Last Amended: September 30, 2021
Thank you for visiting www.smartfinancehub.co.uk (“the Service”), operated by FundingXchange Limited whose details are given below (“we”, “us”, “our”). These terms and conditions (“Agreement”) govern the use of the Service by any person registered with us as a broker of financial services (“the Introducer”, “you”, “your”). We are a credit broker and not a lender) we do not provide advice or recommendations (please see Clause 3 for a more detailed description of our role).
This Agreement shall commence on the date when we notify you of that we have opened an Account (as defined in Clause 2.1) in our systems under Clause 2.1 and continue thereafter unless and until it is terminated in accordance with Clause 12.
Capitalised terms shall have the meaning given to them where they first appear.
FundingXchange Limited is a limited company registered in England and Wales with Company No. 09228134 whose registered office is at Winnington House, 2 Woodberry Grove, North Finchley, London, United Kingdom N12 0DR. We are registered with the Office of the Information Commissioner (No. 00041557926). FundingXchange Limited is authorised and regulated by the Financial Conduct Authority (reference number: 685043).
2.1 If you meet the eligibility requirements below and you successfully complete our registration process, we will open a data account in your name in our systems (“Account”). You must provide us with all information requested during the application process to enable us to undertake our obligations under anti-money laundering requirements. We reserve the right, in our sole and absolute discretion, to refuse to register you to use the Service.
2.2 You are responsible for making all arrangements necessary for you to have access to the Service and for ensuring that all persons who access the Service through your Account, network, systems and/or internet connection are aware of this Agreement and comply with its terms.
2.3 To be eligible for an Account, you must be a company or other legal entity incorporated or established in the UK, hold all licences, authorisations, permissions and other consents
necessary to offer the services that you are offering to your clients under applicable law, and have a UK bank account.
2.4 As an Introducer, you may apply to register for Accounts on behalf of any of your client businesses (each a “Client Business”) and may indicate a Client Business’s willingness to proceed in relation to any Heads of Terms under Clause 4, provided that:
(a) you agree, and each such Client Business agrees, to the then current Smartfinance Hub terms of businesses (“SFHub Service Terms”), in such manner as may be specified or agreed by us in writing;
(b) you have, and you warrant and represent that you have, each such Client Business’s prior express written authority to act in that capacity, including the Client Business’s consent to be introduced to us and the Service;
(c) it is your responsibility to present the Heads of Terms to the Client Business and provide any explanation or arrange for any advice the Client Business may request; and
(d) you must immediately notify us (and a Client Business may notify us) if you are no longer authorised to act on their behalf.
2.5 If you choose, or you are provided with, a user identification code, password or any other piece of information required to access your Account as part of our security procedures (“Passcodes”), each time you seek to access your Account, we will check your identity by asking for your Passcodes. As long as your correct Passcodes are entered, we will assume that you are the person giving instructions and you will be liable for them, except to the extent provided for in Clause 2.6. You must therefore keep the Passcodes secret and make sure that they are not stored in a way that enables others who are acting without your authority to access them or impersonate you. If you disclose the Passcodes to any person whom you authorise to access and operate your Account on your behalf, you are also responsible and liable for any access, use, misuse or disclosure of your Passcodes or your Account by that person.
2.6 Unless and until you tell us that you believe that someone else, who is acting without your authority, knows the Passcodes or can use the Service by impersonating you:
(a) you will be responsible for any instruction which we receive and act on, even if it was not given by you; and
(b) we will not be responsible for any unauthorised access to confidential information about you or your Client Businesses in your Account.
2.7 We can refuse to act on any instruction that we believe: (a) was unclear; or (b) was not given by you or someone acting on your behalf with your authority; or (c) you no longer have the relevant authority to give that instruction on behalf of the relevant Client Business; or (d) might cause us to breach a legal or other duty; or (e) if we believe the Service is being used for
an illegal purpose; or (f) you no longer hold the necessary licences, authorisations, permissions and/or other consents.
The Service enables lenders, banks and other providers of credit (”Finance Providers”) to advertise or otherwise display on the Service data about both unregulated financial products and certain credit products within the scope of the Consumer Credit Act 1974 (“Product Data”) and provides access to information posted on the Service by certain businesses registered with us (including Client Businesses) about their own financial requirements (“Finance Requests”). We are a credit broker and not a lender.
Unless expressly stated by us in writing we are not acting as an agent or broker on your behalf, or on behalf of any Client Business.
4.1 As an Introducer, you may (subject to the provisions regarding User Content in Clause 10) exercise the rights of each Client Business under (and subject to them complying with the terms of) their SmartFinance Hub Service Terms to do some or all of the following on behalf of the applicable Client Business:
(a) post information on the Service about the financial requirements of a Client Business (“Finance Request”); and/or
(b) indicate your Client Business’ willingness to proceed to negotiate funding based on Heads of Terms issued by Finance Providers through the Service,
at any time, by following the instructions on the Service.
4.2 We reserve the right, in our sole and absolute discretion, to remove Finance Requests from the Service for any reason at any time.
4.4 You grant to us the right to use your name and logo, and to otherwise refer to you as an Introducer on the Service, in promotional material (including, but not limited to, on the Service and in case studies, advertising, press and similar public disclosures in any medium or format) relating to the Service. You may, in your sole and absolute discretion, revoke this right
by submitting a written request via email to email@example.com, requesting to be excluded from certain or all such promotional materials (which shall be effective within thirty (30) days of that request being made) and in that event we will thereafter make no further reference to you in our promotional material.
5.1 It is your responsibility to agree the form and rate of your remuneration with each Client Business in connection with any introduction made by you under this Agreement.
5.2 In using Smartfinance Hub your existing commercial relationships with (and any commission arrangements you have with) Tied Finance Providers will remain unaffected.
5.3 Access to the Service or specific parts of the Service is subject to the service charges set out in Schedule 1 (“Service Charges”). Unless otherwise stated any Service Charges are payable monthly in advance.
5.4 You are also responsible for any related telecommunications charges, or other charges for the time you spend accessing the Service via the Internet or any other relevant network.
6.1 By agreeing to the terms of this Agreement, you represent and warrant to us that:
(a) all information you provide to us is complete, true, up-to-date and accurate in all respects;
(b) you will not use the information posted on the Service for any purpose other than preparing or reviewing a Finance Request, Product Data and/or Heads of Terms, as the case may be; and
(c) you hold, will maintain and will act in accordance with all necessary licences, authorisations and permissions (including but not limited to those issued by the FCA).
7.1 The parties shall comply with all of their obligations under the Data Protection Laws. “Data Protection Laws” means, for these purposes, to the extent applicable (i) the EU Data Protection Directive 95/46/EC and the EU Directive on Privacy and Electronic Communications 2002/58/EC, (ii) the EU General Data Protection Regulation 2016/679 (and any implementing legislation therefor), and (iii) all other applicable laws and regulations relating to data protection and privacy in any relevant jurisdiction. The terms “Personal Data”, “Data Controller” and “Data Subject” have the meanings given to those terms in the GDPR.
7.2 The parties acknowledge that for the purposes of the Data Protection Laws, both FundingXchange and you as the Introducer are Data Controllers of the shared Personal Data
provided or made available through the Service and each party shall be responsible for its own compliance with the Data Protection Laws.
7.3 In accordance with Data Protection Laws, both parties shall:
(a) process the Personal Data in accordance with those laws and only to the extent, and in such a manner, as is necessary for the provision of the Services and in accordance with instructions from time to time and shall not process the Personal Data for any other purpose;
(b) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data;
(c) notify the other party immediately, and in any event within 24-hours, if they become aware of any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Data;
(d) co-operate with any investigation into breaches of Personal Data and carry out its own investigation taking reasonable steps to mitigate the risk of any similar Personal Data breach occurring in the future;
(e) co-operate with any Subject Access Requests and respond to requests or queries from Data Subjects in respect of their Personal Data;
(f) not transfer the Personal Data outside the European Economic Area without the prior written consent of the other party;
(g) in respect of shared Personal Data, ensure that their respective privacy notices are clear and provide sufficient information to prospective borrowers and any other affected data subjects for them to understand what of their personal data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the other party, or a description of the type of organisation that will receive the personal data.
8.1 We are either the owner or the licensee of all intellectual property rights in the Service, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
8.2 You may print and may download extracts, of any page(s) from the Service for your own internal business purposes.
8.3 You must not modify the paper or digital copies of any information you have accessed via the Service, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. You must always acknowledge our status (and that of any identified contributors) as the authors of material on the Service.
8.4 You must not use any text, numerical or other information, graphics, still and moving images on the Service, other than your own User Content (as defined in Clause 10.1) (“Service Information”) for external commercial purposes or exploitation other than as permitted in order to use the Service without obtaining an explicit written licence to do so from us or our licensors.
8.5 If you use, copy or store any Service Information in breach of this Agreement, your right to use such information will cease immediately and you must, at our option, return or destroy such information.
9.1 You represent, warrant and undertake that you will not:
(a) use the Service to:
(i) harvest or collect email addresses or other financial, personal or contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited communications or inviting any person to invest outside the Service;
(ii) create a database (electronic or otherwise) that includes Service Information downloaded or otherwise obtained from this Service otherwise than for your own records (and except where expressly permitted under this Agreement); and/or
(iii) to transmit or re-circulate any Service Information to any third party except where expressly permitted by us or via the Service;
(b) use any of the Service Information for the purposes of marketing to, or re-targeting, any business;
(c) use the Service in any unlawful manner or in any other manner that could damage, disable, overload or impair the Service or the servers on which it is hosted;
(d) use automated scripts to collect information from or otherwise interact with the Service;
(e) register on the Service more than once;
(f) register or open an Account for any entity on the Service without that entity’s prior written authorisation;
(g) impersonate any person or entity, create a false identity in relation to the Service or falsely state or otherwise misrepresent yourself, your age, your employment or circumstances or your affiliation with any person or entity;
(h) use or attempt to use another user’s Account without authorization to do so;
(i) solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes; or
(j) use the Service in such a way so as to remove the copyright or trade mark notice(s) from any copies of any material made in accordance with this Agreement.
10.1 You are solely responsible for the data, information or other content you input or upload into the Service (“User Content”). You understand and agree that we may, but are not obligated to, review the Service and may delete or remove (without notice) any User Content in our sole and absolute discretion, for any reason or no reason, including without limitation User Content that in our own absolute discretion violates any provision(s) of this Agreement. You are solely responsible at your own cost and expense for creating backup copies and replacing any User Content.
10.2 You agree to indemnify and hold each other user, us, our subsidiaries and affiliates, and our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees and expenses arising out of or in connection with any of your User Content, your conduct in connection with the Service or with other users of the Service, and any breach by you of this Agreement or of any applicable law or the rights of any third party.
10.3 We welcome ‘links’ to the home page of the Service, but you may not include a link to any page of the Service that is not the home page. You must not display the contents of the Service (or any page from it) or allow it to be displayed surrounded or framed or otherwise surrounded by material not originating from us without our prior written consent. If you wish to make any use of material on the Service other than that set out above, please contact us at firstname.lastname@example.org.
11.1 The Service Information may contain basic information about types of products, as well as commentary and other materials, but such information is not intended to amount to advice or to be relied upon to make any decision. We shall not be liable or responsible for any loss or damage arising from any reliance placed on the Service Information by you or any other users, or by anyone who may be informed of any of such information.
11.2 Owing to the number of third party sources from which the Service Information is obtained and the nature of distribution of Information via the Internet, we cannot guarantee, warrant or represent that:
(a) the Service Information is complete, true, accurate, up-to-date or error-free;
(b) the Service or web site is virus free or that their operation will be continuous, uninterrupted or error-free.
11.3 Although we provide rules for user conduct and postings, we do not control and are not responsible for User Content, including any that breaches or is of a kind that might breach any provision of this Agreement. We are not responsible for the conduct of any user, whether on or outside the Service.
11.4 The information provided via the Service is intended solely for use by persons and organisations that meet the eligibility criteria set out in Clause 2 above. The Service is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to any applicable law.
11.5 The Service and the Service Information and all other information on the Service, is provided “as-is” and (save where expressly stated otherwise in this Agreement) we disclaim and exclude any and all representations, warranties, conditions or other terms, whether express or implied, including without limitation implied representations, warranties, conditions or other terms as to merchantability, satisfactory quality, fitness for a particular purpose or non-infringement. Neither the Service nor the Service Information can be relied upon by you or any third party as a guarantee of any particular result, nor does the Service or any Service Information constitute any form of advice, recommendation or endorsement by us. Neither the Service nor the Service Information is intended by us to be relied upon by you as the basis for making (or refraining from making) any specific decision.
11.6 You download the Service Information at your own discretion and you will be exclusively responsible for any damage to your computer or any loss of data that results from you downloading any Service Information. Therefore, you should exercise caution in the use and downloading of any Service Information and use the latest version of industry-recognised software to detect and disinfect viruses.
11.7 The Service may contain links to other Internet sites and contact details for services provided by others. The availability of such third party sites, services or material does not constitute any form of recommendation, advice, endorsement or publication of any such third party sites, services or material and we are not responsible for their availability or Information.
11.8 We aim to update the Service regularly, and may change the content at any time. However, any of the material on the Service may be out of date at any given time, and we are under no obligation to update such material. We reserve the right to change any and all Service Information, software and other items used or contained in, or offered through the Service at any time without notice. If the need arises, we may suspend access to the Service, or close it indefinitely.
12.1 You shall, subject to the rest of this clause 12, be liable to us for any loss or damage suffered by us as a result of your breach of this Agreement, or for your negligence or wilful default or misconduct.
12.2 You shall indemnify and us and hold us harmless against all damages, loss, costs, claims, expenses (including reasonable legal fees and expenses) and liabilities of any kind (“Claims”) made against us by any of your Client Businesses or any Finance Providers arising out of or in connection with your:
(a) breach of contract;
(b) breach of applicable law;
(c) negligence; and/or
(d) wilful misconduct,
in the course of your activities in connection with this Agreement.
12.3 To the extent permitted by applicable law, we shall only be liable to you (under or in relation to this Agreement, whether in contract, tort or otherwise) for any loss or damage which results as a directly foreseeable consequence of our breach of this Agreement.
12.4 To the extent permitted by applicable law, our liability to you in respect of your use of the Service and any Service Information or otherwise arising out of or under this Agreement (whether in contract, tort or otherwise) in any twelve (12) month period shall be limited to the amount of (a) any commission we receive from Marketplace Finance Providers in relation to an accepted Finance Request made by you (on behalf of one of your Client Businesses) (less the sums paid to you pursuant to clause 5.3) and (b) any Service Charges paid by you, in either case in that twelve (12) month period.
12.5 Except to the extent prohibited by applicable law, we will not be liable for any indirect, incidental, special, punitive or consequential damages or for any loss of business, loss of profits, loss or corruption of data, loss of goodwill or reputation caused by any act or omission by us under this Agreement, even if we have been advised of the possibility of such loss or damage.
12.6 Nothing in this Agreement shall limit our or your liability for personal injury or death or for any other liability which may not be excluded by applicable law.
12.7 You are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
12.8 No party shall be liable for any failure or delay in the performance of any obligation under this Agreement (except any payment obligation) by reason of any act, event or omission that is
beyond the reasonable control of a party including but not limited to strike, lock-out, labour dispute, act of God, war, riot, civil commotion, act of terrorism, military operations, malicious damage, compliance with a law or governmental order, rule, regulation or direction, restrictions due to the spread or possible spread of disease among humans or animals, accident, breakdown of plant or machinery, fire, flood, storm any cyber attack or similar assault on the technology of either party.
13.1 Either party may terminate this Agreement by giving not less than thirty (30) days’ notice to the other in writing at any time. Termination of this Agreement shall not affect any agreement between us and each of your Client Businesses or Finance Providers, as the case may be.
13.2 We may terminate this Agreement immediately by notice in writing to you at any time in the event that: (a) you are in material breach of Clause 7, 9.1 and/or 10.1 of this Agreement;
(b) you are in material breach of any provision of this Agreement and fail to remedy such breach within thirty (30) days of our written notice to do so; and/or
(c) we suspect that you have used the Service, or intend to use the Service, for the purpose of an illegal activity.
13.3 Following termination of this Agreement, without prejudice to any accrued rights and obligations of the parties we will provide you with limited access to the Service and your Account for a period of seven (7) days to download any of your User Content. Upon the expiry of that seven (7) day period, your access to your Account and the Service will be terminated and we will have no obligation to store or provide you with access to any information relating to your activity on the Service.
14.1 If you want to make a complaint about us or the Service you can email your Relationship Manager, who will acknowledge your complaint by email within one Business Day (a “Business Day”, being any day (except Saturdays and Sundays) when clearing banks are open for business in London). We will then investigate and send you an initial response. This should take no longer than five (5) Business Days, but most complaints may well be resolved by close of business on the Business Day after the complaint is received.
14.2 If you are not satisfied with the response from our Customer Services Manager, you can email email@example.com, enclosing the responses already given to you. Your email will then be referred to our Chief Operating Officer, who will respond by email within a final five (5) Business Days.
15.1 Except as otherwise expressly provided in this Agreement, any communication in writing may be given:
(a) by post to the last known postal address that we hold for you or you hold for us; or
(b) by email to the email address last notified by you to us or by us to you.
15.2 Unless prohibited by applicable law, we may communicate with and issue notices to you by posting information in your Account or on the Service.
15.3 Communications sent:
(a) by post will be treated as received by you three (3) Business Days after posting;
(b) by email they will be treated as received immediately upon sending, so long as we do not receive notice of non-transmission or non-receipt;
(c) via your Account or on the Service will be treated as received by you when it is posted by us.
15.4 We will assume until told otherwise that you agree to us using telephone, SMS, email and post to alert you to information about our products and services.
16.1 Subject to the provisions of Clause 5.4, we may amend this Agreement and/or the Service by giving you notice via the Service and your Account:
(a) in response to feedback from you and other users;
(b) where required to by our third party service providers;
(c) where we consider that the change(s) will make this Agreement clearer;
(d) to introduce new systems or technology;
(e) to introduce new products or services;
(f) to make improvements to the security of the Service; or
(g) where required by applicable law or the decisions or orders of any court, ombudsman, arbitrator, regulator or any undertakings given in one of those contexts,
in which case, we will use reasonable endeavours to give you at least thirty (30) days’ notice before making the change, but may implement the change sooner if it is beneficial to you, or not relevant to you or your ability to use the Service, or where the change otherwise needs to be implemented more quickly. If you continue to use the Service after we have given you such notice, you will be deemed to have accepted the change. If you are not happy with any
changes to this Agreement, you may terminate this Agreement in accordance with Clause 13.1.
17.1 This Agreement is supplied in English and all communications between all or any of us (including any communications or documentation passing between all or any of us before entering into any contract) will be in English.
17.2 This Agreement is governed by English law and the courts of England and Wales will have exclusive jurisdiction to settle any disputes that may arise in relation thereto.
17.3 Nothing in this Agreement is intended to confer any benefit on any person who is not a party to this Agreement, and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
17.4 If any part of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction or regulatory authority, the remainder shall continue in full force and effect. No single or partial exercise, or failure or delay in exercising any right, power or remedy by either you or us shall constitute a waiver by us of, or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
17.5 You shall not be entitled to assign or transfer any of your rights or obligations under this Agreement.
17.6 We may assign our respective rights and obligations under this Agreement.
17.7 The records kept by us in the Service shall be conclusive of the facts and matters they purport to record except where there is an obvious mistake.