Terms and Conditions
Terms and conditions
“Secured Finance MGMT”
Riga, June 1, 2020
1.1. This document (hereinafter the “Terms and conditions”) regulates the legal relations between any person (hereinafter the “User”) registered on the website lendsecured.eu (hereinafter the “Portal”) and Secured Finance MGMT Ltd. (registry code 50103266451, located at Riga, Bukultu street 11, LV-1005, e-mail: [email protected], hereinafter the “Portal Operator”), arising from the usage of the Portal.
1.2. By registering as a user and creating a virtual user account (hereinafter the “User Account”) with the Portal, the User agrees with the Terms and conditions, and therefore an agreement under these Terms and conditions is concluded between the User opening a user account and the Portal Operator.
1.3. The Portal Operator reserves the right to amend or supplement the Terms and conditions, or introduce additional conditions. These amendments and supplementations shall enter into force from the moment when the User has agreed with the new Terms and conditions via the Portal.
1.4. By commencing the use of the Portal, the User confirms having read the Terms and conditions, as well as having understood and agreed to them.
2. Services provided
2.1. The Portal Operator shall enable the registered Users of the Portal to use the Portal for its intended purposes: first and foremost, enter and become acquainted with real estate financing proposals (projects), make declarations of intent, conclude transactions. The Portal Operator has the sole right to change the Portal functionality and Terms and conditions without advance notice, including limiting or adding functionality to the Portal.
2.2. The primary purpose of the service provided by the Portal Operator is to introduce Users to each other, in order to enable Users, through the Portal, to borrow money from one another, by way of loans, in order to assist Users towards the funding of their business. The services provided by the Portal Operator relate to introductory functions only and, among other, the services provided by the Portal Operator and the collateral agent SF MGMT collateral Ltd (registry code: 42103112030, located at Riga, Bukultu street 11, LV-1005, e-mail: [email protected] - hereinafter the “Collateral agent”) do not include the following:
2.2.1. guaranteeing or otherwise underwriting the availability or accessibility of funds to the Users, or ensuring the performance of the financial obligations of the User(s);
2.2.2. accepting deposits or other refundable instruments, or giving of loans or other financings on its own account or behalf;
2.2.3. providing investment advice or legal advice;
2.2.4. undertaking real estate sector related transactions or providing advice in respect of the same;
2.2.5. provision of payment services.
2.3. The Portal Operator performs an administrative function in the execution of the loan documents. When collecting any amounts owed by a borrower, the Portal Operator and/or the Collateral agent acts at its own discretion on the basis of what the Portal Operator considers to be, and as per the Portal Operator's experience is, in the best interests of the lender.
2.4. The Portal Operator is not the party to the loan contract(s) entered into via the Portal, but in certain cases the Portal Operator and/or the Collateral agent are entitled to rely on the provisions of the loan contract and demand on their own behalf the performance of certain provisions of the loan contract.
2.5. Among other things, the Portal Operator and Collateral agent are not liable for:
2.5.1. the performance of a User's (including borrower's) obligations;
2.5.2. the prudence or accuracy of information and/or confirmation(s) published or provided by a User (including a borrower) in the portal or any loan document and no warranty or representation is made by either the Portal Operator or the Collateral agent in respect of the same. This exclusion of liability shall also apply to any details and other information published in the Portal in respect of projects and users;
2.5.3. any disruptions or impediments that may occur in the operation of the credit institution, including any losses which may directly or indirectly be incurred as a result of the insolvency or moratorium of such credit institution or any other similar event;
2.5.4. losses incurred as a result of any act or failure to act by the third parties whose economic or professional activity includes the collection of debts and the provision of related services;
2.5.5. the scope, content, suitability and enforceability of contracts and other legal documents used in the Portal, including those used for the carrying out of transactions through the Portal;
2.5.6. any errors or disruptions that occur in the Portal or amendments made in the Portal, or the consequences of termination of the operation of the Portal;
2.5.7. the trueness and accuracy of any forecasts, including financial indicators and forecasts of any project published in the Portal, and no warranty or representation is made by neither the Portal Operator nor the Collateral agent in respect of the same;
2.5.8. any circumstances that derive from or depend on the identity of a User;
2.5.9. any non-patrimonial damages, loss of profit or other indirect losses, or other damages caused as a result of its conduct other than intentional misconduct.
2.6. Granting permission for a User to make a loan request and assigning a risk category to it in the Portal does not constitute any of the following:
2.6.1. an investment recommendation or other endorsement by the Portal Operator in respect of the relevant loan request;
2.6.2. the Portal Operator's confirmation or any other indication that the person making the loan request is creditworthy;
2.6.3. the Portal Operator's confirmation that the relevant project is viable;
2.6.4. the Portal Operator's confirmation that the investor will get the relevant investment back or make any profit from it.
2.7. The Portal Operator may make changes in the Portal, including expanding, changing or removing its functions, at its own discretion at any time without asking permission of the Users for it or giving prior notice to the Users. Among other, the Portal Operator may terminate the operation of the Portal at its own discretion at any time.
3. Collateral agent
3.1. The pledge referred to in the special loan terms must be established in favour of Collateral agent.
3.2. The Collateral agent keeps the pledge given in connection with a secured loan in its own name in the interests of lender(s) and performs actions and transactions related to the relevant pledge, inter alia, on the basis of instructions given by the Portal operator on behalf of the Portal operator itself and/or the lender(s), these User Terms and loan documents related to the relevant loan. Inter alia, the Collateral agent has the rights and authorizations in case of Payment defaults and other breaches of the Loan Agreements and Terms and conditions, make conduct any actions or take steps on behalf of the lender(s) and/or itself that the Portal Operator and/or the Collateral Agent considers at their own discretion to be necessary or desirable to achieve the performance of the relevant obligation and/or cancellation of any of the Loan Agreements or the use of another legal remedy.
3.3. If the Collateral agent has received funds for the lender and/or Portal operator as a result of actions carried out with the aim of collection or enforcement of any claims (including sale of the collateral), the Collateral agent transfers the relevant funds immediately to the Portal operator (having previousl y deducted and paid all costs and fees incurred or calculated by it in relation to the relevant actions) who records the relevant proceeds on the lender(s) accounts in the relevant amounts. The above also applies in a situation where the Collateral agent has carried out the relevant collection or other enforcement actions on a ground arising from any agreement on parallel obligation provided for in the Portal Operator general loan terms and/or in the agreement establishing the relevant security.
4. Fees and expenses
4.1. All expenses and fees related to the use of the Portal shall be paid by the Borrower.
4.2. Unless stated otherwise in the loan terms or in agreement between the Borrower, the Lender and Portal Operator, the Borrower undertakes to pay the following fees to the Portal Operator:
4.2.1. a success fee (hereinafter the "Success Fee") is paid by the Borrower, according to the Agreement on parallel obligation;
4.2.2. other fees agreed on in the principal loan terms or in agreement between the Borrower and/or the Lender and Portal Operator.
4.3. All costs related to the conclusion of loan and pledge agreements are included in the success fee, which the Portal Operator is entitled to deduct from the target loan amount to be transferred to the Borrower after all the conditions for loan disbursement have been met.
5. User Account
5.1. In order to use the Portal and to perform transactions via Portal, a person is required to register a User Account in his/her/its name.
5.2. Upon registration the Portal Operator and/or Lemon Way will conduct a background check of the private person or Legal person registering the User Account. A person applying for registration of a User Account is required to submit to the Portal Operator and/or Lemon Way any and all information and documents that the Portal Operator and/or Lemon Way requests. Only persons who have passed the Portal Operator’s and Lemon Way’s background check to the extent that the Portal Operator and Lemon Way deems necessary can register a User Account to their name. The Portal Operator has the unilateral right to refuse to open a User Account.
5.3. Upon registering a User Account, a person enters their contact information and other data required by the Portal Operator and/or Lemon Way into the respective environment and selects an email and password.
5.4. The User shall indicate whether he/she wishes to register the Account on their own name as a private person, or on behalf of a legal entity, which is dully represented by the private person registering the account, and an official proof of such representation can be proven.
5.5. In case the representative of a legal entity applies for opening of an Account on behalf of a legal entity, an agreement under the Terms and conditions is concluded between the legal entity and the Portal Operator with the registration of the Account and the legal entity shall be obliged to follow the Terms and conditions.
5.6. The Portal Operator shall have the right to limit the rights of certain groups of Users (e.g. of persons who give loans via the Portal) in terms of specific usage rights, including limiting access and/or usage rights with respect to certain parts of the Portal. The Portal Operator does not have to ask for a separate consent from the User when the Portal Operator wishes to execute the limitation of the rights of certain groups of Users.
5.7. In order to enter the Portal, a User is required to enter their email address and password. In order to use the Portal, the Portal Operator may unilaterally request the User to identify him/herself via ID card, passport or any other identification method acceptable to the Portal Operator.
5.8. The Portal Operator shall have the right to unilaterally refuse to open an Account.
5.9. The person to whose name the Account has been registered (Account User) shall be responsible for the rights and obligations related to the Account. Among other things, the Account User shall be a party to the transactions made via the Account. Terms and conditions of a respective transaction shall apply to transactions made via the Portal, which shall be accepted separately by the Account User.
6. Payments via Portal
6.1. In order for Users to invest or borrow funds over the Portal, they agree on submitting any documentation Lemon Way and/or Portal Operator requests in order to pass AML and KYC checks and open an payment account using Lemon Way services (hereinafter the “Paymen Account”).
6.2. When registering as a User and making use of the Account, the User also agrees with the Lemon Way user terms found at https://www.lemonway.com/en/terms-and-conditions/.
6.3. In order to perform transactions via the Portal, the User has to transfer funds to Payment account. The User is required to indicate the individual reference number generated by the Portal for the User in the payment order.
6.4. The User Account shall reflect the sum of funds transferred by the User to the Payment Account for the purposes of performing transactions via the Portal and the funds received from other Users as a result of transactions concluded by the User via the Portal. The sums payable to other Users as a result of transactions made by the User via the Portal and sums subject to payment or compensation according to the Terms and conditions to the Portal Operator, shall be deducted from the User, and such transaction shall be recorded and displayed in the User Account.
6.5. The User can make declarations of intent via the Portal, including making offers to execute transactions via the Portal and conclude transactions, only if the User Account has a non-booked positive balance in the amount necessary for the transaction (i.e. a sum that is sufficient for performing the obligations of the User related to the respective transaction to the other party of the transaction and the Portal Operator) at the time of making the offer and concluding a transaction.
6.6. The User may transfer funds to the Payment Account only from a bank account registered in the name of the User in a licensed credit or payment institution, which is registered or operating in a state which is an active European Union member state.
6.7. The Portal Operator shall have the right to request documents, which confirm compliance of the bank account with the conditions referred to herein.
6.8. If the bank account from which a transfer was made to the Payment Account does not belong to the respective User or does not meet any other conditions set forth in Article 6.7, or if the reference number set forth in Article 6.4 is not indicated in the payment order, the Portal Operator or Lemon Way shall have the right to transfer the sum back to the person who made the transfer, and withhold from the User compensation of expenses related to returning of the
payment (automatically deducting them from the User Account).
7. Loan Agreements
7.1. Conclusion of Loan Agreements - Loan agreement, its annexes and other related agreements, including the agreement securing the pledge.
7.1.1. If a User who wishes to borrow funds from other Users for the purpose of development or commencement of economic activity, the User shall use the respective application of the Portal for borrowing the funds, and shall submit any and all data required by the application. Upon submitting an offer for borrowing funds, the User shall approve the conditions of the loan agreements to be concluded with the Users who wish to lend funds.
7.1.2. The information prepared by a User for borrowing funds is published to other Users in the Portal in its full extent along with the data on the borrower and any other additional data the Portal Operator considers necessary and which the Portal Operator at their own discretion has verified. Publication of information shall mean a binding offer for borrowing funds.
7.2. Lending Funds
7.2.1. In order to lend funds, a User shall submit, through the respective application of the Portal, a declaration of intent to lend funds (i.e. an acceptance to lend funds). The User specifies the amount of loan offered and approves the conditions for the loan (lending funds according to the offer submitted by the borrowing User and terms and conditions of a loan agreement established by the Portal Operator). The terms and conditions of the loan that are not specified in the acceptance to lend funds or the offer submitted by the borrowing User shall be governed by the terms and conditions of a Loan Agreements established by the Portal Operator. The acceptance to lend to the Borrowing User shall be binding to the lending User. The lending User cannot unilaterally withdraw or cancel the confirmed acceptance, unless provided differently by imperative legal provisions or the loan agreement.
7.2.2. A User can lend funds only from the non-booked funds that are displayed as a positive balance on the User’s Account. A User cannot lend funds if the amount of loan to be lent and the sum paid to the project account upon executing the transaction exceed the non-booked positive balance on their Account.
7.2.3. By confirming the acceptance to lend, the User shall via the Portal Operator transfer positive balance on the Payment Account in the extent of the loan amount indicated in the acceptance to the project account. If the borrowing User withdraws from the loan agreement, the Portal Operator shall automatically release the booked sum from the project account and immediately transferred to the lender User’s Payment Account.
7.2.4. With the confirmation of the acceptance to lend, a loan agreement is concluded between the lending User and the borrowing User. Such agreement shall be considered as concluded from the moment when the lending User accepts the offer. The loan agreement shall become effective with the confirmation of the acceptance to lend. The confirmation has to be confirmed via Portal.
7.2.5. If loan agreements in at least the minimum total loan amount have been concluded with the borrowing User, the Lemon Way shall settle the amounts booked on Payment Account after the submission of acceptance as follows. Lemon Way shall automatically debit the lending User’s Payment Account by the loan amount and credit the project account by the loan amount. Lemon Way shall automatically debit both parties’ User Accounts in the extent of the sum payable to the Portal Operator for the execution of this transaction and other fees Portal Operator is entitled to receive.
7.2.6. Minimum loan amount: EUR 50.
7.2.7. Maximum loan amount: the amount of the Investment target amount (The amount of investment that needs to be collected within single Project).
7.2.8. The User agrees and is aware that in cases of force majeure, when the User borrower has a disrupted income and the User borrower is unable to perform its obligations under the Loan Agreements, the User borrower has the right to request and the Portal operator has the right to extend deadline for fulfillment of obligations up to 12 (twelve) months under the Loan Agreements, without the separate consent of the User lender. The extension mentioned in this paragraph is possible only once during each project.
8. Sale of claims rights on secondary market
8.1. Portal may give Users right to sell their claims arising from Loan agreements. This sale may be concluded only via Portal between Users.
8.2. User who wishes to sell his/her claim rights must via Platform put on sale part or all of his/her claims rights arising from specific Loan agreement.
8.3. By placing the claim rights on sale on Secondary market section via Portal, seller User agrees to conclude contract to sell the claim rights to the User who accepts the purchase of the claim rights.
8.4. User, who wishes to purchase claim rights arising from specific Loan Agreement from other User, must purchase the claim rights via Secondary market section in Portal and can do so only if him/her has enough funds on his/her Portal balance to pay for such claim rights.
8.5. After User accepts to purchase the claim rights via Platform through Secondary market section, this User expresses his/her intention to be legally bound by the Loan agreement from which the claim arises. This acceptance cannot be withdrawn, unless otherwise stated by applicable law.
8.6. The minimum price of a claim to be assigned is EUR 50.
8.7. The price of the claim rights must be equal to the outstanding principal of the loan, according to the Loan agreement from which the claim is arising.
8.8. After the sale of the claim rights, interest and principal arising from the Loan agreement will be calculated for the current month of sale proportional for seller and buyer.
9. General Rights and Obligations of the User
9.1. In addition to other obligations set forth in the Terms and conditions, a User shall be obliged:
9.1.1. not to use the Portal for illegal transactions or activities, including fraud, money laundering, terrorist financing or other similar activities;
9.1.2. to use the Portal through web browsers intended for general purposes. It is forbidden to use automatic data scraping, data reading and processing devices;
9.1.3. to submit only truthful data and information upon registering the User Account. The User shall be liable for the damages caused by the violation of the obligation set forth in this Article with respect to the Portal Operator and other Users. The Portal Operator does not verify the correctness of the information submitted by the Users and shall not take any responsibility for the correctness and truthfulness of the data submitted by the Users;
9.1.4. to safeguard the data and devices necessary for logging in to the User Account of the Portal, including the ID card, respective passwords and user IDs and authentication devices in a manner that prevents third parties from gaining possession of them. However, if a third party enters the Portal through User’s Account, any and all provisions arising from the Terms and conditions shall apply;
9.1.5. to inform the Portal Operator immediately about the risk of unauthorized use of the User Account that may occur;
9.1.6. to inform the Portal Operator as soon as possible of any changes in the data submitted upon opening the User Account.
9.2. In addition to other rights set forth in the Terms and conditions, a registered User shall have the right to:
9.2.1. enter the Portal by using authorization functionality, which is secured by the necessary measures determined at the Portal Operator’s discretion;
9.2.2. use the functionalities of the Portal, if the User complies with the requirements established for using the specific functionality;
9.2.3. review the User data saved by the Portal Operator, amend such data and request the Portal Operator to cease processing;
9.2.4. with prior consent of the Portal Operator, authorize User’s representative to use the particular User’s Account and register him/her as the authorized User of the User Account;
9.2.5. provide feedback regarding the services offered by the Portal and respond to the surveys, including the service quality assessments, carried out by the Portal Operator.
10. Processing of User Data
10.1. For the purposes of these Terms and conditions, personal data shall be any and all data and information on a User who is a private person, which the User has disclosed upon registering their User Account, using the Portal and making declarations of intent via the Portal. The personal data that the Portal Operator has learned about such User from third parties and stores or processes, is considered personal data.
10.2. By registering a User Account and/or disclosing data, the User shall confirm that they are aware of and consent to the fact that any and all legally collected data regarding the User which are in the possession of the Portal Operator, regardless of their origin, shall be processed by the Portal Operator for the purposes related to the possibilities of use of the Portal and to the extent necessary for it.
10.3. A User, who is a private person, has the right to withdraw their consent for processing personal data at any time. The person may request the cease of processing the personal data, terminate the access to the data and request deletion or closing the collected personal data. This is possible if the User or any of the Account Users related to them have no on-going process of concluding an agreement via the Portal and no valid agreement concluded via the Portal, and provided that the legal acts do not oblige the Portal Operator to save data. Upon withdrawing the consent to process personal data the User’s User Account shall be closed.
10.4. The Portal Operator shall be obliged to keep the Users’ data confidential and follow any and all rules arising from the Personal Data Processing Law of the Republic of Latvia.
10.5. The Portal Operator shall have the right to disclose User’s personal data to third parties, including other Users, only in cases set forth in the law and Terms and conditions.
10.6. The Portal Operator shall have the right to disclose (personal) data of a User to persons belonging to the same group as the Portal Operator and persons who provide the Portal Operator with legal assistance, accounting, auditing or any other services, which presume processing of Users’ personal data, provided that the respective service provider has undertaken the obligation towards the Portal Operator not to disclose the respective personal data to third parties.
10.7. The Portal Operator shall have the right to use the e-mail address and mobile phone number of a User for the purposes of forwarding to the User information, advertising and offers from the Portal Operator or its cooperation partners. The User shall have the right to choose, which notifications and offers they wish to receive through the Portal and refuse to receive offers from the Portal Operator and their cooperation partners, without their respective query through the Portal.
11. Intellectual Property
11.1. Any and all intellectual property rights to the Portal, including the structure, web design elements, texts and other components of the Portal, and the intellectual property rights related to them (including the intellectual property rights to trademarks, logos, brands, software, databases, news, messages, texts, graphic, musical and other design) belong to the Portal Operator, unless the rights of another person are referred to with regard to a component, or information has been entered by the Users of the Portal. Users shall not be allowed to change, reproduce, disseminate, process, translate, and make extracts from, forward, include in other databases or make public the Portal or any of its contents or components or use it in any other manner that is beyond the intended purposes of the Portal without the prior written consent of the Portal Operator.
11.2. The User shall not be allowed to grant sub-licenses for using the Portal or any of its contents or components or create new objects of intellectual property based on them.
11.3. The Users are allowed to publish only such material in the Portal for which they have intellectual property rights to the extent that is necessary for publishing the respective materials in the Portal. A User shall be fully responsible for the materials published in the Portal by them.
11.4. With publishing of any material in the Portal by the User, the User shall give their unconditional and free consent to the Portal Operator to store, disseminate and publish such material in accordance with the Terms and conditions and to change or process in any other manner to the extent that is necessary for the intended use of the Portal.
12.1. Although the Portal Operator shall take all measures to ensure correctness and reliability of information published in the Portal, the Portal Operator shall not be liable for publishing incorrect or misleading information in the Portal, or for a violation committed or being continuously committed through the Portal, or consequences thereof, of which the Portal Operator is not aware or for which it has taken measures for correcting the information, ending a violation or eliminating consequences thereof.
12.2. The Portal Operator shall not be liable for the correctness and completeness of information received from third parties if the Portal Operator forwards or discloses it in the Portal in the same format as it was forwarded or made available to the Portal Operator. If a User discovers incorrectness of information contained in the Portal, they shall be obliged to inform the Portal Operator as soon as possible.
12.3. The Portal Operator shall not be liable to other Users or third parties if a User violates an obligation set forth in the Terms and conditions, any other agreement concluded with the Portal Operator, legal act or agreement concluded between Users.
12.4. The Portal Operator shall be liable for the obligations arising from a transaction concluded through the Portal only if the Portal Operator is a party to a specific transaction.
12.5. If a User causes damages to the Portal Operator by violating any of the obligations, the User shall be obliged to fully compensate the respective damages to the Portal Operator at first request.
12.6. The Portal Operator shall not be liable for the damages that were caused to a User or third parties in relation to the fact that the Portal Operator used their legal remedies (e.g. removed information from the Portal or limited access to it, limited or restricted User’s access to their User Account or Portal).
12.7. The Portal Operator shall not be liable for temporary interruption in the access to the Portal or its functionality.
12.8. The Portal Operator shall be liable only for the direct patrimonial damages to the User caused by violation of the obligations of the Portal Operator’s due to gross negligence or intent. Other damages or loss of profit shall not be subject to compensation. The Portal Operator shall not be liable if a service provider or any other third party used by the Portal Operator causes the violation of obligations.
13. Duration of Use of the Portal and Termination of Use
13.1. User Accounts in the Portal are opened without term. If a User have no valid agreements concluded via the Portal and they no longer wish to use the Portal, they can close the User Account and terminate the agreement concluded with the Portal Operator without advance notice.
13.2. The Portal Operator shall have the right to limit or cancel a User’s right to use the Portal and close a User Account, as well as to terminate an agreement concluded with a User at any time without advance notice if it appears that:
13.2.1. the User violates or has violated the Terms and conditions or any other User obligations;
13.2.2. the User does not accept new Terms and conditions upon first logging in to the Portal for a period of 30 days after the new Terms and conditions have been made available in the Portal;
13.2.3. the User has submitted to the Portal Operator or other Users data and/or information that is incorrect, misleading and/or inaccurate;
13.2.4. upon using the Portal the User behaves in bad faith, without dignity, illegally or in contradiction with the moral standards recognized in the society;
13.2.5. the Portal Operator has discovered a circumstance based on which there may be a suspicion that third parties have gained possession of the data and devices allowing logging in to the User’s Account and the Portal and the User Account could be used by an unauthorized person;
13.3. The Portal Operator shall have the right to close the Portal.
13.4. Upon closing the Portal or if the User can no longer use the Portal:
13.4.1. the transactions made through the Portal shall remain in force under the terms and conditions set forth therein;
13.4.2. the Portal operator is obliged to provide that the positive balance registered in the Payment Account (as of the moment of expiry of the right to use the Portal), deducting the sums payable to the Portal Operator, are transferred to the bank account of the Account User within 20 working days from the expiry of the right to use the Portal.
14. Sending Notices
14.1. The notices sent to the User’s mailbox (an e-mail address that the User has provided to the Portal Operator) shall be considered as received within 24 hours of sending, including they shall be considered as received by all Users of the Accounts related to the respective User Account.
15. Other Conditions
15.1. Legislation of the Republic of Latvia shall be applicable to the use of the Portal in issues not regulated in the Terms and conditions. If an article of the Terms and conditions proves to be void due to contradicting the law, it shall not influence the validity of other articles.
15.2. Disagreements and disputes arising from the fulfillment of the Terms and conditions shall be settled by the parties primarily through negotiations. The Portal Operator shall have the unilateral right to establish a procedure for extrajudicial settling of disputes.
15.3. If settling of disagreements through negotiations is impossible, the dispute shall be settled in the courts of the Republic of Latvia.