These Terms, together with our Website Terms of Use, Platform Terms of Use and our Privacy Policy set out the basis on which you are allowed to use our Service. Your use of the Service as a prospective and/or registered Borrower, Lender, Introducer or Subscriber will be subject to these Terms. By using the website and the Service you agree to be bound by these Terms and our website terms of use.
This website, and the online broking service offered through the website (Service), is operated by Capitalise.com Platform Ltd (we , us, our or Capitalise). Our registered company number is 09256446 and our registered address is at 20 Wenlock Road, London, England, N1 7GU.
Capitalise.com Platform Ltd, trading as Capitalise, is authorised and regulated by the Financial Conduct Authority (FCA) for regulated credit agreements.
1.1 In this agreement, where the context so admits, the following words and expressions shall have the following meanings. Capitalised terms used, but not defined, in this agreement shall have the meaning given to them in the Terms of Use:
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"Authorised User" |
has the meaning set out in clause 3.2; |
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"Business Day" |
means each day which is not a Saturday or Sunday or a bank or public holiday in England; |
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"Capitalise Content" |
means all data, information and material owned by or licensed to Capitalise or any of its Group Members and comprised within any Product and/or the Service, but excluding Subscriber Data and Subscriber Materials; |
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"Data Protection Legislation" |
means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data; |
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"Effective Date" |
Means the date the Plan was subscribed to; |
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"Group Member" |
means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where "control" means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise; |
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"Initial Term" |
has the meaning set out in clause 11.1; |
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"Intellectual Property Rights" |
means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action); |
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“Subscriber Data" |
means all data, information and material input or uploaded to any Product or transmitted through the Service by the Subscriber and/or any Authorised User; |
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"Subscriber Materials" |
means any material provided or made available by or on behalf of the Subscriber to Capitalise for the purposes of incorporation into any Product and/or the Service for the Subscriber or other permitted use by Capitalise in connection with any Professional Services, but excluding Subscriber Data; |
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“Plan” |
means the pricing plan that a Subscriber chooses in connection with a Subscription for the associated functionality and services; |
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"Professional Services" |
means any professional services to be provided by Capitalise as set out in any relevant Statement of Work; |
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"Product(s)" |
means the Capitalise product(s) set out in the Plan; |
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"Renewal Term" |
has the meaning set out in clause 11.1; |
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"Service" |
means has the meaning given in the Terms of Use; |
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"Software" |
means any software owned by or licensed to Capitalise or any of its Group Members and which forms part of, or is used in the provision of, any Product or the Service; |
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"Statement of Work" |
means each statement of work entered into between the parties pursuant to this agreement; |
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“Subscriber” |
is defined as the legal entity signed up to a subscription Plan; |
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“Subscription” |
means the subscription to the Services through a Plan, based on the Plan displayed at Effective Date; |
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"Terms of Use" |
means the Capitalise Platform Terms of Use available via the Website; and |
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"Website" |
means Capitalises' website at www.capitalise.com. |
1.2 In the event of any inconsistency between these terms and conditions of this agreement and the terms of the Terms of Use, the following order of precedence shall apply:
(a) first, the Terms of Use
(b) second, the terms and conditions of this agreement.
2.1 On the Effective Date Capitalise shall make the Services available to the Subscriber via the Product, which the Subscriber shall be licensed to access and use under this agreement and subject to any restrictions set out in the Plan.
2.2 It is the Subscriber's responsibility to ensure it has equipment (of appropriate specification and compatible with the Product and the Services) and internet connection to enable the Subscriber to connect to the Product. The Subscriber acknowledges that it is responsible for all charges for internet access (including mobile data usage) charged by its internet service provider.
3.1 Subject to full payment of the applicable fees and subject to the other provisions of this agreement, the Subscriber is granted a limited, non-transferable, non-exclusive licence, for the term of this agreement, to access and use the Product, and access the Service using the Product set out in the Plan and in accordance with any restrictions there set out. Without prejudice to clause 3.2, the Subscriber may not sub-license the right to access and/or use the Product to any third party. The Subscriber is licensed to access and use only the Product(s) set out in the Plan and may do so only for the purpose of using the Services. Except as expressly set out in this agreement, all rights in and to the Product(s), Service (including the Capitalise Content but excluding Subscriber Data and Subscriber Materials) and Software are reserved to Capitalise.
3.2 Only the Subscriber is licensed to access and use the Product(s) and Service and solely for its internal business purposes, including, for the avoidance of doubt, using the Product(s) to access and use the Services to introduce the Subscriber and facilitate Subscribers' applications to a select group of Lenders for certain loan and other finance and credit products which may be appropriate to the needs of their business in accordance with the Terms of Use. Use by the Subscriber includes use by the Subscriber's employees provided that, in each of these cases, the person concerned is accessing and using the Product(s) and Service exclusively on the Subscriber's behalf, for the above purposes and subject to the Terms of Use, and with the Subscriber's authorisation.
3.3 The Subscriber shall comply with, and shall ensure that each Authorised User consents to and complies with, Terms of Use and any additional terms of use or service (including any acceptable use policy) and privacy and/or cookies policy that Capitalise may make available to the Subscriber or publish online through the Service, each as updated by Capitalise from time to time, all of which are incorporated into this agreement by reference.
3.4 The Subscriber shall not:
(a) except for those Subscribers as permitted by this agreement and in a manner consistent with the purpose set out in clause 3.2, permit any third party to access or use any Product or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
(b) copy, translate, modify, adapt or create derivative works from any Product;
(c) create Internet "links" to the Service or "frame" or "mirror" any Capitalise Content on any other server or wireless or Internet-based device;
(d) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that the Subscriber is permitted to do so under applicable law in circumstances under which Capitalise is not lawfully entitled to restrict or prevent the same), including in order to:
(i) build a product using similar ideas, features, functions or graphics of the Service; or
(ii) build a competitive product or service;
(iii) copy any ideas, features, functions or graphics of the Product and/or the Service;
(e) employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use any Product and/or the Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorised use contained in this agreement;
(f) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, any Product, the Service or Software;
(g) attempt to gain unauthorised access to or interfere with the proper working of any Product, the Service or Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt any Product, the Service or Software or any associated website, computer system, server, router or any other internet-connected device;
(h) provide false identity information to gain access to or use the Product;
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Subscriber Data transmitted through the Service; or
(j) use the Product or the Service to:
(i) transmit or distribute any virus and/or other code that has contaminating or destructive elements;
(ii) transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); and/or
(iii) "stalk" or otherwise harass another person or collect or store unauthorised personal data in relation to any individual;
(iv) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;
(v) engage in any fraudulent activity or further any fraudulent purpose;
(vi) impersonate any person or entity or otherwise misrepresent the Subscriber's relationship with any person or entity;
(vii) upload, store, post, transmit, distribute, link to or otherwise make available, or advertise or promote any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety, alarm or embarrassment, knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Service, as updated by Capitalise from time to time;
and shall ensure that any Authorised User or other third party does not do any of the foregoing.
3.5 The Subscriber understands that the Product(s), the Service and/or Software may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Capitalise and/or content providers who provide content to the Products(s) and/or the Service. The Subscriber may not attempt to override or circumvent any of the usage rules embedded into the Product(s). Any unauthorised reproduction, publication, further distribution or public exhibition of the Capitalise Content, in whole or in part, is strictly prohibited.
4.1 The Subscriber shall designate one contact and one alternate as the responsible party for communication with Capitalise during the term of this agreement ("System Administrator"). The Subscriber's System Administrator shall have the authority to bind the Subscriber, except that another duly authorised representative of the Subscriber may change its System Administrator by giving written notice to Capitalise in accordance with clause 13.2.
4.2 The Subscriber's System Administrator may establish accounts for Authorised Users. The Subscriber is solely responsible for determining the skill, competence, character and other attributes of all Authorised Users.
4.3 The Subscriber shall ensure that each Authorised User shall, as a condition of being granted access to any Product, be required by the Subscriber's System Administrator to acknowledge the obligations on the Subscriber under this agreement respecting authorised use (and restrictions on use) of the Product(s) and Service and agree to comply with the same. The Subscriber shall immediately notify Capitalise in the event that the Subscriber becomes aware of any breach of this agreement by any Authorised User.
4.4 The Subscriber shall be responsible for all access to and use of the Product(s) and Service by Authorised Users. The Subscriber shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the System Administrator or any Authorised User in order to access or use any Product and/or the Service ("ID"). Under no circumstances may IDs be transferred or shared between individual Authorised Users and 'general' (non-individually assigned) IDs may not be created. The Subscriber acknowledges and agrees that the Subscriber will be solely responsible for all activities that occur under such ID. The Subscriber shall promptly notify Capitalise upon becoming aware of any unauthorised access to or use of any Product and/or the Service, and provide all reasonable assistance to Capitalise to bring an end to such unauthorised access or use.
5.1 The Subscriber shall pay the fees as set out in the Plan. Upon execution of this agreement and, as applicable, Capitalise shall invoice the Subscriber for the licence fees in advance, commencing on the Effective Date.
5.2 The licence fees are subject to review and any increase by Capitalise upon 30 days' notice.
5.3 Without prejudice to any other right or remedy available to Capitalise, Capitalise reserves the right to charge additional service fees.
5.4 The Subscriber shall pay the fees in respect of any Professional Services as set out in the relevant Statement of Work.
5.5 Unless otherwise expressly provided in this agreement, all amounts referred to in this agreement are exclusive of value added tax (VAT) or other applicable sales tax which, where chargeable by Capitalise, shall be payable by the Subscriber at the rate and in the manner prescribed by law. Invoices are payable, in full, upon delivery and without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Subscriber shall pay the amount in full pending the resolution of any dispute and Capitalise shall make any adjustment due immediately upon such resolution.
6.1 Capitalise warrants that:
(a) it has the right to enter into this agreement and to provide the Service as contemplated by this agreement;
(b) the Product(s) and Service shall, under normal operating conditions, substantially conform to the functionality described in the specification set out on the relevant product pages on the Website (if any).
6.2 If any of the warranties in clause 6.1 is breached, the Subscriber must notify Capitalise as soon as possible. The Subscriber must give Capitalise a reasonable time to fix the problem, including (in Capitalises' discretion) by making available a corrected version of the Product(s) (as the case may be) or a reasonable way to work around the problem that is not materially detrimental to the Subscriber and/or by re-performing any relevant services. This will be done without any additional charge to the Subscriber. If Capitalise is able to do this within a reasonable time, this shall be the Subscriber's sole and exclusive remedy in relation to such breach and Capitalise will, subject to clause 7.1, have no other obligation or liability in relation to such breach.
6.3 Capitalise does not control the content posted to or via the Service and, in particular, does not control the Subscriber Data and, as such, Capitalise does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.
6.4 Except as expressly set out in this agreement and subject only to clause 7.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Product(s) (including any Capitalise Content) or Professional Services or to anything supplied or provided by Capitalise under this agreement. In particular, Capitalise does not warrant that the operation of any Product will be uninterrupted, contaminant-free or error-free, or that they will meet the Subscriber's requirements.
6.5 The Subscriber agrees that it is solely responsible for its selection of the Product(s) and Service and for all use it makes of them, and all reliance it chooses to place on the Product(s) and any Capitalise Content. The Subscriber acknowledges and agrees that the Product(s) and Capitalise Content are intended for general informational use and guidance purposes only, do not amount to professional advice on any particular matter and should not be relied upon in isolation in making any decision. In all cases, the Subscriber should exercise its own professional skill, discretion and judgement.
6.6 The Subscriber shall ensure that its use of the Product(s) and Service, complies, in all respects, with all applicable laws, regulatory requirements, mandatory standards and codes of practice of any competent authority for the time being in force.
7.1 Nothing in this agreement limits or excludes either party's liability:
(a) for death or personal injury caused by its negligence;
(b) for fraudulent misrepresentation or for any other fraudulent act or omission;
(c) to pay sums properly due and owing to the other in the normal course of performance of this agreement;
(d) under any indemnity; or
(e) for any other liability which may not lawfully be excluded or limited.
7.2 Subject to clause 7.1, Capitalise shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) indirect, consequential or special loss, arising out of or relating to this agreement.
8.1 Nothing in this agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
8.2 Capitalise and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Capitalises' brands, trade marks and logos, the Product(s), the Service (including the Capitalise Content but excluding Subscriber Data and Subscriber Materials) and the Software. Except as expressly permitted by this agreement, the Subscriber may not use any of Capitalises' Intellectual Property Rights without Capitalises' prior written consent.
8.3 The Subscriber and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Subscriber Data and Subscriber Materials. The Subscriber grants Capitalise, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Subscriber Data and Subscriber Materials only to such extent as is necessary to enable Capitalise to provide the Product and to perform its obligations under this agreement and the Terms of Use. The Subscriber warrants that the Subscriber owns the Subscriber Data and Subscriber Materials and/or are otherwise entitled to grant the foregoing licence. If this agreement is terminated, the foregoing licence will automatically terminate.
9.1 The Subscriber shall indemnify Capitalise against all loss or damage that Capitalise incurs or suffers however arising as a result of or in connection with:
(a) any Subscriber Data or Capitalises' receipt, possession and/or use, in accordance with this agreement, of any Subscribe Materials; and/or
(b) any claim by a third party as a result of the Subscriber's use of any Product and/or the Service.
10.1 Each party shall:
(a) at all times during the term of this agreement, comply with the Data Protection Legislation; and
(b) to the extent applicable under the Data Protection Legislation, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under this agreement.
11.1 This agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for an initial term of the duration set out in the Plan ("Initial Term") and thereafter renew automatically for successive terms of equivalent duration (each a "Renewal Term") unless and until terminated by either party giving the other not less than one month’s written notice to that effect (such notice to expire at the end of the Initial Term or any subsequent Renewal Term only).
11.2 Either party may terminate this agreement by giving the other written notice if:
(a) the other materially breaches any term of this agreement and it is not possible to remedy that breach;
(b) the other materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so; and/or
(c) the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
11.3 Without prejudice to clause 11.2, Capitalise may, in addition, and without liability, terminate this agreement, or alternatively, may suspend access to and use of any Product and/or the Service, by giving the Subscriber written notice if:
(a) any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
(b) any provision of clause 3.4 is breached; and/or
(c) the Subscriber is in persistent or repeated breach of any of its obligations under this agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
12.1 Upon termination of this agreement for any reason:
(a) the Subscriber shall immediately cease to access, and discontinue all use of, the Product(s); and
(b) all amounts payable to Capitalise by the Subscriber shall become immediately due and owing.
12.2 The termination of this agreement for any reason will not affect:
(a) any accrued rights or liabilities which either party may have by the time termination takes effect; or
(b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination.
13.1 The Subscriber may cancel their Subscription any time by contacting Customer Support. Your payment is non-refundable and your service will continue until the end of that Plan's billing period.
14.1 The Subscriber may not sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this agreement without the prior written consent of Capitalise.
14.2 All notices and consents relating to this agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out during registration or otherwise notified by the relevant party in accordance with this agreement. Notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom), or by email to an address notified to the other party and shall be treated as having been delivered:
(a) if sent by hand, when delivered;
(b) if sent by certified or registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting); and
(c) if sent by email, at the time of transmission, or, if this time falls outside standard business hours in the place of receipt, when standard business hours resume.
14.3 Unless the parties expressly agree otherwise in writing, if a party:
(a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or
(b) agrees not to exercise or to delay exercising any right or remedy provided under this agreement or by law;
then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
14.4 If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
14.5 We may make changes to the Terms from time to time and if we do, we will notify you by revising the date at the bottom of the Terms and, in some cases, we may provide you with additional notice. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately and your continued use of our Services and Software will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services and Software.
14.6 Except to the extent that this agreement expressly provides otherwise, nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.
14.7 A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.8 It is a condition of this agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
14.9 This agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects. Provided always that nothing in this clause 14.9 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this agreement and each party acknowledges that it has not been influenced to enter this agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this agreement.
14.10 This agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this agreement or its subject matter, but Capitalise is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
Last update: 28th October 2022