1. Definitions
1.1 Agency Agreement – agency agreement is considered to be concluded automatically by Ashfort Capital Investments and User after the User has filled the Financing Application at the Platform and Ashfort Capital Investments has confirmed the receipt of the User’s money in accordance with the Financing Application at the Ashfort Capital Investments’s Account. Pursuant to the Agency Agreement Ashfort Capital Investments shall perform to the User (Financing Party) agency (loan syndication) services, i.e., conclude the Loan Agreement with the Company in the name of the User (Financing Party). No separate agreement outside of these Terms and Conditions shall be signed in this respect between Ashfort Capital Investments and the User. For the provision of agency (loan syndications) services no fees are paid by the User (Financing Party) to Ashfort Capital Investments.
1.2 Business Day – any day, on which banks in Ireland are operating, except Saturdays, Sundays, and public holidays.
1.3 Ashfort Capital Investments – “Ashfort Capital Investments”, registered and existing under the laws of the United Kingdom with Company number 08159798, legal address: Olympus House, Olympus Avenue, Leamington Spa, Warwickshire, CV34 6BF.
1.4 Ashfort Capital Investments’s Account – the bank account indicated at the Platform to which the User (Financing Party) is transferring his/her/its Financing and which is held separately from other property of Ashfort Capital Investments. Ashfort Capital Investments shall not calculate any interest for the Financing transferred to the Ashfort Capital Investments’s Account and no such interest shall be payable to the User (Financing Party).
1.5 Collateral – mortgage or commercial pledge to be registered in favour of Ashfort Capital Investments or a collateral agent in order to secure the fulfilment of the Company’s obligations under the Loan Agreement.
1.6 Company – any legal person that has expressed its intention to acquire the Loan from Ashfort Capital Investments on behalf of the Financing Party and Ashfort Capital Investments as part of its commercial activities, and which has received the Loan from Ashfort Capital Investments on behalf of the Financing Party and Ashfort Capital Investments in accordance with the concluded Loan Agreement.
1.7 Company’s Payments – payments executed by the Company to Ashfort Capital Investments for the Loan repayment, payment of Interest, statutory interest, contractual penalty, late payment interest, except Management fee as provided in the Loan Agreement.
1.8 Financing – the amount of money the User has committed to loan (lend) to the Company via agency (loan syndication) of Ashfort Capital Investments by indicating this amount in the Financing Application in the Platform. Financing is considered to be loaned (lent) to the Company via agency (loan syndication) services of Ashfort Capital Investments when Ashfort Capital Investments has confirmed the receipt of the User’s money in accordance with the Financing Application at the Ashfort Capital Investments’s Account and the Loan Agreement is signed with the Company. If the Loan Agreement is not concluded within one month since submission of the Financing Application, the Financing is returned to the User’s Account.
1.9 Interest – remuneration for the use of the Loan, calculated pursuant to the Loan Agreement and paid by the Company to Ashfort Capital Investments.
1.10 Financing Application – a User’s application filled out at the Platform and submitted to Ashfort Capital Investments via the Platform authorizing Ashfort Capital Investments to transfer the Financing to the Company if the Loan Agreement is concluded between Ashfort Capital Investments on behalf of the Financing Party and Ashfort Capital Investments, and the Company, based on the principal terms as indicated on the Platform. Following submission of the Financing Application, User will automatically receive drawdown request for the transfer of the Financing to the Ashfort Capital Investments’s Account.
1.11 Financing Application Number – number which is automatically created at the Platform once the User has filled out and submitted the Financing Application. The Financing Application Number has to be always indicated by the User when transferring the Financing to the Ashfort Capital Investments’s Account.
1.12 Financing Party – any User of the Platform whose Financing Application has been accepted by Ashfort Capital Investments and who has transferred the Financing to the Ashfort Capital Investments’s Account and on behalf of which the Loan Agreement is concluded between Ashfort Capital Investments and the Company.
1.13 User’s Account – an account opened in the name of the User in a credit institution, payment institution or electronic money institution as indicated in the registration form for the User Profile.
1.14 Loan – amount of money which is provided to the Company by Ashfort Capital Investments on behalf of the Financing Party Ashfort Capital Investments itself by signing Loan Agreement.
1.15 Loan Agreement – a loan agreement concluded by and between the Company and Ashfort Capital Investments on behalf of the Financing Party and Ashfort Capital Investments itself. Scanned signed version of the Loan Agreement is available to the Financing Party through the Platform once it is concluded. Loan Agreement form is available at the Platform as part of the description of the Company.
Loan agreement can be also in form of Factoring Contract within which Financing Party committs to finance recurring invoices issued by the Company for the entire duration of the Factoring Contract.
1.16 Loan Syndication – process managed by Ashfort Capital Investments in concluding the Loan Agreement with the Company where the Loan consists of Financing(s) provided to the Company via agency services of Ashfort Capital Investments of one or more Financing Parties and/or part of the Loan may be provided to the Company under the Loan Agreement by Ashfort Capital Investments itself. The part of the Loan Ashfort Capital Investments is ready to lend to the Company is indicated in the description of the Company at the Platform, which Ashfort Capital Investments may unilaterally increase, but may not decrease in the period while the Company is raising funds at the Platform.
1.17 Management Fee – fee paid by the Company to Ashfort Capital Investments for organizing and monitoring the Loan. The amount of the fee is specified in the Loan Agreement.
1.18 Parties – Ashfort Capital Investments, the Company and the User (Financing Party), as the case may be.
1.19 Platform – website under domain name www.dnbkapital.com registered in the name of Ashfort Capital Investments.
1.20 Privacy Policy – rules on privacy policy as available at the Platform and which apply to the User.
1.21 Terms and Conditions – the present Terms and Conditions of the Platform.
1.22 User – any private or legal person registered as a user in the Platform with an intention to provide Financing to the Company as part of his/her/its commercial activities.
1.23 User Profile – the User’s personal site at the Platform, which is automatically created after the User registers at the Platform and is available to the User after entering the User’s e-mail address and password on the Platform.
1.24 Unless otherwise specified herein, definitions used in these Terms and Conditions importing the singular include the plural and vice versa, as it may be applicable in the context.
2. Scope of the Terms and Conditions
2.1 These Terms and Conditions regulate the legal relations between the Parties concluding the Agency Agreement and the Loan Agreement and are applicable to all other relations arising out of registration at the Platform and filling out and submission of the Financing Application at the Platform.
2.2 Once the User has registered User Profile at the Platform it is deemed that the User has accepted and signed to these Terms and Conditions. Any Company prior to signing the Loan Agreement confirms that it has read these Terms and Conditions, as well as has understood their meaning and has undertaken to comply with them and any amendments thereof.
2.3 By registration of the User Profile the User agrees that Ashfort Capital Investments may unilaterally amend or change these Terms of Conditions and such amendments or changes are valid as long as the financial obligations and rights of the User and the Company remain intact. In case of such amendments, User shall receive automatic notification at the Platform from Ashfort Capital Investments in this respect.
2.4 By registration of the User Profile the User confirms that he/she/it is able to make independent decisions about the Financing, as well as is aware of all the risks, including the risk of non-recovery of the Financing in case the Company has defaulted under the Loan Agreement and Ashfort Capital Investments is not able to receive the repayment of the Loan and any other contractual obligations pursuant to the debt collection procedures established by Ashfort Capital Investments.
2.5 The User (Financing Party) understands that Ashfort Capital Investments shall not register any Collateral in favour of Financing Party, but if any Collateral is registered, it shall be in favour of Ashfort Capital Investments or collateral agent that will represent all the Financing Parties and Ashfort Capital Investments in ensuring successful repayment or recovery of the Loan.
3. Operation of the Platform
3.1 The Platform’s financing functionality is created for the benefit of the User who can provide Financing through agency (loan syndication) services of Ashfort Capital Investments to various businesses. In all of the Loans formed through such loan syndicates Ashfort Capital Investments shall act as one of the Financing Parties. The amount of Financing provided by Ashfort Capital Investments to each of the Company is indicated in the description of the Company in the Platform. Ashfort Capital Investments can unilaterally increase (but cannot decrease) its Financing amount to the Company during the time when the Company is raising Financing from other Financing Parties in the Platform.
3.2 After registration at the Platform, the User will receive automatic notifications (that can be opted out from) when any new financing opportunities will be offered to Users.
3.3 Filling out and submission of the Financing Application shall mean a non-binding offer from the User to provide Financing to the Company via agency (loan syndication) services of Ashfort Capital Investments. If User has not transferred the Financing to the Ashfort Capital Investments’s Account within 48 hours since submission of the Financing Application, Ashfort Capital Investments has a right to contact the User to understand the reason for delay in the transfer of the Financing or to reject the Financing Application and declare it void by informing on that the User via Platform. After the Financing Application has been rejected by Ashfort Capital Investments, Ashfort Capital Investments has the right to offer the financing opportunity of the Company to other User.
3.4 Ashfort Capital Investments may reject and return any money transfer from the User if it is made from an account that does not match the User’s Account as indicated in the User Profile.
3.5 If the User has made a money transfer to the Ashfort Capital Investments’s Account without indication of the Financing Application Number, Ashfort Capital Investments has a right return such transfer to the User. Nevertheless, Ashfort Capital Investments will seek to contact the User to validate the identification of such transfer.
3.6 Once the money transfer in accordance to the Financing Application has been received and confirmed in the Ashfort Capital Investments’s Account it is deemed that the Agency Agreement is concluded between the User and Ashfort Capital Investments, authorizing Ashfort Capital Investments to conclude the Loan Agreement with the Company. Users shall receive automatic notification at the Platform and an e-mail from Ashfort Capital Investments that confirms the receipt of the transfer for the Financing and hence conclusion of the Agency Agreement between Ashfort Capital Investments and the Financing Party.
3.7 If in the time period indicated in the Platform Ashfort Capital Investments has not attracted the amount of Financing that meets the total fundraising goal of the Company then any concluded Agency Agreement for Financing in the said Company is regarded as terminated and money is returned back to the User’s Account in 2 (two) Business Days. In such event the User shall receive an automatic notification at the Platform and an e-mail from Ashfort Capital Investments.
3.8 If the Loan Agreement has been concluded between Ashfort Capital Investments on behalf of the Financing Party and the Company, any Company’s Payments (except Management Fee) made to Ashfort Capital Investments are transferred within 2 (two) Business Days to the Financing Party Account in proportion to his/her/its Financing, except the late payment interest paid by the Company to Ashfort Capital Investments pursuant to the Loan Agreement, which is distributed to the Financing Party in proportion to his/her/its Financing after Ashfort Capital Investments has withheld 3/4 of it.
If the Loan Agreement is concluded in the form of Factoring Contract then payments are transfered to the Financing Party after the term of the Factoring Contract has ended or the contract has been terminated. If the approved credit limit of the Factoring Contract is reduced by Ashfort Capital Investments, the Financing amount of the Financing Party shall be proportionally reduced. For Factoring Contracts all paid interest for the previous month will be calculated and paid to Financing Party until 5th day of each calendar month.
3.9 As part of the Agency Agreement Ashfort Capital Investments may:
- 3.9.1 Forgive the Company late payment interest and contractual penalties in full amount or partially;
- 3.9.2 Agree on a new Loan repayment schedule and extend (but not more than once) the Loan repayment term by up to 6 months;
- 3.9.3 Allow exchange or amendment of collateral if overall security of the Loan is not worsened.
3.10 If partial Company’s Payment has been received by Ashfort Capital Investments then it may withhold it before transfer of it further to the Financing Party for a period of up to 5 (five) Business Days if it is reasonable for Ashfort Capital Investments to expect that the remaining or further Company’s Payment will be received within such term.
3.11 Ashfort Capital Investments may withhold Company’s Payments for indefinite period if the transferrable amount to the Financing Party is less than £ 5 (five euros). Such withholding cannot be done if it is reasonable expectation that such Company’s Payment is the last transfer from the Company with regards to execution of the Loan Agreement.
3.12 In case the Company has defaulted under the Loan Agreement and Ashfort Capital Investments has started its debt collection procedures any collected amount is distributed to the Financing Party in proportion to his/her/its Financing after Ashfort Capital Investments has withheld its expenses related to such debt collection. The abovementioned collection expenses are clearly disclosed at the Platform and further details can be provided to the Financing Party at request.
3.13 Ashfort Capital Investments is free to amend the operation of the Platform as long as the rights of the Users remain intact.
3.14 The User confirms that the use of the Platform and providing Financing to the Company via agency services of Ashfort Capital Investments in Loan Syndication is not asset management service. Ashfort Capital Investments is not and cannot be the deemed as funds or asset manager of the User. Both Ashfort Capital Investments and the User have assessed the laws and regulations applicable to the Financing, and the Parties confirm that the Financing is not and cannot be part of any fund or asset management structure, and that any Financing decision is made individually by the User.
4. Registration of User Profile
4.1 Any person complying with the requirements below may register the User Profile at the Platform, however, Ashfort Capital Investments may, at its sole discretion, deny such registration if the User has failed the background check performed by Ashfort Capital Investments.
4.2 The requirements for registration of the User Profile:
- 4.2.1 If private person - the User is at least 18 years old and holds full legal capacity;
- 4.2.2 If legal person – the User holds full legal capacity;
- 4.2.3 The User is resident (as individual or legal entity) and has a bank account in the United Kingdoman Union Member State, United Kingdom, Norway, Switzerland, Iceland.
4.3 The User may access his/her/its User Profile by indicating his/her/its e-mail and password. All the actions performed by the User at the Platform after entering his/her/its e-mail address and password shall be regarded as binding to the User as if confirmed by his/her/its signature.
4.4 If applicable by registration of the User Profile at the Platform the User has given permission to Ashfort Capital Investments to process personal data of the User in accordance to the Privacy Policy as published at the Platform.
5. User’s Identification
5.1 In order that the User may use the services provided at the Platform Ashfort Capital Investments must identify the User pursuant to its internal control system.
5.2 The User is identified after providing the information Ashfort Capital Investments has requested, including details of a valid User’s Account and copy of registration documents or personal identification.
5.3 In order to carry out identification of the User, Ashfort Capital Investments may unilaterally impose additional requirements for identification of the User as well as request additional information from the User (for example, proof of funds) at the sole discretion of Ashfort Capital Investments.
6. Rights and Obligations of the User
6.1 The User is obliged to comply with the requirements for registration of User Profile all the time while using the Platform.
6.2 Registration of the User Profile allows User to get notifications on new financing opportunities, receive access to full descriptions on financing opportunities in a Company, file the Financing Application, follow the Company’s Payments as well as perform other actions and see other relevant information.
6.3 The User has a right to access the concluded Loan Agreements, as well as at the date of Financing effective Terms and Conditions any time at the User Profile.
6.4 The User has the right to transfer and receive money for Financing only on its own behalf.
6.5 The User is obliged to keep password for the User Profile safe and confidential so that no third party may access it.
6.6 As long as the Agency Agreement is valid the User may not to contact directly the Company regarding repayment of the Financing, as well as may not to raise any claims against the Company in the court or any other institution or assign such claims, etc.
6.7 By creation of the User Profile the User confirms that he/she/it understands that the Company may fail to repay the Loan and in such a case the User may lose full or part of the amount of the Financing.
6.8 The User has a right to choose at the Platform by which communication means Ashfort Capital Investments may contact the User.
6.9 The User and the Company acknowledges that he/she/it is using the Platform’s services only for the purposes of commercial activities and expressly confirms that he/she/it shall not be using such services as a consumer and therefore shall not be able to benefit from any consumer rights protection laws.
7. Rights and Obligations of Ashfort Capital Investments
7.1 If applicable, Ashfort Capital Investments shall process all personal data of the Users in accordance to the Privacy Policy and for the sole purpose of ensuring provision of the agency (loan syndication) and other services of the Platform.
7.2 Ashfort Capital Investments has a right to block access of the User to the User Profile in case any activities of the User may cause or is causing damages to other Users of the Platform or in case the User has violated obligations under these Terms and Conditions.
7.3 Ashfort Capital Investments has a right to use the Financing only in accordance with the Agency Agreement.
7.4 Ashfort Capital Investments will ensure monitoring of the Company in line with its established monitoring policies, information about which is available to the Financing Party at request. The Financing Party will be notified via the Platform on any significant negative developments with regards to the ability of the Company to execute the Loan Agreement.
7.5 In case the Company has defaulted under the Loan Agreement, Ashfort Capital Investments shall take all the permissible and reasonable actions, including rescheduling of the payment terms of the Loan Agreement, to ensure repayment of the Loan without involvement of the Financing Party, however, Ashfort Capital Investments assumes no liability for the safety of the Company’s Payments and it rests as the sole risk of the Financing Party. Ashfort Capital Investments has no obligation to return the Financing to the Financing Party should the Company default under the Loan Agreement.
7.6 In case the Company has defaulted under the Loan Agreement and if by the estimation of Ashfort Capital Investments and its advisors the debt collection can yield positive return (collected payments will cover the costs of the collection), Ashfort Capital Investments will initiate debt collection procedures in line with its established practice. Regular information on the debt collection results will be provided to the Financing Party via the Platform.
7.7 In case Ashfort Capital Investments is declared insolvent, Ashfort Capital Investments shall immediately notify on that the Company and Financing Party(ies) and in such notification Ashfort Capital Investments shall provide all details of the Financing Party(ies) to whom the Company has to continue to repay the Loan (principal amount of Loan, accumulated Interest, late interest and penalties, but not the Management fee as provided in the Loan Agreement) instead of Ashfort Capital Investments, taking into account already repaid sums. Such notification is binding for Ashfort Capital Investments, the Company and the Financing Party(ies). In case if Ashfort Capital Investments has not sent out such notification to the Company and/or Financing Party(ies) within 1 (one) week since decision on the insolvency of Ashfort Capital Investments has come into force, the Financing Party(ies) have a right to request the Company repayment of the Loan without agency of Ashfort Capital Investments and the Company is obliged to comply with such a request without any further notifications from the side of Ashfort Capital Investments.
7.8 In case if the Company has been issued a Loan with a guarantee from European Investment Fund, all of the guaranteed amount in relation to the Loan requested and received from the European Investment Fund shall be attributed to the Financing Party(ies). Ashfort Capital Investments shall hold 20% share of all such loans and have no claim towards the guarantee proceeds received from the European Investment Fund for this 20% share. Financing Party can upon request received full cooperation contract between Ashfort Capital Investments and European Investment Fund regarding the conditions of the guarantee instrument.
8. Closing of the User Profile and termination of the Agency Agreement
8.1 In case the User violates these Terms and Conditions, provides false documents or misleading information or uses the Platform for any unlawful purposes Ashfort Capital Investments has a right to unilaterally terminated the Agency Agreement and suspend or delete the User Profile.
8.2 Ashfort Capital Investments has a unilateral right to close the User Profile upon giving notification to the User 10 (ten) Business Days in advance without indication of any reason.
8.3 The User has a right to request that Ashfort Capital Investments deletes the User Profile at any time thus also triggering termination of the Agency Agreement.
8.4 If the Agency Agreement is terminated with the User that has active Financing, Ashfort Capital Investments shall in 2 (two) Business Days notify the Company(s) of the fact and provide details so that Company’s Payments can be made directly to the User. For clarification, termination of the Agency Agreement does not in any way oblige Ashfort Capital Investments to return the Financing to the User.
9. Final Provisions
9.1 All payments under the Platform to the Ashfort Capital Investments’s account shall be made in euros.
9.2 For calculating the Interest, the statutory interest and other applicable charges, the Parties assume that the year consists of 360 days and each month consists of 30 days.
9.3 The Parties agree that each shall settle on its own any and all taxes which might be applicable under operation of these Terms and Conditions.
9.4 All notifications sent by one Party are regarded as received by the other Party on the next Business Day after their sending to the e-mail address as indicated at the User Profile.
9.5 The Parties agree to settle all disputes via negotiations; however, if such negotiations fail to produce any result within 3 (three) months, any Party is entitled to bring the dispute for settlement before the courts the Republic of Ireland and the laws of the Republic of Ireland shall be deemed as applicable law of these Terms and Conditions and any dispute thereof.
9.6 The Company and the User are not allowed to transfer their rights and obligations under these Terms and Conditions to any other party without prior written agreement of Ashfort Capital Investments.
9.7 These Terms and Conditions have been drafted in the English language and it is deemed that the User has signed and agreed to them once the User Profile is registered at the Platform, while the Company has signed and agreed to them at the signing of the Loan Agreement.
