We are TuningBill Limited, a company incorporated in England and Wales with company number 11720342 whose registered office is Da Gama Place, London, United Kingdom, E14 3QQ (TuningBill, we and us). We operate the website https://tuningbill.com/ (the Website) and the TuningBill Platform.
By submitting your application to become a user of the TuningBill Platform you agree to be bound by the terms and conditions of this TuningBill Platform User Agreement (the Agreement).
Background to the TuningBill Platform
The following defined terms are used in this Agreement:
Application: an application to register to become a User as defined in clause 2.1(a).
Business Finance means any form of finance available to businesses other than equity finance and buying and selling Invoices on the Platform.
Confidential Information: means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives whether before or after the date of this Agreement, including but not limited to:
a)the existence and terms of this Agreement;
b) any information that would be regarded as confidential by a reasonable business person relating to:
i) the business, affairs, customers, clients, suppliers, or plans of the disclosing party; and
ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; and
c) any information developed by the parties in the course of carrying out this Agreement.
Content: means any and all text, images, audio, video, scripts, code, software, databases, and any other form of information capable of being stored on a computer that appears on, or forms part of, the Platform and our Website.Page 2
Customer Services: means TuningBill’s customer service team who can be contacted by email, contact form or phone at the website www.tuningbill.com.
Fees: means the Invoice Seller Fee and the Invoice Buyer Fee.
Funding Currency: means the currency the Invoice Seller wishes the Invoice Funding Amount to be paid in. The Funding Currency will be pounds sterling (GBP) for all Invoice Funding Amounts, even if the currency of the Invoice is different.
Intellectual Property Rights: means any patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority 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.
Invoice: an invoice provided by a Seller to an Invoice Payer in relation to the provision of goods and/or services by the Seller to the Invoice Payer under a Sale and Purchase Contract.
Invoice Buyer: means an individual or entity that purchases an Invoice, or a part of an Invoice on the Platform. Also referred to as Investor.
Invoice Buyer Fee: means the interest payable by the Invoice Buyer to TuningBill as detailed on the Invoice Buyer Order Form and as detailed in the Invoice Sale Confirmation.
Invoice Buyer Order Form: means the online form used by the Invoice Seller to submit an Invoice for sale and and referred to in clause 10.
Invoice Default: means any act or omission resulting in a breach of the terms of an Invoice or the underlying Sale and Purchase Contract to which it relates.]
Invoice Due Date: the date which payment of an Invoice is required by the Invoice Payer to the Seller.
Invoice Maturity Date: the date which repayment of the Invoice Funding Amount is due (to be paid by the Invoice Seller to the Invoice Buyer) under an Invoice. This is not the same date as the Invoice Due Date for the Payer to pay to the Supplier.
Invoice Funding Amount means the amount of funding the Invoice Payer requires from one or more Invoice Buyers, in respect of an Invoice Sale, which the Invoice Payer will use to pay the Supplier.
Invoice Payer: means a business that acquires goods and/or services from a Seller under a Sale and Purchase Contract.Page 3
Invoice Sale: the sale of an Invoice, and the Related Rights, from an Invoice Seller to an Invoice Buyer on the Platform.
Invoice Sale Application Form: means the form available on the Platform, that Invoice Sellers must complete, and submit to TuningBill for approval, in order to upload Invoices onto the Platform for sale.
Invoice Sale Confirmation: means one or both of the confirmation messages sent by email to Invoice Sellers and Invoice Buyers confirming the key terms of the Invoice Sale as apply to the relevant Users.
Invoice Seller: means an Invoice Payer who sells Invoices, and their Related Rights, on the Platform in return for funding to pay Sellers.
Listing: means a listing on the Platform advertising that an Invoice is for sale. List shall be construed accordingly.
Payable Invoice Discounting Model: a type of invoice discounting that involves only Invoice Payers and Invoice Buyers. In such models the Invoice Payer, rather than an Invoice Seller, sells the right to receive money owed by them under an Invoice to the Invoice Buyer. In return, they agree to repay the amount of the Invoice purchased, plus interest, on the Invoice Maturity Date. The Seller is not involved in the process.
PayrNet: means PayrNet Ltd, a company established in England and Wales with company number 09883437, that is authorised by the Financial Conduct Authority to issue electronic money and provide payment services.
Personal Guarantee: a personal guarantee provided by a director of the Invoice Payer or, if the Invoice Payer is a sole trader, the Invoice Payer, in the form set out in Schedule 1.
Platform: The portal developed and maintained by TuningBill that is made available to Users through the Website, and allows Invoice Sellers to sell, and Invoice Buyers to purchase, Invoices as set out in this Agreement.
Profile means information on Users collected by us, including information about the User’s corporate status, business, and finances and their use of the Platform.
Related Rights means the benefit of the obligations owed by an Invoice Payer under a Sale and Purchase Contract.
Representative: means an officer, employee or agent of a User who is authorised to act on the User’s behalf.
Sale and Purchase Contract means a contract for the sale or supply of goods and/or services from a Seller to an Invoice Payer.
Security: means any charge, mortgage, pledge, lien, or any other arrangement having a similar affect to creating security or any title retention rights.Page 4
Seller: means a person or corporate entity that sells goods and/or services.
Service, TuningBill Service: means the service provided to Users under this Agreement which includes, but is not limited to: (1) allowing Users to access the Platform; (2) allowing Users to buy and Sell Invoices on the Platform and (3) such other services as TuningBill may decide to provide from time to time.
Termination Event: means all events described in clause 28.
TuningBill’s Credit Risk and Pricing Engine: TuningBill’s proprietary credit risk and pricing tool that it uses to propose prices for Invoice Sales on the Platform.
User, you: means an Invoice Payer, an Invoice Buyer or a Supplier who applies to, and is approved by, TuningBill to use the Platform and agrees to the terms of this Agreement.
User Account: an account set-up by TuningBill to give Users access to the Platform so that they can access and use the Services and which includes a username and password that allows you to securely access the Platform and use the Services.
User Application: has the meaning given to it in clause 2.1.
User Type: means: (1) an Invoice Payer, who is also an Invoice Seller; (2) an Invoice Buyer; or (3) a Seller
Wallet: means the electronic money wallet issued by PayrNet to Users that allows Users to make payments to, and receive payments from, other Users, TuningBill and their own bank accounts.
Website: means www.tuningbill.com and any other domains through which TuningBill makes available the TuningBill Service.
Website Use Terms and Conditions: means the terms and conditions that apply to anybody accessing our Website that can be found at: https://www.tuningbill.com/terms.
1.1Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.4A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.Page 5
1.6Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8A reference to writing or written includes email.
1.9Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.11References to clauses and Schedules are to the clauses and Schedules of this Agreement.
1.12Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1In order to become a User, and be able to use the Platform and Services, you must:
a)go to the Website and apply to register (a UserApplication) by selecting Register on the Website and providing the information requested and any further information requested by TuningBill subsequently; and
b)be approved by TuningBill once TuningBill has carried out the due diligence checks detailed in clause 2.7.
2.2TuningBill reserves the right to decline any Application.
2.3Following receipt of a User Application TuningBill will either:
a)email you with confirmation that your application has been declined; or
b)email you with confirmation that your application has been approved.
2.4By applying to become a User you agree, if your User Application is accepted by TuningBill, that you have read, understood and agree to the terms and conditions set out in this Agreement. If there is anything within the Agreement that you do not understand then please visit the FAQs section on the Website or contact Customer Services. If you do not agree with any of the terms of this Agreement you should not apply to register.Page 6
2.5Each time you use the Platform you agree to be bound by the latest version of the TuningBill User Platform Agreement which will be made available to you on the Platform.
2.6By entering into this Agreement you also agree to be bound by and comply with our Website Use Terms and Conditions available on our Website at: [insert link to terms and conditions for using your website].
2.7Before approving Applications, TuningBill conducts due diligence checks on all Users and will request information from you so that it can perform various checks on Users, their beneficial owners and Representatives including, but not limited to:
b)identity verification checks; and
c)anti-money laundering checks and searches.
2.8TuningBill reserves the right to conduct checks detailed in clause 2.7 at any time while you remain a User, and may request further information from you during the term of this Agreement in order to do so.
2.9When your application has been approved by TuningBill you will be issued with User Account details that will allow you to access the Platform and use the Services.
2.10You must keep your User Account details safe and not disclose them to third parties.
2.11If you think your User Account details have, or may have been, compromised you must inform TuningBill immediately.
3.1Our Platform is provided solely as an online venue for Invoice Buyers and Invoice Sellers to buy and sell Invoices. We are not a party to any Invoice Sales or other relationships between Invoice Buyers and Invoice Sellers. You hereby acknowledge and agree that Invoice Buyers are not making purchases from us, and we do not make purchases from Invoice Sellers. By agreeing to an Invoice Sale through the Platform Invoice Sellers and Invoice Buyers enter to an agreement with each other on the terms set out in this Agreement.
3.2Invoice Sellers will pay Invoice Buyers the Invoice Seller Fee, and Invoice Buyers will pay TuningBill the Invoice Buyer Fee.
3.3Sellers are granted access to the Platform solely for the purpose of being able to upload Invoices that Invoices Payers will then need to review and approve before the Invoice can be Listed.
4.Duration of this Agreement
4.1There is no fixed term to this Agreement and it will remain effective until terminated in accordance with the provisions of clause 26.Page 7
5.How we may use your personal information
5.1We will use any personal information you provide to us to:
a)provide the Services;
b)perform any of our rights or obligations under this Agreement; and
c)process payments in relation to the Services;
6.1All parties to this Agreement undertake not to at any time during this Agreement, and for a period of five years after termination of the Agreement, disclose to any person any Confidential Information concerning another party’s business, affairs, customers, clients or suppliers, except as permitted by clause 6.
6.2Parties may disclose Confidential Information:
a)to such of their respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising rights or carrying out obligations under this Agreement. All parties will ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 6; and
b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3Each of us may only use the other’s Confidential Information for the purpose of fulfilling our respective obligations under this Agreement.
7.1All payments made on our Platform are made through the payment service provided by PayrNet.
7.2By entering into this Agreement you agree to enter into an agreement with PayrNet for the provision of payment services to you on the terms set out in Schedule 4. You will be required to read and accept the terms and conditions before making or receiving any payments on the Platform.
7.3In order to open a PayrNet Wallet you must:
a)be a User;
b)have passed due diligence checks carried out by us and PayrNet, and you hereby agree to us passing on your information to PayrNet for this purpose; andPage 8
c) [detail procedure to follow].
7.4PayrNet will then issue you with a Wallet which you must use in order to make and receive payments on the Platform.
7.5You also agree, and hereby provide a mandate, that TuningBill will granted full access to your Wallet in order to carry out payments required to give effect to this Agreement, i.e. for the purchase of Invoices and for repayment by Invoice Payers. TuningBill will only have authority to make transactions that are required under this Agreement and made through the Platform.
7.6By using the payment service provided by PayrNet you acknowledge and agree to us sharing your personal information and/or information about your transactions on the Platform with PayrNet.
7.7If we receive notice from PayrNet that your use of the Platform or the payment service is in breach of their terms or any agreement between you and them we may take actions including, but not limited to, those necessary to rectify your breach, removing your ability to use the payment service to make or accept payments on the Platform, and/or the suspension or termination of your User Account.
7.8PayrNet reserves the right to refuse the use of the payment service to anyone, for any reason and at any time.
8.1Each Invoice sold on the platform must be backed by a Personal Guarantee.
8.2The Personal Guarantee must be provided by either a director or partner of the Invoice Payer or, if the Invoice Payer is a sole trader, the Invoice Payer itself.
8.3In order to execute the Personal Guarantee the Invoice Payer agrees that it will procure that the person providing the Personal Guarantee provides a power of attorney to TuningBill, as detailed in clause 9.1, so that TuningBill can execute the Personal Guarantee on their behalf upon completion of an Invoice Sale.
8.4Invoice Buyers must also agree to grant TuningBill a power of attorney, as detailed in clause 9.2, so that TuningBill can execute a Personal Guarantee on their behalf on completion of an Invoice Sale.
9.Powers of Attorney
9.1All Invoice Payers must ensure that they procure that a director or partner or, if the Invoice Payer is a sole trader, the Invoice Payer itself provides a power of attorney in the form set out in Schedule 2 so that TuningBill can execute a Personal Guarantee in respect of each agreed Invoice Sale.
9.2All Invoice Buyers agree to provide a power of attorney to TuningBill, in the form set out in Schedule 3 to this Agreement, so that TuningBill can execute a Personal Guarantee on their behalf on completion of an Invoice Sale.Page 9
10.Buying and Selling Invoices on the Platform
10.1The Platform only allows Invoice Payers to sell Invoices and their Related Rights, including the benefit of the Invoice Payer’s obligation to pay such Invoices.
10.2In order to sell Invoices on the Platform, Invoice Sellers must List Invoices on the Platform by carrying out the following actions:
a)The Invoice Seller (who is also the Invoice Payer) must complete and submit the Invoice Sale Application Form on the Platform, following the instructions contained therein. When completing the Invoice Sale Application Form, Invoice Sellers must provide the following information:
i)the Invoice Funding Amount and the Funding Currency of the Invoice;
ii)the Invoice Maturity Date;
iii)the date of bill of lading relating to the Invoice;
iv)if applicable, the expected date of arrival of goods arrival at the port of entry;
b)By submitting the Invoice Sale Application form the Invoice Seller agrees, following completion of an Invoice Sale, to:
i)repay the Invoice Funding Amount to the Invoice Buyer on the Invoice Maturity Date; and
ii)pay, to the Invoice Buyer, the Invoice Seller Fee detailed on the Invoice Sale Application Form to the Invoice Buyer on the Invoice Maturity Date:
A)the Platform will state the interest rate which will determine the Invoice Seller Fee payable. The interest rate applicable to the Invoice Seller Fee will be based on TuningBill’s proprietary credit risk and pricing model and you will have been informed of this when you registered as a User.
c)The Invoice Seller must submit the following information along with the Invoice sale Application Form:
i)a copy of the original Invoice;
ii)The bill of lading relating to the Invoice;
iii)The shipping invoice copy relating to the Invoice;
d)The Invoice Sale Application Form must then be reviewed by TuningBill and will either be declined or approved by TuningBill;
e)TuningBill reserves the right to decline to List any Invoice on its Platform;Page 10
f)Approved Invoices will be Listed on the Platform and made available to Invoice Buyers to view and purchase.
10.3A Supplier can also upload an Invoice for sale by an Invoice Payer, but in order for the Invoice to be Listed:
a)the relevant Invoice Payer must be registered with TuningBill; and
b)the relevant Invoice Payer must review and approve the Invoice following the procedure detailed in clause 10.2 above.
10.4An Invoice Buyer can purchase any Invoice, or parts of any Invoice, Listed on the Platform by selecting them and adding them to the Invoice Buyer Form, and submitting the form. The Invoice Buyer Form will specify:
a)the amount of any Invoice Funding Amount, or Invoice Funding Amounts, that must be paid by the Invoice Buyer to the Invoice Seller, or Invoice Sellers immediately following completion of the Invoice Sale;
b)the Invoice Maturity Date when the Invoice Seller will repay you the Invoice Funding Amount and the Invoice Seller Fee;
c)the Invoice Seller Fee payable by the Invoice Seller to you; and
d)the Invoice Buyer Fee payable to TuningBill.
10.5By submitting a completed Invoice Buyer Form you agree to:
a)pay all Invoice Funding Amounts specified therein to the relevant Invoice Sellers immediately following submission of the Invoice Buyer Form;
b)pay TuningBill the Invoice Buyer Fee, or Fess, stated on the Invoice Buyer Form when the Invoice Seller has repaid you the Invoice Funding Amount and paid you the Invoice Seller Fee.
10.6Once an Invoice Buyer has bought an Invoice, or part of an Invoice, as set out in clause 10.3 (an Invoice Sale) the contract to sell the Invoice, on the terms set out in this Agreement, will come into effect and will be binding on the Invoice Seller and Invoice Buyer.
10.7Both Invoice Buyers and Invoice Sellers will be emailed confirmation of the Invoice Sale including any Fees payable.
10.8If multiple Invoice Buyers have purchased a share in one Invoice:
a)the rights and obligations of each of the Invoice Buyers under or arising out of the Invoice Sale; and
b)the Invoice Seller’s obligation to repay the Invoice Funding Amount and associated Invoice Seller Fee,Page 11
will be limited to the proportion of the Invoice that the Invoice Buyer has purchased.
10.9By completing an Invoice Sale, Invoice Sellers agree to assign to the Invoice Buyer the future right to receive payment of any Invoice they sell on the Platform.
11.1The loan is secured by the following security:
a)The items listed on the invoice being purchased, and
b)The bill of lading issued against the invoice at the time of its loading.
12.Conditions of Invoice Sale
12.1By purchasing Invoices on the Platform Invoice Buyers agree:
a)to pay the Invoice Funding Amount, specified on the Invoice Buyer Form, to the Invoice Seller immediately following the Invoice Sale;
b)to pay TuningBill the Invoice Buyer Fee once you have received:
i)repayment of the Invoice Funding Amount from the Invoice seller; and
ii)payment of the Invoice Seller Fee.
12.2By selling Invoices on the Platform, Invoice Sellers agree to:
a)repay the Invoice Funding Amount to the Invoice Buyer, plus the Invoice Seller Fee, on the Invoice Maturity Date;
b)only use the Invoice Funding Amount to pay the Seller who issued the Invoice; and
c)settle the Invoice with the Seller on or by the Invoice Maturity Date.
12.3Only Invoices meeting the following criteria can be uploaded to the Platform for sale:
a)Invoices with payment terms of between 30 to 90 days;
13.Interest and Early Repayment
13.1The Fees payable under this Agreement are specified as interest rates in the Invoice Sale Application Form and the Invoice Buyer Form and confirmed in the Invoice Confirmation sent to Invoice Sellers and Invoice Buyers.
13.2Interest payable under this Agreement shall accrue on a daily basis from the date of the Invoice Sale until the Invoice Seller repays the Invoice Funding Amount and accrued interest in full on the Invoice Maturity Date.
13.3Interest is calculated on the basis of a 360 day year.
13.4The parties may agree that the Invoice Funding Amount can be repaid early, subject to a minimum term of 30 days. If an Invoice Seller wishes to repay an Invoice Funding Amount before the Invoice Maturity Date they should:Page 12
a)ensure their Wallet has sufficient funds;
b)log on to the Platform and view their outstanding Invoices; and
c)select the Invoice they want to repay and select pay.
13.5In addition to the Interest exchange between the parties, Invoice Buyers may be awarded incentives by TuningBill for lending on the platform as per the schedule 6 in this agreement. These awards are outside the scope of the agreement between the Invoice Seller and the Invoice Buyer.
13.6TuningBill shall award equities options to the Invoice Buyers equivalent of the interest earned at the end of Year 1. The total strike value of such option award shall be no more than £100k, and each share be valued at no less than the value at the time of the latest equities raise by TuningBill Limited.
13.7TuningBill shall underwrite the loss of the first £100k through its equities capital after all means to recover the repayment from the Invoice Seller has been exhausted. This underwriting applies to all the debt investments on the Platform.
14.Payments, Repayments and Enforcement
14.1All payments are processed using the payment service provided by PayrNet.
14.2In order to purchase an Invoice or a part of Invoice from your Wallet you must ensure you have sufficient funds in your Wallet to cover the cost of any payments you wish to make.
14.3When you buy or sell an Invoice on the Platform you will be provided with the payment details of the other party to the Invoice Sale.
14.4You must ensure all payments, and repayments, required under this Agreement are made from your Wallet within the required timeframes.
14.5In order to pay the Invoice Funding Amount to the Invoice Seller, the Invoice Buyer must complete the Invoice Buyer Form as detailed in clause 10.4 and select the “pay” button to make the payment.
14.6The Invoice Seller must repay the Invoice Funding Amount, and pay the Invoice Seller Fee, to the Invoice Buyer on the Invoice Maturity Date by:
a)accessing their User Account on the Platform;
b)selecting the Invoice Funding Amount, and associated Invoice Seller Fee, they wish to repay; and
c)pressing on pay to initiate the payment to the Invoice Buyer.Page 13
14.7If the Invoice Seller fails to repay the Invoice Funding Amount or the Invoice Seller to the Invoice Buyer on, or before, the Invoice Maturity Date TuningBill may take any and all actions it considers necessary to enforce payment of the amounts owed including but not limited to:
a)notifying the Invoice Seller that the Invoice Seller Fee and Loan Advance are overdue and requesting that payment be made to the Invoice Buyer immediately;
b)terminating your Agreement with us, though you would still be liable to us for all amounts owed;
c)using debt collection agencies to pursue the debt;
d)taking legal action to pursue the debt;
e)enforcing the Personal Guarantee provided in accordance with clauses 8 and 9;
f)charging you for the cost of taking any of the steps detailed in this clause 14.7; and
g)and any other steps TuningBill deems appropriate to obtain payment of the Invoice Buyer Fee.
15.1It is your responsibility to ensure that:
a)you co-operate with us in all matters relating to the Services;
b)you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
c)you comply with all applicable laws.
15.2If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 16.1 (Your Default):
a)we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 26 (Termination);
b)we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
c)it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
15.3You may only use our Website, and the Platform, a manner that is lawful and that complies with the provisions of this clause 16. Specifically:Page 14
a)you must ensure that you comply fully with any and all local, national, or international laws, and/or regulations;
b)you must not use our Website in any way, or for any purpose, that is unlawful or fraudulent;
c)you must not use our Website to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind; and
d)you must not use our Website in any way, or for any purpose, that is intended to harm any person or persons in any way.
15.4When using our Website, you must not communicate or otherwise do anything that:
a)is sexually explicit;
b)is obscene, deliberately offensive, hateful, or otherwise inflammatory;
d)promotes or assists in any form of unlawful activity;
e)discriminates against, or is in any way defamatory of, any person, group, or class of persons; race; gender; religion; nationality; disability; sexual orientation; or age;
f)is intended or otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
g)is calculated or is otherwise likely to deceive;
h)is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy or otherwise uses their personal data in a way that you do not have a right to;
i)misleadingly impersonates any person or otherwise misrepresents your identity or affiliation in a way that is calculated to deceive (obvious parodies are not included within this definition provided that they do not fall within any of the other provisions of this sub-Clause 16.2);
j)implies any form of affiliation with us where none exists;
k)infringes, or assists in the infringement of, the Intellectual Property Rights of any other party; or
l)is in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.Page 15
15.5We reserve the right to suspend or terminate your access to our Website if you materially breach the provisions of this clause 16 or any of the other provisions of this Agreement. Further actions We may take include, but are not limited to:
a)removing your User Account from our Website;
b)issuing you with a written warning;
c)legal proceedings against you for reimbursement of any and all relevant costs resulting from your breach on an indemnity basis;
d)further legal action against you as appropriate;
e)disclosing such information to law enforcement authorities as required or as we deem reasonably necessary; and/or
f)any other actions which we deem reasonably necessary, appropriate, and lawful.
15.6We hereby exclude any and all liability arising out of any actions that we may take in response to breaches of this Agreement.
16.Invoice Seller Warranties and Undertakings
16.1By completing an Invoice Sale Application Form, and each time you use the Platform, you, the Invoice Seller, represent and warrant, or will be treated as having represented and warranted, to us that:
a)you have told us about every material fact which you know, or ought to know, that might influence us or a potential Invoice Buyer in deciding whether to offer to purchase the Invoice;
b)all information supplied by you via the Platform are accurate and complete, and that you have authority to provide the information to us for analysis and disclosure to Invoice Buyers.
16.2You undertake to us:
a)you will not, enter into any Business Finance which does or might affect an Invoice Sale;
b)you will immediately notify us in writing of:
i)the existence and give full particulars of each Business Finance agreement which you have entered or intend to enter to, including any invoice finance facility and any secured or unsecured loan facilities;
ii)any legal disputes in which you are involved; at the time you become a User, and for the duration of this Agreement, immediately as such facilities, disputes and liabilities arise or are proposed.Page 16
16.3Each time you upload an Invoice onto the Platform, you represent and warrant to us and to each Invoice Buyer that:
a)all the details you have provided about you are complete and accurate in all material respects;
b)all the details you have provided about the Invoice, including in relation to the Seller, are complete and accurate in all material respects;
c)since such details were provided to us, or on the Platform, no Termination Event has occurred.
16.4Each time the Invoice Seller uploads an Invoice to the Platform for sale, you the Invoice Seller represent and warrant to us and any potential or actual Invoice Buyer that, in relation to the Invoice:
a)all the details given in the Listing are complete and accurate in all material respects;
b)you are not aware of any existing or potential Invoice Default with respect to the Invoice you are uploading for sale;
c)the Sales and Purchase Contract relating to the Invoice you upload for sale:
i)is valid, binding and enforceable on the parties to it;
ii)contains no prohibition preventing you uploading and selling the Invoice on the Platform;
iii)requires payment of the Invoice to be made on or before the Invoice Due Date;
iv)does not provide for cash on delivery, or sale or return;
v)is made in the ordinary course of your business;
vi)does not contain any prohibition preventing the Invoice, and your rights and obligations under it, from being assigned to a third party;
vii)permits you to assign the Invoice, and your rights and obligations under it, to a third party;
d)you have performed all obligations in relation to the Invoice and associated Sale and Purchase Contract;
e)the Invoice has not previously been sold or offered for sale to us or any person;
f)the Invoice Funding Amount is the amount you want to be funded to pay the Supplier in respect of the Invoice, and you have fully disclosed in the Invoice Sale Application Form;
g)you or the Seller has not, and will not assert any, right of set-off, deduction, abatement, defence or counterclaim in respect of the Invoice;
h)you, the Invoice Payer, are creditworthy and is not insolvent;Page 17
i)the Invoice does not relate to (a) the sale of your capital assets, or (b) any loan, hire purchase, leasing or consumer credit sale agreement you have entered into;
j)there is no Security, trusts, tracing or other third-party claims, and you have not entered into any factoring, securitisation program or other similar arrangement, which may adversely affect enforcement of the Invoice.
16.5As Invoice Seller, you undertake to us that, at any time after you have uploaded an Invoice to the Platform or in respect of any Invoice Funding Amount you are required to repay under this Agreement, you will:
a)tell us immediately if you become aware of any of the following:
i)any dispute that arises between you and the Seller in respect of the Invoice or the related Sale and Purchase Contract;
ii)if you purchase goods and/or services from or owe money to the Invoice Buyer, or there are any contracts or other arrangements between you and the Invoice Buyer, which might be set-off against any Invoice Funding Amount;
iii)any Termination Event occurs;
b)immediately notify us the moment you have reasonable grounds to believe that any Invoice you have sold on the Platform may have, or may be about to have an Invoice Default;
c)not (without our express written consent from us) vary any payment terms or settlement discount in respect of any Invoice Sale nor waive, vary, rescind or terminate any Sale and Purchase Contract. nor raise any credit note, nor instruct the Invoice Buyer to make payment in respect of any Invoice Sale to any account other than your PayrNet Wallet;
d)promptly perform any continuing obligations under any Sale and Purchase Contract and try to resolve promptly any Invoice Buyer disputes and claims;
e)promptly tell us of any other matters (such as issue of credit notes or allowance of early payment or purchase discounts) which may cause the Invoice Funding Amount to be reduced or extinguished.
16.6The representations, warranties and undertakings contained in clause 15.7(a) will be repeated daily from the date you upload an Invoice on the Platform until you have repaid the Invoice Funding Amount.
17.Invoice Buyer Warranties and Undertakings
17.1As an Invoice Buyer, by applying to become a User you hereby represent and warrant to us:
a)that you are either:Page 18
i)A high net worth investor; or
ii)Otherwise certified sophisticated investor;
b)there are no agreements or arrangements affecting you which prevent you from purchasing Invoices on the Platform;
c)your decision to purchase an Invoice on the Platform will be based solely on your own assessment of the material facts and risks of any particular Invoice, and you will not rely upon any representations, whether express or implied, made by us;
d)you have the legal power and authority to purchase and to pay for the Invoices in accordance with your Invoice Buyer Order Form and this Agreement; and each time you make an offer you will be treated as having repeated the same representations and warranties set out in this clause 18.1 above to us and to the Invoice Seller who uploaded the Invoice to the Platform;
e)you are not subject to any laws or regulations, whether in England and Wales or elsewhere, that prohibit you from entering into this Agreement and/or purchasing Invoices.
17.2You undertake to use any information, including any Confidential Information, obtained by you from the Platform and your use of the Services, only for the purpose of purchasing, or considering to purchase, Invoices through the Platform subject to the terms of this Agreement.
18.1We grant you a non-exclusive, non-transferable and revocable license to access and use the Platform and the information provided on the Platform, including information about us and other Users that you may be given access to, solely for the purposes contemplated by this Agreement (the Licence).
18.2You will at all times recognise and respect our Intellectual Property Rights in relation to the Platform and the Licence and you may not copy or otherwise deal with the same without our written consent and you must safeguard and keep them confidential.
18.3You agree that we will create Profiles, perform analysis of all activity undertaken by you and other Users and retain records of all such activity including Invoice Sales and related payments. You agree that such information will be our sole and exclusive property.
18.4You agree that we may immediately at any time, without reason or notice to you, suspend your access to the Platform, thereby preventing you from taking part in any Invoice Sales (without releasing any of your obligations and liabilities to us or other Users).
18.5You agree that:Page 19
a)you will keep confidential all User Account information provided by us and ensure that only your authorised employees or agents have access to the Platform;
b)you are solely responsible for all activity carried out on the Platform through your User Account, whether or not such access is authorised by you provided you could or should have reasonably prevented such access:
c)we have the absolute right not to act on your or any User’s instructions if we consider there is a risk that by taking or refraining to take action may violate any law, regulation or other requirement of any governmental or other authority.
18.6If you are an Invoice Seller, we may immediately at any time without notice to you, impose or vary conditions relating to your use of the Platform, including:
a)setting a limit on the value or volume of Invoices you may upload to the Platform for sale; and
b)prohibiting you from uploading any category of Invoices, or any specific Invoices.
19.Use of our website and Platform.
19.1By using our Website and Platform you agree to comply with and be bound by our Website Privacy Conditions available on our Website and included in Schedule 5 to this Agreement.
19.2We may amend our Website Terms and Conditions from time to time. Every time you wish to use our site, please check these terms to ensure you understand the terms that apply at that time.
19.3We may update and change our Website from time to time to reflect changes to our products, our users’ needs and our business priorities . We will try to give you reasonable notice of any major changes.
19.4We do not guarantee that our Website, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our Website for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
20.Security on our Web-Platform
20.1Once registered, you will be provided with User Account details that will allow you to access and use the Platform. You must keep these details safe treat such information as confidential. You must not disclose it to any third party.Page 20
20.2We have the right to disable any User Account, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of the Website Terms and Conditions included in Schedule 5 to this Agreement.
20.3If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify Customer Services].
20.4TuningBill will not be held responsible for any loss incurred, including indirect or inconsequential loss, for your or your employees failure to take reasonable precautions to protect your secure login details, including but not limited to, you password, username, or identification code.
21Links to Other Sites
21.1Links to other sites may be included on our Website and Platform. Unless expressly stated, these sites are not under our control. We neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on our Website or Platform is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
22.Force Majeure Event
22.1No party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
23.Complaints and Dispute Resolution
23.1If you wish to make a complaint about the Services and/or the Platform please contact Customer Services who will attempt to resolve your complaint.
23.2If Customer Services is unable to help you may wish to follow the dispute resolution process detailed in clause 25 of this Agreement.
24.1If any dispute arises in connection with this Agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 Business Days of notice of the dispute, the mediator will be nominated by CEDR.Page 21
25.Intellectual property rights
25.1With the exception of User Content, all Content included on the Platform and our Website and the Intellectual Property Rights in that Content, unless specifically labelled otherwise, belongs to or has been licensed by us. All Content, including User Content, is protected by applicable United Kingdom and international intellectual property laws and treaties.
25.2You must, at all times, respect the Intellectual Property Rights of other Users. Under no circumstances may you use intellectual property belonging to another party without that party’s express permission.
25.3Subject to clause 26.4, you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content (including User Content) from our Website unless given express written permission to do so by us or the relevant User.
a)access, view, and use our Website in any web browser (including, but not limited to, in-app web browsers);
b)download our Website (or any part of it) for caching;
c)print pages from our Website;
d)download extracts from pages on our Website; and
e)save pages from our Website for later and/or offline viewing.
26.Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
26.1You agree that you are responsible for, and accept, all risks associated with your use of the Platform including, but not limited to:
a)a breach of any warranty or obligation of another User under this Agreement;
b)the identity, liquidity, credit rating and integrity of other Users;
c)whether or not the information provided by other Users is complete, accurate, genuine and not misleading including information about:
i)the financial status of Users;
ii)the company status of Users;
iii)any other information about the business of other Users;
iv)any Invoices uploaded to the Platform;Page 22
v)any Sale and Purchase Contracts uploaded to the Platform; and
vi)any other information that you may rely on to make decision with respect to your use of the Platform and the Services.
26.2TuningBill makes no representation or warranty as to:
a)the information provided on the Platform which is provided on an “as is” basis;
b)verification of information provided by other Users, including Invoice Sellers in respect of information provided about Invoices;
c)whether or not the Platform will be available, functional, reliable, accurate and without interruption, errors, viruses, malware or other defects.
26.3If you are an Invoice Buyer you agree that we do not provide advice in respect of any Invoice Sale and that by entering into an Invoice Sale you assume all risks associated with it including the risk that the Invoice Seller may not repay the Invoice Funding Amount.
26.4Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
a)death or personal injury caused by negligence;
b)fraud or fraudulent misrepresentation; and
26.5Subject to clause 27.4, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
a)loss of profits;
b)loss of sales or business;
c)loss of agreements or contracts;
d)loss of anticipated savings;
e)loss of use or corruption of software, data or information;
f)loss of or damage to goodwill;
g)any indirect or consequential loss;
h)loss arising as a result of a Force Majeure Event;
i)any error, fraud or misrepresentation made by another User;Page 23
j)any unauthorised access to the Platform directly , or indirectly, attributable to the act or omission of a User or person other than us;
k)any misuse by any User of information provided on the Platform; and
l)any breach by a User of the confidentiality provisions of clause 6 of this Agreement.
26.6Subject to clause 27.4, our total liability to you arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total Fees you have paid to us within the 12 months prior to such claim being made.
26.7Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
26.8Nothing in these Terms limits or affects the exclusions and limitations set out in our https://www.tuningbill.com/terms.
26.9TuningBill does not take any liability for part-payment, non-payment or delayed payment of the Invoices by the Invoice Payers to the Invoice Buyers.
26.10TuningBill does not promise any specific return on investment.
26.11This clause 27 will survive termination of the Contract.
27.1Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Agreement with immediate effect by giving written notice to you if any of the following events, each a Termination Event, occur:
a)you commit a material breach of any term of this Agreement and (if such a breach is remediable) fail to remedy that breach within 28 days of you being notified in writing to do so;
b)you fail to pay any amount due under the Agreement on, or before, the due date for payment;
c)you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;Page 24
d)you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
e)your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under this Agreement has been placed in jeopardy;
f)you are determined by us to have (or to have attempted to) hack into or otherwise interfere with or compromise our Platform or Website;
g)any representation, warranty or statement made, repeated or deemed made by you in, or pursuant to, this Agreement is (or proves to have been) incomplete, untrue, incorrect or misleading in any material respect when made, repeated or deemed made;
h)we have reason to believe you have committed or attempted to commit any act of fraud on or through the Platform;
i)any provision of this Agreement is or becomes, for any reason, invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have full force and effect; or
27.2At any time after a Termination Event has occurred (whether we have chosen to exercise our right to terminate this Agreement or not), we may do all or any of the following:
a)suspend your rights to participate in the Platform and/or cancel any of your Listings without releasing any of your obligations or liabilities to us or other Users;
b)require you to repurchase any or all Invoices that you have sold on the Platform;
c)refuse requests for withdrawals from, or apply a hold to, your Wallet and retain any balance on your Wallet pending payment of any amount owed by you to us or any other User.
27.3As Invoice Seller, you agree that after a Termination Event occurs you will at your own expense, provide all assistance requested by us to enable us to collect any money owing in relation to an Invoice Sale:
a)except as otherwise provided, termination of your Agreement with us will not affect our respective rights or obligations in respect of:
i)any of your outstanding Invoice Sales;
ii)all transactions or events having their inception prior to the termination, including the continued running of all Fees, charges and expenses payable by you and our rights to set-off monies or combine accounts; and
iii)any Confidential Information.Page 25
27.4Users may terminate this Agreement by giving not less than 1 month’s written notice to TuningBill.
27.5TuningBill may terminate this Agreement by giving Users not less than 1 month’s written notice.
27.6Termination of the Agreement will not affect your or our rights and remedies that have accrued as at termination.
27.7You will remain responsible for any liabilities and services you contract or incur prior to the termination of this Agreement by.
27.8Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
28.Indemnity and Set-Off
28.1You will indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with:
a)any breach of your obligations under this agreement or preserving or enforcing our rights, or the rights of other Users, under this agreement;
b)exercising any of our rights or dealing with disputes relating to an Invoice Sale;
c)the occurrence of a Termination Event;
d)obtaining or enforcing a release of an Invoice Sale and Related Rights or waiver of rights, from any person with Security over the Invoice and/or Related Rights:
e)your fraud or wilful misconduct;
f)your misuse of any technology in relation to the Platform and the Services;
g)your misuse of any Intellectual Property Rights licensed to you under this Agreement;
h)the transmission by you to us or our receipt of incorrect, incomplete or inaccurate information however caused;
i)accepting and/or acting upon any electronic message or other communication, information or instructions purporting to come from you even if that information or those instructions subsequently prove to have been incorrect or unauthorised by you (except to the extent that we have been grossly negligent and/or fraudulent);
j)any claim by an Invoice Buyer, Invoice Seller or an Invoice Payer against us.Page 26
28.2We may (but are not obliged to) at any time, and without notice to you:
a)set-off against our liability to you any liability you owe to under this Agreement;
b)set-off any liability you owe to us against any proceeds received in relation to an Invoice Sale;
c)set-off any liability you owe to us against any payments you are owed by other Users.
29.1You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
30.Communications between us
30.1When we refer to “in writing” in this Agreement, this includes email.
30.2Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
30.3A notice or other communication is deemed to have been received:
a)if delivered personally, on signature of a delivery receipt;
b)if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
c)if sent by email, at 9.00 am the next working day after transmission.
30.4In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
30.5The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.Page 27
31.1Entire agreement. This Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in this Agreement.
31.2Language. This Agreement is made only in the English language.
31.3Your copy. You should retain a copy of this Agreement for your records.
31.4Assignment and transfer.
a)We may assign or transfer our rights and obligations under this Agreement to another entity but will always notify you in advance either by posting on the Platform or by email.
b)You may only assign or transfer your rights or your obligations under this Agreement if we agree in writing.
31.5Variation. We may vary this Agreement by giving you 15 days’ notice by email or by uploading the updated agreement to the Platform. If you do not wish to agree to the changes you have the right to immediately terminate the Agreement by giving us notice in writing. You will be deemed to have accepted the Changes either:
a)15 days after you have been sent notification of the changes; or
b)when you use the Platform to:
i)upload an Invoice for sale;
ii)sell an Invoice; or
iii)buy an Invoice.
31.6Notices. Any notice given to a User under or in connection with this Agreement must be in writing and delivered by post or email to you to the current address held in our records or by us posting a message to you on the Platform. Any notice you give to us must also be made in writing and sent to us by email to Customer Services. You may specify additional or different address information by sending the details in writing (including email) to us. Notices posted to the Platform will be deemed to have been received upon posting. Notices sent by email will be deemed to have been received one hour after sending. Notices sent by first class post, or another next day delivery service, will be deemed delivered on the second Business Day after posting.Page 28
31.7Waiver. If we do not insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
31.8Conflict. If there is any conflict between this Agreement and the Website User Terms and Conditions, this Agreement will prevail.
31.9Severance. Each paragraph of this Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
31.10Third party rights. The Agreement is between you and us. No other person has any rights to enforce any of its terms.
31.11Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Schedule 1 – Personal Guarantee
Schedule 2 – Invoice Payer Power of Attorney
Schedule 3 –Invoice Buyer Power of Attorney
Schedule 4 – PayrNet Terms & Conditions
Schedule 5 – Website Privacy and Terms of servicePage 29
Thank you for your interest in TuningBill. We will review your query soon and get back to you in a follow-up email.