Hardware as a Service

 

The purpose of these terms and conditions is to set out the agreement upon which AAG shall introduce business to CF Corporate Finance Ltd and the terms on which AAG agree to sell the goods to CF Corporate Finance Ltd for the purposes of our hiring such goods to an end customer.

In consideration of CF Corporate Finance Ltd agreeing to purchase goods from time to time and agreeing to pay a management fee to AAG upon the terms set out in these conditions, it is hereby agreed as follows:

1.                  Definitions and Interpretation

1.1              The following words and expressions shall have the following meanings:

"ABC Law"  means any and all legislation and/or guidance relating to the prevention of acts of bribery and/or corruption, including but not limited to the Bribery Act 2010

"AML Law" means any and all legislation and/or guidance relating to the identification and/or prevention of money laundering, terrorist and other criminal activities, including but not limited to the POCA, the TA, the Money Laundering Regulations 2007 and all guidance issued by the Joint Money Laundering Steering Group

"Agreement" means an agreement between the Buyer and a Customer for the hire of Goods and/ or the licence of Software

"Approval Notice" means a notice (in a form agreed by the Buyer from time to time) issued by the Buyer to the Seller confirming the Buyer’s acceptance of the Proposal

"Business Day" means a day on which banks in London are open for business excluding Saturdays, Sundays and bank holidays)

"Buyer" means CF Corporate Finance Limited, Raynham Road Bishop’s, Stortford Herts CM23 5TT

"Buyer’s DPA Policy" means the policy attached at Appendix 1, as may be amended by the Buyer from time to time

"Buyer’s E-Signature" means the policy attached at Appendix 2, as may be amended by the

 "Policy" Buyer from time to time

"CCA" means the Consumer Credit Act 1974 as amended from time to time and any regulations made pursuant thereto

"CCA Law" means any and all legislation and/or guidance relating to the provision of finance to consumers, including but not                     limited to the CCA, the Consumer Credit Act 2006, the FSMA, all regulations made in connection with those Acts, and all applicable Rules and Guidance issued by the FCA from time to time

"Customer" means the hirer under an Agreement

"Default Rate" means the rate of 4% per annum above Barclays Bank plc. base rate from time to time

"DPA" means the Data Protection Act 1998 as amended from time to time and any regulations made pursuant thereto

"DPA Law" means any and all legislation and/or guidance relating to the protection of personal data and/or privacy, including but not limited to the DPA and all guidance from the Information Commissioner’s Office

"ESignature Platform" means the system that allows the creation and E-Signature completion & execution of Finance Documents

"Finance Document" Any paperwork generated in the execution of an already submitted Proposal and subsequent acceptance

"FCA" means the Financial Conduct Authority

"FSMA" means the Financial Services and Markets Act 2000 as amended from time to time and any regulations made pursuant thereto

"Goods means any Goods sold by the Seller to the Buyer for the purpose of an Agreement, including, where appropriate, any Software

"Group Company" means the Buyer, any Subsidiary or Holding Company from time to time of the Buyer, and any Subsidiary from time to time of the Holding Company of the Buyer

"Holding Company" means any company or corporation from time to time of which the Buyer is a Subsidiary

"Lincensor"  means the author and/or owner of proprietary rights in the Software

"Minimum Period"   means the minimum period of rental set out in the relevant Agreement

"POCA" means the Proceeds of Crime Act 2002 as amended from time to time and any regulations made pursuant thereto

"Proposal" means a proposal for finance completed on behalf of a prospective Customer

"Regulated Activity" means any activity carried on by the Seller in respect of which regulatory permission from the FCA is required,  including but not limited to credit-related regulated activities

"Residual Value" means the sum estimated by the Buyer at inception of the relevant Agreement as being the value of the Goods at expiry of the Minimum Period based upon the Return Conditions being met by the Customer

"Return Conditions" means the return conditions relating to the Goods on determination for whatever reason, of the relevant Agreement as agreed and documented by the Buyer and the Customer

"Seller" means AAG IT Services Ltd (AAG), 3 Hazel Court, Midland Way, Chesterfield, S43 4FD

"Software" means written programmes pertaining to the operation of a computer system licensed by the Seller to the Buyer with permission to sub-licence to the Customer

"Subsidary" means a subsidiary within the meaning of section 1159 of the Companies Act 2006

TA                                means the Terrorism Act 2006 as amended from time to time and any regulations made pursuant thereto

1.2              References to a clause or appendix are (unless otherwise stated) references to a clause or appendix to these terms and conditions.

1.3              Words and phrases in the singular shall include the plural and vice versa.

 

2.                  Introduction of Customers

2.1           The Seller will introduce Customers by sending to the Buyer completed Proposal forms on behalf of prospective Customers.

2.2           Each Proposal must include the following information:

(a)           details of the prospective Customer;

(b)           details of the Goods, including whether the Goods are new or otherwise;

(c)           the purchase price of the Goods; and

(d)           any other information requested by the Buyer from time to time.

2.3          The Buyer shall consider such Proposals and will advise the Seller of whether or not they are acceptable to the Buyer, or if there are any conditions which must be satisfied in order for the Proposal to be acceptable. The Buyer will indicate its decision upon such Proposals by issuing an Approval Notice, which may specify any conditions which the Buyer requires to be satisfied prior to its acceptance of the Agreement.

2.4          The Buyer will have absolute discretion to reject any Proposal without giving reasons.

 

3.                  Acceptance

3.1          If the Buyer issues an Approval Notice in respect of a Proposal, the Seller shall liaise directly with the Customer in arranging the completion of the Agreement (which will be written on one of the Buyer’s standard forms of agreement or such other form of agreement as may be approved in writing by the Buyer from time to time), and the signature thereof for and on behalf of the Customer. The Seller shall not be authorised to sign any Agreement on behalf of the Buyer.

3.2          Agreements shall contain the whole of the terms agreed between the Buyer and the Customer, and the Seller shall not agree any variations, amendments or additions to the terms of the Agreement without the prior written consent of the Buyer.

3.3         Within 90 days of the date of the Approval Notice, the Seller shall submit to the Buyer the following documents, in a form satisfactory to the Buyer:

(a)          an invoice valid for VAT purposes showing details of the Goods and the purchase price;

(b)          a certificate of acceptance or approved delivery note signed by an authorised signatory from the Customer in respect of the Goods and, if applicable, the Software;

(c)          duly executed copies of any guarantees, indemnities or other security required by the Buyer in relation to the Customer’s obligations under the Agreement;

(d)          a direct debit mandate in respect of the payments due under the Agreement, fully and correctly completed and signed by an authorised signatory of the Customer;

(e)           for items of Goods which are covered by guidelines issued by the Finance & Leasing Association which require a proposal confirmation form to be completed by the Customer, the original of this form; and

(f)            such other documents as the Buyer may reasonably require.

3.4           Provided that the Buyer receives the documentation referred to in clause 3.3 in the time period specified, and subject to clauses 3.5 and 3.6 below, the Buyer will then sign the Agreement and return a copy of the completed Agreement to the Customer, and will make payment of the purchase price of the Goods to the Seller in accordance with clause 4.

3.5           In the event that the Buyer becomes aware of any information which materially alters the transaction the subject of the Agreement and/or which the Buyer reasonably considers would, if it had been known at the time, have resulted in the Buyer not giving the Approval Notice and/or giving it on substantially different terms, and until such time as the Buyer has made payment of the Seller’s invoice in respect of the Goods, the Buyer may in its absolute discretion withdraw an Approval Notice.

3.6           In the event that, prior to such time as the Buyer has made payment of the Seller’s invoice, the Seller becomes aware of any event which would, or which the Seller ought to believe would, entitle the Buyer to terminate the Agreement, or any hiring or licensing thereunder, the Seller shall immediately notify the Buyer in writing of such event or events, and in circumstances where the Goods and/or Software have yet to be delivered to the Customer the Goods and/or Software shall not be delivered and the Buyer shall cease to be liable to purchase the Goods and/or Software.

 

4.                  Purchase of Goods

4.1           On each occasion upon which the Buyer enters into an Agreement pursuant to clause 3, it agrees to purchase from the Seller and the Seller agrees to sell to the Buyer the Goods and/or license the Software the subject of that Agreement at a price to be agreed, but on the condition that the Buyer shall not be bound to purchase any Goods or Software until it has itself executed the proposed Agreement.

4.2           Once the conditions of clause 3.3 are satisfied, and subject to clauses 3.5 and 3.6, the Buyer will pay the purchase price in respect of the Goods and/or the Software. Title to such Goods with full title guarantee shall pass to the Buyer together with licence to use and permission to sub-license any Software upon payment of the purchase price.

4.3           The Seller will, to the extent that it is able, pass on to the Buyer the benefit of any guarantees or warranties in respect of the Goods and/or Software given to it by manufacturers, Licensors or distributors.

4.4           Risk in the Goods and/or Software shall pass from the Seller directly to the Customer upon the Buyer delivering a copy of the executed Agreement to the Customer but until that time shall remain with the Seller.

 

5.                  Warranties

5.1            The Seller represents and warrants (such representations and warranties to be deemed repeated each time it submits a Proposal to the Buyer, each time it forwards an Agreement to the Buyer for acceptance and each time the Buyer pays the purchase price in respect of any Goods) that it is a limited company duly incorporated and validly existing under the laws of England and Wales and these terms and conditions and any contract created by the acceptance of a Proposal constitute the valid and legally binding obligations of the Seller enforceable in accordance with the relevant terms.

5.2            In respect of each Proposal submitted to the Buyer, the Seller represents and warrants to the Buyer on submitting such Proposal to the Buyer that:

(a)              the Proposal and the information provided in relation to it are, to the best of the Seller’s knowledge and belief, accurate, complete and not misleading and that the Seller has provided the Buyer with such information in relation to the Proposal as the Buyer has indicated that it requires for consideration of such Proposals; and

(b)              the Proposal does not include capitalised maintenance.

5.3              In respect of each Agreement forwarded to the Buyer by the Seller for acceptance, the Seller represents and warrants to the Buyer (and so that the benefit of the warranties given, where appropriate, shall with the written consent of the Buyer be enforceable by the Customer) on submitting that Agreement to the Buyer (such representations and warranties to be deemed repeated each time the Buyer pays the purchase price in respect of any Goods) that:

(a)    the Seller has not at any time represented to the Customer or the Supplier that the Seller is the agent of the Buyer and/or that the Buyer is the agent of the Seller (save that the Buyer will be the Seller’s agent (and not the Customer’s agent) in relation only to the collection of maintenance payments (if any) from the Customer on behalf of the Seller)

(b)    the Seller shall have complied with any conditions of acceptance of the relevant Proposal advised by the Buyer to the Seller in writing;

(c)    the Agreement delivered to the Buyer contains all the terms and conditions (written or otherwise) with respect to the hiring and/or supply and/or licensing of the Goods and/or Software to the Customer and all the information set out in the Agreement is correct in every respect and no variation to the terms of the Agreement have been entered into with the Customer by the Seller, whether orally or in writing and whether by way of an amendment to the Agreement or as a separate agreement;

(d)    the Seller owns the Goods free of encumbrances, and is entitled to and can (without the consent of any third party) sell with full title guarantee and free from all encumbrances the Goods, and has and will pass to the Buyer full legal and beneficial ownership in and good and marketable title thereto free and clear of all liens, charges and encumbrances;

(e)    the Seller has the right to license any Software to the Buyer with permission to sub-license the same to the Customer or to license the same directly to the Customer and it will indemnify the Buyer against any claims or losses arising out of the use or misuse of such Software by the Seller;

(f)     the purchase price paid by the Buyer to the Seller accords with the open market value of such Goods and/ or Software net of any discounts that would be payable in an arm’s length transaction between informed and willing parties, other than in a forced or liquidated sale;

(g)    the Goods and/or Software have been delivered and properly installed and commissioned to the satisfaction of the Customer In the event that the Goods are not delivered, the buyer shall request in writing the immediate repayment of the Original invoice (referred to in clause 3.3(a). Upon such payment and receipt by the Buyer of cleared funds, title to the relevant Goods shall pass from the Buyer to the Seller. Any such transfer shall be on an “as is where is“ basis and also on the basis that the Buyer excludes all representations warranties and conditions in respect of such Goods whether written or oral, express or implied to the full extent permitted by law save that the Buyer have such title to them as the Buyer received from the Seller.

(h)    the Goods and/or Software in all respects fully comply with all warranties, conditions, statements or representations whether statutory, express or implied as to satisfactory quality, fitness for purpose, description or as to any other matter whether in the contract of sale between the Seller and the Buyer or in the Agreement between the Buyer and the Customer, and shall be durable having a useful life, in accordance with any recommendations of the manufacturer, not less than the minimum or fixed term of the Agreement;

(i)     the Goods are new or refurbished and have not previously been in the possession of the Customer save as is expressly declared in writing in advance by the Seller to the Buyer;

(j)     the Seller has made all relevant investigations or searches and is satisfied that the Agreement has  been signed by a duly authorised signatory for or on behalf of the Customer;

(k)    the Agreement was correctly completed in full before its signature by or on behalf of the Customer and such documentation contains full and accurate details of the Customer and the Goods and/or Software;

(l)     notwithstanding any investigation or searches made by or on behalf of the Buyer, the Customer has the power to enter into and perform, and has taken or obtained all necessary action or approval to authorise the entry into performance and delivery of the relevant Agreement;

(m)    that any Agreement for which the Goods and/or Software are supplied is binding upon, and enforceable against, the Customer, and that it complies in all respects with all relevant statutory and other requirements;

(n)    any Software shall be reliable and robust for any purpose which such Software is customarily used and for any purpose for which it is advertised or represented as being fit and each master Software disc shall be free from faults, defects, bugs and inadequacies;

(o)    the Customer has not received, nor been offered, any marketing support, subsidies, gifts, promises or other inducements which have, or which the Seller ought to know would have, induced or otherwise influenced the Customer to enter into the Agreement;

(p)    so far as the Seller is aware there are no matters relating to the Customer including the insolvency or inability of the Customer to pay the rentals under the relevant Agreement which are known to the Seller, or which ought to have been known to the Seller (the Seller having made proper investigation into the financial status and solvency of the Customer), and are material to the decision of the Buyer whether or not to accept the proposed Agreement and which have not been disclosed to the Buyer in writing;

(q)    there are no agreements or arrangements between the Seller and the Customer other than for service of the Goods or support of the Software under such agreement at a commercial rate, and there are no other agreements or arrangements between the Seller and the Customer which may affect the Customer’s obligations under the Agreement;

(r)    the Supplier has in respect of the transaction complied strictly at all times with both DPA Law and the terms of the DPA Policy; in particular, that the Supplier has ensured that all relevant individuals have as required been provided with CF Corporate’s current Fair Processing Notice and, save where that Fair Processing Notice was provided to those individuals prior to first submission of the Proposal, with the Generic Fair Processing Notice and (when appropriate) the additional specific information required to complete Data Controller disclosure.

(s)    where relevant, the Supplier has complied with the Buyer’s E-Signature Policy;

(t)     no misrepresentations have been made to the Customer by the Seller and/or any third party regarding the terms and/or nature of the transaction, the Goods and/or its use, or any peripheral matters which the Customer would regard as being linked to the transaction.

 

6.                  Management Provisions

The Seller will:

i)              not, without the prior consent of the Buyer vary or waive the terms of, or agree to accept termination of, an Agreement, or terminate any Customer’s right to possession of Goods or use of Software;

ii)             immediately upon the Seller becoming aware, notify the Buyer of any dispute that has arisen in relation to the terms of an Agreement or the condition of the Goods or the performance of the Software;

iii)            at the request of, and in consultation with, the Buyer, join in any action brought by the Buyer against a Customer and in any defence against proceedings brought against the Buyer in relation to an Agreement or its subject matter;

iv)            in the event that the Seller has any obligations under the Agreement, whether in terms of maintenance or otherwise, perform such obligations promptly and diligently; the Seller shall not do anything or refrain from doing anything which may prejudice the Buyer’s interests in the Goods or the Agreement, and shall generally behave in such a manner as will ensure that the Customer will not seek to exercise any right of set off against the payments due under the Agreement; and

v)             ensure that any additional terms contained in correspondence or communication between the Seller and the Customer are not binding on the Buyer and any such terms do not conflict with or compromise any terms of the Agreement;

vi)            upon being notified by the Buyer or Customer of any fault, defect or bug in, or inadequacy of, any Software, immediately rectify or replace, free of charge, each master Software disc with one incorporating any necessary corrections, or shall otherwise take such action as may be necessary to rectify such matters; and

vii)           inform the Buyer in every case where it has collected deposits or other prepayments from the Customer and warrants that such deposits or prepayments have been collected in full before submission by the Seller of the proposed Agreement to the Buyer and the collected deposits or prepayments will be held in trust by the Seller for the sole benefit of the Buyer until paid to the Buyer in relation to any accepted Agreement.

Unless otherwise agreed, the Seller will not receive any management fee in return for carrying out these duties.

 

7.                  Duration and Termination

7.1              Either the Seller or the Buyer shall be entitled to terminate the arrangements set out in these terms and conditions by one month’s prior written notice to the other (in which case the clauses set out in these terms and conditions shall continue to apply to all Agreements entered into by the Buyer before the expiry of such notice).

7.2              The Buyer shall be entitled to terminate immediately the arrangements set out in these terms and conditions if any of the following events shall occur:

(a)           if the Seller shall commit or allow to be committed a material breach of any of the terms and conditions and, if remediable, shall fail to remedy such breach within thirty days after receipt of written notice from the Buyer specifying such breach and requiring such breach to be remedied; or

(b)           any liquidator, receiver or administrator is appointed over all or any assets of the Seller or any steps are taken to appoint the same, or the Seller is deemed under Section 123 of the Insolvency Act 1986 to be unable to pay its debts, or should otherwise cease to trade, or the Seller makes any arrangement with its creditors or becomes insolvent.

 

8.                  Indemnity

8.1              The Seller hereby indemnifies and agrees to keep the Buyer fully indemnified on demand against all losses (including loss of profits), damages, costs, claims, expenses and demands (including legal fees on a full indemnity basis) which the Buyer may suffer or incur directly or indirectly as a result of :

(a)           any breach by the Seller of any of these terms and conditions; and/or

(b)           any of the warranties, conditions, statements or representations given or implied hereunder being breached or not fulfilled; and/or

(c)           any of the provisions of any Agreement becoming void, voidable, invalid or unenforceable as a result of any act or omission by the Seller; and/or

(d)           any claim or demand arising from any misrepresentation or other statement made by the Seller or any of its servants or its own agents to any Customer in respect of any Agreement, Goods or Software; and/or

(e)           any claim made by a Customer or any third party in relation to any losses, damages, liabilities, actions, claims, proceedings, costs, expenses and demands whatsoever suffered, sustained or incurred as a result of any defect or failure in the construction, state, condition, performance or operation of such Goods.

8.2              All amounts due to the Buyer by the Seller under this agreement shall bear interest on that sum at the Default Rate from the due date to the date of actual payment to accrue both before and after any judgment.

8.3              Provisions of this clause 10 shall remain in full force and effect notwithstanding termination of the agreement for any reason.

 

9.                  Agency

9.1              The Seller has no authority to act as the agent of the Buyer or to bind or commit the Buyer to any obligation, financial or otherwise, to a Customer or any other third party except in accordance with the terms of the signed Agreement.

9.2              The Seller will not purport to act as agent of the Buyer in negotiations with a prospective Customer prior to entry into an Agreement.

9.3              Neither party to the agreement shall be construed as a partner, joint venture, agent or representative of the other party.

9.4              Any acts undertaken by the Seller which are not expressly authorised under the agencies created by the signed agreement are undertaken by the Seller acting as principal in the Seller’s own right and not as the Buyer’s agent.

 

10.              Compliance with legislation

10.1          The submission by the Seller to the Buyer of a Proposal shall be deemed to constitute, on each such occasion, undertakings and warranties by the Seller that:

i)                     where the proposed Agreement would be regulated by the CCA and it is not expressed on its face to be a cancellable agreement (within the meaning of the CCA) the proposed Agreement was not signed in circumstances which would make it a cancellable agreement;

ii)                    the Seller has all authorisations and/or shall make all appropriate registrations as may be required by legislation and/or an appropriate regulatory body including, but not limited to, the holding of all relevant permissions from the FCA to conduct any Regulated Activities carried on by the Seller and/or registrations for the purposes of DPA Law and/or AML Law;

iii)                   the Seller has observed and complied, and shall observe and comply, with all legal requirements and/or Codes of Practice (whether already in force or subsequently introduced) which relate to the grant and/or introduction of finance to Customers, included but not limited to ABC Law, AML Law,CCA Law, and DPA Law;

iv)                  the Customer was, at the times required by the CCA, given such copies of the Agreement as are required by the CCA together with any pre-contract information so required, and the Seller has complied with all other requirements of the CCA (whether the responsibility of the creditor, owner or a credit intermediary) relating to the negotiation, content and signing of the Agreement, and the provision of any information which is required to be given to the Customer; and

v)                   it has complied with the Buyer’s DPA Policy and any requirements of the DPA.

10.2          The Seller will, as and when requested to do so by Buyer, provide the Buyer with such evidence of the Seller’s compliance with clauses 12.1 as the Buyer may reasonably require in order to satisfy its own obligations in respect of ABC Law and/or AML Law and/or CCA Law and/or DPA Law, including but not limited to the provision of:

10.2.1     written confirmation of compliance with any aspect of clause 12.1 and/or provision of such copy documentation as the Buyer may require; and/or

10.2.2     access for the Buyer’s staff and/or agents on reasonable notice to verify such compliance in the part of the Seller by way of inspecting documentation and/or obtaining verbal confirmation of policy, procedure and practice from the Seller or any member of the Seller’s staff.

10.3          Whenever the Seller submits a Proposal to the Buyer, it will be deemed to have given the Buyer:

10.3.1     a general warranty that it has at all times complied fully with this clause 12; and

10.3.2     a specific warranty in respect of the given Proposal in the terms of such of the warranties set out in clause 5 as relate to compliance issues, including but not limited to ABC Law and/or AML Law and/or CCA Law and/ or DPA Law.

In addition, the general warranty set out above will be deemed to be repeated if and when the Buyer enters into any Agreement

 

11.              Confidentiality

Neither the Seller, nor the Buyer, shall disclose to a third party the arrangements set out in the agreement or terms and conditions, except insofar as such disclosure is:

i)                     made by the Buyer to a Customer or is reasonably necessary in order to preserve or protect the rights of the Buyer under an Agreement;

ii)                    made to the disclosing party’s professional advisers;

iii)                   of information which is in the public domain and has not come into the public domain by reason of any previous breach of this condition

iv)                  otherwise required by law.

 

12.              Power of Audit

The Buyer shall be entitled to carry out a full operational and financial audit of the Seller and any surety of the Seller’s obligations under these terms and conditions on not less than 2 Business Days’ written notice including but without limitation ascertaining that the purchase price paid by the Buyer accords with the open market value of such Goods net of any discounts.

The Seller undertakes to comply with the Buyer’s reasonable requirements in relation to such audit, including but not limited to providing the Buyer with any documents or records it may request in relation to the same and providing access to the Seller’s premises or such other suitable location during the hours of 8:30am – 6:30pm on a Business Day for the purpose of inspecting relevant documents or records.

13.              General

13.1          These terms and conditions constitutes the entire agreement between the parties hereto in relation to the arrangements set out herein and supersedes all previous agreements and understandings and it shall not be varied in its terms by any oral agreement or representation or otherwise than in writing.

13.2          The Seller may not assign the benefit of these terms and conditions without permission from the Buyer. The Buyer may assign the benefit(s) of these terms and conditions.

13.3          The terms and conditions are considered to include all transactions entered into between the parties prior to as well as on or after the date of the agreement.

13.4          If any provision of these terms and conditions is held by any Court or other competent authority to be void or unenforceable in whole or in part of the terms and conditions shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.

13.5          The Seller accepts that the Buyer may in its absolute discretion vary the terms of the agreement by giving not less than 30 days written notice to the Seller, any change will not (unless otherwise agreed between the Seller and the Buyer) be retrospective on live agreements.

13.6          The Seller hereby acknowledges and agrees that a Group Company shall have the right at any time to set off any sum (whether liquidated or not) owed by the Seller to any Group Company against any sum owed by any Group Company to the Seller.

13.7          If any provision of these terms and conditions is or becomes illegal, void or invalid, that shall not affect the legality and validity of the other provisions.

13.8          A notice required to be given by these terms and conditions may be given by hand or sent by first class prepaid post, facsimile transmission or e-mail to the other party at the address stated in the Definitions and Interpretation or to such other address as may be notified by either party in writing from time to time. Any notice served by post shall be deemed to have been served on the second day after the envelope containing the same was posted and any notice served by facsimile transmission or email shall be deemed served when transmitted.

13.9          These terms and conditions (and any non-contractual obligations arising out of or in connection with it) will be governed by and construed in accordance with English Law and all disputes arising out of or in connection with these terms and conditions (including a dispute relating to any non-contractual obligations arising out of or in connection with this agreement or a dispute regarding the existence, the validity or termination of these terms and conditions) will be determined exclusively by the English courts.

13.10      The Seller must indicate its acceptance of the terms and conditions by signing and returning to the Buyer a completed Service Agreement form.

 

Buyers DPA Policy - Appendix 1

1. We, CF Corporate Finance Limited, on behalf of ourselves and all associated companies within the Investec Group (collectively referred to as Group Companies), wish to ensure that we conform at all times with both the terms and conditions and the spirit of DPA Law, including but not limited to the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) and the Data Protection Act 1998 (and any replacement for that Act). Furthermore, we expect all of our suppliers to do the same.

2. In particular, we wish to ensure that we do not process “personal data” (as defined in DPA Law) without the relevant individual being provided at the appropriate time with all required information. In the context of a finance proposal, this information will include in particular:

•            Our identity as a Data Controller of the individual’s personal data;

•            Details of the personal data we will obtain;

•            Details of the processing we will undertake in respect of that data; and

•            Our grounds for carrying out that processing.

3. As an CF Corporate supplier, it is AAG’s responsibility to ensure that we comply fully with DPA Law in respect of the personal data which will obtained in the course of its day to day business. AAG will also require that you comply with the terms of this DPA Policy in order to ensure that there is not in breach of DPA Law when CF Corporate consider any finance proposal that AAG submit to us. Failure to comply strictly with the terms of this DPA Policy will be a breach of the supplier agreement.

4. We recognise that when you first discuss a potential finance application with one of your customers, it may not be possible for you to know the identity of the finance company or companies to which you will in due course submit a finance proposal; also, that it would be commercially difficult for you to provide any relevant individuals with a separate tailored Fair Processing Notice (“FPN”) for each finance company to which a proposal may be submitted.

5. In the circumstances, our requirement is that before you submit any proposal to ourselves, you must take steps to provide all individuals whose personal data we will need to receive and/or obtain and/or process in connection with that proposal with a copy of either our own current CF Corporate FPN or the Generic FPN, copies of which are set out at the end of this DPA Policy. You are required to identify those individuals for yourself, using our standard underwriting criteria as communicated to you from time to time.

6. In addition, if you choose to use the Generic FPN, we require that no later than the occurrence of the earliest of the following events, you immediately provide each relevant individual with the additional information required to complete Data Controller disclosure:

•            Receipt from ourselves of confirmation that the proposal has been either approved or declined; or

•            The expiry of 28 days from the date on which the proposal was submitted to us.

7.                    Confirmation that the terms of this DPA Policy have been strictly complied with must be recorded by you in respect of every finance application submitted to CFCF, with such records being retained for a minimum of 7 years.

8. Lastly, for the avoidance of doubt, we confirm that even if the circumstances of a given transaction make it difficult for you to directly inform any relevant individual as required by this policy (for example, where finance is being arranged by one director/partner and you need to inform his/her co-directors/partners), you must nevertheless still take such steps as are necessary to identify and to ensure that all relevant individuals receive the requisite Notices.

9. CF Corporate FPN

CF Corporate Finance Limited (“we”, “us”, “our”) are being asked to consider providing your business with finance. This process will involve the processing of your personal data. This Data Protection Notice is intended to give you information on how this personal data (i.e., information which directly or indirectly identifies you) will be processed by us.

For the purposes of EU data protection laws, we are a data controller.

Data That May Be Collected. We may collect certain personal data with respect to you, including, without limitation, your name, address, date of birth, contact details, credit reference data, financial and employment details, banking and credit card details, director or shareholder roles, income and details of your business. We may collect some of this data from third parties, for example credit reference agencies.

Where your business is a corporate entity we may collect personal data about the directors and shareholders of the business from credit reference agencies where this data is held publicly, such as at Companies House.

Use of Personal Data. We will use your personal data for: provision of products and services, credit and AML risk assessment, profiling for marketing purposes, market research and product development, statistical analysis, marketing, fraud prevention and detection and otherwise as necessary to comply with applicable laws, regulations and/or codes of practice. The processing of personal data may be necessary for the performance of a contractual relationship, compliance with a legal obligation, or where it is in the legitimate interests of the Investec Group

Disclosure to Certain Third Parties. We may disclose certain personal data: (i) within the Asset Finance Group of Investec and to other affiliates in the Investec Group; (ii) to our brokers and dealers / suppliers, professional advisors and service providers (including, information technology systems providers); (iii) to courts, governmental and non-governmental regulators and ombudsmen; (iv) to fraud prevention agencies and law enforcement agencies; (v) to any third party that acquires, or is interested in acquiring, all or part of Investec’s assets or shares, or that succeeds Investec in carrying on all or a part of its business, whether by merger, acquisition, reorganisation or otherwise; and (vi) as otherwise required or permitted by law.

We may share the personal data we collect with fraud prevention agencies who will use it to prevent fraud and money-laundering and to verify your identity. If fraud is detected you could be refused certain services, finance or employment. Further details of how your information will be used by us and these fraud prevention agencies, and your data protection rights can be found on the Investec website at www.investec.com/en_gb/ legal/UK/fraud-prevention-notice.html

In addition, in order to process your business’ application for finance, your personal data will be shared with credit reference agencies (CRAs). We will send information about your applications to CRAs and they will record this, even if your business’ application does not proceed or is unsuccessful. This will include information from your credit application and about your financial situation and financial history. CRAs can give us both public information (e.g. electoral register) and shared credit, financial situation and financial history information and fraud prevention information

We may use the data received to:

•            Assess your creditworthiness:

•            Verify the accuracy of the data you have provided:

•            Prevent criminal activity, fraud and money laundering:

•            Manage your account(s);

•            Trace and recover debts; and

•            Ensure any offers provided to you are appropriate to your circumstances.

We may continue to exchange information about you with CRAs while you have a relationship with us, and may also inform the CRAs about your settled accounts. If you borrow and do not repay in full and on time, CRAs will record the outstanding debt. This information may be supplied to other organisations by CRAs. When CRAs receive a search from the Company they will place a search footprint on your credit file that may be seen by other lenders.

If you are making a joint application, or tell us that you have a spouse or financial associate, we may link your records together, so you should make sure you discuss this with them, and share with them this information, before lodging the application. CRAs will also link your records together and these links will remain on your and their files until such time as you or your partner successfully files for a disassociation with the CRAs to break that link.

The identities of the CRAs, their role also as fraud prevention agencies, the data they hold, the ways in which they use and share personal information, data retention periods and your data protection rights with the CRAs are explained in more detail at each of the three CRAs websites – using any of these three addresses will take you to the same CRAIN document:

•            Callcredit www.callcredit.co.uk/crain;

•            Equifax www.equifax.co.uk/crain;

•            Experian www.experian.co.uk/crain

Transfer of Personal Data Outside the European Economic Area (“EEA”). We may transfer your personal data to recipients (including affiliates) located in countries outside of the EEA, including in South Africa, which may not have data privacy laws equivalent to those in the EEA. In such a case, we will take all necessary steps to ensure the safety of your personal data in accordance with applicable data protection laws.

Your rights. Under applicable EU data privacy laws, you may have a right to: (i) request access to and rectification or erasure of your personal data; (ii) obtain restriction of processing or to object to processing of your personal data; and (iii) data portability (i.e. to request the transfer of personal data from one data controller to another in certain circumstances). If you wish to exercise any of these rights you should contact the Data Privacy Officer as described below. You also have the right to lodge a complaint about the processing of your personal data with your local data protection authority.

We may rely on automated credit assessment based on the personal data you provide to us and data which we obtain from a credit reference agency or similar sources about your credit profile or history. The outcome of this process can result in an automated decline of your application where it does not meet our acceptance criteria. We review this acceptance criteria regularly to ensure fairness in the decisions made, and you have a right to ask us to manually review any decision taken in this manner.

Security. We take steps to protect your personal data against loss or theft, as well as from unauthorised access, disclosure, copying, use or modification, regardless of the format in which it is held.

Retention. We will normally retain your personal data for a period of 7 years from the date of the latest transaction with you. Under certain circumstances this period may vary if we consider it necessary for good operational or commercial reasons, or in order to meet other legal obligations.

Enquiries, Requests or Concerns. All enquiries, requests or concerns regarding this Notice or relating to the processing of Personal Data, should be sent to our Data Privacy Officer using the following contact details AFGDataprivacy@investec.co.uk

10.                 CF Corporate Data Controller Notice

An application for finance has been submitted by [supplier details], which requires the processing of your personal data by the prospective funder. [Supplier name] will have already provided you with a generic Fair Processing Notice, setting out details of the personal data which any such funder would require to obtain from you and from third parties in order to deal with this finance application, the processing it would carry out in respect of that data (including the subsequent retention of that data), and the basis for that processing.

This notice is to confirm that the application for finance has been submitted to CF Corporate Finance Limited (“CFCF”). Further details of how CFCF will manage and use your data can be found at www.investec.com/ en_gb/legal/UK/data-protection-notice/cf-corporate-finance.html where you can also find details of the credit reference and fraud prevention agencies that CFCF use, and information about your data protection rights. CFCF is a member of the Investec Group of Companies, and may pass your data on to other companies within that group, some of which are located in countries outside the EEA (including in South Africa).

All enquiries, requests or concerns you may have regarding this notice, the earlier generic notice you were given, or relating to the processing of your personal data, should be sent to the Investec Data Privacy Officer using the following contact details AFGDataprivacy@investec.co.uk

11.                 Generic FPN

We have been asked to assist your business in obtaining finance. This process will involve the processing of your personal data This Data Protection Notice is intended to give you information on how this personal data (i.e., information which directly or indirectly identifies you) will be processed by any company to which we submit a finance application on behalf of your business. We have not yet identified the finance company or companies to which such an application should be submitted. You will be given details in due course of their identity, but for present purposes we will refer to any such company in this notice as “the Company”

For the purposes of EU data protection laws, the Company will be a data controller.

Data That May Be Collected. The Company may collect certain personal data with respect to you , including, without limitation, your name, address, date of birth, contact details, credit reference data, financial and employment details, banking and credit card details, director or shareholder roles, income and details of your business. The Company may collect some of this data from third parties, for example credit reference agencies.

Where your business is a corporate entity the Company may collect personal data about the directors and shareholders of the business from credit reference agencies where this data is held publicly, such as at Companies House.

Use of Personal Data. The Company will use your personal data for: provision of products and services, credit and AML risk assessment, profiling for marketing purposes, market research and product development, statistical analysis, marketing, fraud prevention and detection and otherwise as necessary to comply with applicable laws, regulations and/or codes of practice. The processing of personal data may be necessary for the performance of a contractual relationship, compliance with a legal obligation, or where it is in the legitimate interests of the Company or a member of any group of companies to which the Company belongs.

Disclosure to Certain Third Parties. The Company may disclose certain personal data: (i) within any group of companies to which the Company belongs; (ii) to the Company’s suppliers and dealers / suppliers, professional advisors and service providers (including, information technology systems providers); (iii) to courts, governmental and non-governmental regulators and ombudsmen; (iv) to fraud prevention agencies and law enforcement agencies; (v) to any third party that acquires, or is interested in acquiring, all or part of the Company’s assets or shares, or that succeeds the Company in carrying on all or a part of its business, whether by merger, acquisition, reorganisation or otherwise; and (vi) as otherwise required or permitted by law.

In particular, the Company may share the personal data it collects with fraud prevention agencies who will use it to prevent fraud and money-laundering and to verify your identity. If fraud is detected you could be refused certain services, finance or employment. Further details of how your information will be used by us and these fraud prevention agencies, and your data protection rights can be found at [supplier to insert] or by contacting the Data Privacy Officer(s) whose details will be given to you at the same time as you are informed about the identity of the Company.

In addition, in order to process your application for finance, your personal data will be shared with credit reference agencies (CRAs). The Company will send information about your applications to CRAs and they will record this, even if your business’ application does not proceed or is unsuccessful. This will include information from your credit application and about your financial situation and financial history. CRAs can give the Company both public information (e.g. electoral register) and shared credit, financial situation and financial history information and fraud prevention information

The Company may use the data received to:

•            Assess your creditworthiness:

•            Verify the accuracy of the data you have provided:

•            Prevent criminal activity, fraud and money laundering:

•            Manage your account(s);

•            Trace and recover debts; and

•            Ensure any offers provided to you are appropriate to your circumstances.

The Company may continue to exchange information about you with CRAs while you have a relationship with them, and may also inform the CRAs about your settled accounts. If you borrow and do not repay in full and on time, CRAs will record the outstanding debt. This information may be supplied to other organisations by CRAs. When CRAs receive a search from the Company they will place a search footprint on your credit file that may be seen by other lenders.

If you are making a joint application, or tell the Company that you have a spouse or financial associate, the Company may link your records together, so you should make sure you discuss this with them, and share with them this information, before lodging the application. CRAs will also link your records together and these links will remain on your and their files until such time as you or your partner successfully files for a disassociation with the CRAs to break that link.

The identities of the CRAs, their role also as fraud prevention agencies, the data they hold, the ways in which they use and share personal information, data retention periods and your data protection rights with the CRAs are explained in more detail at each of the three CRAs websites – using any of these three addresses will take you to the same CRAIN document:

•            Callcredit www.callcredit.co.uk/crain;

•            Equifax www.equifax.co.uk/crain;

•            Experian www.experian.co.uk/crain

Transfer of Personal Data Outside the European Economic Area (“EEA”). The Company may transfer your personal data to recipients (including affiliates) located in countries outside of the EEA, which may not have data privacy laws equivalent to those in the EEA. In such a case, the Company is under a duty to take all necessary steps to ensure the safety of your personal data in accordance with applicable data protection laws.

Your rights. Under applicable EU data privacy laws, you may have a right to: (i) request access to and rectification or erasure of your personal data; (ii) obtain restriction of processing or to object to processing of your personal data; and (iii) data portability (i.e. to request the transfer of personal data from one data controller to another in certain circumstances). If you wish to exercise any of these rights you should contact the Data Privacy Officer(s) whose details will be given to you at the same time as you are informed about the identity of the Company. You also have the right to lodge a complaint about the processing of your personal data with your local data protection authority.

The Company may rely on automated credit assessment based on the personal data which we provide to it and data which it obtain from a credit reference agency or similar sources about your credit profile or history. The outcome of this process can result in an automated decline of your application where it does not meet the Company’s acceptance criteria. The Company has a duty to review these acceptance criteria regularly to ensure fairness in the decisions made, and you have a right to ask it to manually review any decision taken in this manner.

Security. The Company is under a duty to take steps to protect your personal data against loss or theft, as well as from unauthorised access, disclosure, copying, use or modification, regardless of the format in which it is held.

Retention. When you are informed of the identity of the Company, you will also be informed of the policy it adopts regarding the retention of your personal data.

Enquiries, Requests or Concerns. All enquiries, requests or concerns regarding this Notice or relating to the             processing of Personal Data, should be sent to our Data Privacy Officer using the following contact details [supplier to insert] or to the Data Privacy Officer(s) whose details will be given to you at the same time as you are informed about the identity of the Company.

 

Buyer’s E-Signature Policy - Appendix 2

1.             E- Signature Policy

a)          The deal limit for E-Signature is £100k per deal.

b)          The Seller will provide a bonafide email address for each person who is required to sign the Finance Documents.

c)          Furthermore, the email address must relate to the contact name (i.e. Joe.bloggs@ or jbloggs@) at their business email address. Email addresses such as @gmail, @hotmail etc. are not allowed.

d)          The Seller will also provide a Direct Dial telephone number (mobiles are allowed) for each person who is required to sign the Finance Documents, this is so the customer can authenticate themselves using the telephone authorisation part of the E-Signature Platform.

e)          E-Signatures will only be applicable for Existing Customers of the reseller NOT for new customers,

the Seller shall be required to provide this information at the time of the proposal first being given to the Buyer.

•            The definition of a new customer is:

A Customer which has no prior existing trading relationship with the Seller prior to the E-Sign request save if the Seller has physically visited the customer.

2.             Process for E-signature

•            Any Finance Documents must be completed through the Reseller Management Interface (RMI)

•            Once the documents have been generated through the RMI the Seller shall have an option to E-Sign the document. When that option has been selected a new screen shall appear which will allow for the information required in point 2 above to be completed.

3.             Points to Note

•                  Once the E-sign is in progress then any chasing of the E-Sign will be between the Seller and their customer, the Buyer is offering the Seller use of its technology to facilitate E-Signature. The Seller should check to see if their customer has completed the E-sign.

•                  If and only if there is a technical problem with the E-Sign, then the Buyer will inform the Seller and the parties will agree how best to resolve the issue