1.1 This agreement outlines the terms and conditions (the “Terms”) between you (a “Lender” or “you”) and Wellesley & Co Limited (“Wellesley & Co”, the “Company”, “we”, or “us”) under which you agree to lend money through the Company’s Peer-to-Peer lending website (the “Platform”) to third party borrowers.
1.2 It is important that you read these Terms carefully. It is also important that you understand that Peer-to-Peer lending is not covered by the Financial Services Compensation Scheme (the “FSCS”) (www.fscs.org.uk) and therefore your money may be at risk if one or more Borrowers fail to repay a Loan Agreement to which you are Matched. We strongly recommend that you seek independent financial and tax advice when considering whether to lend your money through the Platform.
1.3 Wellesley & Co does not provide any advice, nor does it make any recommendations to you. The Company solely Matches you to Borrowers on the Platform. It is your responsibility to assess whether the Platform is suitable or appropriate for your needs and any decision made to use our Services is done so entirely at your own risk. Please be aware that execution of these Terms does not imply that we have confirmed that use of the Platform and our Services are suitable or appropriate for you. We advise you to consider whether lending through the Platform meets your required risk levels and investment objectives, and you should only commit such funds that you are able to financially bear the risk of losing considering your other financial commitments. By using the Platform, you confirm that you have the necessary experience and knowledge to understand the risks involved, or are able to take advice from a relevant qualified investment professional or advisor to assist you in understanding the risks involved.
1.4 You confirm your agreement to these Terms either by registering on our online application system or by signing a physical copy of these Terms and returning them to us. You should read these Terms carefully before making an online application or signing a physical copy of them and you should retain a copy for future reference. Please refer to clause 26.2 for information regarding future amendments to the Terms.
1.5 Where the Company has published a document which is referred to within these Terms (such as a policy document), that document shall also form part of these Terms and shall be deemed to have been agreed to by you. In the event of any conflict between these Terms and a document referenced within them, these Terms shall prevail.
2. DEFINITIONS AND INTERPRETATION
2.1 The following definitions should be read carefully as they provide important explanation and guidance on interpretation of the language used in these Terms.
“Application” has the meaning given to it in clause 10.2.
“Auto-Matching System” means the automated matching programme run on a weekly basis by the Company that Matches Lenders and Borrowers.
“Borrower” means an individual or legal entity that has registered and has been approved by the Company’s Credit Approval Team as a borrower on the Platform.
“Business Day” means a day (other than a Saturday, Sunday or Public Holiday) when banks in London are open for business.
“Holding Account” means a segregated bank account where cleared funds which you deposit with us are held on your behalf to enable you to make Lending Commitments.
“Credit Approval Team” means the Company’s credit committee which evaluates and approves all potential Borrowers and Borrower loan requirements on the Platform.
“Default Event” means an event where a Borrower defaults under a Loan Agreement and fails to remedy that default in accordance with that Loan Agreement.
“Early Access” means the service provided by the Company where, on the request of a Lender, we may arrange for the transfer of that Lender’s interest in a Loan Agreement to another Lender on the Platform.
“Holding Company” has the meaning given in clause 3.2.
“Information” means any of the information that can be viewed or downloaded from the Website (including the Platform) and includes, but is not limited to, data, pricing information, terms, images, reports, policies and software and also includes any copyright, Intellectual Property Rights, Information Technology or other commercially valuable property of the Company.
“Information Technology” means all computer hardware (including network and telecommunications equipment), databases, and all computer software (included the Platform or any software required for the Platform) owned, used or leased by the Company.
“Intellectual Property Rights” means all patents, rights to inventions, copyrights and related rights, trade marks, business names and domain names, rights in get up, goodwill and rights to sue for passing off, database rights, rights to use, and protect the confidentiality of, confidential information, and all other intellectual property rights, whether registered or unregistered, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim property from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Lender” means you and/or another lender (including, without limitation, Wellesley Finance Plc) on the Platform, as the case may be.
“Lending Commitment” means a commitment by a Lender to lend money through the Platform on the terms of the Product or Products selected by that Lender.
“Loan Agreement” means a loan agreement between one or more Lenders and a Borrower.
“Match”, “Matches”, “Matched” or “Matching” refers to the process of matching a Borrower with one or more Lenders through the execution of a Loan Agreement by a Lender or through the transfer of a Loan Agreement to a Lender by way of assignment, novation, sale, sub-participation or any other suitable method of transfer.
“My Account” means your personalised secure area of the Platform (accessible through your log-in details) which shows the Loan Agreements to which you have been Matched, your Lending Commitments and your balance in the Holding Account.
“Platform” means the internet-based Peer-to-Peer lending service provided by Wellesley & Co and includes all secure areas of the Website in addition to any technology made available to Lenders.
“Product” means each individual lending product made available on the Website.
“Provision Fund” means the discretionary accrual of funds by Wellesley & Co for the purpose of compensating a Lender where a Borrower with whom that Lender has been Matched has failed to meet its payment obligations in accordance with a Loan Agreement.
“Provision Fund Board” means the board of directors of Wellesley & Co.
“Security” means any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest.
“Security Trustee” means Wellesley Security Trustees Limited (company number 08738060), an independently held trustee company set up to hold in trust all Security granted by Borrowers pursuant to Loan Agreements.
“Service Providers” means all third party suppliers who provide either a service or product to the Company which is used by us to provide the Services.
“Services” means the provision of the Platform and other related and ancillary services including, without limitation, the provision of credit reference information, online identification verification software, banking applications and the technology that supports the Website and Platform.
“Subsidiary” has the meaning given in clause 3.2.
“Thirty Day Product” means the Product available on the Platform called the “30 Day Product (Income)” or “30 Day Product (Capital)”.
“Wellesley Group” means the Company and any subsidiary of Wellesley Group Investors Limited, the ultimate Holding Company of the Company including, without limitation, Wellesley Group Limited, Wellesley Finance Plc, and Wellesley Security Trustees Limited.
“Website” means www.wellesley.co.uk.
3.1 In these Terms, the following rules of interpretation shall apply:
(a) clause and paragraph headings shall not affect the interpretation of these Terms;
(b) a reference to a person shall include a reference to an individual, firm, company, corporation, partnership, unincorporated body of persons, government, state or agency of a state or any association, trust, joint venture or consortium (whether or not having separate legal personality) and that person’s personal representatives, successors, permitted assigns and permitted transferees;
(c) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; and
(d) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
3.2 A reference to a Holding Company or a subsidiary means a Holding Company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), a company shall be treated as a member of another company even if its shares in that other company are registered
in the name of:
(a) another person (or its nominee), by way of security or in connection with the taking of security; or
(b) its nominee.
4. LEGAL & REGULATORY INFORMATION
4.1 Wellesley & Co Limited is a limited liability company registered in England and Wales (registration number 07981279) with its registered address at St Albans House, 57/59 Haymarket, London SW1Y 4QX. The Company is authorised and regulated by the Financial Conduct Authority (FCA) (registration number 655503). Wellesley & Co is not covered by the FSCS. The Company is registered with the Office of the Information Commissioner (registration number ZA009886).
4.2 Wellesley Group Investors Limited is a limited liability company registered in England and Wales (registration number 08478238) with its registered address at St Albans House, 57/59 Haymarket, London SW1Y 4QX.
4.3 Wellesley Finance Plc is a limited liability company registered in England and Wales (registration number 08331511) with its registered and business address at St Albans House, 57/59 Haymarket, London SW1Y 4QX.
4.4 Wellesley Security Trustees Limited is a limited liability company registered in England and Wales (registration number 8738060) with its registered and business address at St Albans House, 57/59 Haymarket, London SW1Y 4QX.
5. BASIS OF AGREEMENT
5.1 These Terms and the terms of any Loan Agreement to which you are Matched constitute the terms on which you agree to lend money to third party Borrowers through the Platform.
5.2 The Terms constitute the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in these Terms.
5.3 Any valuations carried out by an independent surveyor (in the case of commercial and residential property assets only) or any assessments by the Credit Approval Team are provided for the assessment of potential Borrowers and their proposed Security. Such valuations and assessments are for the benefit of the Company only and shall not form part of these Terms or any Loan Agreement.
5.4 These Terms apply to any Services we provide to you, to the exclusion of any other terms that may be imposed or incorporated, or which are implied by trade, custom, practice or course of dealing, save where any such terms are agreed by us in writing.
6. LENDER REPRESENTATIONS AND WARRANTIES
6.1 Representations and warranties are statements and promises made by you to the Company upon which we rely as being accurate in our dealings with you. You make the following representations and warranties to us at the time of entering into these Terms and every time you use the Platform or Services, including the time you make a Lending Commitment or are Matched to a Loan Agreement:
(a) you are over the age of 18 years;
(b) you are of sound mind and have the capacity to enter into these Terms and be Matched to each Loan Agreement;
(c) all personal information that you provide about yourself is accurate and true to the best of your knowledge;
(d) you hold a bank account in the UK in your own name and will use this account to transfer money to your Holding Account and any repayment to you will be repaid to this account, except where notified to us in accordance with clause 14.5;
(e) you have carefully considered the risks involved with using the Platform, the Services and being Matched to Loan Agreements and also the risks associated with Peer-to-Peer lending, including but not limited to the possibility of losing all the money you lend;
(f) you will only ever lend your own money unless you are authorised on behalf of a third party (“Third Party”) and we agree that you may act on behalf of that Third Party. We may request that you provide written authorisation from the Third Party confirming you have the necessary authority to deposit and lend money on their behalf;
(g) you will notify us if you hold a Consumer Credit Licence issued by the Office of Fair Trading;
(h) if you are registering or accepting these Terms on behalf of a legal entity such as a company, trust or partnership, you are legally authorised to do so and we may request evidence of such legal entitlement (by way of a copy of any document which shows the valid and subsisting authorisation);
(i) you (as an individual or a legal entity) have only registered as a Lender once with the Company and you only hold one Holding Account, except where you have registered as a Lender in your personal capacity and have disclosed to us that you are seeking to register as a Lender on behalf of a separate legal entity or a Third Party;
(j) you are not breaching any laws or regulations that are applicable to you or any company, trust or partnership upon whose instructions you are acting; and
(k) if you are not a resident of the United Kingdom, your use of the Platform or being Matched to Loan Agreements does not violate any laws or regulations applicable in your country of residence.
7. RISK ACKNOWLEDGEMENT
7.1 You acknowledge and confirm that you have carefully considered the risks involved in lending your money through our Platform and that your participation in any Loan Agreement is entirely at your own risk.
7.2 You acknowledge that by making a Lending Commitment and being Matched to Loan Agreements you are engaging in Peer-to-Peer lending and that at no time do you, as Lender, lend money to the Company or any member of the Wellesley Group.
7.3 You understand that you risk losing your money where a Borrower with whom you have been Matched defaults on repayments or on payments of interest and the Company has no liability for any such loss and that you are not protected by the FSCS.
7.4 Where the Security Trustee holds Security and steps are being taken to enforce such Security, you are aware that the recovery process may result in delays in returning any monies due to you.
7.5 You acknowledge that the Provision Fund is a discretionary fund and the Provision Fund Board is not obliged to provide compensation to you should a Default Event occur. You acknowledge that the Provision Fund does not perform the same function as a government deposit guarantee scheme.
7.6 You acknowledge and confirm that you have made your own independent decision to make Lending Commitments and to be Matched to Loan Agreements and that your decision is based on such information as you deem appropriate under the circumstances and is without reliance upon the Company or any member of the Wellesley Group.
7.7 You confirm that neither the Company nor any member of the Wellesley Group has offered you any investment advice, nor have you received any investment advice from them, relating to the suitability of any of the Products, and your participation in any Loan Agreement through the Platform is done so entirely at your own risk. If you are in any doubt, we strongly recommend that you seek independent advice from an authorised and approved financial advisor.
7.8 You acknowledge that, subject to these Terms, you will not be entitled to receive repayment of any money until the Borrower to whom you have lent money has made a repayment in accordance with the terms of the applicable Loan Agreement.
8. PLATFORM ACCESS AND USE
8.2 Secure access to the Platform is provided by way of your username and password. These log-in credentials are unique to you and are the primary method of securely identifying you when delivering our Services to you. It is therefore extremely important that you keep your username and password secure at all times and do not store them on a device or computer that would permit someone else to impersonate you.
8.3 If you suspect that your secure access to the Platform has been compromised in any way, it is your responsibility to contact us.
8.4 You confirm that you will not provide your username and password to any third parties and, in the event of any breach of this clause, you shall be responsible for any actions performed on your account by any such third party.
8.5 You confirm that you will only use our Platform for the purposes set out in these Terms.
8.6 You confirm that you will not attempt to gain unauthorised access to the secure areas of the Website or Platform and furthermore you will not attempt to use code or software to manipulate or automate functions available on the Website.
8.8 Access to the Platform may be restricted at the discretion of the Company, particularly during periods of maintenance and updating.
8.9 We have the right not to act on your instructions including where we deem that your instruction was not sufficiently clear, or we could not verify your identity to our satisfaction, or the instruction was not made by you, or we believe that the instruction may be related to an illegal activity.
8.10 You are responsible for any telecommunication costs, broadband fees or data charges that you incur through your access to the Platform.
9 THE LENDING PROCESS
9.1 You acknowledge and confirm that, when you offer to lend money through the Platform, you will be offering your money to be lent by the Platform to a Borrower through Peer-to-Peer lending and you are not lending money to either the Company or any member of the Wellesley Group.
9.2 In order to lend money using the Platform, you must make a Lending Commitment through the Platform by selecting one or more Products and indicating the maximum amount you wish to commit in relation to each Product.
9.3 You may make one or more Lending Commitments in one or more Products provided that you have cleared available funds in your Holding Account up to the aggregate amount of the Lending Commitments.
9.4 You can send funds to your Holding Account by cheque or bank transfer. All funds must be sent from a bank account in your name. Once the funds have cleared, you will see the balance available in the My Account section of the Platform.
9.5 Upon receipt of your Lending Commitment, we will aggregate your Lending Commitment with the Lending Commitments of other lenders on the Platform and Match you with one or more Borrowers through the Auto-Matching System.
9.6 Subject to clauses 9.11 and 9.12, we will operate the Auto-Matching System on a weekly basis whereby we will match your Lending Commitment to one or more Borrowers.
9.7 Once you have been Matched with one or more Loan Agreements and whilst you have at least one Lending Commitment which has not expired, we may also, through the Auto-Matching System, transfer by assignment the whole or part of your interest in a Loan Agreement to another Lender or transfer by assignment the whole or part of another Lender’s interest in a Loan Agreement to you.
9.8 Lending Commitments are irrevocable and Lenders may only access their money prior to the expiration of a Lending Commitment by using the Early Access service.
9.9 You may become Matched to a Loan Agreement which has a shorter or longer term than the term specified in your Lending Commitment and whilst we will endeavour, through the Auto-Matching System, to repay your money at the expiration of your Lending Commitment, you will not be repaid any earlier than the expiry of your Lending Commitment and you may not be repaid until the repayment of the Loan Agreements to which you are, at any time, Matched as Lender.
9.10 You may be Matched to a Borrower whose Loan Agreement has a different interest rate to the rate specified in the Products which form part of your Lending Commitment. You will only be paid the rate of interest set out in your Lending Commitment.
9.11 Provided that a Loan Agreement has not been removed from the Auto-Matching System pursuant to clause 10.7, you may be Matched to a Loan Agreement which is subject to a Default Event.
9.12 Although the Company will endeavour to run the Auto-Matching System in accordance with these Terms, it is under no obligation to operate the Auto-Matching System and may Match Lenders with Borrowers using any process it deems appropriate and there may be instances where, having made a Lending Commitment, some or all of your funds are not Matched. All Lending Commitments will accrue interest regardless of whether the funds have been Matched or not.
9.13 You hereby irrevocably appoint the Company as your agent to perform all duties relevant to the Loan Agreements for as long as these Terms remain in force and to manage the recovery processes where any Borrower has failed to make payments to you under any Loan Agreement or where a Default Event has occurred. As part of this recovery process, you provide us with the requisite authority to sub-contract this process to a third party to act on your behalf.
9.14 You agree that any Security provided by a Borrower shall be held by the Security Trustee and the Security Trustee shall be entitled to enforce the Security on your behalf where necessary.
9.15 You are not permitted to vary or cancel the terms of any Loan Agreement to which you are Matched as a Lender.
9.16 All of your Lending Commitments are visible to you within the My Account section of our Platform. Importantly, you can also view how much of your Lending Commitment is actually on loan on a real-time basis from within this section.
9.17 The Company may, in its absolute discretion, repay all amounts, together with accrued interest, that may be owing to you at any time pursuant to a Loan Agreement or a Lending Commitment without prior notice.
9.18 The Company may, in its absolute discretion, turn off the Auto-Matching System, and your interest in Loan Agreements will no longer be capable of transfer by assignment and you will no longer be Matched with new Loan Agreements.
10. PROVISION FUND
10.1 The Provision Fund is a discretionary compensation fund available where a Lender has suffered a loss of capital or interest (or both) as a result of a Default Event.
10.2 Any Lender who has suffered a loss as a result of a Default Event may make a claim to the Provision Fund Board for compensation (each an “Application”).
10.3 The Provision Fund Board shall review all Applications and shall have absolute discretion in deciding whether to accept or reject an Application.
10.4 The Provision Fund Board shall not be required to provide an explanation or justification as to why any Application for compensation was accepted or rejected.
10.5 The Provision Fund Board may, in its absolute discretion, make a payment from the Provision Fund to a Lender without any prior discussion with or notification to the Lender or in the absence of an Application being received. Such payments may be made either in anticipation of a Default Event or as a result of a Default Event.
10.6 Where you have received compensation from the Provision Fund as a result of a Default Event occurring, you shall not be entitled to receive any further payments or interest in relation to that proportion of the loan made under the Loan Agreement to which the
compensation relates. Furthermore, that proportion of a loan to which the compensation relates shall be automatically transferred by assignment to the Company (or a member of the Wellesley Group) and the Company (or that member of the Wellesley Group) shall be entitled to benefit from any rights, future interest payments, title and Security relating to the transferred proportion of the loan made under the Loan Agreement.
10.7 In the event of a Default Event occurring in relation to a Loan Agreement, that Loan Agreement may be removed from the Auto- Matching System at the absolute discretion of the Company and, in those circumstances, you will remain as Lender under that Loan Agreement. We do not guarantee that any loans made by you under such Loan Agreement will be repaid to you.
11. HOLDING ACCOUNT
11.1 The Holding Account is provided as a temporary service to hold any money you wish to have cleared and ready when making Lending Commitments and any interest accruing on sums held in the Holding Account will be for the account of the Company and will not be paid to you.
11.2 The Holding Account is provided to the Lender as a convenience and it is not a service in its own right.
11.3 All money deposited by Lenders in the Holding Account is held in a segregated bank account and Wellesley & Co has furthermore elected pursuant to CASS Rule 7.10.7AR that it will hold all such money together with other money that Wellesley & Co holds for other persons in the conduct of its activities. All such money is recognised as customer money.
12. EARLY ACCESS SERVICE
12.1 We offer an Early Access service for all Lending Commitments other than those which relate to a Thirty Day Product.
12.2 The Early Access service allows a Lender to gain access to their money by requesting that the Company transfer their interest in a Loan Agreement to another Lender through the Auto-Matching System.
12.3 The Company has absolute discretion on whether to offer Early Access to Lenders and it is at all times subject to there being other Lenders willing to receive a transfer of an interest in a Loan Agreement.
12.4 The Company is not required to provide any explanation or justification as to why a request for Early Access has been accepted or rejected.
12.5 The Company will charge you an administration fee (which shall include an interest rate adjustment) for using the Early Access service. The charge and calculation methodology shall change from time to time, however the administration fee shall be fully disclosed to you at the time a request for Early Access is made.
12.6 If your Early Access request is processed, the money to which the Early Access request relates shall be returned to your Holding Account together with any accrued interest less the administration fee.
13. INTEREST PAYMENT POLICY
13.1 You shall start to accrue interest once you make a Lending Commitment regardless of whether you are Matched to a Loan Agreement or not. The rate of interest that will accrue on the amount of your Lending Commitment shall be that rate set out in the Product which comprises your Lending Commitment and shall not be the rate of interest set out in the Loan Agreement(s) to which you are Matched (which may be higher or lower than the rate(s) applicable to the Product(s) you select). For the avoidance of doubt, the Company shall not be acting as a deposit taker in such instances.
13.2 Accrued interest shall be paid directly to your Holding Account and such payments shall be made in accordance with the terms of the Products which comprise your Lending Commitment.
14. TERM AND TERMINATION
14.1 Except as otherwise terminated in accordance with the provisions below, these Terms shall commence on the date you register to open an account with the Company and shall remain valid and binding for as long as you have outstanding Loan Agreements or Lending Commitments.
14.2 These Terms may be superseded by any amended Terms in accordance with clause 26.2.
14.3 These Terms may be terminated by you provided that you have no outstanding Lending Commitments or Loan Agreements. Notice of termination must be provided in writing to the Company at St Albans House, 57/59 Haymarket, London SW1Y 4QX.
14.4 These Terms may be terminated by the Company at any time without notice.
14.5 Upon termination, the Company will return any funds held in your Holding Account to the same bank account used to send the money to us unless you have notified us in writing of any change of bank account details. If you have any outstanding Lending Commitments or Loan Agreements, the Company shall treat the termination as an Early Access request and clause 12 shall apply to the early repayment of your funds before the end of the term of your Lending Commitment. Where termination has been made by the Lender, the administration fee and for Early Access per clause 12 shall be applied automatically to the Lender’s account. Where termination has been made by the Company, there shall be no fee applied to the Lender’s account as a result of Early Access and the Lender’s money shall be returned along with all paid interest and pro-rated accrued interest at the full advertised rate when first entering the Lending Commitment.
15. LENDER IDENTIFICATION
15.1 As part of the account opening process, you will be asked to provide personal information about yourself. The Company will use this information to verify your identity using a number of electronic checks.
15.2 You agree that we may pass your personal information to our Service Providers or any other recognised third party company solely for the purposes of verifying your identity, performing anti-money laundering checks and fraud prevention.
15.3 We do not have to accept you as a Lender or accept any funds from you until we have satisfied ourselves, at our absolute discretion, that we have sufficient and appropriate information to accept you as a Lender. We do not have to give you any reason for rejecting or delaying an application from you.
16.1 We offer anonymity to both Lenders and Borrowers. As a Lender, you will not be provided with the name or identity of the party to whom you have lent money. Similarly, your identity will not be revealed to a Borrower.
16.2 You agree not to make attempts to establish the identity of, or contact, any of the Company’s Lenders or Borrowers.
17.1 The Company does not provide any advice or guidance in relation to tax or otherwise and therefore we strongly recommended that you consult an independent financial advisor or tax advisor if you are unsure as to what your tax obligations are.
17.2 It is your responsibility to ensure that any tax liabilities which you incur (through interest earned on loans placed on the Platform or otherwise) are paid to the relevant taxation authority. We will not withhold any tax on your behalf except where required by law.
17.3 Neither the Company nor any member of the Wellesley Group has any liability in relation to any tax liabilities incurred by you.
18.2 You also further acknowledge that the Company may amend this policy from time to time without notice.
19.2 You also further acknowledge that the Company may amend and update this policy from time to time without notice.
20. INTELLECTUAL PROPERTY RIGHTS
20.1 All Intellectual Property Rights in or arising out of or in connection with the Platform and the Services shall be owned by the Company.
20.2 The Lender acknowledges that, in respect of any third party Intellectual Property Rights, the Lender’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Lender.
20.3 The Platform, the Website, and all Intellectual Property Rights are the exclusive property of the Company.
21. PROTECTING COMPANY INFORMATION
21.1 All Information is owned by us or our Service Providers. You agree to use our Information only in accordance with these Terms.
21.2 You agree not to use our Information in a manner which would result in a material commercial gain, other than for the purposes of lending or borrowing through our Platform.
22.1 You agree to indemnify and hold harmless the Company, any member of the Wellesley Group, any Lender or Borrower, any employee or director of a member of the Wellesley Group, our Service Providers, and all our other agents or sub-contractors, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest penalties and legal and other reasonable professional costs and expenses) suffered or incurred as a result of:
(a) your fraudulent or illegal use of the Platform, the Services or the Website;
(b) your negligence or any default by you of any of these Terms or the terms of any Loan Agreement to which you are Matched;
(c) any inaccurate or incomplete information that you have knowingly provided to us;
(d) your allowing any other person to access your account either with your permission or as a result of your failure to keep your username and password private;
(e) any service that you have offered, whether with or without our permission, to another third party using our Platform, Services or Website;
(f) any moratorium, rescheduling, refinancing, suspension of payments or similar arrangement or circumstances applying to you and which restrict a Borrower’s ability to repay under a Loan Agreement;
(g) any claim made against you for actual or alleged infringement of the Company’s Intellectual Property Rights or any actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Services or your use of the Platform; or
(h) any claim made against you for actual or alleged infringement of the Company’s Information Technology or any actual or alleged infringement of a third party’s Information Technology arising out of or in connection with the Services or your use of the Platform.
22.2 You agree that neither the Company nor any member of the Wellesley Group has any obligation to reimburse or indemnify you for any cost, loss or liability which you incur as a result of the failure of any Borrower to perform its obligations under the Loan Agreement.
22.3 Nothing in this clause shall restrict or limit either party’s general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this clause 22.
23. LIMITATION OF LIABILITY
23.1 Without limitation, neither the Company, nor any member of the Wellesley Group, nor any directors, officers, employees, advisors, agents or Service Providers of the Company or of any member of the Wellesley Group, accepts any liability whatsoever for any losses arising from the following circumstances:
(a) a Default Event;
(b) any Platform downtime or system outage;
(c) any decision by the Credit Approval Team;
(d) computer viruses, malware or errors received by you through the Platform;
(e) any tax payable by you;
(f) use of the Platform by a third party using your username and password as a result of your failure to keep such information confidential;
(g) any due diligence or credit checks carried out by us about you; and
(h) any failure to Match your Lending Commitment to a Borrower.
23.2 Nothing in these Terms shall limit or exclude the Company’s liability for fraud, death or personal injury.
24. FORCE MAJEURE EVENT
24.1 For the purposes of this clause, “Force Majeure Event” shall mean any circumstance outside the Company’s control including but not limited to any interruptions or failures relating to internet service providers, internet signal, connections, electricity providers, configurations of any Lender’s or Borrower’s computers, any acts of god, flood, drought, earthquake or other natural disaster, any
collapse of buildings, fire, explosion or accident, any acts of terrorism, civil war or commotion, riots or any law or any action taken by a government or public authority, including, without limitation, the failure to grant a necessary licence or consent.
24.2 The Company shall not be in breach of these Terms nor liable for delay in performing or failure to perform any of its obligations under these Terms if such delay or failure results from a Force Majeure Event.
25. RIGHT OF SET OFF
25.1 We have the right to immediately and without notice set off any liability or debt that is owed by you to either the Company or any member of the Wellesley Group.
26.1 These Terms and any dispute arising out of or in connection with their subject matter shall be governed by and construed in accordance with the laws of England and Wales and the parties agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising in connection with these Terms.
26.2 The Company shall be permitted to make amendments to these Terms from time to time and shall notify you of such amendments in writing or by e-mail. You will be deemed to have accepted such amended Terms either by indicating your acceptance on the
Platform or by making new Lending Commitments. For the avoidance of doubt, the Terms applicable at the time you make a Lending Commitment will not be amended for the duration of that Lending Commitment. Any further Lending Commitments which you make will be subject to the Terms in effect at that time.
26.3 You agree that the Company may assign its interest under these Terms to any third party without notice.
26.4 The Company’s rights and obligations under these Terms are personal to you which means that you cannot assign them to another party without the explicit prior written consent of an officer of the Company.
26.5 The Company may record all telephone calls and other communications for the purposes of security and training.
26.6 You understand that the Company will endeavour to be open on all Business Days. However, its offices and telephone lines will be closed on weekends and over UK public holidays. You further acknowledge that the Company will make reasonable efforts to ensure that the Platform is available continuously however that there may be instances where access to the Platform is restricted as a result of scheduled maintenance, technology failure or network failure.
26.7 If any section or element of these Terms is found to be unenforceable, in contradiction of any law, or illegal, such findings shall not affect the validity of the remainder of these Terms.
26.8 The Platform displays all statements relating to your account, which are available on demand. Should you require paper copies of statements to be sent to you, we reserve the right to charge a fee of £10 per request.
26.9 Any and all calculations carried out in relation to this agreement, the Platform and the Auto-Matching System shall be rounded to two or more decimal places.
26.10 The Company shall send all electronic communications to you by way of e-mail and/or secure message within the Platform. You agree that any notifications sent using this facility within the Platform shall be deemed an acceptable form of written notification.
26.11 If the Company does not strictly apply its rights under these Terms at a specific time, it does not restrict the Company from applying them at any time in the future.
26.12 If the Company chooses to translate these Terms into another language at some point in the future, it does so for reference purposes only and the English version shall prevail.
26.13 The Company shall be under no obligation to provide a Lender with any information that is reported to the National Crime Agency or any other law enforcement agency. You agree to indemnify and hold harmless the Company against any losses or liabilities as a
result of any obligation that the Company has in the delay of payments or transactions pending consent by the National Crime Agency or any other law enforcement agency. No member of the Wellesley Group shall be responsible to you or any third party for any loss
or delay in the return of your money incurred as a result of any actions taken by the National Crime Agency or any other law enforcement agency.
26.14 No member of the Wellesley Group shall be responsible to you or any third party for any loss incurred as a result of any member of the Wellesley Group carrying out Financial Crime Risk Management Activity. For the purposes of this clause, “Financial Crime Risk Management Activity” means any action to meet compliance obligations relating to the detection, investigation and prevention
of financial crime. This may include:
(a) screening, intercepting and investigating any communication, application for services or any payment, whether sent to or by you or on your behalf;
(b) investigating the source of or intended recipient of money;
(c) combining customer information with other related information in the possession of Wellesley Group; or
(d) making further enquiries as to the status of a relevant person or entity, whether they are subject to a sanctions regime, or confirming their identity or status.
27.1 In the event that you have a complaint, the Company will make every effort to rectify the problem as soon as practicably possible.
27.2 Please write to us making clear the details surrounding your complaint. You can send your complaint by e-mail to email@example.com or by post to Customer Support, Wellesley & Co, St Albans House, 57/59 Haymarket, London SW1Y 4QX.
27.3 Acknowledgement: We will endeavour to respond to you to acknowledge your complaint within five Business Days of receiving it. We will endeavour to provide a response to your complaint within ten Business Days of receiving it.
27.4 Investigation: The Wellesley team will run the complaint process, investigate and gather all necessary information.
27.5 Interim Response: The complaints handler will investigate and resolve the complaint within a reasonable time. The complaints handler may send an Interim Response to the customer if investigation is taking longer than five working days.
27.6 The Wellesley team will send a Final Response to the customer following the completion of the investigation into the complaint and will be within eight weeks from the initial receipt of the complaint.