conditions precedent to the making of any loan (or drawdown of a loan) have been satisfied.
4. Posting a Loan Request
- In this Clause 4 the term 'you' refers just to Borrowers. Before a Borrower may initiate any Loan Request we must first carry out a credit check on you and other relevant persons which must meet our minimum standards. You consent to us carrying out such a credit check on you via a credit reference agency of our choosing. On occasion it may be necessary to require you to submit further background information, which we will endeavour to process promptly. We will only post a Loan Request on your behalf after we have reviewed your proposal and we are satisfied that all of the information required has been compiled in a suitable form. Any third party costs that are incurred by us over and above the costs of the issue of our standard documentation as a part of the process of your preparing your Loan Request and our reviewing the same prior to our permitting it to be posted shall be payable by you in advance. These costs may include, but are not limited to, the legal costs and disbursements our lawyers incur in preparing a report on title on any property charged, the premium payable under any title or other similar insurance policy and the costs charged by our valuers in valuing the property concerned. For loans to finance property development this will may also include the cost of the issue of third party valuation certificates and QS valuations against drawdown of funds.
- Each Loan Request must be made according to the form and processes specified in your Borrower Admin Account, in accordance with the terms of this Agreement and as we may otherwise specify from time to time. Following a satisfactory credit review (in our sole and absolute discretion), you will be invited to a web page in our systems ("Borrower Pitch Page"), which will be available only to yourself and Lenders and which may set out:
(a) the outline nature of your business;
(b) the total amount of funds you require and the term of loan you prefer;
(c) a synopsis or summary of the loan proposal;
(d) details of any Security Document(s) you are offering to enter into (including copies of the same);
(e) details of any guarantees being offered to support your Loan Request (including copies of the guarantee documents and statements of assets and liabilities for any guarantor);
(f) a more detailed description and nature of your business;
(g) copies of your financial statements for your business;
(h) your key personnel;
(i) a copy of our panel solicitors report on title to any land (or any title insurance obtained or proposed in the alternative or in addition) where you are offering a legal charge as security for the proposed loan under a Security Document;
(j) a valuation for the property being offered as security;
(k) copies of any surveys, insurance documents or other reports relating to the property being offered as security and (in the case of a loan to support property development) a report on the proposed development from our monitoring surveyor;
(l) the form of the applicable Loan Contract and all related Loan Conditions which will govern the loan being requested; and
(m) any other information you may wish to supply via links to your own PDF files to be hosted on the Service.
Once you are satisfied with the form of the Loan Request and we are ready to allow the Loan Request to be made we will post the Loan Request to the Service on your behalf and Lenders will then be able to make Offers to lend to you. The information posted on any Borrower Pitch Page will be retained in the Service unless and until this Agreement is terminated by the Borrower concerned in accordance with Clause 13.
- Prospective Lenders will have a subsequent opportunity to ask you questions through a Q&A section on your Borrower Pitch Page. These questions will be time-stamped and listed chronologically for you to answer. A prompt and informative reply to these questions will reinforce your Loan Request.
- Each Borrower is responsible for ensuring that all information provided with respect to its Loan Request (including (but not limited to) that posted on the Borrower Pitch Page) is complete, accurate, clear, fair and not misleading at the time it is provided and when posted and for so long as any Loan Request is available to be accepted by an Offer.
- We reserve the right, in our sole and absolute discretion, to reject or remove a Loan Request for any reason at any time whatsoever (and without any requirement to give a reason). We may in our discretion offer your Loan Request to specific Lenders only and/or require that any Lender making an Offer must offer to provide the full amount of the Loan Request.
- You may withdraw a Loan Request from the Service at any time before the conditions in Clause 5.1 have been satisfied (subject to payment of any fee as referred to in Clause 8.2 and any non-utilisation fee payable under the Loan Contract). You may not edit the terms of a Loan Request once posted.
- You must comply with all Applicable Law relating to your Loan Request and your activities on the Service.
- You must not list a Loan Request on the Service that involves to any degree the financing of any of prohibited activities (which includes, without limitation, any illegal activity, any activity which breaches relevant sanctions laws or regulations or which could otherwise reasonably be expected to damage the reputation of any Lender, us or the Service).
- By initiating a Loan Request, you agree:
(a) to supply all information reasonably required by a reasonably prudent Lender acting reasonably to determine whether or not to accept your Loan Request ("Due Diligence Material");
(b) to pay all of the fees referred to in Clause 8 and the Loan Contract when and to the extent payable by you;
(c) that if your Loan Request is successfully funded within 10 working days (or such other the period that you specify in your Loan Request subject to any maximum specified by us from time to time) you will either:
(i) accept each of the relevant Lenders' Offers by confirming the same on the Service within 5 working days; or
(ii) decline to accept the Lenders' Offers within such 5 working day period (noting that if no notice of a decision is received by us within the 5 working day period each Offer will be deemed rejected and you will lose any right to the funds so offered);
(d) that (subject to Clause 4.10(b)) each loan that results from the acceptance of your Loan Request by a Borrower results in an enforceable Loan Contract that incorporates the Loan Conditions;
(e) to the termination event in Clause 13.1(b) on obtaining a certain amount of funding outside the Service (and agree that you will not allow anything to happen to trigger that termination right); and
(f) to enter into and comply with any further agreements or provide such other assurances to give effect to the terms of the Loan Contract and the Security Document(s), including any which we shall require to enable us to comply with our obligations under Applicable Law.
- For the avoidance of doubt:
(a) you may accept the relevant Lenders' Offers in accordance with Clause 4.9(c)(i) as soon as the Loan Request is successfully funded, without waiting for the 10 working day period to expire;
(b) you do not have any obligation under this Agreement to update the Due Diligence Material once your Loan Request has been accepted;
(c) the acceptance of any Lender's Offer constitutes the acceptance by you of a separate Offer from that Lender and the Loan made as a result is a separate and individual Loan made by that Lender to you which is enforceable by that Lender separately from any other Loan made to you in response to your Loan Request. No Lender is responsible for the obligations of any other Lender; and
(d) we will not be deemed or held to have signed any Loan Contract as agent of the Lenders unless and until a Loan Contract is formed in accordance with this Agreement.
- You acknowledge and agree that the most that you can draw down under the Loan Contract will be equal to the amount of the Loan Request(s) posted on your behalf and accepted by Lenders and in relation to which we have received the full amount of the required funds from the Lenders who have accepted your Loan Request. If a Loan Request is posted for less than the full amount of the facility referred to in any Loan Contract then there is no guarantee or certainty that, if further Loan Requests are posted, there will be Lenders or other persons who will accept such Loan Requests. In addition if such further Loan Requests are not funded in full you will agree in the Loan Contract to provide or obtain additional funding to ensure that you have sufficient finance available to you to complete the project, transaction or purpose for which any Loan Requests have been made.
- You acknowledge and agree that:
(a) we and any Lender will not verify or audit statements made by you in relation to your Loan Request, for which you are solely responsible;
(b) we will not supply you with any financial, legal, accounting or tax advice;
(c) we do not warrant that use of any of the documents supplied as part of the Service are suitable or appropriate for your needs and you must take your own independent advice on the terms of such documents. This includes the Loan Contract, the Security Documents, any title or similar insurance policies and all security or guarantee documents entered into pursuant thereto; and
(d) your right to drawdown on and so receive any loan under the terms of a Loan Contract will be strictly subject to the Loan Conditions and to all terms and conditions thereof (including specifically all conditions precedent set out in the Loan Conditions (which are all matters which must be satisfied before any loan can be expected to be drawn down or advanced)).
- By submitting any material to us to be posted on the Service, you warrant and represent to us on each occasion you do so that:
(a) any statements made by you will (if you are a body corporate) have the approval of your board of directors;
(b) you have taken all appropriate legal and accounting advice before accepting this Agreement or entering into any Loan Contract or Security Document; and
(c) any statements you make are complete, clear, fair and not misleading and that any projections or forward-looking statements which you make are reasonable and can be supported by evidence.
- You further warrant when submitting any Loan Request that:
(a) any Loan Request is made by you wholly or predominately for the purpose of a business carried on by you; and
(b) any property offered by you as security for the proposed loan the subject of a Loan Request is not used or intended to be used by you or any person related to you as a dwelling and has not been so used in the past. In this context a person related to you includes your spouse or civil partner, any person whose relationship to you has the characteristics of that of a husband or wife or who is a member of your family.
5. After the Loan Contract is formed
- Subject always to the provisions of Clause 4.5 (our right to reject or remove a Loan Request), upon a Loan Request achieving its target funding level, the Borrower entering into (or having entered into) the Loan Contract and any Security Document(s) and to the satisfaction of all conditions precedent to the effectiveness of the Lender's obligations under the Loan Contract and the Borrower's entitlement any drawing thereunder, we will administer the Loan Contract by:
(a) debiting the Offer Amount (or the relevant proportion thereof which the Borrower is entitled to draw down under the Loan Contract at the time) from each Lender's Lender Admin Account and crediting the Borrower Admin Account of the relevant Borrower for the same amount, less the arrangement fee referred to in Clause 8 of this Agreement ("Arrangement Fee"); and
(b) paying the funds so debited, less the amount of any Arrangement Fee, from the Invest and Fund Client Funds Account to the Borrower's Nominated Bank Account. You will not be entitled to request that funds be sent to you other than to your Nominated Bank Account.
- In regard to the payment and collection of interest under Loan Contracts:
(a) if the Loan Contract provides for interest payments to be made during the term of the loan ("Regular Interest Payments") then each Borrower will pay all such amounts due under all of its Loan Contracts at any one time in equal monthly instalments to the Invest and Fund Client Funds Account by standing order, and we will record the payment of the Regular Interest Payments in each Lender's Lender Admin Account when received by us. The interest is calculated over the term divided by the number of months to derive the interest payable each month (unless the Loan Contract provides otherwise). The Borrower will be advised what their fixed monthly or other regular interest payment will be at the outset which the Borrower must arrange to pay by standing order or as we otherwise agree. Interest rates quoted are always annual rates of interest;
(b) if the Loan Contract provides for interest to be rolled up or capitalised and only paid at the end of the term of the applicable loan then the Borrower will be advised at the outset of the total interest, fees and capital to be paid at the end of the term. The Borrower may request a settlement figure at any time for early redemption without incurring early redemption fees (subject to the requirement for a minimum interest payment to be made under any loan as specified in the Loan Conditions). Each Borrower will in such cases repay all the Interest and Capital due under all its Loan Contracts at any one time ("the Total Loan Amount") in one instalment to the Invest and Fund Client Funds Account, and we will record the payment of the Interest and Capital in each Lender's Lender Admin Account when the same has been received by us;
(c) until funds are credited to the Borrower's Nominated Bank Account in accordance with Clause 5.1, no interest will be earned by the Lender (although a non-utilisation fee may still be payable where provided for in the Loan Contract); and
(d) in all cases interest and any non-utilisation fees may be calculated on the basis of the actual number of days elapsed assuming a 365-day year. In leap years it is calculated on the basis of 366/365 multiplied by the annual rate of interest.
- If a Borrower misses a Regular Interest Payment, any non-utilisation fee, repayment of principal due, fails to pay the Total Loan Amount when due or only partially pays the amount due, the relevant Lenders authorise us to act on their behalf to contact the Borrower to attempt to collect an amount equivalent to the outstanding payment and any additional fees and charges due under the Loan Contract. We will keep the Lenders informed of the progress of the attempts to collect the outstanding payment(s) and amounts received will be paid to the Lenders pro-rata their participation in the relevant Loan Contract.
- If we are aware that an Event of Default (under and as defined in a Loan Contract) has occurred we may in our discretion determine it is appropriate to accelerate repayment of each Loan outstanding thereunder.
- If a Borrower fails to abide by any obligations set out in the Loan Contract (a "Default"):
(a) the Lenders appoint us (Invest and Fund Limited) as their agent in relation to each Loan with the authority to enforce repayment of each Loan with effect from the 28th consecutive day after receiving notice of the Default in their Lender Admin Account, provided that any Lender may decline to proceed with such appointment by giving notice in writing by email to us at
prior to the expiry of the 28-day notice period or by agreeing otherwise in advance;
(b) at any time following the appointment referred to above coming into effect, we undertake that we will take steps intended to procure payment of the outstanding debt and in doing so we:
(i) may commence legal actions to recover the outstanding debt under that Loan Contract on behalf of each Lender and/or assign as agent for each Lender to a subsidiary of ours all of each Lender's rights, title and interest in each Loan to enable such subsidiary to commence such legal actions for such purpose;
(ii) may enforce (or assign as agent for each Lender to any subsidiary of ours) any guarantees of the Borrower's liabilities under the Loan Contract and may instruct the Security Trustee to also enforce the Security Document(s), and any sums recovered by us will be paid to the relevant Lenders pro-rata their participation in the Loan Contract subject to deduction of any costs of recovery not paid by the Borrower and any fees due to us under this Agreement (which shall be apportioned according to the proportion that each loan under the relevant Loan Contracts bears to the total amount owed by the Borrower under all Loan Contracts (the "Basis of Allocation")). The costs of recovery may include the costs of third parties such as collections agencies and solicitors.
- We will keep the relevant Lenders informed of our own, any such subsidiary's and/or the Security Trustee's progress in enforcing any Loan Contracts, Security Document(s) and any guarantees. Notifications will be posted to a registered Lender’s message centre on the Invest & Fund platform.
- We may in our discretion in taking steps to procure payment of any outstanding debt:
(a) appoint agents (including specialists in the turn around and recovery of property security and debt collection agencies) to assist us in recovering any amounts in default or in enforcing Security Documents;
(b) agree to extended payment terms if we consider it to be in the Lenders' interests to do so;
(c) agree on behalf of the Lenders to terms of sale of any assets subject to the Security Documents which we consider appropriate which may be higher or lower than that set out in any asset valuation obtained at the time of the relevant Loan Request.
- If we consider in our discretion that the circumstances warrant it we may act more quickly than the terms of this Clause 5 anticipate to accelerate repayment of any loan due under a Loan Contract and to enforce the rights under the Loan Contract and any related Security Documents and guarantees.
- The Lenders acknowledge that it is possible that the proceeds (if any) recovered as a result of any recovery and enforcement activity specified above may not be sufficient to discharge all the Borrower's obligations to the Lenders. In that case, the Lenders will only be entitled to receive a proportion of any recovery proceeds, subject to deduction of the costs of recovery and any outstanding fees, according to the Basis of Allocation.
- If and to the extent this Agreement (or any previous version of it) gives a Lender the right to opt out of any enforcement on that Lender's behalf as provided for above and a Lender exercises such right or the Security Trustee at any time transfers to a sole Lender (or a trustee or agent acting on behalf of such Lender) in relation to a specific Loan any of its rights under any Security Document(s), the Lender concerned and any successor Security Trustee agrees it will at all times act in a fair, transparent, reasonable and proportionate way in seeking to recover amounts due to having due regard to the interests of any other Lenders in doing so, will comply with all applicable law and best industry practice and will not act in any way as to damage or prejudice our reputation or that of the Service.
- All payments to Lenders will be made without any deduction for tax by us. It is each Lender's responsibility to account for all applicable income tax and other personal taxes that may be payable to the appropriate authorities.
- This Clause 5 is subject to the limitations and restrictions on our liability set out in this Agreement and in Clause 19 in particular.
6. Sale and purchase of loans already made
- If a Lender wishes to sell on a Loan or part of a Loan it has already made it may do so under the Service (referred to as a "Selling Lender" and such part (or the whole) of a Loan being sold as a "Loan Part"). The minimum amount of any part of a Loan that may be sold is £25 or (if less) the remaining balance.
(a) A Selling Lender is not entitled to sell Loan Parts which are in arrears (i.e. a payment of interest or capital has been missed) or which are known by the Selling Lender to be in default.
(b) The sale by a Selling Lender of a Loan Part does not alter its commitment to fund undrawn amounts under a Loan Contract (strictly subject to the terms of the Loan Contract).
- A Selling Lender may add a premium to (or apply a discount to) the outstanding principal value of each Loan Part it is deciding to sell by up to plus (or minus) ten per cent (±10%). .
- The sale price for the Loan Parts being sold will be the outstanding principal amount plus the premium (or less the discount) the Selling Lender chooses to apply when putting the Loan Part up for sale (or as subsequently agreed (within the limits specified in Clause 6.3) within the resale market operated under the Service (the "Resale Market")) plus all interest accrued to the date of the sale. No apportionment will be made of any fees already received by the Selling Lender.
- Loan Parts selected for sale will be listed in the Resale Market for such period as the Selling Lender may decide. We may in our discretion remove or suspend the right for specific Lenders or all Lenders to participate in the Resale Market at any time.
- A Loan Part may only be purchased by other Lenders (a "Purchasing Lender") by following the process provided for in the Service and the Resale Market and only if the Purchasing Lender has sufficient funds in its Lender Admin Account. Once the Purchasing Lender commits on the Service to purchase a Loan Part, the purchase price as specified on the Service will be deducted from the Purchasing Lender's Lender Admin Account. The relevant amount (net of applicable fees as referred to in Clause 6.10 below) will be credited to the Selling Lender's Lender Admin Account and transferred to the Invest and Fund Client Funds Account for the account of the Selling Lender by 6.00 pm on the next normal working day. We will deduct and pay to ourselves the fees referred to in Clause 6.10 prior to transferring the net proceeds of sale to the Selling Lender.
- On completion of a sale the Purchasing Lender will become the Lender in relation to the Loan Part (s) that has been sold in accordance with the rights of transfer afforded to Lenders under the Loan Conditions in place of the Selling Lender.
- At the time of sale, a transfer of the Loan Part being sold shall be effected by the Selling Lender and the Purchasing Lender entering into a Transfer Certificate. This Transfer Certificate will be entered into by electronic means in accordance with the Invest & Fund Terms & Conditions upon acceptance by the Purchasing Lender of an offer by a Selling Lender to sell a Loan Part and this will have the same effect as if the Transfer Certificate was signed in a physical hard copy.
- Upon entering into a Transfer Certificate and in relation to the Loan Part transferred:
a) the Selling Lender transfers absolutely to the Purchasing Lender all rights, title and interest in the Loan Part under the relevant Loan Contract and all associated rights;
b) the Selling Lender is released by the Borrower from all obligations owed to it under the Loan Part; and
c) the Purchasing Lender shall, with immediate effect, become a party to the relevant Loan Contract as a Lender in place of the Selling Lender and be bound by those obligations discharged by the Selling Lender under sub-clause 6.9(b) above.
The Borrower confirms its agreement to these arrangements and waives any requirement for it to be a party to, or receive any copies of, a Transfer Certificate. In no way shall this have any effect on the terms applicable to that Loan Contract. The Borrower acknowledges that the completion of a Transfer Certificate in this manner constitutes the novation of the given Loan Part in the terms set out above.
- Unless advised otherwise under the terms of the Service, we will charge the following fees in relation to a sale transaction which will be deducted from the amount that the Selling Lender will receive:
(a) a sales administration fee (“Transaction Fee”) of 0.25% of the aggregate amount received in relation to the sale;
(b) an amount equal to the proportion of any unpaid Facility Fee yet to be paid under Clause 8 (and to the extent not already recovered by us under any prior sale) calculated up to the date of the sale on the basis set out in Clause 8 by applying the actual number of days elapsed divided by 365 (the "Apportioned Part of the Facility Fee").
- The Purchasing Lender will be entitled to receive from us the Apportioned Part of the Facility Fee when the same is collected by us under Clause 8 provided that:
(a) the Purchasing Lender is still entitled to such amount under this Agreement; and
(b) if the Borrower fails to pay any part of the same this will be apportioned firstly to the part receivable by the Purchasing Lender.
- Neither we nor any Selling Lender have any obligation to update any information originally provided by the Borrower in relation to its original Loan Request which may or may not still be accurate at the time of any offer for sale of a Loan Part is accepted and neither we nor the Selling Lender make any representation or warranty in relation to the recoverability of any Loan Part being sold. All exclusions and limitation of liability set out in this Agreement which apply to any acceptance of a Loan Request will apply equally to the purchase of a Loan Part under the Resale Market.
7. Invest and Fund Client Funds Account
- Any amount a Lender transfers to the Invest and Fund Client Funds Account shall be held on trust for the Lender by us. The perpetuity period of any such trust shall be 125 years. The Lender will not be entitled to any interest that may be paid or we may receive in relation to funds in the Invest and Fund Client Funds Account or any other account maintained on the Lender's behalf by us. By entering into this Agreement each Lender waives any entitlement to interest on such funds.
- A Lender will not send funds to the Invest and Fund Client Funds Account other than by using the payment methods specified by us on the Service.
- In the event that there has been no activity on any User Admin Account for a period of at least 18 months, we shall be entitled to take such steps as we consider appropriate to terminate the User Admin Account, which shall include transferring funds from the Invest and Fund Client Funds Account to the relevant Lender's Nominated Bank Account or sending a cheque to the Lender's last-known residence/registered office.
- Each Lender may direct that we transfer funds held for its benefit on the Invest and Fund Client Funds Account to that Lender's Nominated Bank Account and provided those funds have not been reserved for an Offer in accordance with Clause 3.1 of this Agreement or been committed to purchase a Loan Part under Clause 6, we will then make this transfer. A Lender may not direct that any amount due to it be paid to any bank account other than the Invest and Fund Client Funds Account or its Nominated Bank Account.
- In consideration for our providing the Service each Borrower will be liable to pay to us for our own account (and not as agent for the Lenders) an arrangement fee and an exit fee calculated as a percentage of the total facility referred to in the Loan Contract. The arrangement fee will be payable (subject to Clause 8.2) as a deduction from amounts due to the Borrower from each Lender on first drawdown under the relevant Loan Contract (the "Arrangement Fee"). The exit fee will be payable when the final repayment of the relevant Loan is paid or becomes payable (whether at the time provided in the Loan Contract or by acceleration). The amount payable and deducted in each case will (subject to Clause 8.2) be calculated as a percentage of the total facility referred to in the Loan Contract and not of the amount first drawn down or the amount of any Loan Request (if less). Part of the Arrangement Fee may be paid on by us to any broker through whom any given Loan Request was arranged or introduced.
- The Borrower must pay a portion (up to 10% or £2,500, whichever is higher (unless stated otherwise in the Loan Contract)) of the Arrangement Fee up front (the “Commitment Fee”) before we will start work on processing a Loan Request or at such later point as we may specify which amount will be credited as having been paid towards the Arrangement Fee (and so will reduce the amount deducted at first drawdown). The fee payable under this Clause 8.2 will in all circumstances be non-refundable.
- Each Lender agrees that a separate facility fee (the "Facility Fee") will be collected by and payable to us from amounts paid under a Loan Contract by way of interest and will be deducted from such payments received before the net amount is paid to the Lender concerned. This Facility Fee will be calculated at an annual rate of 0.75% per annum of the outstanding balance under each Loan Contract from time to time (compounded annually if not already paid). The Facility Fee is payable irrespective of whether we collect payment of the interest paid ourselves provided it is actually paid by the Borrower.
- Notwithstanding the terms of each Loan Contract it is agreed that the Facility Fee will be accounted for as being payable by the Borrower within (and not in addition to) the interest the Borrower is obliged to pay under any Loan Contract. As between us and the Lender it will not be treated as having been received by the Lender but as being payable by the Borrower directly to us.
- We may offer discounts to the fees payable above ("Platform Fees") to any person at any time in our sole and absolute discretion. The Platform Fees are payable in addition to any other fees payable to the Lenders (if any) under any Loan Contract.
- We may change the Platform Fees (and charge additional fees) from time to time. We will give you at least 30 days’ notice of any change in the Platform Fees in accordance with Clause 15 (Notices). Any change in the Platform Fees only applies to Loan Contracts entered into on and after the day on which that change takes effect.
- All Fees are exclusive of any applicable Value Added Tax ("VAT") or other taxes, for which the person paying the relevant Fee shall be liable. Each of the Platform Fees is non-refundable once paid.
9. Representations and Warranties
- By agreeing to the terms of this Agreement, Lenders and Borrowers each represent and warrant to us that:
(a) all information you provide to us at any time is true and accurate in all respects;
(b) you are each entering into this Agreement as principal and not on behalf of any third party, and will enter into each Loan Contract or Security Document(s) (as the case may be) through the Service in the same capacity;
(c) execution, delivery and performance of this Agreement by you will not violate any law, ordinance, charter, by-law or rule applicable to you, or any other agreement by which you are bound or by which any of your assets are affected.
- Each Lender further represents and warrants that it will not use the information posted on the Service for any purpose other than researching a Loan Request listed on the Service.
10. User Content
- All Lenders and Borrowers represent, warrant and undertake to us that none of the text, numerical information, graphics, still and moving images or other material that may be posted on your behalf on the Service, including any Loan Request that you apply to list or offer of sale on the Resale Market ("User Content") will infringe the rights of any third party, including applicable intellectual property rights, privacy, publicity or other personal or proprietary rights; or will contain libellous, defamatory or otherwise unlawful material.
- Borrowers agree that Lenders wishing to sell on a loan in the Resale Market may make available to other Lenders information relating to the original Loan Request (including documentation used to support that Loan Request). Lenders participating in the Resale Market should note that this information may not have been updated by the Borrower concerned and so it may be inaccurate and out of date. The Borrower will have no greater liability to any Lender purchasing a loan on the Resale Market in relation to that information than the Borrower would have had to the original Lender accepting the Loan Request or part thereof.
- Borrowers and Lenders each agree and undertake not to:
(a) use the Service to:
(i) harvest or collect email addresses or other financial, personal or contact information of other users of the Service from the Service by electronic or other means for the purposes of sending unsolicited communications or inviting any person to lend or borrow outside the Service;
(ii) to create a database (electronic or otherwise) that includes material downloaded or otherwise obtained from the Service otherwise than for your own personal records (and except where expressly permitted on the Service);
(iii) to transmit or re-circulate any material obtained from the Service to any third party except where expressly permitted on the Service;
(b) use the Service in any unlawful manner or in any other manner that could damage, disable, overload or impair the Service or the servers on which it is hosted;
(c) use automated scripts to collect information from or otherwise interact with the Service;
(d) upload, post, publish, display, transmit, share, store or otherwise make available on the Service any content that we may deem:
(i) to be misleading, harmful, threatening, unlawful, libellous, defamatory, infringing of any intellectual property rights, abusive, discriminatory, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
(ii) to contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(iii) to be unsolicited or unauthorised advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(iv) to be the private information of any third party, including, without limitation, addresses, phone numbers, email addresses, National Insurance numbers or other identifiers, credit card numbers and/or debit card numbers;
(v) to be an attempt to promote or market any goods or services for your own financial benefit;
(e) register on the Service in the capacity as Borrower or Lender more than once or register on the Service on behalf of an individual other than yourself, or register on the Service on behalf of any entity without that entity's prior written authorisation;
(f) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity;
(g) use or attempt to use another User Admin Account, service or system without authorisation from us, or create a false identity on the Service;
(h) solicit personal information from anyone under the age of 18 or solicit passwords or personally identifying information for commercial or unlawful purposes; or
(i) use this Service in such a way so as to remove the copyright or trade mark notice(s) from any copies of any material made in accordance with this Agreement.
- Each Lender and Borrower agrees that it is solely responsible for its User Content and that it will not post, permit to be posted, transmit, or share User Content on the Service that it did not create or that it does not have permission to display, publish or post. You understand and agree that we may post to the Service any of the information referred to in Clause 4.2 and that we may, but are not obligated to, review the same and may delete or remove (without notice) any User Content in our sole and absolute discretion, for any reason or no reason (including without limitation User Content that in our own absolute discretion violates any provision(s) of this Agreement). You are solely responsible at your own cost and expense for creating backup copies and replacing any User Content.
- When you or we post User Content, each Lender and Borrower authorises and directs us to make such copies of it as we consider necessary in order to facilitate the publication, display and storage of the User Content on the Service. By posting (or consenting to our posting) User Content to any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide licence (with the right to sub-licence) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Service or the promotion of it, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorise sub-licences of the foregoing. This includes the use by Lenders in the Resale Market of such User Content. You may remove your User Content from the Service on termination of this Agreement in accordance with Clause 13. If you choose to remove your User Content, the licence granted above will (subject to Clause 10.2) automatically expire, however you acknowledge that we may retain archived copies of your User Content.
- Each Lender and Borrower agrees to indemnify and hold each other user, us, our subsidiaries and affiliates, and each of our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or in connection with any of your User Content, your listing of any Loan Requests or other use of the Service, your conduct in connection with the Service or with other users of the Service, or any breach by you of this Agreement or of any Applicable Law or the rights of any third party.
- Each Lender and Borrower is solely responsible for its interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
- Subject to the provisions of this Agreement, we are not responsible for third party content downloaded or any content posted by users on the Service.
- We welcome 'links' to the home page of the Service or other public pages, but not 'deep linking' by which we mean that you may not include a link to any page of the Service that is not the home page or such a public page. You must not display the contents of our Service (or any page from it) or allow it to be displayed surrounded or framed or otherwise surrounded by material not originating from us without our prior written consent.
- The information provided via the Service is intended solely for use by persons and organisations that meet the eligibility criteria set out in this Agreement. The Service is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to applicable law or regulation.
11. Our Details
- Invest and Fund Limited is incorporated in England and Wales with company number 8277803 and has its registered office at Chichester Road, St Leonards-on-Sea, East Sussex, TN38 9BG. Our data protection registration number with the Office of the Information Commissioner is ZA014196 and our Consumer Credit Licence number is 660564.
- I&F Securities Limited ("IFSL") is incorporated in England and Wales with company number 8640905, and has its registered office at Chichester Road, St Leonards-on-Sea, East Sussex, TN38 9BG. IFSL's data protection registration number with the Office of the Information Commissioner is ZA019132 and its Consumer Credit Licence number is 662332. IFSL may act as the Security Trustee referred to in this Agreement or we may from time to time appoint or allow another body to act in this capacity (either generally or in relation to specific Loan Contacts and related Security Documents). IFSL may also in its discretion or pursuant to any agreement reached transfer its rights, title and interest in any Security Documents and the security created thereby directly to a Lender or Lenders or to another successor trustee acting on behalf of a specific Lender or Lenders on such terms as IFSL considers appropriate. All references to the term 'the Security Trustee' in this Agreement will refer to all such persons, transferees and successors in title as well as to IFSL acting in the capacity as the Security Trustee.
- Both Lenders and Borrowers shall be liable to us and the Security Trustee for any loss or damage suffered by us and/or any Security Trustee as a result of:
(a) your breach of this Agreement, any Loan Contract or any other agreement between you and us;
(b) your negligence or wilful misconduct;
(c) any fraudulent use of the Service;
(d) any and all use of your user name and Password.
- We and the Security Trustee shall not be liable to you for any loss or damage which you may suffer as a result of your use of the Service except where the loss or damage arises from any breach by us of this Agreement or was caused by our or the Security Trustee's gross negligence, wilful default or fraud. We are not responsible for any breach of this Agreement arising from circumstances outside of our reasonable control.
- Our liability and that of a Security Trustee to any Lender in respect of any Loan Request shall in any event be limited to the amount lent by it in relation to the matter that gave rise to the liability.
- Subject to Clause 12.5 and except to the extent prohibited by Applicable Law, we and the Security Trustee will not be liable for any indirect, incidental, special, punitive or consequential damages, loss of business, loss of profits, loss or corruption of data, loss of goodwill or reputation caused by any act or omission by us or the Security Trustee under this Agreement or any Security Document.
- Nothing in this Agreement will be effective to exclude liability for personal injury or death or for any matter which cannot be excluded under applicable law.
- We may terminate this Agreement by notice in writing to you at any time in the event that:
(a) you are in breach of any term of this Agreement or any Loan Contract or Security Document(s) to which you are a party;
(b) if you are a Borrower, you enter into any other borrowing or debt finance arrangement with one or more lenders other than via the Service (except asset-specific financing or invoice purchasing arrangements), where the total amount raised from or committed by such external lenders exceeds 10% of the total amount lent to you through the Service, without our prior written consent, such consent not to be unreasonably withheld or delayed; or
(c) we suspect that you have used the Service, or intend to use the Service, for the purpose of an illegal activity.
- You may terminate this Agreement by providing 7 days’ written notice to us, provided:
(a) as a Lender you have no Offers outstanding and no outstanding rights or obligations under Loan Contracts (and no unfulfilled obligations under this Agreement); or
(b) as a Borrower you have no Loan Requests open to Offers and no outstanding rights or obligations under Loan Contracts (and no unfulfilled obligations under this Agreement),
at the time of your request and on the termination otherwise taking effect.
- On termination of this Agreement, any of your funds remaining in the Invest and Fund Client Funds Account will, subject to any applicable legal restriction, be credited to your Nominated Bank Account.
- Following termination of this Agreement, we will provide you with limited access to the Service and your User Admin Account for a period of 7 days to download any of your User Content or information relating to Offers, communications with Borrowers or Loan Requests made by you via the Service. Upon the expiry of that 7-day period, your access to your User Admin Account and the Service may be terminated and we will have no obligation to store or provide you with access to any information relating to your activity on our Service. If access is provided it may then be charged for.
- Termination of this Agreement will not release you from any of your obligations under any subsisting Loan Contracts or Security Documents.
- If for any reason you have a complaint or concern concerning the operation of the Service please contact us by email at
with brief details of your complaint and your account number. We have a written complaints procedure, and you can request a copy of this at any time.
- You may also have the right to refer your complaint to the Financial Ombudsman Service, if you are not happy with our response, or if eight weeks have passed and we have not provided our final response to you. Please be aware that the Financial Ombudsman Service can only consider complaints from individuals, some small businesses and certain other types of customers.
- The Financial Ombudsman Service can be contacted in the following ways:
The Financial Ombudsman Service
London E14 9SR
You can call the Financial Ombudsman Service on:
● 0800 023 4567 (calls to this number are free from a landline or mobile phone);
● 0300 123 9 123 (calls to this number cost no more than calls to 01 and 02 numbers); or
● +44 20 7964 0500 (for calls from outside the UK)
from 8:00 to 20:00 Monday to Friday, and from 09:00 to 13:00 on Saturdays.
- Except as otherwise expressly provided in this Agreement, any communication in writing may be given by post to the last known postal address that we hold for you or you hold for us, or email to the email address last notified by you to us or by us to you, or (where not prohibited by Applicable Law and regulation) communicate with you by posting information in your User Admin Account.
- Communications sent:
(a) by post will be treated as received by you three Business Days after posting;
(b) by email they will be treated as received immediately upon sending, so long as we do not receive notice of non-transmission or non-receipt; and
(c) to your User Admin Account will be treated as received by you when it is posted by us.
- Each Lender agrees that all notices and communications from a Borrower under its Loan Contract will be sent via us.
16. Amendments to this Agreement
- Subject to the provisions of Clause 8 (Fees), we may amend this Agreement by giving you notice via the Service and your User Admin Account.
- We will only make changes:
(a) where we consider in our reasonable opinion that a change is not prejudicial to you; or
(b) to introduce or withdraw systems or technology; or
(c) to introduce or withdraw products or services; or
(d) to meet any reasonable requirements of a replacement Security Trustee acting or agreeing to act in that role in holding and being party to Security Documents (including in setting out the nature and extent of their duties and in recording any limitations to the same they may require); or
(e) to implement changes imposed on us by third parties or required by Applicable Law or which are required to maintain or (in our view) comply with any authorisations or regulatory permissions we determine we require to provide the Service.
- Some of the terms of this Agreement reflect our understanding of Applicable Law which may include regulatory requirements that have not been published or may (when published) differ from the terms we expected would form part of the relevant Applicable Law. If we find that any term of this Agreement is inconsistent with Applicable Law we will not rely on that term but will treat it as if it did reflect Applicable Law pending this Agreement being updated.
- By continuing to use the Service after you have had notice of a change you are deemed to have accepted it. If you are not content to accept with any changes to this Agreement, you may terminate this Agreement in accordance with Clause 13.2 (strictly subject to the terms of that clause).
- We shall not be obliged to disclose to any Lender or Borrower any information, consider or to take into account any information or other matters which come(s) to our notice or the notice of any of our employees, directors, agents, sub-contractors or associates:
(a) but does not come to the actual notice of the person dealing with you; or
(b) where such disclosure, consideration or taking into account would, or we reasonably believe that it would, be a breach of any duty of fidelity or confidentiality owed to any other person; or
(c) which we receive in the course of providing services to other persons.
- We and you will keep confidential and will not disclose to any third party any information that is marked or otherwise indicated as being confidential, except information that the receiving party already had in its possession without any confidentiality restriction, information independently developed by the receiving party without reference to the information received from the disclosing party, information that either of us is bound to disclose under Applicable Law or by order or request of any regulatory authority or to our respective professional advisers for the purposes contemplated in this Agreement, or in our case or that of any Lender, where disclosure is necessary to exercise any of our rights or perform any of our or its obligations under this Agreement or any Loan Contract, as the case may be. For the avoidance of any doubt, our posting any of the material referred to in Clause 4.2 or which is otherwise a part of a Borrower's Loan Request will not be a breach of any duty of confidentiality we may otherwise owe a Borrower.
18. Client money
- The Invest and Fund Client Funds Account (and each such account if more than one) is a segregated account held separately from our own funds. It is and will be maintained with a bank appropriately authorised in line with our own obligations to the Financial Conduct Authority in relation to holding client monies (the "Account Bank"). A Lender's monies will therefore be held with other Lenders' money in a pooled account and you consent to such pooling. We are not responsible to you for the acts or omissions of the Account Bank from time to time and if the Account Bank were to become insolvent we would not be liable for any shortfall save to the extent we have not complied with our obligations under this Agreement.
- Lenders' funds may be held in client accounts of solicitors engaged to deal with certain property finance transactions if required to meet the objectives of a Loan Request. These funds will be held by such solicitors under the "Solicitors Regulation Authority Client Money rules".
- We have elected to hold all Lenders’ monies in accordance with the FCA rules, as set out in the
Handbook in CASS Client Assets, Section 7
- By entering into this Agreement all Lenders appoint us to act as your agent in the administration of each Loan Contract, all security and any related guarantees (including in instructing the Security Trustee). The Lenders agree that we may act in such role in such manner as we reasonably consider appropriate.
- The Security Trustee is irrevocably appointed by each Lender to hold the assets charged under the Security Documents upon trust for itself, us and all of the Lenders to that Borrower on the terms of the Security Documents.
- In administering the Service and acting as agent under the Loan Contracts and any related guarantees or as security agent under the Security Documents (including as provided for in Clause 5 above) we and the Security Trustee will not be liable for any act or omission unless directly caused by our own (or the Security Trustee's) gross negligence, wilful misconduct or fraud. No Lender or Borrower may bring any action or proceedings against any officer, employee or agent of ourselves or the Security Trustee in relation to any other act or omission and each such officer, employee or agent may rely on this term.
- The Lenders agree that we and the Security Trustee will be entitled to be paid and reimbursed all costs, expenses and liabilities each reasonably incurs in administering the terms of the Finance Documents and in seeking to recover amounts due to Lenders out of any proceeds or sums received or recovered by us or it under the Finance Documents in priority to the claims of the Lenders. This will include the costs of employing or appointing any agents under Clause 5 of this Agreement (who may be appointed on a basis that entitles them to receive a percentage of any recovery if we consider this, in our discretion, to be in the interest of Lenders). Any such costs of recovery will to the extent possible be added to the amount due from the Borrower under the terms of the Finance Documents, but in the event of a shortfall it will be borne by the Lenders on the Basis of Allocation.
- This Agreement is supplied in English and all communications between us and any Lender or Borrower (including any communications or documentation passing between us before entering into any contract) will be in English.
- This Agreement is governed by English law and the courts of the United Kingdom will have non-exclusive jurisdiction to settle any disputes that may arise in relation to it, provided that we retain the right to bring proceedings against you for a breach of this Agreement in your country of residence or any other relevant country.
- Nothing in this Agreement is intended to confer any benefit on any person who is not a party to this Agreement (other than a Successor Trustee), and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. For the avoidance of any doubt, the Finance Parties (as defined in the Loan Contract) are deemed to be parties to this Agreement along with you and us.
- If any part of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction or regulatory authority, the remainder shall continue in full force and effect. No single or partial exercise, or failure or delay in exercising any right, power or remedy by either you or us shall constitute a waiver by us of, or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
- The provisions of this Agreement are personal to you and you may not assign or transfer any of your rights or obligations under this Agreement.
- We may assign our rights and obligations under this Agreement to any other company in our group, including a parent company or subsidiary or in the event of the sale or transfer of all or (or part) of our business or assets.
- The records kept by us in the Service shall be conclusive of the facts and matters they purport to record except where there is an obvious mistake.
- We will seek to allow uninterrupted use of the Service, but this may be restricted or suspended from time to time.