SmartFinance Hub – Terms of Service – for Arkle Finance Limited (“Arkle”, the “Finance Provider”) Co-brand solution

Last Amended:      February 1, 2024

Introduction

FundingXchange Limited (“FXE”) operates and provides “SmartFinance Hub Platform” (“SFH”), through which credit brokers and other intermediaries (“Brokers”) can create proposals for and assess lending and financing opportunities and make applications for lending and/or finance to Arkle 

These terms and conditions govern access to and use of SFH by Brokers and the Finance Provider (and references to the “Terms of Service” shall mean these terms and conditions). The Terms of Service shall not replace or affect any contractual arrangements in place or which are put in place directly between applicable Brokers and the Finance Provider and it shall be the responsibility of those parties to ensure that they have such contractual arrangements in place, governing (amongst other things) the sharing of data between them, their respective responsibilities to each other and (if applicable) the payment of commission between them. By using SFH the relevant Broker and/or Finance Provider (as applicable) will be deemed to have accepted (and agreed to be bound by) these Terms of Service unless there are an equivalent set of terms and conditions in place between FXE, and the Broker or Finance Provider (the “Equivalent Terms”), governing, amongst others, the access and use of SFH. For the avoidance of doubt, where Equivalent Terms are in place between FXE, and the Broker or Finance Provider, these Terms of Service shall not be deemed to have been accepted and the Equivalent Terms shall be the sole terms and conditions governing the access and use of SFH by the Broker or Finance Provider.

References in the rest of the Terms of Service to “Subscribers” shall mean those Brokers and the Finance Provider who have agreed to these Terms of Service (or equivalent terms and conditions) and use SFH. In addition to consenting to this agreement, the Subscribers should also read and consent to our Privacy Policy (hyperlinked) which governs how FXE processes any personal information collected.

1. Eligibility

1.1 To be eligible to use SFH each Subscriber must (at all times):

(a) be a company or other legal entity established in the UK; and

(b) if applicable be appropriately authorised by the Financial Conduct Authority or other applicable financial regulator and/or acting as an appointed representative of a principal that is so authorised, for the purposes described in the “Introduction” section above.

1.2 Subject to the relevant Subscriber continuing to comply with these Terms of Service, FXE shall provide each Subscriber with access to and use of SFH.

1.3 A description of SFH can be found at https://fxe-technologies.co.uk/smartfinance-hub/ . FXE shall be entitled to make changes to that description or otherwise to SFH from time to time, including (but not limited to) for the purposes of improving its functionality and performance, correcting any faults or errors and/or to maintain security or compliance with applicable laws.

2. Data Protection

2.1 Each of FXE and the Subscribers shall, in fulfilling their obligations under these Terms of Service, comply with their respective obligations under the Data Protection Legislation, whereby the Data Protection Legislation means the Data Protection Act 2018, the General Data Protection Regulation 2016/679 as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”)) and all other applicable laws and regulations in the United Kingdom relating to the processing of  personal  data  and  privacy,  including  where  applicable, the guidance and codes of practice issued by the Information Commissioner.

2.2 SFH enables Subscribers to input or receive data, to create proposals for and assess lending and financing opportunities (as between Subscribers) in respect of in-life or prospective customers (“Customers”).  The data Customers have permitted the use of or provided to the Subscribers or FXE (“Customer Data”) may include data which is comprised of personal data of or relating to Customers, within the meaning of Data Protection Legislation (“Customer Personal Data”).

2.3 In accordance with these Terms of Service, FXE will collect and process the Customer Personal Data, as a Processor (as defined in applicable Data Protection Legislation) for the relevant Subscribers, in accordance with and subject to the appended SFH data processing agreement (the “SFH DPA”).

2.4 FXE and Arkle shall be the joint Controllers (as defined in the applicable Data Protection Legislation) of the Customer Personal Data that the Broker has provided as part of an application. Arkle shall be the Controller of any third-party data ingested as part of the application process. At the point an application for funding is made to Arkle (in accordance with the description of SFH outlined in Clause 1.3), Arkle  shall be the  Controller of Customer Personal Data. 

3. FXE Responsibilities

3.1 Where required, FXE will use all reasonable endeavours to provide trouble shooting and technical support to assist Subscribers in resolution of any technical issues encountered using SFH.  

3.2 FXE may update, amend or add functionality or services to SFH from time to time.  FXE shall use reasonable endeavours to notify Subscribers of any such changes which are material in nature.

3.3 FXE may enable Subscribers to access certain data from various third-party providers (including but not limited to credit reference agencies) through SFH, which may be subject to additional terms and conditions of use, which the relevant Subscribers will need to accept and/or comply with (in order to access and/or use such data).

4. Subscriber Responsibilities

4.1 Each Subscriber shall be responsible for making all arrangements necessary to facilitate its respective access to and use of SFH and for ensuring that all persons who access and use SFH on its behalf are aware of these Terms of Service and comply with them.

4.2 Each Subscriber shall be responsible for promptly updating its profile and/or notifying FXE to reflect changes to any of the information provided by it when registering/signing up to access and use SFH.

4.3 Subscribers must keep (and shall ensure that their respective users keep) all security information used by it to access SFH (including user-names and passwords) secret and make sure that they are not stored in a way that enables others who are acting without their respective authority to access them or impersonate it.  Each Subscriber shall promptly inform FXE of any knowledge or suspicion that someone else, who is acting without its relevant authority, knows any of that security information or can use SFH by impersonating that Subscriber (or any of its users).

4.4 In using SFH, each Subscriber acknowledges and accepts that FXE (a) does not verify or make any representations or warranties as to the credit-worthiness of or suitability of any applicant for finance or other lending; (b) is not responsible for checking the accuracy of any information inputted into SFH by any Subscriber(s); (c) is not a party to any contract or similar arrangement between Subscribers or for the supply of finance or other lending entered into with any applicants; (d) is not in any way responsible for the performance (or non-performance) of those contracts and/or finance/lending arrangements; and (e) is not responsible for the accuracy and/or completeness of any credit reference reports and/or other data provided by any of FXE’s third party suppliers.

4.5 In using SFH, FXE shall not be responsible for:

(a) completing applicable anti-money laundering and know-your-customer checks in relation to any applicant or customer in respect of whom data is uploaded, published or distributed by on or through SFH; and/or

(b) underwriting decisions taken in relation to any lending/financing offers made or lending/financing concluded using SFH.

4.6 In using SFH, each Subscriber shall be solely responsible for:

(a) ensuring the accuracy and appropriateness of all of their Subscriber Data provided or inputted by it; and/or

(b) ensuring that their Subscriber Data provided or inputted by it does not violate or infringe any rights (including intellectual property rights) of any third party and/or is not libellous, defamatory or otherwise illegal;

(c) ensuring that all of its activities using SFH (including the marketing of its products to current and prospective customers and the referral or introduction of current and prospective customers) at all times complies with all applicable laws, regulations and industry guidance to provide regulated and unregulated lending products, and that it has all the necessary applicable regulatory authorisations, permissions and licences to enter into (or make introductions or broker) regulated credit agreements (including (not limited to) those required under the Financial Services and Markets Act 2000 (as amended) and related legislation); and  

(d) ensuring that its users do not upload or introduce (or attempt to upload or introduce) any viruses or malicious code onto SFH and do not use SFH in any manner which is otherwise harmful to SFH, its operation or its use by other Subscribers.

4.7 Each Subscriber agrees to indemnify and hold harmless FXE (and its directors, officers, agents, contractors, partners and employees) 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 breach by that Subscriber of its warranties and / or obligations under clause 4.6.

5. Suspension and Termination

5.1 FXE and each Subscriber may terminate the relevant Subscriber’s right to access and use SFH at any time by giving the other not less than thirty (30) days’ notice

5.2 FXE may suspend and/or terminate the relevant Subscriber’s right to access and use SFH at any time, by giving notice to that Subscriber, if:

(a) the relevant Subscriber becomes insolvent (or suffers any similar event);

(b) the relevant Subscriber breaches any of clauses 1.1(b), 4.3 and 4.6 of these Terms of Service;

(c) the relevant Subscriber is in material breach of any provision of these Terms of Service and fails to remedy such breach within thirty (30) days of FXE’s written notice to do so; and/or

(d) FXE suspects that the relevant Subscriber has used SFH, or intends to use SFH, for the purpose of an illegal activity.

5.3 FXE will be entitled to suspend an individual Subscriber’s access to SFH (or a relevant part of it) (a) in the event of any material breach of these Terms of Service by the Subscriber; (b)in the event of any actual or anticipated threat to the security of SFH; (c) the relevant Subscriber inputs, processes or publishes any Subscriber Data into or using SFH that violates or infringe any rights (including intellectual property rights) of any third party and/or is or are libellous, defamatory or otherwise illegal; (d) the relevant Subscriber ceases to hold appropriate authorisations from the Financial Conduct Authority or other applicable financial regulator (or ceases to be an appointed representative of such an appropriately authorised person); and/or (e) the continued use of SFH by the relevant Subscriber would or is likely, in FXE’s reasonable opinion, cause FXE to be in violation of applicable laws.

6. Intellectual property rights

6.1 All intellectual property and other proprietary rights in SFH (including any improvements and modifications made to SFH from time to time) shall at all times vest in and be the absolute property of FXE or its licensors, as appropriate. Nothing in these Terms of Service shall transfer any of such rights to any Subscriber.

6.2 Each Subscriber shall continue to own any intellectual property and other proprietary rights in its Subscriber Data.

6.3 Each Subscriber agrees that, notwithstanding the above, FXE may use (and licences FXE to use) any Subscriber Data (a) for the purposes of FXE providing the service to the Subscriber; and (b) in anonymised and aggregated form for the purposes of carrying out analytics and to identify potential improvements to SFH (in the latter case, including after the termination of this Agreement in relation to the relevant Subscriber). 

6.4 Except as otherwise provided by applicable Law, each Subscriber may not, without the prior written consent of FXE:(a) copy, alter, merge, modify, adapt or make error corrections, reverse engineer, disassemble or decompile SFH (or any part thereof); or (b) re-sell, loan, rent, lease, license, sublicense, distribute, create derivative works of, transfer any rights to access or make available SFH to any third parties (other than to other Subscribers in the manner contemplated in and subject to these Terms of Service.

6.5 FXE shall indemnify each Subscriber from any and against any loss, liability, damages, costs and expenses, including reasonable legal fees and expenses, arising from any claim that the relevant Subscriber’s access to and use of SFH infringes the intellectual property rights of any third party, provided that: (a) this indemnity shall not extend to any claims to the extent arising from any Subscriber Data or any other systems used (by the relevant Subscriber) to access or connect to SFH and b) the relevant Subscriber will promptly give FXE the control of the defence of any such a claim and will not make any offer of settlement or admission without the prior written approval of FXE.  If any claim is made under this indemnity FXE may (amongst other things) amend or alter SFH to avoid or remove any further claim of infringement or, if such amendment or alteration is not commercially possible, terminate the relevant Subscriber’s right to access and use SFH with immediate effect.

7. Confidentiality

7.1 For the purposes of this Agreement “Confidential Information” means all information disclosed by either a Subscriber or FXE (the “Disclosing Party”) to (respectively) FXE or to a Subscriber (the “Receiving Party”) which ought reasonably to be regarded as confidential including, without limitation, information relating to the Disclosing Party’s products, services, operations, processes, customers, prospective customers, business affairs and the fees and payment terms set out in these Terms of Service.

7.2 The Receiving Party shall (a) not use or disclose Confidential Information disclosed to it for any purpose other than the performance of its obligations or exercise of its rights under these Terms of Service; (b) not otherwise disclose such Confidential Information to another person (other than to its directors, offices, employees and advisers where and to extent that they need to know the same and subject to equivalent obligations of confidence) except with the prior written consent of the Disclosing Party or in accordance with clause 7.3; and (c) shall use reasonable efforts to prevent the use or disclosure of the Disclosing Party’s Confidential Information, which shall be no less effort than it would apply in respect of its own Confidential Information.

7.3 Each Receiving Party may, in any event, disclose Confidential Information if and to the extent (a) required by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction; (b) required by any securities exchange or regulatory or governmental body to which that party is subject to; (c) the information has come into the public domain through no fault of that party; (d) the information was in the possession of the Receiving Party before such disclosure by the Disclosing Party; or (e) the information was obtained by the Receiving Party from a third party who was free to divulge same.

7.4 The provisions of this clause 7 shall survive the termination of the relevant Subscriber’s right to access and use SFH.

8. Service Warranties

8.1 Subject to the rest of this clause 8, FXE warrants that SFH will operate materially in accordance with and will provide the functionality referred to in clause 1.3 in all material respects. Notwithstanding this, FXE does not guarantee, warrant or represent that the operation of SFH will be continuous, uninterrupted or error-free.

8.2 Save where expressly stated otherwise in these Terms of Service, SFH, all Subscriber Data and all other information on SFH, is provided “as-is” and FXE 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.

8.3 Neither SFH nor any outputs from it can be relied upon by any Subscriber and/ or any third party as a guarantee of any particular result, nor does SFH or its outputs constitute any form of advice, recommendation or endorsement by FXE.

8.4 FXE undertakes that the services provided by it will be performed with reasonable skill and care in accordance with good industry practice.

8.5 FXE warrants and undertakes that:

(a) it has legal capacity to enter into these Terms of Service;

(b) these Terms of Service will be legally binding on it;

(c) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms of Service; and

(d) it will comply with all applicable laws and regulations with respect to its obligations under these Terms of Service.

9. Liability

9.1 Subject to clause ‎9.2 each party’s liability to the other arising out of or under these Terms of Service  (whether in contract, tort or otherwise), in any twelve (12) month period, shall be limited to £50,000.

9.2 Subject to clause 9.3, neither party shall be liable to the other for any loss of profit of for any indirect, incidental, special, punitive or consequential damages caused by any act or omission by the other party under or in relation to these Terms of Service, even if it has been advised of the possibility of such loss or damage.

9.3 Nothing in these Terms of Service shall limit one party’s liability (if any) to the other for: (a) personal injury or death caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) for breach of any indemnity it gives the other party under these Terms of Service; or (d) for any other liability which may not be excluded by applicable law.

9.4 No party shall be liable for any failure or delay in the performance of any obligation under these Terms of Service (except any payment obligation) by reason of any event beyond the reasonable control of that party including but not limited to strike, lock-out, labour dispute, act of God, war, riot, civil commotion, act of terrorism, pandemic, epidemic, restrictions due to the spread or possible spread of disease fire, flood, storm, any cyber-attack or similar assault on the technology of either party.

10. Anti – Modern Slavery Statement

10.1 FXE and each of the Subscribers acknowledge their responsibilities in relation to tackling modern slavery and commit to complying with the provisions in the Modern Slavery Act 2015 and understand that this requires an ongoing review of both their internal practices in relation to its labour force and, additionally, their supply chains.

10.2 FXE and each of the Subscribers shall at all times comply with the Modern Slavery Act 2015 and any other applicable Laws relating to the prevention of modern slavery, including ensuring that they have in place adequate procedures to prevent modern slavery.

10.3 Neither FXE nor any of the Subscribers shall enter into business with any other organisation, in the United Kingdom or abroad, which knowingly supports or is found to involve itself in slavery, servitude and forced or compulsory labour. 

11. General

11.1 These Terms of Service constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms of Service.

11.2 These Terms of Service are governed by English law and the courts of England and Wales will have (and FXE and each Subscriber submits to the) exclusive jurisdiction to settle any disputes that may arise in relation thereto.

11.3 Nothing in these Terms of Service are intended to confer any benefit on any person who is not a party to these Terms of Service and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

11.4 If any part of these Terms of Service 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 the relevant Subscriber or FXE shall constitute a waiver by FXE of, or preclude any further exercise of, that or any right, power or remedy arising under these Terms of Service or otherwise.

11.5 Except as set out in these Terms of Service, no variation of these Terms of Service shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6 No failure or delay by a party to exercise any right or remedy provided under these Terms of Service or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.7 Any notices to be given under or in relation to these Terms of Service shall be sent, when sent to FXE at support@smartfinancehub.co.uk or, when sent to a relevant Subscriber, by sending it to the relevant email address they provided as part of signing up to these Terms of Service.

11.8 FXE may assign, transfer or novate any of its rights and obligations under these Term of Services without the need to obtain any Subscribers’ consent.