Borrower Terms and Conditions
1.1. These Borrower Terms and Conditions describe:
- the relationship between a Borrower and Funding Circle;
- who can be a Borrower on the Funding Circle Platform;
- how a Borrower can borrow from Investors; and
- the Intermediary Services that we provide on the Funding Circle Platform.
1.2. These Borrower Terms and Conditions should be read in conjunction with other important documents and guidance. These are:
- User Guide;
- Loan Contracts; and
1.3. You should keep a copy of these Borrower Terms and Conditions safe for future reference. You can also download the latest version from the Website.
1.4. In these Borrower Terms and Conditions “we”, “us” or “our” means Funding Circle. “You”, “your”, “it” or “its” means the Borrower. Words which appear in bold are defined in the Glossary at the end of these Borrower Terms and Conditions.
1.5. Before you create a Borrower Account, you must read these Borrower Terms and Conditions.
1.6. By creating and maintaining a Borrower Account, you agree to be bound by these Borrower Terms and Conditions. You agree to access and use the Funding Circle Platform and the Website for the purposes of borrowing, or applying to borrow, from Investors as envisaged by, and in accordance with, these Borrower Terms and Conditions.
1.7. If, after reading these Borrower Terms and Conditions, you feel you are not able to comply with your obligations under them, or you do not wish be bound by them, then you should not proceed to create a Borrower Account or start a Loan Application.
1.9. We allow certain introducers to make Loan Applications on behalf of Borrowers who are clients or representatives of those introducers. If an introducer makes a Loan Application on behalf of a Borrower then: (a) the introducer should disclose this fact to us; (b) we will be entitled to assume that the Borrower has read and accepted these Borrower Terms and Conditions and the Loan Conditions, and treat the Loan Application as having been made with the Borrower’s full authority; and (c) these Borrower Terms and Conditions shall apply.
2. The Funding Circle Platform and Funding Circle’s role
The Funding Circle Platform is a direct lending platform that matches those who wish to lend money with those who wish to borrow. Our role is to:
- operate and manage the Website and the Funding Circle Platform;
- match Investors with Borrowers;
- facilitate lending transactions between Investors and Borrowers; and
- perform Intermediary Services.
3. Intermediary Services
3.1. We, or others we instruct, perform the following Intermediary Services:
- assessing the credit worthiness of Borrowers;
- preparing Loan Contracts for Investors and Borrowers;
- providing Borrowers with the necessary pre-contractual, contractual and post-contractual documentation and information;
- collecting and distributing payments due to Investors received by us from Borrowers and Guarantors (including all collections and enforcement activity);
- facilitating the transfer of Loans and Loan Parts when an Investor wishes to sell them or when seeking to enforce Investors’ rights under Loan Contracts;
- operating Funding Circle Client Bank Accounts for and on behalf of Investors;
- arranging for the principal of each Loan (minus the Loan Completion Fee) to be transferred to the Borrower at the start of the loan term of any Loan Contract;
- enforcing any other rights that we and/or Investors have under Loan Contracts;
- responding to, and seeking to resolve, all complaints or disputes concerning Loan Contracts; and
- making amendments or variations to Loan Contracts, Security Documents and Guarantees.
3.2. You authorise us to provide or arrange the provision of the Intermediary Services for you.
3.3. In connection with our Intermediary Services, we collect information from you when you apply for a Loan. We also collect information about you, your business and people connected with your business from third parties in connection with the Intermediary Services we provide and with verifying your identity. We cannot guarantee the accuracy of the information we obtain from third parties. Accordingly, we accept no responsibility or liability for the accuracy or inaccuracy of that information.
4. Our agreement with you
4.1. These Borrower Terms and Conditions set out the basis of our relationship with you as a Borrower.
4.2. We do not guarantee you will be able to borrow through the Funding Circle Platform.
4.3. The Loan Contract sets out your borrowing relationship with each Investor. A Loan Contract is between an Investor and a Borrower but we have certain rights under it to enable us to perform our role properly. If there is any conflict between these Borrower Terms and Conditions and the Loan Contract, the terms of the Loan Contract will prevail.
4.4. We are not authorised to give investment advice. No information contained on the Funding Circle Platform or on the Website constitutes investment advice or a recommendation to borrow money, and should not be treated as such.
5. Borrower Eligibility Criteria
5.1. To access and use the Funding Circle Platform for the purposes of borrowing you must create a Borrower Account and start a Loan Application. To be eligible to do so, you must satisfy the following Borrower Eligibility Criteria (unless we otherwise agree):
- you must have been actively trading as a business for at least two years and not have been dormant at any time;
- you must be conducting business for the purposes of making a profit (public bodies, charitable organisations and trusts are not eligible unless we have given our specific prior written consent);
- you must be a sole trader, a partnership, a limited liability partnership or a limited company, and registered at Companies House (if applicable);
- unless we otherwise agree, at least 50% of the individuals involved in running your business (partners, directors, limited liability partnership members) must be permanent residents of the UK (excluding the Channel Islands and Isle of Man);
- your permanent place of business and residency, or centre of main interests, must be in the UK (excluding the Channel Islands and Isle of Man);
- you must have, and maintain, a valid bank or building society account in the UK (excluding the Channel Islands and the Isle of Man);
- you must answer our reasonable requests for information from time to time; and
- you must provide us with all information and documents that we may reasonably request about you and your financial condition, business and affairs from time to time. For example, we may request information from you to allow us to fulfil our legal obligations and to ensure the proper operation of the Funding Circle Platform. You must notify us when any of the information or details you have provided to us changes.
5.2. We may change the Borrower Eligibility Criteria from time to time.
5.3. You may not be both a Borrower and an Investor unless you have obtained our specific prior written consent.
5.4. If you cease to satisfy the Borrower Eligibility Criteria we may close your Borrower Account in accordance with the process set out in clause 15 (Ceasing to be a Borrower with Funding Circle and termination).
6. Creating a Borrower Account
6.1. Before you can borrow on the Funding Circle Platform, you must start a Loan Application and create your Borrower Account.
6.2. We have absolute discretion whether to accept or reject your Loan Application and your application to create a Borrower Account, even if you satisfy the Borrower Eligibility Criteria.
6.3. You confirm and agree that, when you create a Borrower Account and for so long as you maintain a Borrower Account:
- you meet the Borrower Eligibility Criteria;
- the information you provide to us is true and accurate in all respects and is not misleading;
- you have disclosed to us all circumstances that you are aware of (including but not limited to any legal claims, undisclosed liabilities, litigation, court proceedings or investigations which are current, threatened, pending or otherwise reasonably likely to occur against you by any third party) which could materially and adversely change your financial condition, business or assets, and you must inform us if there is any change in these circumstances;
- you have not omitted to tell us any information which could reasonably be considered relevant to an application for credit;
- you will ensure that no unauthorised person can access or use your Borrower Account;
- you can enter into a legally binding agreement with us and each relevant Investor;
- you will ensure that all documents we require from you are validly executed and you will comply with all instructions in relation to the reviewing and approving of these documents;
- if you are acting on another person’s behalf, you are authorised to act on their behalf and will provide us with written evidence of your authority to act when requested;
- if you are a limited company, limited liability partnership or other legal entity, the person creating and maintaining the Borrower Account is properly authorised to represent you and enter into a legally binding agreement with us. You will ensure that only authorised persons are able to access or use your Borrower Account and you will provide us with written evidence of your authority to act if and when requested;
- you understand that by entering into a Loan Contract through the Funding Circle Platform, you are borrowing funds from Investors, and you accept that you are fully responsible to repay all funds borrowed, together with all applicable interest, fees and charges; and
- you are properly authorised to transfer money into, and out of, your Borrower Account.
6.4. If any of the statements in clause 6.3 cease to be true while you maintain a Borrower Account you must contact us as soon as possible by email (email@example.com) or telephone (020 7401 9111) to tell us.
6.5. You must update your Borrower Account when your details change, or tell us and we will update your details.
6.6. You must provide us with the sort code and account number of your Nominated Bank Account.
6.7. When you create your Borrower Account you must provide a username, a valid e-mail address, a password and certain security information. Your username and password are unique to your Borrower Account and are non-transferable without our specific prior written consent. You will need them to access certain restricted areas of the Website.
6.8. You must keep your username, password and security information secure and confidential. You are responsible for all activity on or through your Borrower Account, the Funding Circle Platform, and in connection with your Nominated Bank Account, including all activity by anyone that uses your username, password and security information, whether or not they have been authorised by you. You must provide all authorised persons with a copy of these Borrower Terms and Conditions and ensure that they comply with them when accessing and using the Funding Circle Platform and the Borrower Account.
6.9. You must not transfer your Borrower Account to another person, or permit another person to use your Borrower Account, without our specific prior written consent.
6.10. You must notify us immediately if you believe that an unauthorised person is using your Borrower Account or the security of your Borrower Account has been or might be breached.
6.11. We can assume that all correspondence, orders, transfers and instructions made by reference to your username and password are made by you.
6.12. We can decline to act on your instructions or suspend your Borrower Account if we suspect illegal or fraudulent activity or unauthorised use of your Borrower Account.
7. Borrowing and Loan Contracts
7.1. If we accept your Loan Application, it becomes a Loan Request. You must agree to and accept the Loan Conditions and the Key Contract Terms before we list your Loan Request on the Funding Circle Platform.
7.2. Investors acquire Loans and Loan Parts through the primary and secondary markets on the Funding Circle Platform. The primary market is where new Loans and Loan Parts are originated and the secondary market enables the sale and purchase of existing Loan Parts among Investors.
7.3. Once all our requirements in relation to your Loan Request have been satisfied, and all funds from Investors have been allocated to your Loan Request, your Loan Request becomes fully funded. When this occurs, the Loan completes and the funds you borrow (less any Loan Completion Fee) are transferred to you.
7.4. We may:
- withdraw Loan Requests if they are not fully funded by Investors;
- withdraw Loan Requests if we consider it necessary to do so;
- monitor and regulate the availability and functionality of the Funding Circle Platform;
- from time to time change the minimum or maximum amount that a Borrower can borrow from a single Investor or in total across the Funding Circle Platform (for more information see the User Guide and FAQs.)
7.5. Each Loan Contract is governed by the Loan Conditions (and includes the Key Contract Terms). When a Loan is successfully completed, a separate Loan Contract is automatically formed between you and each Investor that lends to you.
7.6. We can enforce certain terms under a Loan Contract and can take certain action on behalf of the relevant Investors.
7.7. We may amend the Loan Conditions and the Key Contract Terms from time to time and will notify you of these changes. These changes will have no retrospective effect and will generally take effect after you have been notified.
8. Interest and Loan Repayments
8.1. You will make payments of principal and interest under a Loan in accordance with the terms of each Loan Contract. You will also be liable to pay all other fees, costs, charges and expenses that are referred to in each Loan Contract or in these Borrower Terms and Conditions.
8.2. If you wish to repay a Loan early, you must pay the entire outstanding principal plus all unpaid Accrued Interest. You may not make an early repayment of part of a Loan. If you repay a Loan early, you must pay Accrued Interest up to the next scheduled repayment date or, if you repay a Loan early and fewer than eight days before the next scheduled repayment date, you must pay Accrued Interest up to the subsequent scheduled repayment date (and so will incur a further month’s interest).
8.3. We will collect all payments of principal and interest (which may include the Servicing Fee if applicable) due from you under the Loan Contract by direct debit from your Nominated Bank Account (or, with our prior agreement by a card payment or alternative payment method, which may incur a fee) at least five business days prior to the date specified in the Payment Schedule for onward distribution by us to relevant Investors (save for the Servicing Fee). You must ensure that there are sufficient funds in your Nominated Bank Account.
8.4. Neither we nor any Funding Circle Company guarantee any payments that are due from you to each Investor under any Loan Contract.
9. Transfer of Loans
Each Investor that is a party to a Loan Contract with you may transfer their rights and obligations under that Loan Contract to another Investor. Transfers are effected by way of a Transfer Certificate and the transfer process is detailed in clause 6 (Transfer by Investors) of the Loan Conditions. Following completion of the transfer, the new Investor will be a party to the Loan Contract with you in place of the transferring Investor. You agree to be bound by any such transfer (and you agree to release each transferring Investor and accept your obligations to each new Investor) as though you had executed the Transfer Certificate.
10.1. If Security has been created by you or a Guarantor, your and the Guarantor’s obligations to Investors under the Loan Contracts and the Guarantee will be secured by that Security, and the provisions relating to Security will apply.
10.2. The Security Holder may hold one or more different types of Security with respect to any Loan on behalf of Investors, each Funding Circle Company and other persons who may assume our Loan servicing obligations.
10.3. If a Loan is to be secured, you must validly execute a Security Document. You must also, at your expense, take all steps required by us to perfect or protect the Security created by the Security Document.
10.4. If the Security becomes enforceable, you must take all steps required to enable us, the Security Agent or the Security Holder to realise the Security.
10.5. The Security Holder is appointed to hold and enforce the Security for any Loan and the Security Agent may act on behalf of, and exercise the rights and powers of, the Security Holder under the Security Documents.
10.6. The Security Holder’s duties under the Security Documents are solely administrative in nature. The Security Holder has only those duties or obligations which are expressly set out in the Security Documents, in these Borrower Terms and Conditions and by law. Section 1 of the Trustee Act 2000 (which relates to the duty of care owed by trustees) will not apply to the Security Holder or the Security Agent. If there is any inconsistency between the provisions applicable to the Security Holder or the Security Agent by law and these Borrower Terms and Conditions, these Borrower Terms and Conditions will prevail.
10.7. The Security Holder is authorised to exercise the rights, powers, authorities and discretions specifically given to the Security Holder under or in connection with the Security Documents, together with all other incidental rights, powers, authorities and discretions.
10.8. The Security Holder will hold the benefit of any Security on behalf of itself, us, any Funding Circle Company and all of the Investors who are party to a Loan Contract with you which is expressed to have the benefit of Security.
10.9. If you fail to make any payment when due, or an Event of Default occurs, the Security Holder may take steps to enforce any such Security on behalf of Investors who have lent you money.
10.10. If you and the Guarantor provide the Security Holder with information about you, the Guarantor or the secured assets, we may provide that information to any relevant Investor, including information in relation to the estimated forced re-sale value of the secured assets on enforcement. In these circumstances, any secured asset valuation provided by us to Investors will be for indicative purposes only.
10.11. We, the Security Agent and the Security Holder may rely on any representation, notice or documents believed by us or it to be genuine, correct and appropriately authorised and any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within their knowledge or power to verify.
10.12. The Security Holder will not be required to take any action in relation to any Security unless we instruct it to do so but it may do so in the absence of any such instruction. The Security Holder will have no liability to any person for any action taken in accordance with our instruction. Absent any instruction, the Security Holder has absolute discretion to exercise the rights, power or authority it has and it will have no liability for any such action save to the extent caused by its own negligence.
10.13. If we have designated a Loan as a property finance loan that is secured by Security, you will, at your own expense, execute and do all necessary things to perfect and protect the Security before and after enforcement. Security granted in connection with property finance loans will be held by Funding Circle Property in accordance with clause 10.8 above. We, the Security Agent, and the Security Holder are entitled to be paid for costs in relation to the enforcement of property finance Security either from the realisation proceeds or from you.
10.14. If we have designated a Loan as an asset finance loan, you can use it for the purchase of business assets. You must repay the asset finance loan under the applicable conditional asset sale or lease agreement to Funding Circle Asset, which will act as asset financier for the assets. You are required to pay the asset procurement charge and finance arrangement charge to Funding Circle Asset. If you miss any payments or breach any material obligations under the asset finance loan, you are likely to lose the use of the business assets. To manage any repayments set out at clause 11 (Enforcement of Security), Funding Circle Asset will hold and manage any sums realised from the sale of the assets. Funding Circle Asset is entitled to be paid for its costs either from the asset sale proceeds or from you.
11. Enforcement of Security
11.1. Any Security granted at the time of origination of a Loan will operate to secure the obligations of the Borrower and a Guarantor under that secured Loan. Any Security granted at any time after origination may operate to secure all monies due from you and a Guarantor under all Loans made to you.
11.2. If you fail to make a payment, or any other Event of Default occurs under the Loan Contract, we may instruct the Security Holder to enforce the Security on behalf of all relevant Investors. We may instruct the Security Holder in addition to us taking steps to collect the outstanding debt.
11.3. If the Security becomes enforceable for any reason, the Security Holder will act in the interests of all relevant Investors (unless otherwise required by law).
11.4. After enforcement of the Security, any monies received or recovered by or on behalf of the Security Holder in respect of that Security will be applied in the following order of priority by the Security Holder:
- first - payment or reimbursement of all costs, expenses, losses or liabilities incurred by us, the Security Holder and the Security Agent (or any person acting on our or its behalf other than the back-up servicer) or by any receiver or administrator (as outlined in the Loan Conditions) or, if the monies recovered do not cover the Total Amount Payable and all applicable costs and fees under the Loan Conditions, then up to 40% of the monies will be applied towards this first payment or reimbursement;
- second - payment of all amounts due to Investors for application by us, the Security Holder and the Security Agent in accordance with these Borrower Terms and Conditions and the relevant Loan Conditions;
- third - payment or reimbursement of all outstanding amounts due under clause 11.4(a) which were not paid as a result of the 40% limit set out therein;
- fourth - payment of the surplus (if any) to the Borrower, the Guarantor or any other person entitled to it by law.
11.5. The Security Holder is only required to make the payments referred to in clause 11.4 (b) to us, and this payment to us will constitute a complete discharge by the Security Holder of its obligations to make payment to the relevant Investors. Following receipt of this payment, we will make distributions to Investors.
11.6. Any monies received or recovered in respect of Security will be applied in discharging the obligations of the Borrower and the Guarantor under the secured Loan expressed to have the benefit of such Security. If there is more than one such secured Loan with the benefit of such Security, such monies will be applied proportionately by reference to the principal amounts owing to the relevant Investors under the secured Loans, and once all principal amounts are repaid, if further monies are received or recovered, these will be applied proportionately by reference to the Accrued Interest owing to the relevant Investors.
11.7. Any monies received or recovered in respect of any unsecured Loans to the same Borrower will be applied on an equal basis by reference to the principal amounts owing to the relevant Investors under the unsecured Loans and once all principal amounts are repaid, if further monies are received or recovered, these will be applied proportionately by reference to the Accrued Interest owing to the relevant Investors.
11.8. The fees and charges outlined the Loan Conditions may be paid into a separate bank account in the name of Funding Circle. The monies in this bank account are for the benefit of Funding Circle and are separate to any payments made under the Loan before the occurrence of an Event of Default, and any recovery payments made following the occurrence of an Event of Default.
11.9. We or the Security Holder may, at any time and without notice, grant such consents to permit you to enter into further Loan Contracts or do such other things as we deem necessary.
11.10. Funding Circle, the Security Holder, and the Security Agent is entitled to be repaid and indemnified in respect of all costs incurred by them in connection with Security held from time to time in respect of a Borrower’s and any Guarantor’s obligations, and you and any Guarantor will repay all such costs and expenses on demand.
12. Missed payments and defaulted Loans
12.1. If you believe that you may not be able to make a repayment due under a Loan Contract, you should contact us immediately.
12.2. If you fail to make a payment due under a Loan Contract, we will take certain administrative steps to pursue the missed payments on behalf of all relevant Investors. This may include engaging with you, seeking more information from you, and attempting to recover the outstanding sums due from you. In each case we will take the recovery action that we consider to be in the best interests of the affected Investors as a whole. We may recover our reasonable costs as a priority from any amounts recovered.
12.3. If we are unable to recover amounts outstanding, we may appoint a Collections Agent who will seek to collect and recover any outstanding sums on the Investors’ behalf. A Collections Agent may charge a Collections Fee, which is payable by you, and this will be added to the overall amount that the Collections Agent is seeking to collect and recover from you. The Collections Fee will be paid in priority to any distributions to Investors.
12.4. If a payment has still not been made seven days or more after the due date, we may charge you an administration fee of up to 15% of the missed payment amount and, if we do, you will pay us such fee on demand. We may also charge you for other fees, costs or expenses which are incurred by us in the course of attempting to recover the outstanding sums due to Investors.
12.5. If you fail to make a payment due under a Loan Contract or are otherwise in breach of any term of the Loan Contract, we may demand repayment of, and engage field agents to attempt to collect, the total late amount and applicable fees. We may deduct up to 40% of the amount recovered from you to cover any costs and fees (such as field agents and legal advisers) incurred in recovering the total late amount. Any remaining proceeds will be distributed to each relevant Investor in proportion to the amount of each Investor’s Loan Part as a percentage of the Total Amount Payable.
12.6. If an Event of Default occurs, the Loan will be defaulted and may be assigned to Funding Circle Trustee or Funding Circle Property (as applicable) to hold the debt as legal owner on trust for the relevant Investors.
12.7. If an Event of Default occurs, we may demand full repayment of the Total Amount Payable and all applicable fees under the Loan Conditions from you and the Guarantor to recover the debt outstanding, and will repay to each Investor that Investor’s proportionate share of any funds successfully recovered, subject to clause 11.4, clause 11.7 and the terms of the Loan Conditions. The steps we may take include (but are not limited to) pursuing Guarantors, enforcing Security, assigning the debt to a debt purchaser, and commencing formal legal action or insolvency processes. If further action is necessary, a Collections Charge and third party legal and other costs may apply, and you will be liable to pay all such applicable costs. We will also attempt to give you 17 days’ notice before we notify credit reference agencies of your default. However, this may not always be possible and we may notify credit reference agencies on shorter notice periods.
13. Fees and charges
13.1. We will charge you a Loan Completion Fee when a Loan completes. We will deduct the Loan Completion Fee from the amount of the Loan to be transferred to you.
13.2. If an application for a Loan has been made by an introducer, a different Loan Completion Fee may be charged. In this case, and on your request, an introducer should disclose its share of the Loan Completion Fee to you.
13.3. We may charge you a Servicing Fee which is included in the interest rate charged on each Loan. If applicable, it will be included in the Fixed Interest Rate stated in the Key Contract Terms and will be deducted by us from monthly payments made by you under the Loan Contract and retained by us in accordance with the Loan Conditions.
13.4. The Servicing Fee is charged to cover our role in undertaking the following Loan servicing activities:
- arranging for the principal of the Loan (minus the Loan Completion Fee) to be transferred to a Borrower at the start of the term of any Loan;
- collecting and distributing payments from Borrowers and any applicable Guarantors that we have received which are due to Investors (including all collections and enforcement activity);
- operating the Funding Circle Client Bank Accounts; and
- facilitating transfers of Loans or Loan Parts.
13.5. If a back-up servicer is appointed in accordance with clause 20 (Back-up Servicer), it would continue to collect the Servicing Fee. It may also charge an additional Special Situation Fee that will be calculated as a percentage of the outstanding Loan principal and will be included in the interest rate of the Loan. The Special Situation Fee (if applicable) will be deducted by the back-up servicer from monthly payments made by you under the Loan Contract and retained by it for its own account. If applicable, the relevant fees collected by the back-up servicer will not exceed 2% of the principal of each Loan Part or Loan outstanding.
13.6. We, or the relevant Collection Agent, may charge you a Collections Charge if you fail to pay any amount due under any Loan Contract as outlined in the Loan Conditions. If a payment plan is agreed with you, we will ensure that we allocate only up to a maximum of 20% of each recoveries payment received towards the Collections Charge. For more information on the Collections Charge, see: https://fundingcircle.zendesk.com/entries/80041273-Are-there-any-additional-costs-that-could-apply-to-my-loan.
13.7. A Collections Fee may become payable under the Loan Conditions if a Collections Agent is appointed to collect and recover sums due from you.
13.8. If we incur any fees or charges, such as disputed transaction fees, bank fees or payment processing charges in our provision of Intermediary Services to you or otherwise, we will make you aware of these and you will reimburse us for all such costs we incur. To facilitate the reimbursement, you authorise us to access and withdraw funds from your Borrower Account, or collect the fee or charges from any payments due to you. We also reserve the right to request payment directly from you in relation to such incurred fees or charges.
13.9. We reserve the right to change or waive any applicable fees from time to time.
14.1. We may make changes to these Borrower Terms and Conditions from time to time without your consent for any of the following reasons:
- to make these Borrower Terms and Conditions clearer or easier to understand;
- to make changes which benefit you or do not disadvantage you;
- to make changes to the products or services we offer or provide to you, to introduce new products or services or to withdraw products or services we no longer offer;
- to change our existing products or services because of changes to technology, systems, processes or our business policies or procedures; or
- to reflect changes in law, regulation, industry guidance or a decision of a court or by a regulator or ombudsman.
14.2. We will always try to give you at least one month’s notice of an amendment to these Borrower Terms and Conditions by notifying you of the proposed change through the Website or sending an email to your registered email address. However, this may not always be possible and we may make changes on shorter notice periods.
14.3. If you do not agree with any changes that we make to these Borrower Terms and Conditions, you may repay all outstanding Loans in full. If you do so, you must pay us all other amounts due under these Borrower Terms and Conditions and your Loan Contracts and, once you have done so, we will terminate your Borrower Account.
14.4. By continuing to access and use the Funding Circle Platform after any changes to these Borrower Terms and Conditions, you accept and agree to be bound by the updated Borrower Terms and Conditions.
15. Ceasing to be a Borrower with Funding Circle and termination
15.1. If you no longer wish to be a Borrower then, provided you have no Loan Contracts in force and no other amounts outstanding under them or under these Borrower Terms and Conditions, you can notify us at any time and we will close your Borrower Account.
15.2. We may give you notice that we intend to close your Borrower Account at any time if:
- you breach any term of a Loan Contract or Security Document and fail to remedy the breach within any period notified to you or, if no notification is provided, within a reasonable period;
- you cease to be an eligible Borrower because you do not satisfy the Borrower Eligibility Criteria;
- you do not respond to our reasonable requests for, or fail to provide, information or documentation;
- we suspect that you have committed or have been involved in fraud, money laundering or other criminal activities;
- we discover that any information you have provided to us is materially incorrect, inaccurate, false or misleading;
- without our specific prior written consent, you enter into any other new unsecured borrowing arrangement (or similar arrangement, but excluding asset-financing or invoice-financing arrangements) with a third party if the quantum of the borrowing exceeds the higher of £25,000 and 30% of the total amount you have borrowed through the Funding Circle Platform;
- without our specific prior written consent, you grant any security to any third party after having entered into a Loan Contract;
- you use the Funding Circle Platform or any information obtained or discovered through being a Borrower with us to canvass or solicit any person from Funding Circle;
- you use the Funding Circle Platform for a purpose for which the Funding Circle Platform is not intended or other than as a marketplace for borrowing from Investors;
- you misuse the Funding Circle Platform in any other way; or
- we believe that any action you undertake (or fail to take) will have an adverse effect on the Funding Circle Platform or Funding Circle’s reputation.
15.3. If we give you notice under clause 15.2, your Borrower Account will remain active for so long as you have outstanding Loan Contracts with Investors but the functionality of your Borrower Account will be restricted and you will not be able to make any further Loan Applications.
15.4. Once you have repaid all sums owing to Investors under the Loan Contracts or to us, any Funding Circle Company, the Security Holder or to the Security Agent under any Loan Contract, any Security Document or these Borrower Terms and Conditions, we will credit your Nominated Bank Account with any remaining funds that are due to you and then close your Borrower Account.
16. Your Liability To Us
16.1. You will be liable to us for any loss or foreseeable damage suffered by us as a result of:
- your negligence or wilful default;
- any fraudulent use by you of the Funding Circle Platform; and
- any and all misuse of your username, password, the Website, the Funding Circle Platform or Borrower Account (including as provided for under clause 6 (Creating a Borrower Account)).
16.2. You will not be liable to us for any loss or damage which is not foreseeable.
17. Our Liability To You
17.1. We will be liable to you for any foreseeable loss or damage suffered by you as a result of:
- any breach by us of these Borrower Terms and Conditions;
- our negligence or wilful default; or
- fraud committed by us or our employees.
17.2. We, the Security Holder and any Funding Circle Company will not be liable to you for any loss or damage (whether or not this is foreseeable) arising from any action taken (or not taken) in relation to maximising collections and recoveries, or from circumstances that are beyond our reasonable control.
17.3. Nothing in these Borrower Terms and Conditions will exclude or limit our liability for death or personal injury caused by our negligence or fraud, or for any other liability that cannot lawfully be excluded or limited under applicable laws and regulation.
18. Conflicts of interest
We will ensure that any potential conflicts of interest that might arise between a Borrower and an Investor, and different Investors, are identified and managed effectively in accordance with our conflicts of interest policy. More information can be found on this can be found in the FAQs and on the Website.
19.1. We always try to offer the best service possible. However, if you are unhappy with any service or product offered by us or any Funding Circle Company please contact us by email (firstname.lastname@example.org) or by telephone (020 7401 9111). We will endeavour to resolve your complaint as quickly and as fairly as possible.
19.2. More information on how to complain and how complaints are dealt with by us can be found on the Website and in the User Guide.
20. Back-up Servicer
20.1. If the Funding Circle Platform fails or we become insolvent, we will transfer our loan servicing obligations to any third party back-up servicer with whom we have in place a back-up servicing arrangement.
20.2. Our current back-up servicer is: Target Servicing Limited, Target House, Cowbridge Road East, Cardiff CT11 9AU.
20.3. If the back-up servicer is engaged, it will be able to benefit from these Borrower Terms and Conditions and any Loan Contracts pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce our rights and take over from us the continued provision of the Intermediary Services.
20.4. We can change our back-up servicer or the specific details of the arrangement we have with them at any time without giving you notice. We may also engage the back-up servicer before the onset of insolvency or for any other reason if we believe that this action is in the best interests of our customers.
21. Other Miscellaneous Terms
21.1. If any provision of these Borrower Terms and Conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, this will not affect the validity and enforceability of the remaining provisions.
21.2. The Funding Circle Platform is an online service and all documents or notices that we wish to send you may be delivered to you through the Website to your Borrower Account. You may also receive by email a prompt from time to time for you to log into your Borrower Account. We may also send you notices to the address you have registered with us, your main registered office or in any other manner we consider appropriate.
21.3. Our rights under these Borrower Terms and Conditions may be exercised as often as necessary, are cumulative and not exclusive of any rights or remedies provided by law. Delay in the exercise of any right granted to us in these Borrower Terms and Conditions is not a waiver of that right.
21.4. We and the Security Holder may assign or transfer all or part of our respective rights and obligations under these Borrower Terms and Conditions to any person we reasonably consider capable of performing them. We may also exercise any of our rights through any Funding Circle Company or a service provider we engage. You cannot assign or transfer your rights and obligations under these Borrower Terms and Conditions.
21.5. The Security Holder may enforce all rights available to it under the Contracts (Rights of Third Parties) Act 1999.
21.6. These Borrower Terms and Conditions are governed by and construed in accordance with English law. If any dispute (whether contractual or non-contractual) arises out of, or in connection with, these Borrower Terms and Conditions, we and the Borrower submit to the non-exclusive jurisdiction of the English courts.
Capitalised terms used in these Borrower Terms and Conditions have the following meanings:
- Accrued Interest: any interest accrued on a Loan under clause 3 of the Loan Conditions.
- Borrower: a borrower under a Loan Contract or, as applicable, a person who is applying for borrowing through the Funding Circle Platform.
- Borrower Account: the account which a Borrower holds with Funding Circle.
- Borrower Eligibility Criteria: the criteria for eligibility that must be satisfied by a Borrower as specified in clause 5 (Borrower Eligibility Criteria).
- Borrower Terms and Conditions: the terms and conditions that govern the relationship between a Borrower and Funding Circle, as amended or replaced from time to time.
- Collections Agent: any debt collection agent as may be appointed by Funding Circle, any Funding Circle Company or on behalf of a lender from time to time.
- Collections Charge: a charge payable by the Borrower if the Borrower fails to pay any amount due under the Loan Contract which is calculated on the Total Amount Payable.
- Collections Fee: any fees levied by the Collections Agent for the purposes of providing collections and recovery services.
- Event of Default: any event of default set out in the Loan Conditions.
- FAQs: a list of commonly-asked questions and answers to help Investors and Borrowers to engage and interact with the Funding Circle Platform.
- FCA: the Financial Conduct Authority.
- Funding Circle Asset: Funding Circle Asset Finance Limited.
- Funding Circle Company: Funding Circle, Funding Circle Asset, Funding Circle Property, Funding Circle Trustee and all other companies within the Funding Circle corporate group.
- Funding Circle Platform: the online direct lending marketplace platform operated by Funding Circle that facilitates lending and borrowing between Investors and Borrowers.
- Funding Circle Property: Funding Circle Property Finance Limited.
- Funding Circle Trustee: Funding Circle Trustee Limited.
- Funding Circle: Funding Circle Limited.
- Funding Circle Terms and Conditions: each of the Investor Terms and Conditions and the Borrower Terms and Conditions.
- Guarantee: a guarantee entered into by a Guarantor for the purposes of guaranteeing the obligations of the Borrower in relation to the Loan.
- Guarantor: a person who has guaranteed the obligations of the Borrower in relation to the Loan.
- Intermediary Services: the services Funding Circle provides through it being an intermediary that acts between Borrowers and Investors, as further outlined in clause 3 (Intermediary Services).
- Investor: a person who has an Investor Account on the Funding Circle Platform, including those who lend under a Loan Contract.
- Investor Terms and Conditions: the terms and conditions that govern the relationship between an Investor and Funding Circle, as amended or replaced from time to time.
- Key Contract Terms: a summary of the Loan information for the Borrower which forms part of each individual Loan Contract.
- Loan: the loan borrowed by a Borrower from Investors on the Funding Circle Platform pursuant to a Loan Request.
- Loan Application: an application for a Loan made by or on behalf of a Borrower.
- Loan Completion Date: the date on which a Loan completes after all funds from Investors have been allocated to a Loan Request, and all Funding Circle’s requirements in relation to a Loan Request have been satisfied.
- Loan Completion Fee: a fee payable by the Borrower to Funding Circle when a Loan completes, at a rate calculated as a percentage of the Loan amount, determined by Funding Circle from time to time and notified to the Borrower.
- Loan Conditions: the terms and conditions governing the Loan Contract and which form part of the Loan Contract.
- Loan Contract: the loan agreement that sets out the terms of the lending arrangement between an Investor and a Borrower.
- Loan Part: a part of a Loan that has been or is to be funded by an Investor.
- Loan Request: a Borrower’s Loan Application when accepted by Funding Circle and listed on the Funding Circle Platform.
- Nominated Bank Account: the bank account in the name of the Borrower whose details are registered with Funding Circle during the Borrower Account creation process.
- Payment Schedule: the schedule of loan repayments provided to a Borrower for each Loan.
- Security: any debenture, mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest securing any obligation of any Borrower or Guarantor and any other agreement or arrangement having a similar effect.
- Security Agent: Funding Circle or any other person who may be appointed to act as agent for the Security Holder.
- Security Document: a document that creates Security including but not limited to, an all assets security agreement, a debenture, a legal mortgage and any other form of Security, in a prescribed form, executed by the Borrower or the Guarantor granted in conjunction with the Loan or the Guarantee.
- Security Holder: if Security is taken for a Loan, whichever of Funding Circle Trustee, Funding Circle Property, Funding Circle Asset or Funding Circle Company is the holder of such Security in each case acting through Funding Circle or any other party it may appoint from time to time and any person acting as its agent on its behalf.
- Servicing Fee: an annualised fee payable to Funding Circle for servicing the Loan, being a percentage of the outstanding principal in relation to a Loan, determined by Funding Circle from time to time, details of which can be found in clause 13 (Fees and charges), the FAQs, the User Guide and on the Website.
- Special Situation Fee: the fee charged by Funding Circle’s back-up servicer, details of which are set out in clause 13 (Fees and charges).
- Total Amount Payable: in relation to a Loan, the total amount of Loan principal (including any Loan Completion Fee) and all contractual interest due (including the Servicing Fee) to the end of the Loan term (pursuant to clause 3 of the Loan Conditions) outstanding at that time.
- Transfer Certificate: the form to be used by two Investors who have agreed to buy and sell a Loan or Loan Part to effect the legal transfer of that Loan or Loan Part from the selling Investor to the purchasing Investor.
- User Guide: a user guide for all participants on the Funding Circle Platform which explains how the Funding Circle Platform works for Investors and Borrowers, a copy of which is accessible on the Website.
- Website: https://www.fundingcircle.com/uk/ and the Funding Circle mobile app.