Service terms

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  1. Introduction
    • 1.1 These terms and conditions (“Service Terms”) govern the use by you (“you”, “your”) of the peer-to-peer property lending service operated by Fitzrovia Finance Ltd. (“Fitzrovia Finance”, “we”, “us” and “our”) via www.fitzroviafinance.com, further details of which are set out in these Service Terms (the “Service”) where your application to use the Service is approved by us. By accepting these Service Terms you also agree to:
      1. our privacy policy at www.fitzroviafinance.com (“Privacy Policy”);
      2. the lenders’ risk statement at www.fitzroviafinance.com (“Risk Warning");
      3. the terms of the Mango Pay Framework Agreement for Payment Service between you and MangoPay SA, a limited liability company incorporated in Luxembourg, with registered offices at 59 Boulevard Royal, L-2449 Luxembourg listed under Number B173459 on the Luxembourg Trade and Company Register, and approved as an Electronic Money institution by the Luxembourg Financial Sector Regulator, (“the Payment Service Provider”), who will supply you with a payment service in connection with the Service where specified in these Service Terms.
      The Service Terms take effect when accepted by you and we have notified you that your application to use the Service has been approved, and shall continue thereafter unless and until they are terminated under Clause 12.
    • 1.2The Service enables each registered lender (“Lender”) to lend funds to a registered borrower (“Borrower”) by entering into one or more loan contracts with that Borrower (each, a “Loan Contract”) as either the initial Lender; or by replacing the then current Lender (“Outgoing Lender”) through novation in accordance with Clauses 5.6 to 5.8 of these Service Terms. Novation is a means of transfer that cancels the Outgoing Lender’s rights and obligations under the Loan Contract that is being novated ("Prior Loan Contract") as well as the Outgoing Lender’s related rights and obligations in the Service Terms and the Security Documents; and creates a new Loan Contract between the Borrower and the new Lender, replacing the Prior Loan Contract, in return for the new Lender assuming identical rights and obligations under the new Loan Contract to those of the Outgoing Lender under the Prior Loan Contract, and paying the Transfer Price in accordance with Clause 5.7. The Borrower agrees in advance to each novation of the Borrower’s Loan Contracts under Clause 4.9(a), but none of the terms of the Loan Contract(s), these Service Terms or Security Documents is changed by the novation process. Each Loan Contract is subject to a standard set of loan terms (“Loan Conditions”) which each Lender must read and agree before making an offer of funds under Clause 3 (“Offer”) and each Borrower must read and agree before making a loan application under Clause 4 (“Loan Application”). We will provide the Borrower with a summary of the Loan Contracts it enters into at or about the same time (“Loan Contract Summary”).
    • 1.3In addition to each Loan Contract, a Borrower and any other grantor of security must enter into certain security documents (each a “Security Document”) with Fitzrovia Finance Security Ltd (“Security Trustee”), under Clause 4.9(a) to secure the repayment obligations of the Borrower under the Loan Contracts entered into by that Borrower. The Security Document(s) in relation to each Borrower will be held in trust by the Security Trustee in accordance with the provisions of Clause 3.12 for the benefit of each Lender to which the Borrower is indebted under Loan Contracts in relation to which the Borrower has drawn down funds (and succeeding Loan Contracts arising from the novation of such Loan Contracts). The Security Trustee shall act in accordance with any written instructions given to the Security Trustee at any time by Fitzrovia Finance as part of arrangements (a) the purpose of which is to compensate a Lender when a Borrower fails to pay any sum due to that Lender under a relevant Loan Contract or (b) which form a necessary part of our regulated activities in operating the Service; or as otherwise agreed in the Loan Contract(s) with the Borrower. All Lenders agree that any such instructions given to the Security Trustee will be binding on all Lenders and shall not give rise to any liability to such Lenders for any losses (including loss of profit), claims, demands, actions, proceedings, damages and other payments, costs, expenses and other liabilities of any kind resulting from any such instructions (except in the event of gross negligence, wilful misconduct or fraud).
    • 1.4The regulatory details of Fitzrovia Finance and the Security Trustee are:
      1. Fitzrovia Finance is authorised and regulated by the Financial Conduct Authority, and entered on the Financial Services Register under firm registration number 723810; it is incorporated in England and Wales (company number 08846389), with its registered office at 6th floor, 338 Euston Road, London, NW1 3BG; and registered with the Office of the Information Commissioner (registration number ZA198150).
      2. Fitzrovia Finance Security Ltd is incorporated in England and Wales (company number 10315937), with its registered office at 6th floor, 338 Euston Road, London, NW1 3BG.
  2. Eligibility
    • 2.1To use the Service as a Lender, you must be either:
      1. an individual, a partnership consisting of two or three persons not all of whom are bodies corporate, or an unincorporated body of persons which does not consist entirely of bodies corporate, and each such person must be resident in the United Kingdom of Great Britain and Northern Ireland, excluding the Channel Islands and the Isle of Man (“UK”) and:
        1. at least 18 years old;
        2. hold a current account or other payment account in your own name at a duly authorised UK financial institution (“Nominated Payment Account”);
        3. not a Borrower
      2. a corporation, a partnership consisting of more than three persons or bodies corporate, or an unincorporated body of consisting entirely of bodies corporate and:
        1. be incorporated or established in the UK; and
        2. hold a Nominated Payment Account.
    • 2.2 To be eligible to apply to use the Service as a Borrower you must be a corporation, a partnership consisting of more than three persons or bodies corporate, or an unincorporated body of consisting entirely of bodies corporate and:
      1. be incorporated or established in the UK; and
      2. hold a Nominated Payment Account.
    • 2.3 You must provide us with all information in any form (“Information”) reasonably requested during your application for registration to enable us to comply with all laws, regulations, rules and regulatory guidance applicable to the Service including anti-money laundering and sanctions requirements, the Financial Services and Markets Act 2000 (“FSMA”) and the Handbook of rules of the Financial Conduct Authority (“FCA”) available at http://fshandbook.info/FS/html/FCA/ (“FCA Rules”) as amended, or replaced from time to time (“Applicable Law”). If you apply to be a Borrower, we will carry out credit and fraud checks on you, your director(s) and your business.
    • 2.4 We may refuse to register you to use the Service for any reason, in our sole and absolute discretion.
    • 2.5 If we register you to use the Service, we will open a unique account in your name in our systems (“Fitzrovia Finance Account”) for which you will be asked to choose a username and password (“Access Codes”). Your Fitzrovia Finance Account is only a data account used to record transactions and other Information, including a list of your respective Lenders or respective Borrowers (as the case may be), amounts paid by you or owed to you, but does not actually hold any funds. If we approve your application for a Fitzrovia Finance Account.
    • 2.6 You must comply with all Applicable Law and the provisions of these Service Terms relating to your activities on and in connection with the Service.
    • 2.7 Each time you seek to access your Fitzrovia Finance Account, you must use your Access Codes. As long as your Access Codes are entered, we will assume you are the person accessing your Fitzrovia Finance Account and giving us instructions, for which you will be liable except to the extent provided for in Clause 2.8. You must keep the Access Codes secret and ensure they are not stored in a way that enables anyone acting without your authority to access them or impersonate you. If you disclose the Access Codes to any person you authorise to access and operate your Fitzrovia Finance Account on your behalf, you are also responsible and liable for any such person’s access, use, misuse or disclosure of your Access Codes or your Fitzrovia Finance Account.
    • 2.8 Unless and until you tell us that you believe that someone acting without your authority knows the Access Codes or can use the Service by impersonating you:
      1. you will be responsible for any instruction which we receive and act on, even if it was not given by you; and
      2. we will not be responsible for any unauthorised access to confidential Information about you in your Fitzrovia Finance Account.
      We can refuse to act on any instruction that we believe: (i) was unclear; or (ii) was not given by you or someone acting on your behalf with your authority; or (iii) might cause us to breach a legal or other duty; or (iv) if we believe the Service is being used for an illegal purpose.
    • 2.9 While the Service is designed to match Lenders and Borrowers in accordance with these Service Terms, we do not undertake to find Loan Applications, Loan Contracts, Lenders or Borrowers for you (as the case may be).
    • 2.10 Neither we nor the Security Trustee warrant or represent that:
      1. the use of any document(s) supplied as part of the Service, including these Service Terms and the documents referred to in or provided under them, are suitable or appropriate for you or any person entering into a Security Document, or your or their requirements, and you and they must take independent legal and other advice on the terms of such documents;
      2. any expected bad debt estimates supplied on the Service are accurate or reliable.
  3. Making an Offer – General
    • 3.1 You may make an Offer to lend money via the Service in response to either a Loan Application or another Lender’s request to novate an existing Loan Contract on the terms specified in Clauses 5.6 to 5.8 by following the instructions in your Fitzrovia Finance Account and the provisions of these Service Terms.
    • 3.2 You should consider carefully these Service Terms, including the Risk Statement, before making an Offer.
    • 3.3 Before making an Offer, you must first transfer the sum you wish to offer from your Nominated Payment Account to the segregated payment account maintained by the Payment Service Provider, separately from its own funds (“Customer Funds Account”) using a payment method the details of which are available from the Payment Services Provider or via your Fitzrovia Finance Account) and quoting the unique reference number shown in your Fitzrovia Finance Account. Each funds transfer will also be shown in your Fitzrovia Finance Account when we are notified by the Payment Service Provider. The funds transfer is complete when recorded in your Fitzrovia Finance Account. You may then make an Offer in respect of any of your cleared funds that are shown as available. Any Offer in relation to those funds on the Platform is separate from the earlier transfer of those funds.
    • 3.4 By making an Offer:
      1. you acknowledge that you have read and understood the Information and documents made available by us in relation to the relevant Loan Application under Clause 4.6 below; and
      2. you acknowledge and agree that our decision to allow the Borrower to make the Loan Application or to facilitate the novation of a Loan Contract with that Borrower does not constitute any approval or endorsement by us or the Security Trustee.
    • 3.5 When you make an Offer, the amount specified in that Offer (the “Offer Amount”) will immediately be shown as reserved in your Fitzrovia Finance Account and will not be available to be allocated to other Offers or to be withdrawn from the Customer Funds Account for a period ending on the earlier of the date on which:
      1. the required funding specified in the relevant Loan Application is achieved and subsequent acceptance process is completed under Clause 4.9(a); or
      2. the relevant Loan Application fails to attract the required funding within the time specified in the Loan Application; or
      3. the relevant Loan Contract(s) matching your Offer is (are) novated; or
      4. the relevant Loan Application is withdrawn or is otherwise terminated in accordance with these Service Terms.
    • 3.6 Offers will be accepted by Borrowers in accordance with Clause 4.9(a) in the order in which they are entered on the Service, provided that we may deem an Offer to be void for any reason, or no reason, at any time whatsoever in our absolute discretion (which we may not be able to explain where prohibited from doing so under Applicable Law).
    • 3.7 The acceptance of your Offer via the Service creates a separate, direct Loan Contract between you as a Lender and the relevant Borrower to which neither we nor the Security Trustee is a party.
    • 3.8 There will not be a statutory right to cancel any Offers made under these Service Terms.
    • 3.9 While certain Due Diligence is carried out under Clause 4.6, you acknowledge and agree that neither we nor the Security Trustee will verify or audit statements made by the Borrower in relation to any Loan Application, for which the Borrower is solely responsible to you.
    • 3.10 We shall not advise you or make any personal recommendation as to any Loan Application or Loan Contract. You are solely responsible for making your own independent appraisal and investigation of the risks of entering into each Loan Contract. If you require specialist advice, you should consult your own appropriately qualified independent adviser(s).
    • 3.11 We shall not be responsible for the suitability of any Loan Contract for you or any purpose for which you enter into it (whether by novation or otherwise).
    • 3.12 The performance of each Borrower's obligations to you under the Loan Contract will be secured by the Security Document(s) entered into between the Borrower (and any third party) and the Security Trustee in accordance with the provisions of Clause 4.9(a). The Security Trustee will hold the Security Document(s) and rights and interests created by the Security Document(s) in trust for the benefit of all the relevant Lenders to that Borrower from time to time, and will enforce the Security Documents for the benefit of such Lenders in accordance with Clause 5.4. The perpetuity period of that trust shall be 125 years.
  4. Posting a Loan Application
    • 4.1 As a Borrower, you may make a request to borrow via the Service (“Loan Application”) in accordance with the instructions in your Fitzrovia Finance Account and these Service Terms for duration (“Loan Term”) of up to 60 months, and a maximum total amount of £5m.
    • 4.2 You must ensure all Information provided in relation to your Loan Application is complete, accurate, up to date, clear, fair and not misleading.
    • 4.3 We may reject a Loan Application for any reason at any time whatsoever, in our sole and absolute discretion.
    • 4.4 Regardless of any other assets that are also included, each Borrower warrants and represents that none of the real property that is the subject of any Security Document entered into by you in relation to any Loan Contracts (“Property”) will be land that is used, or is intended to be used, as or in connection with a dwelling by:
      1. the Borrower or by an individual who is a beneficiary of any trust in respect of which the Borrower is a trustee; or
      2. by a person related to the Borrower or any such beneficiary in any of the following respects:
        1. that person's spouse or civil partner; or
        2. a person (whether or not of the opposite sex) whose relationship with that person has the characteristics of the relationship between husband and wife; or
        3. that person's parent, brother, sister, child, grandparent or grandchild.
    • 4.5 By initiating the preparation of a Loan Application to your Fitzrovia Finance Account, as a Borrower you agree:
      1. to supply all Information reasonably required to determine whether or not to accept your Loan Application (“Due Diligence Material”) including the Construction Documents, Material Contracts, Development Planning Permission, Collateral Warranty, Agreement for Lease and Appointment of the Professional Team as those terms are defined in the Security Document(s);
      2. to pay for a valuation of the Property initiated by the Security Trustee (“Valuation”) by a professionally qualified valuer who is a member of the Royal Institution of Chartered Surveyors, chosen by the Security Trustee (“Valuer”), as well as any update to the Valuation, as directed by the Security Trustee;
      3. to pay the cost of such chartered surveyor or other relevant professional as the Security Trustee may appoint from time to time to monitor the progress of the Development (“Project Monitoring Surveyor”);
      4. to provide a fully completed and properly addressed certificate of title for the Property (“Certificate of Title”) from your own solicitor at your own cost and instruct your solicitor to make such amendments to the Certificate of Title as are required to satisfy Keystone Law that the Certificate of Title is complete, accurate and can be relied upon for the purpose of the Security Document(s);
      5. to pay the legal fees of the Security Trustee in connection with the negotiation and entry into the Security Document(s) and any legal review of the Certificate of Title;
      6. to pay all of your own legal fees incurred directly or indirectly in relation to the Loan Application;
      7. to pay to us the Fees applicable under Clause 8; and
      8. to pay the cost of any appropriate insurance that the Security Trustee obtains in relation to the title risk of the Property, which shall be from a reputable insurer, the details of which insurance will be made available to Lenders and the benefit of which will be held on trust by the Security Trustee for the Lenders, the perpetuity period of such trust being 125 years.
    • 4.6 Once you begin the preparation of your Loan Application on the Service, the Security Trustee will carry out certain due diligence specified below on each Loan Application (“Due Diligence”) and make the resulting Information any other Information the Security Trustee reasonably deems necessary available for each prospective Lender to view in a specific area of the Service for the purpose of considering whether or not to make an Offer:
      1. the Loan Application, sample Loan Contract and the Loan Conditions;
      2. certain Information about the Property, including the Valuation, lease(s), tenant(s) and their covenants, the Certificate of Title, the result of any review of the Certificate of Title carried out by a law firm acting for the Security Trustee, the details of any Title Insurance;
      3. specify how much Information relating to the Development will be made available, with relevant definitions – see (e) below;
      4. a certificate addressed to the Lender confirming that:
        1. the Requested Costs are in accordance with the Development Budget and the Agreed Plans and supported by invoices;
        2. the part of the Facility remaining undrawn after the relevant Drawdown is sufficient to meet the remaining Total Costs; and
        3. the Development is progressing in accordance with the Agreed Plans and Development Budget
        ("Project Monitoring Surveyor's Certificate");
      5. Information about you as the Borrower, including credit reference Information about you and each of your directors;
      6. the Security Document(s) and Information about any other party entering into Security Document(s), including identity and credit reference checks.
    • 4.7 Once the Due Diligence is completed to the Security Trustee’s satisfaction:
      1. you will be notified by the Security Trustee who will send you the final version of the Security Documents for you to review in consultation with your own independent legal adviser;
      2. we will be notified by the Security Trustee, in which case we will notify you that you may post your Loan Application on the Service.
    • 4.8 By publishing your Loan Application on the Service, you agree that:
      1. subject to Clause 4.9 and the satisfaction of any conditions precedent stated in the Loan Application, the acceptance by you of each Lender’s Offer will create a direct Loan Contract between you and each Lender, governed by the Loan Conditions;
      2. you shall enter into, or procure the entry into, the Security Documents
    • 4.9 If within the period specified in the Loan Application your Loan Application receives Offers that equal the total amount you are seeking to borrow, then within a further 5 days you must either:
      1. accept each of the Offers (including any subsequent Offers by Lenders agreeing to novation) by:
        1. entering into the Loan Contracts in accordance with the electronic signing instructions on the Service, which shall also constitute your irrevocable continuing agreement to the novation of any such Loan Contracts by the relevant Lenders (and each subsequent novation of such novated Loan Contracts) as often as the relevant Lenders agree in accordance with these Service Terms; and
        2. entering into and returning the duly executed Security Documents to the Security Trustee; or
      2. notify us that you decline to accept the Offers.
    • 4.10 You may withdraw a Loan Application from the Service at any time before you enter into the Loan Contracts under Clause 4.9(a), in which case (or if the Loan Application does not complete for any reason whatsoever) the Borrower shall be responsible for the charges incurred by us and the Security Trustee under Clauses 4.5 and 4.6, and you shall keep us and the Security Trustee fully and effectually indemnified in respect thereof.
    • 4.11 You acknowledge and agree that you are solely responsible and liable for:
      1. the statements made by you in relation to your Loan Application(s);
      2. obtaining your own independent financial, legal, environmental, accounting, tax advice and any other professional advice you require in relation to your Loan Application, the Due Diligence, the Loan Contracts (including the Loan Conditions) and the Security Documentation.
    • 4.12 By submitting any Information to us or Lenders via the Service, you warrant and represent to us and each Lender that:
      1. any statements made by you as a Borrower have the approval of your board of directors and that you have taken all appropriate legal and accounting advice;
      2. any statements you make are complete, clear, fair and not misleading; and
      3. any projections or forward-looking statements which you make are reasonable and can be supported by evidence.
  5. After the Loan Contract is formed
    • 5.1 Subject always to our right to reject a Loan Application, upon a Loan Application achieving the required funding amount and acceptance under Clause 4.9(a) and the provisions in each Loan Contract concerning drawdown of the Loan Amount:
      1. we will provide to the Borrower a Loan Contract Summary and agree the amount of any Fees owed by the Borrower under Clause 8 of these Service Terms or the Loan Contract Summary (together, “Fees”) and any amount(s) due to any relevant third party by the Borrower;
      2. we will debit the Offer Amount from each Lender’s Fitzrovia Finance Account and credit the Borrower’s Fitzrovia Finance Account for that amount, less:
        1. the amount of any Fees owed by the Borrower; and
        2. any amount(s) due to any third party by the Borrower;
      3. each Lender hereby authorises us, and we undertake, to instruct the Payment Service Provider to deduct and pay from the Customer Funds Account to the Borrower’s Nominated Payment Account (or as otherwise stipulated in the Loan Contract) the funds that are due and payable to the Borrower under each Loan Contract, net of any amounts payable by the Borrower under Clause 5.1(b) which you hereby authorise us, and we undertake, to instruct the Payment Service Provider to deduct and pay to us or the relevant third party.
    • 5.2 For administrative convenience, each Borrower shall make each of the Repayments under all the Loan Contracts entered into at or about the same time (in respect of which there has been a drawdown) in a single payment specified in the Loan Contract Summary to the Customer Funds Account by instructing the Payment Service Provider in accordance with the Payment Services Agreement to directly debit the Borrower’s Nominated Payment Account for such amount in favour of the Client Funds Account. Each Borrower hereby authorises us, and we undertake, to instruct the Payment Service Provider to distribute each Repayment to each of the Lenders under whose Loan Contracts a relevant Repayment is due and to pay us or any third party any amounts specified in the Loan Contract as being payable by the Borrower to us or any such third party from that Repayment. We also undertake to record the payment of those Repayments in the Fitzrovia Finance Account of each Lender and Borrower when informed of their processing by the Payment Service Provider. Interest due under each Loan Contract will be paid gross to the relevant Lenders, and each Lender shall be responsible for accounting for and paying any taxes due on such interest.
    • 5.3 If the Borrower misses a payment or only partially pays the amount due to you as the Lender, you authorise us or a collections agency nominated by us and whose details we provide to you in writing (“the Collections Agency”), acting on your behalf, and we undertake to, or direct the Collections Agency on your behalf to, as the case may be, take steps to procure the payment of an amount equivalent to the outstanding payment and any additional fees and charges due under the relevant Loan Contract.
    • 5.4We will keep you informed of the progress of the attempts to collect the outstanding payment(s).
    • 5.5 In the event of the occurrence of any Event of Default (as defined in the Loan Conditions) the Security Trustee shall enforce all or any of the Security Documents and the relevant proportion of any sums recovered by the Security Trustee will be paid to each eligible Lender, subject to deduction of the costs of recovery (including legal fees and expenses and those of any manager, receiver or administrator appointed by the Security Trustee) from the gross proceeds recovered, such that the net amount recovered shall be apportioned according to the proportion that the Loan Amount (as defined in each Loan Contract) under each of your Loan Contracts in respect of which there has been a drawdown by the Borrower represented to the total amount borrowed by the Borrower under all such Loan Contracts (“Total Loan Amount”), as shown in the relevant Loan Contract Summary. The Security Trustee will keep each Lender informed of the progress in enforcing the Security Document(s) concerned.
    • 5.6 You acknowledge the possibility that the proceeds recovered (if any) as a result of any recovery and enforcement activity may not be sufficient to discharge all the relevant Borrower’s obligations to you. In that case, you will only be entitled to recover a share of any recovery proceeds, subject to deduction of the costs of recovery (including legal fees and expenses and those of any manager, receiver or administrator appointed by the Security Trustee) from the gross proceeds recovered, such that the net amount recovered shall be apportioned according to the proportion that the Loan Amount (as defined in each Loan Contract) under each of your eligible Loan Contracts represented to the Total Loan Amount.
    • 5.7 As the Lender under an existing Loan Contract, you may irrevocably offer to cancel all your rights and obligations under the Loan Contract, as well as your related rights and obligations under these Service Terms and Security Documents in relation to that Loan Contract, in return for another Lender assuming identical rights and obligations under a new Loan Contract with the relevant Borrower and paying to youthe outstanding principal and any interest accrued but not paid as at the date of novation (“Transfer Price”) by specifying in your Fitzrovia Finance Account the Loan Contract(s) that you wish to novate.
    • 5.8 Where any Loan Contract that you offer to novate under Clause 5.6 (“Prior Loan Contract”) matches the criteria of any Offer made by a Lender with sufficient funds under Clause 3 (“New Lender”), you (as “the Outgoing Lender”) hereby accept such Offer and agree to the novation of the Prior Loan Contract, such that your rights and obligations under the Prior Loan Contract (as well as your related rights and obligations in these Service Terms and the Security Documents) are cancelled; the New Lender assumes identical rights and obligations under a new Loan Contract to the rights and obligations of the Outgoing Lender under the Prior Loan Contract, with the Borrower’s consent under Clause 4.9(a) (“New Loan Contract”), which replaces the Prior Loan Contract; and the New Lender pays the Transfer Price to the Outgoing Lender as a result of us recording a debit for the amount of the Trasnfer Price from the Fitzrovia Finance Account of the New Lender and a credit for that amount to your Fitzrovia Finance Account, less the amount of the Transfer Fee payable under Clause 8.3; we record the details of the novation in the Fitzrovia Finance Account of the Borrower and each of the relevant Lenders.
    • 5.9 Following each novation pursuant to Clauses 5.7 and 5.8 of these Service Terms:
      1. The Outgoing Lender shall remain liable for, and indemnifies and holds harmless the New Lender 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 the Prior Loan Contract; and
      2. The New Lender shall be and remain liable for, and indemnifies and holds harmless the Outgoing Lender 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 the New Lender’s Loan Contract with the relevant Borrower.
  6. Cancellation of these Service Terms
    • 6.1 If you are a Lender who, for the purpose entering into these Service Terms, makes exclusive use of one or more means of distance communications up to and including the time at which these Service Terms are entered into, you shall be entitled to cancel these Service Terms within the 14 day period that begins on the day after you enter into it (“Statutory Cancellation Period”). However, in the event that you make an Offer during the Statutory Cancellation Period under this Clause 6.1, you will no longer be able to cancel these Service Terms (or that Offer).
    • 6.2 You may exercise your right of cancellation by emailing us to that effect at Admin@fitzroviafinance.com.
  7. Customer Funds Account
    • 7.1 In the event that interest is earned on any amounts held in the Customer Funds Account, we shall apportion such interest amongst the Lenders and Borrowers on whose money this interest has accrued by crediting their respective Fitzrovia Finance Accounts accordingly on a monthly basis. We shall not keep any such interest earned for our own account.
    • 7.2 In the event that there has been no activity on your Fitzrovia Finance Account for a period of at least 18 months, we shall be entitled to take such steps as we consider appropriate, which shall include transferring the money from the Customer Funds Account to your Nominated Payment Account or sending a cheque to your last-known residence.
    • 7.3 You may either instruct the Payment Service Provider to pay any funds held by it on your behalf in the Client Funds Account, and showing as available in your Fitzrovia Finance Account and not reserved to any current Offer or Loan Contract, to your Nominated Payment Account or re-Offer those funds, by following the instructions in your Fitzrovia Finance Account.
    • 7.4 You hereby authorise us to instruct the Payment Service Provider to deduct and pay from the Customer Funds Account to your or the relevant Borrower’s or other Lender’s Nominated Payment Account (or as otherwise stipulated in the Loan Contract) the funds that are due and payable to that Borrower or Lender, as the case may be, under or in relation to any relevant Loan Contract, net of any amounts payable to us or any third party, which you hereby authorise us to instruct the Payment Service Provider to deduct and pay to us or the relevant third party, as the case may be.
  8. Fees
    • 8.1 As a Borrower, you may be required to pay to us the following fees:
      1. a non-refundable arrangement fee equalled to a percentage of the Loan Amount (“Arrangement Fee”), which percentage shall be specified in the Loan Contract Summary, and the amount of the Arrangement Fee shall be paid to us from the Total Loan Amount at the time of disbursement of the net proceeds to you;
      2. a servicing fees equal to a percentage of the Loan Amount (“Professional Fees”), which percentage shall be specified in the Loan Contract Summary;
      3. at the Termination Date, or such earlier date upon which the Loan Contracts are cancelled or repaid, a fee equal to a percentage of either the Gross Development Value of the Property, or of the Total Loan Amount (“Release Fee”), which percentage shall be specified in the Loan Contract Summary;
      4. a non-utilisation fee, equalled to a percentage of average Undrawn Facility (“Non Utilisation Fee”), which percentage shall be specified in the Loan Contract Summary.
    • 8.2 In addition, the special conditions in some Loan Contracts may provide for certain break costs or exit fees to be payable by the Borrower to the Lender in the event that all or any part of the Total Loan Amount is repaid other than as provided in the Loan Contracts or all or any part of the Loan Amount or any unpaid sum is paid on a day other than the last day of an interest period under the Loan Contracts, to indemnify the Lender against any loss (including loss of the Margin) or liability that it incurs as a consequence of such payment together with any costs incurred as a result of the termination, close out or cancellation of any trade under any hedging agreement that the Lender may have entered into (“Break Costs”).
    • 8.3 As a Lender, where you transfer a Loan Contract under Clauses 5.6 to 5.8, you must pay to us a percentage of the Transfer Price (“Transfer Fee”), which percentage shall be specified on our secondary market at www.fitzroviafinance.com and the amount of the Transfer Fee shall be paid to us.
    • 8.4 We may waive or offer discounts on any of our fees to any person at any time in our sole and absolute discretion.
    • 8.5 We may change any of our fee rates from time to time to reflect legitimate cost increases or reductions in operating the Service. We will give you at least 30 days’ notice of any change in our fees in accordance with Clause 14. Any such changes in fees will only affect Offers, Loan Applications, Loan Contracts and Security Documents made on and after the date on which the change is stated to take effect.
    • 8.6 All Fees are exclusive of any applicable Value Added Tax or other taxes, for which the person paying the relevant Fee shall be liable.
  9. Representations and Warranties
    • 9.1 By agreeing to the terms of these Service Terms, you represent and warrant to us that:
      1. all Information you provide to us and/or the Security Trustee is true and accurate in all respects;
      2. you are entering into these Service Terms, each Loan Contract and any Security Document(s) as principal and not on behalf of any third party;
      3. execution, delivery and performance of these Service Terms, each Loan Contract and any Security Document(s) will not violate any Applicable Law or other agreement by which you or the grantor is bound or by which any of your or their assets are affected;
      4. you will not send funds to the Customer Funds Account other than by using the payment methods specified by us and you will not request that funds be sent from either of those accounts other than to your Nominated Payment Account; and
      5. you will not use the Information posted on the Service for any purpose other than for the purposes of exercising your rights or performing your obligations under these Service Terms.
  10. User Content
    • 10.1 You represent, warrant and undertake that none of the Information you post on the Service (“User Content”) will infringe the rights of any third party, including intellectual property rights, privacy, publicity or other personal or proprietary rights; or will contain libellous, defamatory or otherwise unlawful material. In addition, you undertake not to:
      1. use the Service to:
        1. harvest or collect email addresses or other financial, personal or contact Information of other users of the Service by electronic or other means for the purposes of sending unsolicited communications or inviting any person to invest outside the Service;
        2. 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 by these Service Terms);
        3. to transmit or re-circulate any material obtained from the Service to any third party except where expressly permitted by these Service Terms;
      2. 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;
      3. use automated scripts to collect Information from or otherwise interact with the Service;
      4. upload, post, publish, display, transmit, share, store or otherwise make available on the Service any content that we may deem:
        1. to be misleading, harmful, threatening, unlawful, libellous, defamatory, infringing of any intellectual property rights, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; and/or
        2. 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; and/or
        3. to be unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of solicitation; and/or
        4. 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; and/or
        5. to be an attempt to promote or market any goods or services for your own financial benefit;
      5. register on the Service more than once or on behalf of an individual other than yourself, or on behalf of any entity without that entity's prior written authorisation;
      6. 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;
      7. use or attempt to use another's account, service or system without authorization from us, or create a false identity in relation to the Service;
      8. solicit personal Information from anyone under 18 or solicit passwords or personally identifying Information for commercial or unlawful purposes;
      9. use the 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 these Service Terms.
    • 10.2 You are solely responsible for your User Content. You may not post, transmit, or share User Content on the Service or otherwise that you did not create or that you do not have permission to display, publish or post.
    • 10.3 You understand and agree that we may, but are not obligated to, review the Service and may delete or remove (without notice) any User Content in our sole and absolute discretion, for any reason or no reason.
    • 10.4 You are solely responsible at your own cost and expense for creating backup copies and replacing any User Content.
    • 10.5 When you post your User Content, you authorize and direct us to make such copies of it as we consider necessary in order to facilitate the publication, display and storage of the User Content in relation to the Service. By 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 and to the Security Trustee an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) 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 authorize sublicenses of the foregoing. You may remove your User Content from the Service at any time, subject to the other provisions of these Service Terms. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that we and/or the Security Trustee may retain archived copies of your User Content.
    • 10.6 You agree to indemnify and hold each other user, us, the Security Trustee, 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, and all registration fees and duties, arising out of or in connection with any of your User Content, your listing of any Loan Applications or other use of the Service, your conduct in connection with the Service or with other users of the Service, the preparation of Security Documents and other documentation and registration of the Security Documents at The Land Registry and Companies House as necessary, and any breach by you or any grantor of any security under any Security Document or of these Service Terms or of any Applicable Law or violation of the rights of any third party.
    • 10.7 You are solely responsible for your interactions with other users. We and the Security Trustee reserve the right, but have no obligation, to monitor disputes between you and other users.
    • 10.8 Subject to the provisions of these Service Terms, neither we nor the Security Trustee are responsible for third party content downloaded or any User Content.
    • 10.9 We welcome 'links' to the home page of the Service, 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. You must not display the contents of the 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.
    • 10.10 The Information provided via the Service is intended solely for use by persons and organisations that meet the eligibility criteria set out above. 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.
  11. Liability and Indemnities
    • 11.1 You shall be liable to us and to the Security Trustee for any loss or damage suffered by us and/or the Security Trustee as a directly foreseeable result of your breach of these Service Terms or any other agreement between you and us and/or the Security Trustee, or for your negligence or wilful misconduct.
    • 11.2 The Borrower shall, within three Business Days of demand, indemnify Fitzrovia Finance against any cost (including legal fees and expenses), loss or liability incurred by it as a result of:
      1. investigating any event which it reasonably believes is the cause of, or likely to cause, an Event of Default; or
      2. acting or relying on any notice, request or instruction by the Borrower which it reasonably believes to be genuine, correct and appropriately authorised.
    • 11.3 We and the Security Trustee shall only be liable to you for any loss or damage which results as a directly foreseeable result of our or the Security Trustee’s breach of these Service Terms, negligence or wilful misconduct.
    • 11.4 Our liability to you and the Security Trustee’s liability to you in respect of any Loan Application, Loan Contract or Security Documentation shall be limited to the amount paid by you in relation to any such Loan Application, Loan Contract or Security Documentation, as the case may be.
    • 11.5 Subject to Clause 11.6 and except to the extent prohibited by Applicable Law, neither we nor the Security Trustee will 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 by the Security Trustee under these Service Terms.
    • 11.6 Nothing in these Service Terms shall limit our or your liability for personal injury or death, or for any other liability which may not be excluded by Applicable Law, or any duty or liability owed by us to you under FSMA or FCA Rules, and in the event of any conflict between the terms of this Agreement and FSMA or FCA Rules then FSMA or FCA Rules (as the case may be) will prevail.
    • 11.7 No party shall be liable for any failure or delay in the performance of any obligation under these Service Terms (except any payment obligation) by reason of any cause beyond that party’s reasonable control.
  12. Termination
    • 12.1 We and the Security Trustee may terminate these Service Terms by notice in writing to you at any time in the event that:
      1. you are in material breach of any term of these Service Terms; and/or
      2. you breach any term of any Loan Contract to which you are a party or of any Security Document entered into in relation to any such Loan Contract; and/or
      3. we suspect or the Security Trustee suspects that you have used the Service, or intend to use the Service, for the purpose of an illegal activity; and/or
      4. you are acting as a Borrower and:
        1. a merger, share exchange or similar transaction occurs in which the holder(s) of a majority of the outstanding equity securities in you or your ultimate direct or indirect parent corporation or holding company immediately prior to such transaction hold less than a majority of the outstanding equity securities of the surviving or successor corporation immediately following the closing of such transaction; and/or
        2. you sell, assign or transfer all or substantially all of your assets or those of your ultimate direct or indirect parent corporation or holding company.
    • 12.2 You may terminate these Service Terms by providing 30 days’ written notice to us, provided you have no Offers outstanding or Loan Applications open to Offers at the time of your request.
    • 12.3 On termination of these Service Terms, you hereby authorise us to instruct the Payment Service Provider to send any funds that it holds on your behalf in the Client Funds Account (or any other account you have with the Payment Service Provider for the purposes of these Service Terms) to your Nominated Payment Account, or by cheque to your last known place of residence.
    • 12.4 Following termination of these Service Terms, we will provide you with limited access to the Service and your Fitzrovia Finance Account for a period of 7 days to download any of your User Content or Information relating to investments, purchases or contributions made by you via the Service. Upon the expiry of that 7 day period, your access to your Fitzrovia Finance Account and the Service and the Service will be terminated and we will have no obligation to store or provide you with access to any Information relating to your activity on the Service or the Service.
  13. Complaints
    • 13.1 If you want to make a complaint about us and/or the Security Trustee you can email Admin@fitzroviafinance.com, with brief details of your complaint and your account number.
    • 13.2 Our staff will acknowledge your complaint by email within one Business Day (a “Business Day”, where used in these Service Terms, being any day (except Saturdays and Sundays) when clearing banks are open for business in London). We will then investigate and send you an initial response within five Business Days. If the complaint is not resolved by close of business on the Business Day after the complaint is received, we will send you a copy of this complaints handling procedure. If you are not satisfied by our response, you must contact our Customer Services Manager, who will respond by email within a further five Business Days.
    • 13.3 If you are not satisfied with the response from our Customer Services Manager, you can email Admin@fitzroviafinance.com, referring to the responses already given to you. Your email will then be referred to our Chief Executive Officer, who will respond by email within a final five Business Days.
    • 13.4 Within four weeks after receiving a complaint, we will send you either a final response or a response which explains why we are not in a position to resolve the complaint and indicates when we will make further contact.
    • 13.5 Complaints by individuals about our regulated activities that cannot be settled within eight weeks of the date on which the complaint is made may ultimately be referred to the Financial Ombudsman Service whose details we will provide to you at that time. As an individual you may also have the right to make such a complaint directly to the Financial Ombudsman Service.
  14. Notices
    • 14.1 Except as otherwise expressly provided in these Service Terms, 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 and the Security Trustee, or email to the email address last notified by you to us or by us to you.
    • 14.2 Communications sent:
      1. by post will be treated as received by you three Business Days after posting; and
      2. by email they will be treated as received immediately upon sending, provided there is no notice of non-transmission or non-receipt.
    • 14.3 We and the Security Trustee may also (where allowed to do so by Applicable Law) communicate with you by posting Information in your Fitzrovia Finance Account or on the Service, in which case the Information will be treated as received by you when it is posted by us or the Security Trustee.
    • 14.4 Any communication given to us or the Security Trustee shall be deemed to have been received only on actual receipt by us or, as the case may be, the Security Trustee.
  15. Amendments to these Service Terms
    • 15.1 Subject to the provisions of Clause 8 (Fees), we may amend these Service Terms by giving you notice via the Service and your Fitzrovia Finance Account.
    • 15.2 We will only make changes:
      1. where we consider that a change will make these Service Terms clearer and no less favourable to you; or
      2. to introduce new systems or technology; or
      3. to introduce new products or services; or
      4. to implement changes required by Applicable Law.
    • 15.3 We will give you 28 days’ notice of any change except where we consider that such change is required under Applicable Law. If you are not happy with any changes to these Service Terms, you may terminate these Service Terms in accordance with Clause 12.
  16. Confidentiality
    • 16.1 Neither we nor the Security Trustee shall be obliged to disclose to you any Information, consider or to take into account any Information or other matters which come(s) to our or to the Security Trustee’s notice or the notice of any of our or the Security Trustee’s employees, directors, agents, sub-contractors or associates:
      1. but does not come to the actual notice of the person dealing with you; and
      2. where such disclosure, consideration or taking into account would, or we or the Security Trustee reasonably believe that it would, be a breach of any duty of fidelity or confidentiality owed to any other person.
    • 16.2 We, the Security Trustee and you shall keep confidential and will not disclose to any third party any Information that is marked or otherwise indicated as being confidential, except Information that any of us is bound to disclose under Applicable Law or by order or request of any regulatory authority or by a court of law, or to our respective professional advisers for the purposes contemplated in these Service Terms, or in ours and the Security Trustee’s cases, where disclosure is necessary to exercise any of our or the Security Trustee’s rights or perform any of our or the Security Trustee’s obligations under these Service Terms or the Security Documents.
  17. General
    • 17.1 These Service Terms are supplied in English and all communications between all or any of us (including any communications or documentation passing between all or any of us before entering into any contract) will be in English.
    • 17.2 These Service Terms are governed by English law and the courts of England and Wales will have non-exclusive jurisdiction to settle any disputes that may arise in relation thereto, although we and the Security Trustee retain the right to bring proceedings against you for a breach of these Service Terms in your country of residence or any other relevant country.
    • 17.3 Nothing in these Service Terms are intended to confer any benefit on any person who is not a party to these Service Terms, and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms, save that the Collections Agency, the Security Trustee, an administrative receiver, a receiver and/or manager of any or all of the Borrower's assets appointed under the Security Documents has the right under the Contracts (Rights of Third Parties) Act 1999 to enforce each Loan Contract and any related provisions of these Service Terms.
    • 17.4 If any part of these Service Terms 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 or the Security Trustee shall constitute a waiver by us or the Security Trustee of, or preclude any further exercise of, that or any right, power or remedy arising under these Service Terms or otherwise.
    • 17.5 The provisions of these Service Terms are personal to you and you shall not be entitled to assign, novate or transfer any of your rights or obligations under these Service Terms, except to the extent that you are a Lender who is novating a Loan Contract under Clause 5.6.
    • 17.6 We and/or the Security Trustee may assign our respective rights and obligations under these Service Terms.
    • 17.7 The records kept by us and the Security Trustee in the Service shall be conclusive of the facts and matters they purport to record except where there is an obvious mistake.

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