LENDER TERMS AND CONDITIONS
1. Definitions and Interpretation
1.1. The following words have these meanings in the Lender T&Cs unless a contrary intention appears:
|Acceptance||the process of acceptance by the Borrower as it is specified in the Key Commercial Terms;|
|Borrower||a member of Crowdstacker identified as a borrower in the Key Commercial Terms;|
|Business Day||a day other than a Saturday or a Sunday on which clearing banks are open for business in London;|
|Client Account||the Custodian's segregated client bank account(s) opened with an authorised bank in the name of the Custodian and used for purpose of holding money on behalf of the members of Crowdstacker;|
|Closing Date||the date specified on the Crowdstacker Platform when the period ends that offers from lenders for loans are due for acceptance by the Borrower;|
|Commencement Date||as defined in the Key Commercial Terms;|
|Comparable Loans||all loans (present and future) made by multiple lenders to the Borrower which are identified as having Key Commercial Terms with the same Comparable Loans Number as the Loan;|
|Crowdstacker||Crowdstacker Limited (UK company registration number 09056449);|
|Comparable Loans Number||as defined in the Key Commercial Terms;|
|Crowdstacker Account||an account opened with Crowdstacker which will contain details of your Innovative Finance ISA or Loans or cash or other products facilitated or managed by Crowdstacker;|
|Crowdstacker Corporate Services||Crowdstacker Corporate Services Limited (UK company registration number 09471692);|
|Crowdstacker Platform||the Crowdstacker Platform operated by Crowdstacker for the purpose of facilitating Loans between Lenders and Borrowers;|
|Custodian||From 25 August 2017 Crowdstacker in its capacity as custodian having client money responsibilities under the Financial Conduct Authority client money rules being also defined as such in the Key Commercial Terms;|
|ISA||is an individual savings account under the ISA Regulations;|
|Innovative Finance ISA||is an innovative finance individual savings account under the ISA Regulations;|
|ISA Regulations||are the Individual Savings Account Regulations (1998) as amended or re-enacted from time to time;|
|Interest Rate||as defined in the Key Commercial Terms;|
|Key Commercial Terms||the key commercial terms (as set out on the Website) for a particular Borrower together with details of the Lender and the Loan Amount for that Lender;|
|Lender||the member of Crowdstacker identified as a Lender in the Key Commercial Terms;|
|Lender T&Cs||these Lender terms and conditions - version 8/2018 available on the Website, as amended or replaced from time to time;|
|Loan||the individual loan transaction entered into between the Borrower and the Lender following Acceptance;|
|Loan Amount||the principal amount of the Loan as defined in the Key Commercial Terms|
|Loan Contract||the loan contract consists of (i) the Loan T&Cs and (ii) the Key Commercial Terms having its own Loan Reference Number;|
|Loan Offer||a loan offer which a potential Lender makes on the Crowdstacker Platform or by submission to Crowdstacker of a paper application;|
|Loan Reference Number||as defined in the Key Commercial Terms for a particular Lender and a particular Borrower;|
|Loan Summary||the summary of a particular loan set out on the Crowdstacker Platform ;|
|Loan T&Cs||the loan terms and conditions – version 2/2017 as available on the Website, as amended or replaced from time to time;|
|Minimum Loan Raise||the minimum target amount of a loan that a borrower is seeking to raise as specified in the Key Commercial Terms;|
|My Account||the section of the Crowdstacker Platform which may be accessed by a member of the Crowdstacker Platform using his own secure login details;|
|Peer-to Peer Loans||peer-to-peer loans are loans facilitated by an operator operating an electronic system in relation to lending which is fully authorised by the Financial Conduct Authority to do so;|
|Security||the security created by the Security Document;|
|Security Document||the security document effecting security over the assets of the Borrower or other party granted to the Security Trustee and as set out in the Key Commercial Terms;|
|Security Trustee||Crowdstacker Corporate Services or such other person as is appointed as trustee under the Security Trust Deed;|
|Security Trust Deed||the deed by which the Security Trustee is appointed to hold the Security for the benefit of the Lender and the lenders of Comparable Loans on the terms set out in that deed;|
|Target Loan Raise||the target amount of a loan that a borrower is seeking to raise as specified in the Key Commercial Terms;|
|Website||the Crowdstacker website at www.crowdstacker.com.
1.2. In these Lender T&Cs, unless the contrary intention appears:
1.2.1. the singular includes the plural and vice versa and any gender includes the other gender;
1.2.2. 'person' unless the context otherwise requires includes a natural person, a firm, a partnership, a body corporate, an unincorporated association or body, a state or agency of state, trust or foundation (whether or not having separate legal personality);
1.2.3. a 'natural person' unless the context otherwise requires shall mean a human being, as opposed to a juridical person created by law;
1.2.4. "we", "us" and "our" mean Crowdstacker;
1.2.5. "you" or "your" mean a user of the Crowdstacker Platform and the services provided through the Crowdstacker Platform.
2. Innovative Finance ISA - General
2.1. Where you apply for an Innovative Finance ISA you will additionally be bound by clauses 2 to 9 of these Lender T&Cs which will apply to your Innovative Finance ISA.
2.2. Your Innovative Finance ISA will be managed by Crowdstacker. Crowdstacker has been registered with HM Revenue and Customs as a manager of Innovative Finance ISAs and has been approved under the ISA Regulations as an ISA manager.
2.3. Your Innovative Finance ISA will be registered in your name.
2.4. Your Innovative Finance ISA will be and must remain in your beneficial ownership and it must not be used as security for a loan.
2.5. To be eligible to apply for an Innovative Finance ISA:
2.5.1. You must be 18 years of age or older; and
2.5.2. You must be a resident in the United Kingdom for tax purposes or, if not so resident, either perform duties which, by virtue of Section 28 of Income Tax (Earnings & Pensions) Act 2003 (Crown employees serving overseas), are treated as being performed in the United Kingdom, or you must be married to, or in a civil partnership with, a person who performs such duties.
2.6. You must inform Crowdstacker if you cease to be resident in the United Kingdom for tax purposes or to perform such duties or be married to, or in a civil partnership with, a person who performs such duties.
3. Innovative Finance ISA - Applications
3.1. Your application for an Innovative Finance ISA must be made electronically on the Crowdstacker Platform, or in writing and must be made using our Innovative Finance ISA application form. All applications are subject to acceptance by Crowdstacker.
3.2. Crowdstacker may require you to provide additional information to that provided in the Innovative Finance ISA application form for the purposes of opening the Innovative Finance ISA.
3.3. Crowdstacker will carry out identity and fraud checks on you using credit reference agencies such as CreditSafe or Equifax or Experian. Crowdstacker uses its own internal guidelines and policies when assessing applications. If we cannot get adequate information from the credit reference agency then we will ask you to send us copies of the relevant passports or other identification documents plus a utility bill and anything else that we may require.
3.4. Accepted Innovative Finance ISA applications may not be withdrawn unless cancellation rights apply and are exercised in accordance with the rules of the Financial Conduct Authority as are in force from time to time.
3.5. Where accepted, the Innovative Finance ISA will be registered in your name and in the name of Crowdstacker as the manager of your Innovative Finance ISA and it will have a unique account number and the address of the Innovative Finance ISA will be the address set out in your application form.
3.6. Crowdstacker will notify you by email or letter once your Innovative Finance ISA has been opened.
4. Innovative Finance ISA – Qualifying Investments
4.1. The only investments that qualify for an Innovative Finance ISA and which Crowdstacker, as your ISA manager, may purchase, make or hold in an Innovative Finance ISA for you are:
4.1.1. Peer-to Peer Loans; and
4.2. There are limits on the amounts that you can subscribe or invest in an Innovative Finance ISA in each tax year.
4.3. You cannot subscribe or invest in more than one Innovative Finance ISA in each tax year at any one time.
5. Innovative Finance ISA – Withdrawals
5.1. The Custodian is responsible for holding all cash in connection with the Innovative Finance ISA. On opening the Innovative Finance ISA your cash will be held with the Custodian in a segregated client account while you decide what investments to invest in.
5.2. The Custodian does not pay interest on any cash balances held by the Custodian in the Client Account.
5.3. You shall have the right to instruct us to make partial withdrawals of cash held within your Innovative Finance ISA where the cash consists of:
5.3.1. the cash initially subscribed or invested in the Innovative Finance ISA but not used for making a Loan Offer or comprising the Loan Amount of a Loan Contract; or
5.3.2. the income or interest or principal received from your Borrower in respect to your Peer-to-Peer Loans; or
5.3.3. encashment of your Peer-to-Peer Loans where permitted under the Lender T&Cs,
and we will make payment to you within 30 days of your instruction.
5.4. You have no withdrawal rights in relation to the non-cash Innovative Finance ISA investments that you have made.
6. Innovative Finance ISA – Transfers In
6.1. You can ask us to accept a transfer of an existing cash ISA or stocks and shares ISA.
6.2. The minimum amount that we will accept for a cash ISA transfer is £100.
6.3. In relation to a stocks and shares ISA, your existing ISA manager will have to encash your stocks and shares ISA and the minimum amount that we will accept for an encashed stocks and shares ISA is £100.
6.4. Crowdstacker does not charge for arranging a transfer of an ISA but the existing ISA manager may charge you for the transfer.
6.5. If you transfer more than one ISA from previous tax years to Crowdstacker, we will place all previous tax years' cash holdings in a single bank account with the Custodian. This means that you will not be able to distinguish between your previous tax years' holdings when viewing your holdings.
7. Innovative Finance ISA – Transfers Out
7.1. Your Innovative Finance ISA is not transferable in part to another ISA manager in respect to current year investments.
7.2. Your Innovative Finance ISA is not transferable in whole to another ISA manager in respect to current year investments where there are non-cash investments (Peer-to-Peer Loans) held within the Innovative Finance ISA.
7.3. Your Innovative Finance ISA is transferable in part or whole to another ISA manager in respect to previous years' investments but only in respect to cash investments held within the Innovative Finance ISA.
7.4. Your Innovative Finance ISA is transferable in whole to another ISA manager where only cash is held within the Innovative Finance ISA and all the current year subscriptions are to be transferred to another ISA manager. Generally only cash will be held within your Innovative Finance ISA because your Peer-to-Peer Loans have matured or have been liquidated.
7.5. Where transfers of your Innovative Finance ISA are permitted under clauses 7.3 and 7.4:
7.5.1. you may request that your Innovative Finance ISA is transferred to another ISA manager;
7.5.2. you must contact the ISA manager to whom you wish to transfer your Innovative Finance ISA and ask them to send to us the requisite transfer documentation to allow us to complete the transfer (such as the transfer authority form and either a transfer instruction or ISA application form);
7.5.3. you may stipulate the transfer period which may not be less than 30 days.
8. Innovative Finance ISA – Closure
8.1. You have the right to close your Innovative Finance ISA whenever you want. To close your Innovative Finance ISA you must provide us with written instructions to do so.
8.2. Crowdstacker has the right to close your Innovative Finance ISA and will only exercise this right at our entire discretion were it is necessary to do so. We will not give you less than 30 days' notice of the intended closure of your Innovative Finance ISA.
8.3. Where Crowdstacker is notified of your bankruptcy, Crowdstacker will take action to close your Innovative Finance ISA with effect from the date that the trustee in bankruptcy's appointment takes place.
8.4. Crowdstacker will close your Innovative Finance ISA upon Crowdstacker's receipt of written notice of your death. The tax benefits of your Innovative Finance ISA cease on your death such that future interest payments will not be exempt from tax.
8.5. Where your Innovative Finance ISA is to close and there are outstanding Peer-to-Peer Loans held within the Innovative Finance ISA, Crowdstacker will take steps to encash all your Peer-to-Peer Loans held within your Innovative Finance ISA, unless agreed otherwise with you. Peer-to-Peer Loans are illiquid by their nature and there may be no active market for their sale. We will take reasonable steps to encash your Peer-to-Peer Loans within a 30 day period, but the encashment value is likely to be less than the amount you initially subscribed or invested in your Peer-to-Peer Loans.
8.6. Where your Innovative Finance ISA is to close and there is only cash held within your Innovative Finance ISA (either because any Peer-to-Peer Loans held within the Innovative Finance ISA have been repaid or encashed), the Custodian will make payment to you.
8.7. Crowdstacker agrees to notify you if by reason of any failure to satisfy the ISA Regulations, the Innovative Finance ISA has or will become void.
9. Innovative Finance ISA – Delegation
9.1. Crowdstacker is entitled to delegate its functions and responsibilities under the Lender T&Cs but will only do so if Crowdstacker is satisfied that the person to whom Crowdstacker delegates such functions and responsibilities is competent to carry them out.
9.2. Crowdstacker will not be liable for the negligence or misconduct of such delegate provided always that Crowdstacker does not exclude or restrict liability owed to you by Crowdstacker under the ISA Regulations.
10.1. Where you do not apply for an Innovative Finance ISA you will not be bound by clauses 2 to 9 of these Lender T&Cs which only apply to those persons who apply and open an Innovative Finance ISA.
10.2. By accessing and using the Crowdstacker Platform you agree to these Lender T&Cs.
10.4. Each Loan Contract sets out the agreement between a Lender and a Borrower.
10.5. In the event of any conflict between clauses 2 and 9 of the Lender T&Cs and the Loan Contract, these Lender T&Cs prevails.
10.6. In the event of any conflict between clauses 10 and the remaining clauses of the Lender T&Cs and the Loan Contract, the Loan Contract prevails.
11. Lender Membership Criteria
11.1. To be a Lender on the Crowdstacker Platform you must either have opened an Innovative Finance ISA or you must satisfy the following criteria:
11.1.1. you must be an individual, LLP, limited company or public body;
11.1.2. if you are lending in your capacity as an individual you must be aged 18 or over;
11.1.3. you must have a valid bank or building society account.
11.2. You confirm to Crowdstacker that all information provided to us in the course of opening the Crowdstacker Account and lending process is true and accurate in all respects. You will update us if any of the information you provide to us changes.
12. Opening a Crowdstacker Account and Client Money
12.1. To open a Crowdstacker Account with us, you must provide a username and email address, and enter a password. These must be used in order to access certain restricted parts of the Crowdstacker Platform. Each time you access your Crowdstacker Account you will need to enter your username and password. Your username and password are personal to your Crowdstacker Account and are not transferable without our prior written consent.
12.2. Your username and password are the methods used by us to identify you and so you must keep them safe at all times. You are responsible for all information and activity on the Crowdstacker Platform by anyone using your username and password. If you authorise an employee, sub-contractor or agent to use your Crowdstacker Account, you will be responsible for their activity on the Crowdstacker Platform. Any breach of security, loss, theft or unauthorised use of a username or password must be notified to us immediately using the contact details on the Website.
12.3. As part of the process of opening a Crowdstacker Account, Crowdstacker will carry out identity and fraud checks on you and (where applicable) you as a proprietor, member or director, your business and other members, or directors of the business using credit reference agencies such as CreditSafe or Equifax or Experian. Crowdstacker uses its own internal guidelines and policies when assessing applications but has complete discretion as to whether to allow you to be a lender on the Crowdstacker platform. If we cannot get adequate information from the credit reference agency then we will ask you to send us copies of the relevant passports or other identification documents plus a utility bill and anything else that we may require. If you do not provide all appropriate identification documents and do not satisfy our lending criteria you will not be able to lend on the Crowdstacker Platform.
12.4. In our role as Custodian we shall treat all money that we receive from you or hold on your behalf as client money in accordance with the Financial Conduct Authority's client money rules. Your money will be held in a Client Account pooled with other members' money, and you consent to such pooling of money. Your money will be held on an omnibus basis which means that if the bank where the client money has been deposited were to fail, your money would be affected by any shortfall in proportion to the value of your money relative to the total sum of client money held in this way. The Custodian will not be responsible for any acts, omissions or default of any bank with which your money is held and in the event of insolvency of such bank, the Custodian would not be liable for any shortfall unless the Custodian had failed to comply with any duty of care or obligation to which the Custodian was subject.
12.5. Client money held for you will be subject to internal control mechanisms and proper accounting procedures in accordance with the Financial Conduct Authority's client money rules. You are hereby notified, in accordance with the opt-in to the client money rules that we have elected to hold money received from persons who are customers of the Custodian in their capacity as lenders under non-P2P agreement as client money .
12.6. You hereby authorise the Custodian to transfer your money to the relevant borrower's account at the relevant time in accordance with clause 13.7. If the Loan Offer is not accepted by the Borrower you are free to authorise the Custodian to return your money to you.
12.7. You agree not to adapt or circumvent the systems in place in connection with the platform, nor access the platform other than through normal use of it.
12.8. We reserve the right not to act on your instructions where we suspect that the person logged into your Crowdstacker Account is not you or we suspect illegal or fraudulent activity or unauthorised use.
13. Lending Process
13.1. Once we have agreed to promote a borrower's loan particulars on the Crowdstacker Platform, a Loan Summary page will be displayed on the Crowdstacker Platform. The Loan Summary page will display some of the Key Commercial Terms forming part of the Loan Contract such as the name of the Borrower and in addition, the Interest Rate, the Minimum Loan Raise or the Target Loan Raise, the Term of the Loan and the Closing Date.
13.2. Once the Loan Summary page is posted on the Crowdstacker Platform, you will be able to submit Loan Offers by "applying to invest" on the Crowdstacker Platform and following through the step by step lending process.
13.2.1. Stage 1 – You decide how much you wish to lend;
13.2.2. Stage 2 – You provide us with information in order for Crowdstacker to perform its identity and fraud checks on you;
13.2.3. Stage 3 – You complete the questionnaire to make sure you fully understand the risks of lending on the Crowdstacker Platform;
13.2.4. Stage 4 – You confirm that you have understood the information brochure and agree to the Lender T&Cs and Loan T&Cs;
13.2.5. Stage 5 – You then transfer the Loan Amount to the Client Account.
13.3. The offer amount that you submit in your Loan Offer cannot be less than the Minimum Amount as set out in the Key Commercial Terms and cannot be greater than 20% of the higher of the Target Loan Raise or the total amount lent, or the total amount lent under Comparable Loans.
13.4. Once you have submitted your Loan Offer that Loan Offer cannot be withdrawn by you until expiry of 15 Business Days after the Closing Date but only where the Loan Offer is not accepted by the Borrower.
13.5. For all loans displayed on the Crowdstacker Platform the offers from lenders will remain open for Acceptance until 20 Business Days after the Closing Date provided that the following conditions are all satisfied:
13.5.1. the Borrower has not notified Crowdstacker that it does not wish to proceed with the Loan;
13.5.2. Crowdstacker has not withdrawn the loan transaction with the Borrower from the Crowdstacker Platform.
13.6. The Borrower will not be entitled to accept Loan Offers from lenders if the Minimum Loan Raise is not achieved.
13.7. Once the Borrower has accepted the aggregated Loan Offer, you automatically enter into a separate and legally enforceable Loan Contract with the Borrower. The Loan Contract will be generated automatically to include the Key Commercial Terms, which set out the specific details of the loan, and our Loan T&CS. The money is then transferred from the Client Account to the Borrower's account at the Borrower's bank or building society.
13.8. Each loan will be for the period specified in the Loan Contract applying to it.
13.9. Except in relation to your Innovative Finance ISA, we may suspend your account at any time if we believe it is appropriate in order to comply with our legal obligations.
14. Loan Variation
14.1. Notwithstanding any other clause in these terms, in certain circumstances and in its absolute discretion, Crowdstacker (acting as agent on behalf of the Lenders) may agree with the Borrower to restructure the Loan and amend the Loan Contract so as to increase the term by up to one year, with a corresponding increase in the interest rate of up to 1.5 times the Interest Rate unless otherwise specified in the Key Commercial Terms under the “Loan Variation Term” section.
14.2. Where we believe that an agreement to restructure the Loan and amend the Loan Contract is in the best interests of the relevant lenders, and intend to amend the terms of the Loan Contract in accordance with clause 14.1 above, we will notify you of our intention to amend not less than 20 Business Days before making such amendment.
14.3. You agree that we will be acting as agent on your behalf in negotiating and agreeing any amendments to the Loan Contract with the Borrower and in entering into any amendment to the Key Commercial Terms.
14.4. You hereby appoint Crowdstacker (for the duration of your membership of Crowdstacker) as your agent with full power and capacity to carry out amendments under this clause 14 without your specific agreement. You agree that you will then be bound by those changes. You agree and acknowledge that Crowdstacker shall take on no liabilities, obligations or rights under the Loan Contract as a result of such agency, and you agree that you will continue to be solely bound by the rights and obligations of the lender under the Loan Contract (as amended).
15. Crowdstacker's Role
15.1. Outside of Crowdstacker's role as manager of any Innovative Finance ISA, our principal role is to perform introductory functions on behalf of borrowers and lenders in order to bring together prospective borrowers and lenders, to provide a stream-lined process for entering into loans (including the development of standard form loan agreements) and to facilitate the payment and collection of sums due under or in connection with those loans (including certain limited actions upon a borrower's default as set out in the Lender T&Cs).
15.2. Save as set out in clause 14 of the Lender T&Cs in connection with any amendments that we may make to the Loan Contract in your best interests when acting as agent on your behalf, we will not perform any management functions on your behalf; you retain complete control and discretion over whether or not to make a loan to a borrower and over all other aspects of its participation in Crowdstacker and loans made through it. Nothing we do and nothing on the Crowdstacker Platform is intended to operate or be construed as advice or recommendation by us to enter into a particular loan.
15.3. You must form your own opinion regarding the creditworthiness of a borrower and undertake your own research, analysis and assessment of each borrower for each loan and, where appropriate, seek your own independent financial advice.
15.4. Where we have acted in good faith, we accept no responsibility and disclaim all liability for any information about a borrower made available to prospective lenders through the Crowdstacker Platform. We may from time to time update or amend at any time borrower's information (including between when the Loan Offer is first made and when it is entered into, and during the term of any loan).
16. Crowdstacker Transfer Fees
16.1. Except under clause 16.2, Crowdstacker will not charge you any fees for performing its role under clause 15.
16.2. Where there has been a transfer of a Loan under the Loan T&Cs to another lender, we will charge you a transfer fee of £0 on the date of the transfer. This transfer fee will be deducted from your Crowdstacker lender account when you receive payment from the lender who has purchased your Loan.
17. Loan Payment
17.1. The payments payable to you on the Loan will be set out in the Key Commercial Terms of the Loan Contract and are available for viewing in the “My Account” section of the Crowdstacker Platform.
17.2. We will endeavour to collect the payment amounts as set out in the Loan Contract from the Borrower.
17.3. All payments and interest accrued will be paid to your nominated bank account or where you have an Innovative Finance ISA to your Innovative Finance ISA.
17.4. All payments in relation to loans not held in an Innovative Finance ISA (to which ISA Regulations apply) will be made to you gross of tax unless agreed otherwise or required by HM Revenue and Customs. It is your responsibility to account for any additional income tax and other personal taxes that may be payable to the appropriate authorities.
17.5. We will provide an annual statement of interest earned for tax purposes.
17.6. In certain circumstances, we may (but are not obliged to) amend certain terms of the Loan Contract by entering into an amendment to the Key Commercial Terms with you. In doing so, we are authorised to act as agent on your behalf in agreeing such amendments.
18.1. Where the Key Commercial Terms indicate that a loan has the benefit of Security, each loan and your obligations under the Loan Contract will be secured under a Security Document between the Borrower and the Security Trustee, in respect of the debt due under the loan. If the Borrower fails to make repayments under a Loan Contract or is in material breach of the Loan Contract, you agree we may instruct the Security Trustee (as security holder on your behalf and that of other lenders to that Borrower) to enforce the security constituted by the Security Document.
18.2. Where the Borrower fails to make payment or is otherwise in default under the Loan Contract, you agree that the Security Trustee will act on your behalf as security agent in respect of any of the Borrower's liabilities to you under each loan. All communications to the Borrower in connection with any such security will be made through the Security Trustee.
18.3. Where the Security Trustee holds an all assets Security Document it will generally operate to secure all monies due from the Borrower to all lenders on the Crowdstacker Platform from time to time, and generally be assignable by Security Trustee to any other third party who may acquire all of the rights of lenders under the related Loan Contracts.
18.4. Where we or the Security Trustee has been provided with information by a relevant borrower, we or the Security Trustee may provide to you as lender certain information about the assets of that borrower and/or an asset register detailing such assets together with estimated forced re-sale value of such assets on enforcement. In such circumstances, any asset valuation provided will be indicative of the value of the asset or assets only and realisation on enforcement in connection with the sale of such asset or assets may be lower (or higher) than the value set out in the asset register.
18.5. The Security Trustee will hold the assets charged under the Security Document upon trust for itself and for all lenders (including you where you are a Lender) to that borrower. From time to time the Security Trustee performs (before or after any enforcement under the terms of the security) all obligations, rights and benefits given to the Security Trustee under the Security Document and by any future security that the Security Trustee may take in respect of the debt due under the Loan Contract or under any document entered into pursuant to any assets of the Borrower. The Security Trustee shall have certain powers and discretions conferred upon it as trustees and may also rely on (i) any representation, notice or document believed by it to be genuinely correct and appropriately authorised and (ii) any statement made by any director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
18.6. If the Security Trustee is required to enforce any security agreement, and any proceeds of recovery become available (after allowing for all of the Security Trustee's costs of enforcement), it is possible that the available proceeds will not be sufficient to discharge all obligations owed by the Borrower at that time to all lenders on the Crowdstacker Platform. If that is the case, then the lenders shall only be entitled to recover their proportionate share of such recoveries as determined by the Security Trustee. There may be other creditors of the Borrower that have claims that may be recovered in priority to those of the Security Trustee and the Crowdstacker lenders, so the existence of the Security Document must not be considered to be a guarantee of repayment in the event of failure by the Borrower in meeting its payment obligations.
18.7. You agree that the Security Trustee shall be entitled to be paid and reimbursed out of the proceeds of any recovery under the Security Document and that you will pay all reasonable costs incurred by the Security Trustee in enforcing the security or in complying with any instructions from you in connection with any security agreement. To the extent that such costs cannot be recovered by the Security Trustee from the relevant borrower you will only be responsible for payment of such costs out of the proceeds of any recovery and you will not be required to make any additional contribution to such costs over and above the Loan Amount.
19. Payment Default
19.1. If the Borrower fails to make a payment or only partially pays, the amount due to you and the other lenders, we (ourselves or through an agent acting on our behalf) will contact the Borrower and if our attempts to collect the funds fails 2 Business Days after the payment was due, the Borrower's account will be treated as an overdue account and we will continue to attempt to collect the funds. We may refer the missed payment to a debt collections agency (the "Collections Agency"), who will attempt to collect the money on your and any other lenders' behalf and you authorise us to use the Collections Agency on your behalf. Any fee that the Collections Agency charges for this initial debt chasing will be added to the loan amounts that they are seeking to collect and will not reduce the amount available for distribution to lenders.
19.2. If the Loan is placed into default, Crowdstacker will notify you that the outstanding Loan may be novated to the Security Trustee or to an affiliate company of the Security Trustee. Where we act as Security Trustee we may need to novate the debt to one of our affiliate companies to enable us to commence legal proceedings against the Borrower for the full amount outstanding. The Security Trustee or an affiliate company of the Security Trustee will then investigate the amount of debt that is likely to be successfully recovered through the courts. If the Security Trustee or an affiliate company of the Security Trustee deems it appropriate, it will instruct solicitors to file court claims to recover the debt. The Security Trustee or an affiliate company of the Security Trustee will pay back to lenders in their proportionate share any funds successfully recovered, less its costs incurred during that recovery. The Security Trustee or an affiliate company of the Security Trustee will act in a fair and equitable manner to achieve recovery for all affected lenders, which may include extending payment terms or selling the debt to a third party.
19.3. Where the Loan has the benefit of Security, the Security Trustee will take the steps outlined in clause 18.
19.4. Crowdstacker will keep you up to date with the progress of its efforts to collect missed payments and to recover defaulted debt, and such progress can be viewed in the My Account section of the platform.
20. Termination of Membership
20.1. If you no longer want to be a member of the Crowdstacker Platform and provided you have no outstanding Loan Contracts, you can let us know and we will end your membership.
20.2. We may end your membership of the Crowdstacker Platform at any time if:
20.2.1. you breach the Lender T&Cs;
20.2.2. you breach any term or condition of the Loan Contract;
20.2.3. we suspect that you have committed fraud, been involved in money laundering or other criminal activities;
20.2.4. you use the Crowdstacker Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from Crowdstacker;
20.2.5. you use the Crowdstacker Platform in any of the following ways;
18.104.22.168. in any way that causes, or is likely to cause, the platform or access to it to be interrupted or damaged in any way;
22.214.171.124. for fraudulent purposes, or in connection with a criminal offence;
126.96.36.199. to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any spam; or
188.8.131.52. to cause annoyance, inconvenience or needless anxiety.
20.3. Termination of your membership of the Crowdstacker Platform will not necessarily result in a termination of any Loan Contract to which you are a party at that time.
21. Limitations and Liability - Crowdstacker
21.1. Membership of the Crowdstacker Platform does not in any way constitute an obligation on us to find lending opportunities for you.
21.2. The information on the Crowdstacker Platform does not constitute advice, recommendation or an endorsement of loan offers or borrowers.
21.3. As a lender, you cannot also be a borrower on the Crowdstacker Platform with loans outstanding, except where you are acting as the director or the proprietor of a business borrowing money and want to act as a lender in a different capacity.
21.4. We endeavor to display accurate data on the Loan Offer or Loan Offers, but cannot guarantee that the information is error free.
21.5. We do not guarantee that Loans listed for transfer will be bought by other lenders or the time it will take to complete any loan transfers on the Crowdstacker Platform.
21.6. You accept that any personal guarantee in support of a loan shall be subject to normal legal risks and limitations and that Crowdstacker will not have ensured that any individual providing such a guarantee has been independently advised on the impact of such a personal guarantee. Such guarantees can be open to challenge in circumstances where the individual granting the guarantee has been subject to undue pressure or influence from a third party.
21.7. We shall not be liable to you for any loss or damage which you may suffer as a result of being a member of the Crowdstacker Platform or using the services provided through the Crowdstacker Platform, except where such loss or damage arises from our breach of the Lenders T&Cs or was caused by wilful default or fraud by us or our employees. We are not responsible for any breach of Lender T&Cs from circumstances outside our reasonable control. Our total liability to you in connection with these terms and conditions, your membership of the Crowdstacker Platform and your use of the services provided through the Crowdstacker Platform shall not exceed the amount of money you have lent giving rise to the liability.
21.8. For avoidance of doubt Crowdstacker (including in its role as the Custodian) is not liable to you for the payment of interest or the repayment of any Loan that is facilitated through the Crowdstacker Platform. Crowdstacker's obligations are limited to endeavouring to collect the payment amounts each month or as otherwise set out in the Loan Contract from the Borrower.
21.9. All disclaimers, indemnities and exclusions to the Lender T&Cs shall survive termination of your membership of Crowdstacker for any reason.
21.10. Nothing in these terms and conditions shall limit our liability for personal injury or death.
21.11. For the purposes of the Financial Conduct Authority's rules, you are a client of Crowdstacker.
21.12. Crowdstacker is not covered by the Financial Services Compensation Scheme. However, you may be entitled to compensation from the Financial Services Compensation Scheme in respect of any money held by the Custodian on your behalf if the bank or credit institution holding the money becomes insolvent. Further information is available at www.fcsc.org.uk and we would advise you further if this event were to occur.
22. Liability – Lender
22.1. You shall be liable to us for any loss or damage suffered by us as a result of any breach of the Lender T&Cs or any Loan Contract by you, or any unauthorised use of the Crowdstacker Platform.
22.2. You will also be further liable to us as contemplated by clause 18.7 in circumstances where a loan has the benefit of Security.
23. Intellectual Property Rights
23.1. As between you and us, we own all present and future copyright, registered and unregistered trademarks, design rights, unregistered designs, database rights and all other present and future intellectual property rights and rights in the nature of intellectual property rights existing in or in relation to the platform.
23.2. If and to the extent that any such intellectual property rights vest in you by operation of law or otherwise, you agree to do any and all such acts and execute any and all such documents as we may reasonably request in order to assign such intellectual property rights back to us.
23.3. We do not warrant or represent that the content of the Crowdstacker Platform does not infringe the rights of any third party.
24. Content and Use
24.1. The content and information provided on the Crowdstacker Platform is directed solely at and is for use solely by persons, companies and businesses that meet the criteria set out in clause 11 and/or are members of the Crowdstacker Platform and the equivalent criteria set out in the Borrower T&Cs. The Crowdstacker Platform 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.
24.2. You are permitted to download and print content from this platform solely for your own personal use or in the course of your business to the extent required to use the services provided on this platform. Platform content must not be copied or reproduced, modified, redistributed, used or otherwise dealt with for any other reason without our express written consent.
24.3. We are not responsible for content downloaded or posted by lenders on the platform. We however reserve the right to edit or delete content downloaded or posted on the Crowdstacker Platform.
24.4. We will endeavour to allow uninterrupted access to the Crowdstacker Platform, but access to the Crowdstacker Platform may be suspended, restricted or terminated at any time.
24.5. You agree to use the Crowdstacker Platform only for lawful and authorised purposes and in a way which does not infringe the rights of anyone else or restrict or inhibit anyone else's use and enjoyment of the platform.
24.6. You agree not to use the Crowdstacker Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from Crowdstacker.
24.7. You warrant that you have taken all reasonable precautions to ensure that any data you upload or otherwise submit to the platform is free from viruses and anything else which may have a contaminating or destructive effect on any part of the Crowdstacker Platform or any other technology.
24.8. The content and material available on the Crowdstacker Platform is for informational purposes only and should not be regarded as an offer, solicitation, invitation, advice or recommendation to buy or sell investments, securities or any other financial services or banking product. If you are unsure about whether a product is suitable you should contact an independent financial advisor.
24.9. We accept no responsibility or liability for your use of content on the platform and such use is entirely at your own risk. While we take reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Crowdstacker Platform, we accept no liability for them if they do exist. It is your responsibility to use, update and maintain appropriate antivirus software on your computer.
24.10. Information transmitted through the Crowdstacker Platform will pass over public telecommunications networks. We accept no liability if communications sent through the Crowdstacker Platform are intercepted by third parties or incorrectly delivered or not delivered.
24.11. The Crowdstacker Platform may contain links to third party websites. We accept no responsibility or liability for any material supplied by or contained on any third party website which is linked from or to the Crowdstacker Platform, or any use of personal data by such third party.
25. Protection Arrangement
25.1. If the Crowdstacker Platform were to fail or we become insolvent, your loans would continue to be administered (including as set out in clause 17) by a third party back-up servicer, with whom we have entered into a back-up servicing arrangement, subject to all applicable fees being paid by the Borrower. The back-up servicer is authorised and regulated by the Financial Conduct Authority. We reserve the right to use a back-up servicer prior to insolvency where such action is in the best interests of all of the Lenders. If this happens:
25.1.1. you would not be able to transfer the Loan;
25.1.2. you would receive distributions of funds (collected from the Borrower) to your external bank or building society account as set out in your Key Commercial Terms; and
25.1.3. the My Account page on the Crowdstacker Platform and the rest of the Crowdstacker Platform would not be available for access by you.
26.1. We aim to provide a good service and to deal with you fairly. If you have any complaints we are ready to discuss them with you and see how we can help. Please write to us, email us or call us and we will seek to resolve your complaints effectively.
26.2. To help us resolve your complaints promptly please provide us with (i) your personal contact details, (ii) details of what has gone wrong and (iii) what you want us to do to resolve matters.
26.3. Once you have let us know about your complaint we will:
26.3.1. contact you within 2 working days and let you know that we are dealing with your complaint and what will happen next;
26.3.2. investigate the complaint competently, diligently and impartially (and we may ask you to provide additional information);
26.3.3. assess fairly, consistently and promptly your complaint, whether it should be upheld, and if upheld what remedial action or redress (or both) may be appropriate;
26.3.4. endeavour to resolve your complaint as soon as possible and we will try to do this within 10 working days but in any event we will keep you informed of progress in resolving your complaint;
26.3.5. once we have made our decision, (i) explain to you promptly in a way that is fair, clear and not misleading our assessment of your complaint and our decision, (ii) we will let you know if we offer any remedial action or redress and (iii) comply promptly with any offer of remedial action or redress that we make to you which you accept;
26.3.6. send you a summary resolution email or letter where we believe that you have accepted a resolution of the complaint before close of the third working day from when you made your complaint;
26.3.7 (unless we have resolved your complaint within 3 working days) let you have a final written response within 8 weeks after receipt of your complaint either (i) accepting your complaint and where appropriate offering you redress or remedial action, or (ii) offering you redress or remedial action but without accepting your complaint or (iii) rejecting your complaint giving details for doing so.
26.4. If having resorted to the above approach you remain dissatisfied and would like us to review our decision please contact the Compliance Officer, Crowdstacker Limited, 1st & 2nd Floor Offices, 6 Victoria Street, St Albans, Herts, AL1 3JB. or email [email protected] or call 020 7118 7570.
26.6. If you are dissatisfied with how your complaint has been addressed, you can refer complaints in relation to the services we provide to the Financial Ombudsman Service at: South Quay Plaza, 183 Marsh Wall, London, E14 9SR, or by calling them on 0800 023 4567. More information on the Financial Ombudsman Services can be found at www.financial-ombudsman.org.uk.
26.7. Your statutory and regulatory rights remain unaffected.
27.1. A waiver of any right under the Lender T&Cs is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
27.2. Any waiver by either you or us of any provision of the Lender T&Cs shall not be considered to be a waiver of any other or later breach of the same, of any other provision.
27.3. We may, in whole or in part, release, compound, compromise, waive or postpone, in our absolute discretion, any liability owed to us or right granted to us in the Lender T&Cs without in any way prejudicing or affecting our rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
28.1. Notwithstanding that the whole or any part of any provision of the Lender T&Cs may prove to be illegal or unenforceable, the other provisions of the Lender T&Cs and the remainder of the provision in question shall continue in full force and effect. In relation to any illegal or unenforceable part of the Lender T&Cs, the parties hereto agree to amend such part in such manner as may be requested from time to time by any of the parties hereto provided that such proposed amendment is legal and enforceable and to the maximum extent possible carries out the original intent of the parties in relation to that part.
29. Entire Agreement
29.1. You confirm that the Lender T&Cs set out the entire agreement between you and us in relation to your use of the Crowdstacker Platform.
29.2. You confirm that you have not relied on any representation made by or on behalf of us or on any written statement, advice, opinion or information given to you in good faith by us. You confirm that you have been and will continue to be solely responsible for making your own independent appraisal and investigation of all risks arising under or in connection with the use the Crowdstacker Platform.
29.3. We may update or amend the Lender T&Cs from time to time to comply with law or to meet our changing business requirements. We may not always be able to give you advanced notice of such updates or amendments but we will always post them on the Crowdstacker Platform so that you can view them when you next log in. By continuing to use the Crowdstacker Platform, you agree to be bound by changes to the Lender T&Cs.
30.1. We may assign, transfer, novate or otherwise exercise any of our rights under the Lender T&CS or through any company or other legal entity which is under our control or ownership.
31.1. Any notice or other communication to be given under the Loan Contract or the Lender T&Cs must be in writing and will be served by delivering it personally or by email and for the attention of the relevant party mentioned below (or as otherwise notified by that party). Any notice will be deemed to have been received:
31.1.1. if delivered personally, at the time of delivery; or
31.1.2. in the case of email, at the time of transmission.
31.2. The addresses of the parties for the purposes of Loan Contract or the Lender T&Cs are as set out in the Key Commercial Terms, or such other address as may be notified in writing from time to time by the relevant party to the other party.
32. Governing Law and Jurisdiction
32.1. The Loan Contract and the Lender T&Cs and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
32.2. You irrevocably agree and so do we that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Loan Contract and the Lender T&Cs or their subject matter or formation (including non-contractual disputes or claims).