Invoice financing
Contact
- support@investly.co
- ET: +372 5387 0877
Lai 35, Tallinn 10133 - UK: +372 5387 0877
65 London Wall, London EC2M 5TU
These General Terms set out the terms and conditions for the use of the e-services environment investly.co, the terms and conditions for the conclusion of contract through this web site, and the terms and conditions of the contracts concluded. The copyright of the entire content of the website investly.co belong to the Portal Manager, and their use, reproduction, distribution and modification without the consent of the Portal Manager is prohibited.
1. Definitions
General Terms - these Investly's General Terms
Portal Manager - Investly Technologies OÜ, registry code 12710066, address Lai 35-5, Tallinn, Estonia, e-mail support@investly.co.
User - a natural or legal person who has accepted the General Terms and is registered on his/her request as the user of
Investly by the Portal Manager. The Invoice Seller and the Investor are the Users.
Invoice Seller - a User who uses Investly (or wishes to use it) for the purpose of assigning Claims against third parties for a fee.
Investor - a User who uses Investly (or wishes to use it) for the purpose of acquiring Claims against third parties from the Invoice Seller(s) for a fee.
Investly - the e-service environment located at investly.co>investly.co and hosted by the Portal Manager, through which Users can submit declarations of intent and conclude Factoring Agreements and other related agreements. If the General Terms or other related agreements use the term "Portal", it has the same meaning as this term.
Investly Account - the Users personalised account that is located in Investly and administered by the Portal Manager, which is used for submitting declarations of intent via Investly to the Portal Manager and/or other Users, concluding Factoring Agreements and and other agreements, keeping accosunt of transactions made on the basis of these General Terms and Factoring Agreements, and for the performance thereof.
Sales Offer - the Invoice Seller's declaration of intent (offer) to other Users (Investors) to enter into (a) Factoring Agreement (s) for the assignment of a Claim or Claims on the Account, taking into account the terms and conditions of the Sales Offer, the General Terms, the Auction Process (including its outcome) and their impact on the terms of the Factoring Agreement(s).
Purchase Offer - The Investor's declaration of intent (acceptance) for the Sales Offer, to conclude a Factoring Agreement for the acquisition of the Claim(s) or part thereof, taking into account the terms and conditions of the Sales Offer, the General Terms, the Auction Process (including its outcome) and their impact on the terms of the Factoring Agreement.
Purchase Amount - is the amount determined and confirmed in the Purchase Offer, for which and to what extent (and to the extent of the additional Interest yield) the Investor wishes to acquire the Claim(s) from the Invoice Seller.
Auction - the procedure for establishing the terms and conditions of the Factoring Agreement(s) and the procedure for developing the terms and conditions of the Factoring Agreement(s) between the Invoice Seller and the Investor(s) in the Portal.
Agreement - a sales or service provision agreement concluded between the Invoice Seller and the Buyer, on the basis of which the Invoice Seller, as part of his/her economic or professional activities, sells to the Buyer an item or provides a service. At the discretion of the Portal Manager, the a lease or rental agreement concluded between the Invoice Seller and the Buyer may also be considered as an Agreement.
Buyer - a legal or natural person indicated on the invoice to whom the Invoice Seller sold and/or sells the goods, provided and/or provides services or rents/leases a item under the Agreement and as part of his/her economic or professional activities and who, pursuant to the Agreement, undertakes to pay the Invoice and/or Claim issued by the Invoice Seller.
Claim - A monetary claim of the Invoice Seller to the Buyer arising from the Agreement.
Invoice - a payment document issued to the Buyer by the Invoice Seller for the sale of an item or provision of a service (or for the lease / rental of an item) for performance of the financial obligation (Claim) arising from the Agreement, which reflects the Invoice Seller's Claim(s) to the Buyer. The consolidated invoice can also be considered as one Invoice.
Invoice Amount - the amount (fee), that the Buyer undertakes to pay to the Invoice Seller on the basis of the Invoice and the underlying Agreement (incl. VAT).
Invoice Payment Deadline - the date indicated on the Invoice, by which the Buyer undertakes to pay the Invoice.
Factoring Agreement - a factoring agreement concluded between the Invoice Seller and the Investor as a result of the Auction.
Agreement Fee - a fee paid by the Invoice Seller to the Portal Manager for enabling the conclusion of (a) Factoring Agreement(s) via Investly (incl. for the organisation of the Auction or for reviewing data submitted by the Invoice Seller for the organisation of the Auction). The amount of the Agreement Fee will be set by the Portal Manager to the Invoice Seller as a percentage of the Invoice Amount or as a fixed amount.
Repurchase Term - the thirtieth (30) calendar day following the payment deadline.
Financing period - time between the beginning of the Auction (i.e. the end date including) and the Invoice Payment Deadline (including) (calendar days).
Sales Price - price determined during the Auction, for which the Invoice Seller assigns the Claims arising from the Contract indicated on the Invoice to the Investor(s) who made the winning offers.
Minimum Sales Price - the lowest limit of the Sales Price approved in the Sales Offer by the Invoice Seller, for which the Invoice Seller wants to assign the Claims arising from the Contract indicated on the Invoice to the Investor(s) who made the winning offers on the basis of the Factoring Agreement(s).
Minimum Interest Rate - the minimum annual interest rate specified and/or approved by the Investor in the Purchase Offer, which the Investor wishes to earn from the payment of the Sales Price (or part thereof) to the Invoice Seller. The interest rate is expressed as a percentage and in the calculation processes provided for in these General Terms, its size is considered to be 1% = 0.01.
Interest Rate - the annual interest rate developed during the Auction, that the Winning Investor(s) will earn from the payment of the Sales Price (or parts thereof) to the Invoice Seller.
Maximum Interest Rate - the highest possible (maximum) Interest rate with which the Invoice Seller agrees to while entering into the Factoring Agreement(s).
Buyer's Delay - number of days delayed by the Buyer to pay the full Invoice (Invoice Amount).
List of Buyers - List of legal or natural persons approved by the Portal manager for whom the Invoices have been issued and with whom the Invoice Seller can enter into Factoring Agreements through Investly on this basis.
Credit Limit - the limit set by the Portal Manager for a specific User as to how big may be the total amount of the liabilities arising from the Factoring Agreement(s) to the Invoice Seller. The Credit Limit indicates the amount the Invoice Seller may still conclude Factoring Agreements. The Portal Manager has the right to change the Credit Limit at any time (incl. to reduce it).
Repurchase Obligation - the obligation of the Invoice Seller to buy back the Claim assigned to the Winning Investor(s) (or from the Portal Manager and the Portal Manager in accordance with the terms and conditions set out in the Factoring Agreement, and to pay the Agreement Fee to the Portal Manager (incl. the VAT).
2. General rules for the use of Investly
2.1. Registering as a user
2.1.1. The Portal can only be accessed and used by a person who has been registered by the Portal Manager as a User and who has acknowledged that he/she agrees with the General Terms, and undertakes to comply with them.
2.1.2. An Investor can be a person with full active legal capacity, who is a citizen or permanent resident of the Member State of the European Union (EU) or the European Economic Area (EEA) or a legal person entered in the register of a Member State of the EU or the EEA, or a natural or legal person authorised by the Portal Manager to use the Portal.
2.1.3. The Invoice Seller can be a legal person entered in the register of a Member State of the EU or the EEA.
2.1.4. In order to register as a User, this person must:
2.1.4.1 choose a unique username to use Investly;
2.1.4.2. choose a password (Password) for the use of Investly. The Password selected upon submission of the User registration request must be unique, consists of 8 characters (including one uppercase and one lowercase letter, and one number). The Password cannot be easily guessed or the same as the User or the person who submitted the request to become a User and/or his/her representative use in other places. Within the meaning of these General Terms, this password is deemed to be the Password.
2.1.4.3. confirm his/her e-mail address (E-mail). The e-mail address must be one that this person is actually using on a daily basis and that only he/she has access to. Within the meaning of these General Terms, such e-mail address is deemed to be the E-mail;
2.1.4.4. submit any other necessary documents and data needed by the Portal Manager in order to identify the person who submitted a request to be registered as a User
2.1.4.5. The Portal Manager may provide additional conditions for the registration of a person as a User.
2.2. User identification
2.2.1 Upon registration and, if necessary, while using Investly, the person (User) must identify himself/herself at the discretion of the Portal Manager and as follows:
2.2.1.1 make a bank transfer on his/her behalf to the Portal Manager from a bank account opened in his/her name in a credit institution of a Member State of the EU or EEA, or by any other means accepted by the Portal Manager;
2.2.1.2 submit all documents and information required by the Portal Manager, which the Portal Manager considers necessary for the identification of a person and for compliance with the rules for the prevention of money laundering and terrorism financing;
2.2.1.3 unless otherwise required by the applicable law, the User shall be identified before making any act or transaction in Investly, at least by entering his/her own user name to Investly. The Portal Manager may submit additional conditions for the identification of the User at any time;
2.2.1.4. All operations and transactions performed through the User's Investly account are considered to be operations and transactions performed by the person behind the respective User.
2.3. General responsibilities of the User
2.3.1 The User shall:
2.3.1.1 not use Investly for illegal transactions or operations, incl. fraud, money laundering and terrorism financing;
2.3.1.2 submit to the Portal Manager and other users only truthful, complete, accurate and not misleading information, and to not conceal any information that might be relevant for the use of Investly, for the conclusion and performance of agreements concluded via/through Investly and for the performance of the General Terms;
2.3.1.3 keep the equipment, knowledge and all other means of authentication (incl. Password) necessary for entering Investly, concluding agreements via Investly, submitting declarations of intent and documents in a way that they cannot be accessed by third parties;
2.3.1.4 immediately inform the Portal Manager of the access of third parties to the data and means enabling the authentication (incl. access) of the User in Investly;
2.3.1.5 ensure that his/her Investly account and the data necessary for the use of Investly are not used by any other persons but himself/herself, his/her contractual or legal representative, and to implement the measures necessary for that;
2.3.1.6 immediately inform the Portal Manager of the change in data submitted by him/her or on his/her behalf, as well as of any circumstances that may hinder or disturb the performance of obligations arising from any agreements concluded via/through Investly, incl. when such circumstance is temporary;
2.3.1.7 perform all the obligations arising from the General Terms and/or the agreements concluded through/via Investly to the Portal Manager and/or other Users in due time and in a complete manner;
2.3.1.8 act politely and respectfully when communicating with other Users or the Portal Manager;
2.3.1.9 if the use of Investly gives the User access to the personal data of other Users or persons, the User shall not transfer them to third parties, unless he/she is required to do so by law;
2.3.1.10 compensate the Portal Manager and/or other Users for any damage that has been or may be caused by him/her in breach of his/her obligations under these General Terms;
2.3.1.11 follow the instructions given by the Portal Manager and necessary for the use of Investly;
2.3.1.12 keep the secrecy of any information that has become known to him/her during the use of Investly, incl. data about other Users, business and production or trade secrets and information about the contractual partners, production and marketing volumes, plans, prices, sales strategy etc., and to not use it for any other purposes than the conclusion and performance of the Factoring Agreement. The User undertakes to compensate the Portal Manager and/or other User for damage caused by violation of this obligation.
2.4. Investly account
2.4.1. The money transferred to the Investly environment by the User in accordance with the General Terms shall be held in a credit institutions operating in Estonia under an operating licence or a foreign credit institution's Estonian branch (hereinafter the "Current account of the Portal Manager), separately from the Portal Manager's own assets. No interest shall be paid to the User by the Portal Manager for money held on the Current Account of the Portal Manager.
2.4.2. The money transferred to the Investly environment by the User on the basis of the General Terms may only be used by the Portal Manager pursuant to the General Terms and for performing the Portal Manager's obligations arising therefrom. The money transferred by the User to the Current Account of the Portal Manager (i.e. the claim against the credit institution that has opened the respective Account of the Portal Manager) is thereby property handed over for the performance of the mandate for the purposes of Article 626 of the Law of Obligations Act, including in the meaning of subsection (3) thereof. The respective amount of money in the bank is by its nature a claim (against the credit institution), which the Portal Manager has acquired in its name but on behalf of the User and only with the purpose of using it for the performance of the mandate. The respective money is therefore not included in the bankruptcy estate of the Portal Manager. In the event of the Portal Manager's bankruptcy, the authorization agreement entered into with the mandator shall end and the mandators assets (i.e. claims and movables) transferred by the mandator to the Portal Manager for the performance of the mandate shall be returned to the mandator.
2.4.3. The Portal Manager shall keep count of every User regarding the settlements and transactions between the Portal Manager and other Users arising from the General Terms and Factoring Agreements (hereinafter also referred to as the Investly User Account or Investly Account). All payments made to the Current Account of the Portal Manager by the User shall be recorded as receipts on the Investly User Account.
2.4.4. The Portal Manager shall have the right to make deductions from the Investly User Account in order to perform the obligations of the User arising from the General Terms and Factoring Agreements entered into with other Users. Following the deduction of fees and expenses, the payable debts to other Users arising from the Factoring Agreements shall be eliminated pursuant to the manner stipulated in the General Terms and Factoring Agreements.
2.4.5. The Portal Manager shall have the right to make inclusions to the Investly User Account in order to satisfy the claims of the User arising from the Factoring Agreements entered into with other Users, and from these General Terms.
2.4.6. The User has the right to give the Portal Manager an order to make a payment from the Current account of the Portal Manager only to anaccount of the User in a credit institution of a Member state of the EU or the EEA, given that prior to that, a payment was made to the Portal Manager's Current account from the same account. Payments from the User's Investly Account can be made in the amount of the positive balance of the related User's Investly Account by using the respective technical solution of Investly. Positive balance means the part of the funds on the account that is not covered by a reservation or collectible arrears for the benefit of the Portal Manager or other Users. The Portal Manager shall be obligated to execute the respective transfer order within one (1) working day, except in the case the User has not submitted necessary documents to identify herself/himself to Portal Manager.
2.5. Personal data and the processing of personal data
2.5.1. Upon registration as a User and using Investly, the User is obliged to submit his/her personal data for the purposes of using Investly and entering into the Factoring Agreement(s). Failure to provide personal data may result in the Portal Manager refusing to register this person as a User or to prohibit the conclusion of the Factoring Agreement(s) through Investly.
2.5.2. The data controller is Investly Technologies OÜ, registry number 12710066, address Lai 35-5, Tallinn, Estonia, e-mail support@investly.co (Portal Manager).
2.5.3. The purpose of personal data processing is the provision of services via Investly, the conclusion and performance of Factoring Agreements, and the improvement of service. The Portal Manager retains personal data for the period during which it is necessary for the performance of obligations arising from these General Terms and/or the Factoring Agreements. Further explanations on the processing of personal data are described in Investly´s Privacy Policy, which is available at investly.co.
2.6. Additional conditions when using the Portal
2.6.1. The Portal Manager has the right to limit the User's right of use if the User has a debt to the Portal Manager and/or other Users, or the User does not submit the information required by the Portal Manager for the use of Investly, or there is a risk that the User (or a third party) will abuse his Investly right of use.
2.6.2. The use of the Password by the User in Investly and entering it into Investly shall be deemed to be equivalent to an electronic signature, and, by entering the Password, the User shall confirm and make his binding declarations of intent. If the User has used his / her Password in Investly to make a declaration of intent or has used his /her Password in any other way, the transaction made upon it shall be deemed not to be void regardless of the violation of the formal requirements.
2.6.3. Declarations of intent may be confirmed and submitted (incl. confirming Sales Offers or Purchase Offers) on behalf of the User by the Portal Manager, if the User has given such an authorisation or order to the Portal Manager or if he/she is renting or using such technical solution from the Portal Manager. For authentication and submission of such declarations of intent, the Portal Manager can also use automated processes and software.
2.6.4. The bankruptcy or liquidation of the Portal Manager shall not affect the validity of the Factoring Agreements between Users. In such case the payments arising from the Factoring Agreements shall be made directly in accordance with the instructions of the parties of the respective Factoring Agreements.
2.6.5. Messages sent to the User's e-mail address by other Users or the Portal Manager shall be considered as received by the User after 24 hours have passed from sending. Messages sent by e-mail from the Users to the Portal Manager shall be sent to support@investly.co.
2.6.6. The Portal Manager has the right to set limits (credit limit) about the sum in which the Invoice Seller can conclude Factoring Agreements regarding the invoices issued to the same Buyer. The Portal Manager can refuse to organize an Auction if the Portal Manager has doubts whether the financial situation of the Invoice Seller or the Buyer is sufficiently good to fulfil their obligations.
3. Entry into factoring agreements
3.1. Auction
3.1.1. Factoring Agreements can only be entered into as a result of Auction via Investly. Only one Auction can be made on the same Sales Offer.
3.1.2. The content of the Sales Offer is deemed to be the content of the declaration of intent of the Invoice Seller. The content of the Purchase Offer is deemed to be the content of the declaration of intent of the Investor.
3.1.3. After the Invoice Seller has confirmed the Sales Offer, the Portal Manager shall formally verify the conformity of the data confirmed in the Sales Offer with the requirements established in General Terms. The Portal Manager shall not carry out substantive control of the submitted data / confirmations / documents. After the verification, the Portal Manager shall launch an Auction in Investly, which shall last until the ending point of the Auction determined by the Portal Manager.
3.1.4. If by the end of the Auction, the Purchase Amount or the sum of Purchase Amounts confirmed by the Investor(s) in the Purchase Offer(s) is at least equal to the Minimum Sales Price, the Auction has succeeded.
3.1.5. If before the end of the Auction determined by the Portal Manager it appears that regardless of the continuation of the Auction, it is not possible to achieve a higher Sales Price (whereas the Portal Manager may set a limit below which the Minimum Interest Rate cannot be determined / confirmed), the Portal Manager may terminate the Auction prematurely and the Auction is deemed successful.
3.1.6. If the Invoice Seller informs the Portal Manager before the end time of the Auction determined by the Portal Manager that he/she wants to terminate the Auction early, the Invoice Seller and Portal Manager shall agree on the premature termination of the Auction and the Auction shall be terminated and deemed to be successful at the time agreed upon thereafter. The agreement mentioned in this article may also be made orally.
3.1.7. Purchase Offers made/confirmed after the end of the Auction are not taken into account, unless the Purchase Offer was made/confirmed at the time when the Auction was extended.
3.1.8. If the Auction is unsuccessful, the Portal Manager may extend the Auction one time, i.e. continue to conduct the Auction until the new end time of the Auction. The Sales Offer and all previously approved Purchase Offers shall remain valid at least until the new end time of the Auction, and the result of the Auction shall be based on the new end time of the Auction. The new end time of the Auction shall be determined by the Portal Manager. In the event that the new end time of the Auction does not coincide with the same date as the end time set at the start of the Auction, the Repurchase Deadline shall be postponed as many days as the end time of the Auction changes. If after the one-time extension of the Auction the amount of the Purchase Amounts stated in the Purchase Offers made by the end of the Auction is at least 80% of the Minimum Sales Price, the Portal Manager may extend the Auction a second time, but not more than 24 hours.
3.1.9. Purchase Offers approved/made by Investors are ranked (hereinafter Ranking) on the basis that the Purchase Offers with a lower Minimum Interest Rate are considered to be better. If, during the Auction, Purchase Offers are confirmed, in which the Minimum Interest Rate is the same, the previously approved Purchase Offer is considered to be better.
3.1.10. On the basis of such ranking, the Purchase Amount indicated in the Purchase Offers are summed in such a way that to the Purchase Amount of a best Purchase Offer, each subsequent Purchase Amount of a next best Purchase Offer shall be added, until the sum of the Purchase Amount is sufficient to achieve the Sales Price, taking into account that upon calculation of the Sales Amount, the Minimum Interest Rate indicated in the last added Purchase Offer shall be used as a basis. The remaining Purchase Amounts of Purchase Offers shall not be added. Purchase Offers, whose Purchase Amounts were at least partially included in the summation, are considered to be the Winning Purchase Offers.
3.1.11. In case the sum of the Purchase Amounts indicated in the Purchase Offers are not at least equal to the Minimum Sales Price, all these Purchase Offers are deemed to be the Winning Purchase Offers.
3.1.12. Investor(s) who confirmed the Purchase Offer(s) that was/were deemed to be the Winning Purchase Offer(s) is/are the Winning Investor(s). The Purchase Offer whose Purchase Amount is (was) the last amount to be added to the summation of the Purchase Amount in accordance with Article 3.1.10. of the General Terms, is the Last Winning Purchase Offer, and the Investor who confirmed this Purchase Offer is the Last Winning Investor.
3.1.13. In case the sum of the Purchase Amounts indicated in the Purchase Offers are not at least equal to the Minimum Sales Price, but the Invoice Seller has agreed to consider the Auction as such successful, it is a Partial Auction, which is also considered a successful Auction and the following differences apply:
3.1.13.1. All Investors who have made a Purchase Offer are considered to be Winning Investors and the last Purchase Offer of the Ranking is considered to be the last Winning Purchase Offer.
3.1.13.2. The Sales Price is the sum of the Purchase Amounts of all Purchase Offers made.
3.1.13.3. The Invoice Seller assigns the Claim in full to the Winning Investors and upon payment of the Invoice, the amount remaining from the Sales Price, Interest, Delay Fee, Interest on Late Payments and other expenses related to the Invoice will be paid forward to the Invoice Seller.
3.1.13.4. If the Invoice is paid only partially, the remaining amount of the Sales Price, Interest, Delay Fee, Interest on arrears and other expenses related to the Invoice shall be paid forward to the Invoice Seller and the Claim shall be returned to the Invoice Seller.
3.1.14. In the case of a Partial Auction, a new Auction may be organized for the remaining Invoice Amount / Claim Amount, in which case it shall be deemed that the relevant part is acquired by the Winning Investors who have made Purchase Offers at the new Auction and the Invoice Seller shall not have the rights stipulated in the articles 3.1.13.3. and 3.1.13.4 for the remaining sum to be paid forward or Claim to be returned.
3.1.15. In the event of a successful Auction, at the end of the auction, Factoring Agreement(s) shall be automatically concluded (and is/are deemed to be concluded) between the Invoice Seller and the Winning Investor(s). A Factoring Agreement shall be concluded automatically with every Winning Investor in the Purchase Amount indicated in the Winning Purchase Offer of the Winning Investor.
3.1.16. If the conclusion of Factoring Agreements with all Winning Investors would bring about a situation where under the Factoring Agreement(s), a bigger amount than the Sales Price must be paid, then the Factoring Agreement between the Invoice Seller and the last Winning Investor shall be concluded to the extent where the last Winning Investor shall pay the Sales Price in the amount what equals the difference between the sum of the Purchase Amount of the best Winning Purchase offers and the Sales Price.
3.1.17. The Portal Manager shall register all the Purchase Offers made in the Auction in chronological order. The time in the Investly system shall thereat be decisive.
3.1.18. The Portal Manager has the right to disclose the outcome of the Auction as well as data about its process and development (declarations of intent of the Users). The Portal Manager has the right (but not obligation) to use the User name or the User IF of the User (instead his/her actual name) while disclosing data during the Auction and about the Auction.
3.2. Refusal to conduct an auction
3.2.1. The Portal Manager has the right to refuse from the conduction of the Auction, if:
3.2.1.1. The Invoice Seller has not met the requirements stipulated in the General Terms or violates or has violated the General Terms or other obligations arising from the agreements concluded during the use of Investly;
3.2.1.2. The Buyer has provided inaccurate or incomplete confirmations; or
3.2.1.3. The Invoice Amount is smaller than five hundred (500) euros; or
3.2.1.4. The Invoice Payment Deadline is due in 14 (fourteen) or less calendar days; or
3.2.1.5. The Invoice Seller has not performed his/her Contractual Obligation underlying the Claim; or
3.2.1.6. The Invoice Seller and the Portal Manager are having a dispute or negotiations in relation to the amounts paid out to the Invoice Seller, or the Invoice Sellers right to use Investly is limited; or
3.2.1.7. The Invoice issued by the Invoice Seller does not enable to identify the Claim to be assigned, or the Invoice doesnt have the Invoice issue date and/or the payment deadline, or the Invoice is not in euros; or
3.2.1.8. The invoice is not issued in a form which can be reproduced in writing or it has deleted, struck off or added information (except the signatures or confirmations about not having claims added by the Invoice Issuer and/or the receiver of goods or services authorised by the Buyer); or
3.2.1.9. The Buyer who is the receiver of the Invoice has delayed with the payment of previous invoices by more than 90 (ninety) calendar days within the last 6 (six) months; or
3.2.1.10. The Contract underlying the Invoice is subject to other legislation than the legislation of the Republic of Estonia and the disputes arising from such Contract shall not be resolved in the courts of the Republic of Estonia; or
3.2.1.11. The Invoice Seller or the Buyer is operating under the debt restructuring plan or reorganisation plan or the Invoice Seller or the Buyer is merged, divided or restructured;
3.2.1.12. The Invoice Seller or the Buyer has unpaid state taxes, or there is another valid reason for refusal.
3.2.2. The Portal Manager shall not conduct an Auction, if:
3.2.2.1. The Credit Limit determined by the Portal Manager has been exceeded or it would be exceeded as a result of entering into Factoring Agreements on the basis of the Sales Offer or the Portal Manager has set a financial limit to the Invoice Seller for the factoring of Claims related to a specific Buyer and it would be exceeded;
3.2.2.2. The Portal Manager discovers that in order to confirm the Sales Offer (and prior to that), the Invoice Seller has deliberately made false declarations or submitted false data or false documents;
3.2.2.3. The Portal Manager discovers that the Buyer has deliberately made false declarations or the confirmation of the Buyer stipulated in the General Terms and serving as the prerequisite for the organisation of the Auction is missing;
3.2.2.4. The Portal Manager finds out that the Invoice Seller or the Buyer is subject to bankruptcy or liquidation proceedings;
3.2.2.5. The Portal Manager finds out that the competent representative body of the Invoice Seller or the Buyer has decided to terminate the activities of the Invoice Seller or the Buyer;
3.2.2.6. The management board, executive management or circle of owners of the Invoice Seller and the Buyer includes the same persons or close relatives of the aforesaid persons, or significant changes are taking place among the owners of the Invoice Seller and the Buyer, or the Invoice Seller and Buyer can be considered as a parent undertaking and a subsidiary or, depending on the significant participation in the Buyers company, the Invoice Seller has common interests with the Buyer;
3.2.2.7. The Invoice Payment Deadline is longer than 270 calendar days (term changed on February 5th 2020. Until February 5th 2020 the term stipulated: "The Invoice Payment Deadline is longer than 180 calendar days");
3.2.2.8. A circumstance arises, on the basis of which the Portal manager my presume that the Invoice Seller and the Buyer might not perform their obligations in front of the Investors and/or the Portal Manager;
3.3. Sales Offer
3.3.1. In order to enter into Factoring Agreements, the Invoice Seller shall confirm a relevant Sales Offer in Investly prior to the Auction.
3.3.2. In order to get the option to confirm a Sales Offer, the Invoice Seller must enter to the Portal:
3.3.2.1. Invoice, for which he wants to assign a Claim and thus conclude the Factoring Agreement(s); and;
3.3.2.2. The Invoice Amount, Invoice number and Payment Deadline, if they are not shown on the Invoice. The Portal Manager may demand the Invoice Seller to submit data about the legislation and jurisdiction applicable to the Claim underlying the Invoice;
3.3.2.3. Information about the Buyer, incl. the Buyers address and phone number and e-mail address currently in use;
3.3.2.4. The Buyers confirmation, if the confirmation is not obtained by the Portal Manager;
3.3.2.5. If the Portal Manager requests that, documents and contracts proving the surety or the letter of guarantee given by a third party in relation to the Factoring Agreement(s).
3.3.3. The Invoices and the Claims assigned must not be subject to claim assignment restriction, and they may not have been set- off, and the Buyer may not have claims to be set-off against the Invoice Seller, the term of which has arrived or has not been established or has been established as the moment of the submission of the Sales Offer. If the Buyer has waived his/her rights to set-off the Invoice or the Claim, then the Portal Manager may consider it as if there is no claims to be set-off.
3.3.4. The confirmation of the Buyer is:
3.3.4.1. A document (incl. correspondence) which reveals that the Buyer has received the Invoice and approved it (incl. The Invoice Amount and terms of payment); or
3.3.4.2. A document (incl. correspondence) which reveals that the Buyer confirms that the prerequisites of the Claim underlying the Invoice are met by the Invoice Seller (such document may be, inter alia, delivery note signed by the Buyer, act of delivery and receipt, etc.); or
3.3.4.3. another circumstance which enables to assume that there is a contractual relationship between the Buyer and the Invoice Seller and there is no dispute between the parties as to whether the Buyer undertakes to pay the amount stated on the Invoice on this basis;
3.3.5. If the Invoice Seller does not submit the Buyers approval, the Portal Manager may obtain the Buyers approval independently (except when it is an assigment without notification) and the Buyers confirmation obtained like this may also be given orally. In case of Invoices which are e-invoices, the Portal Manager has the right not do demand the Buyers confirmation and can arrange the Auction without Buyers confirmation.
3.3.6. The Buyers confirmation does not have to be an acknowledgement of obligation or does not necessarily have to have the effect of an acknowledgement of obligation. The Portal Manager may demand the confirmation of the Buyer to be an acknowledgement of obligation.
3.3.7. In the Sales Offer, the Invoice Seller determines and confirms:
3.3.7.1. The Invoice (incl. The Invoice details, payment terms and deadline), whose underlying Claim(s) the Invoice Seller shall assign to the Winning Investor(s) under the Factoring Agreement(s);
3.3.7.2. Invoice Amount, Invoice Payment Deadline, Minimum Sales Price, Maximum Interest Rate, Repurchase Term, Repurchase Price and Agreement Fee;
3.3.7.3. That all the information indicated on the Invoice is accurate and complete and the Claim(s) indicated on the Invoice are recoverable to the extent of the Invoice Amount, they have not been set off or assigned to third persons and the amount payable under the Invoice has not been reduced (the prices has not been lowered).
3.3.8. The confirmation of a Sales Offer is (and is deemed to be):
3.3.8.1. A binding offer of the Invoice Seller to other User(s) to enter into Factoring Agreement(s) with the Winning Investor (s), taking into account the terms and conditions of the Sales Offer, the General Terms, the Auction process (incl. its outcome) and their impact on the terms and conditions of the Factoring Agreements; and
3.3.8.2. The Invoice Sellers confirmation and agreement to these General Terms, to the conclusion of the Factoring
Agreement(s), and to the obligation to pay the Agreement Fee (and the added VAT);
3.3.8.3. The granting of an authorisation on behalf of the Invoice Seller to the Portal Manager for making Sales Offers to other Users on behalf and on the account of the Invoice Seller, for receiving the relevant declarations of intent and for entering into Factoring Agreements (taking into account these General Terms and declarations of intent); and
3.3.8.4. The Invoice Seller accepts that the confirmation of the Sales Offer may bring about financial obligations and, if the Auction is successful, he/she automatically enters into Factoring Agreement(s) with the Winning Investor(s), without having to submit any additional declaration of intent on his/her behalf.
3.3.9. In order to confirm the Sales Offer, the Invoice Seller must enter his/her Password in the Portal. The Sales Offer is deemed to be confirmed after the Invoice Seller has entered his/her Password.
3.3.10. The Invoice Seller may take back the Sales Offer (and its approval) until the confirmation of the first Purchase Offer at the Auction. If the Invoice Seller takes back the Sales Offer, it does not change the Sellers obligation to pay the Agreement Fee and the added VAT.
3.3.11. In the case of a consolidated Invoice, confirmation is made and given for the consolidated Invoice, not for each individual Invoice separately.
3.3.12. By confirming the Sales Offer, the terms and information brought out in the Sales Offer, that are not confirmed separately by the Invoice Seller, shall become an integral part of the Sales Offer and the Factoring Agreement(s).
3.4. Purchase offer
3.4.1. In order to enter into Factoring Agreement, the Investor must confirm a Purchase Offer during the Auction for the respective Sales Offer in the Portal.
3.4.2. In the Purchase Offer, the Investor must determine and confirm the Purchase Amount and Minimum Interest Rate. The Portal Manager may set a limit under which the Minimum Interest Rate cannot be fixed.
3.4.3. A Purchase Offer with a Minimum Interest Rate bigger than the Maximum Interest Rate of the respective Sales Offer cannot be confirmed.
3.4.4. The confirmation of a Purchase Offer on behalf of the Investor is (and is deemed to be):
3.4.4.1. The Investors binding approval of the Sales Offer, on the basis of which the Investor automatically enters into the Factoring Agreement with the Invoice Seller, if the respective Purchase Offer will be the Winning Purchase Offer, taking into account the terms and conditions confirmed in the respective Purchase Offer, the General Terms, the Auction process (incl. its outcome), and their impact on the Factoring Agreement(s).
3.4.4.2. The Investors agreement to the General Terms and the Investors authorisation to the Portal Manager to enter into Factoring Agreement(s) on his/her behalf and in his/her name, in relation to the respective Sales Offer and taking into account the Purchase Offer; and
3.4.4.3. The Investor accepts that the confirmation of the Purchase Offer may bring about financial obligations and, if the Auction is successful, he/she automatically enters into Factoring Agreement(s) with the Invoice Seller, without having to submit any additional declaration of intent on his/her behalf.
3.4.5. In order to confirm a Purchase Offer, the Investor shall need to have unreserved funds to the extent of the offered Purchase Amount on his/her Investly Account. Upon a Purchase Offer being made, the offered amount shall be reserved on his/her Investly Account. The User shall not be able to use the reserved amount to confirm new Purchase Offers or transfer it from their Investly Account, except to the Investly Account of the Invoice Seller upon entry into a Factoring Agreement on the basis of the respective Purchase Offer. The reservation shall expire if the Auction ends without entry into a Factoring Agreement with the User who confirmed the respective Purchase Offer.
3.4.6. In order to confirm the Purchase Offer, the Investor must enter his/her Password in the Portal. The Purchase Offer is deemed to be confirmed after the User has entered his/her Password. The User cannot take back the Purchase Offer (and its confirmation). If the Purchase Offer is made by using automated software solutions provided by the Portal Manager (eg automated provider), then it is not necessary to enter a separate Password to confirm the Purchase Offer and the Purchase Offer is considered confirmed without entering the Password each time.
3.4.7. By confirming the Purchase Offer, the terms and information brought out in the Purchase Offer, that are not confirmed separately by the User, shall become an integral part of the Purchase Offer and the Factoring Agreement(s).
4. General terms and confitions to the factoring agreements
4.1. These General Terms (in full), the Sales Offer, the Winning Purchase Offers and the result of the Auction form an integral part of the Factoring Agreements concluded via Investly.
4.2. Sales price
4.2.1. The Sales Price is a fee for which the Invoice Seller assigns the Claim(s) underlying the Invoice(s) to the Winning
Investor(s) in case of a successful Auction.
4.2.2. The Sales Price is calculated on the basis of the Sales Offer, Winning Purchase Offer(s) and the Auction as follows: Sales price = Invoice Amount / ( 1 + Interest Rate / 365 x Financing Period). The Interest Rate shall be the Minimum Interest Rate of the last Winning Purchase Offer. The result of the calculation above is the amount of the Sales Price.
4.3. Payment of the sales price
4.3.1. The fee payable for each part of the Claim received by each Winning Investor under the Factoring Agreement is the same as that of the Sales Price paid by him/her correspondingly to his/her Purchase Offer and outcome of the Auction. By the payment of the Sales Price to the Invoice Seller, all obligations of the Winning Investors and the Portal Manager to the Invoice Seller are deemed to be fulfilled.
4.3.2. The Winning Investor(s) shall pay the Sales Price to Invoice Seller for the Claim(s) assigned to the Winning Investor (s). In general, the Sales Price shall be transferred from the account(s) of the Winning Investor(s) to the account of the Invoice Seller on the same day after the end of the Auction (provided that the Auction was successful), if the Auction ends before 3 p.m. (Tallinn time, i.e. UTC +3). If the Auction ends at 3 p.m. or later, the Sales Price shall be transferred to the account of the Invoice Seller on the following workday after the Auction, but if possible, then the Sales Price can be transferred to the account of the Invoice Seller on the same day of the Auction. The Portal Manager is entitled to make the respective transfer in the name and on behalf of Winning Investors.
4.3.3. The Winning Investors (and the Portal Manager on their behalf) have the right to refuse from paying the Sales Price to the Invoice Seller and withdraw from the Factoring Agreement(s), if it appears that the information and confirmations submitted by the Invoice Seller or the Buyers confirmation do not reflect the actual situation and in the meantime, a circumstance specified in Article 3.2. (and its subsections) of the General Terms has become evident, of which the Portal Manager did not know before starting the Auction.
4.3.4. Agreement Fee is deducted from the Sales Price paid to the Invoice Seller, which is paid directly from the Sales Price to the Portal Manager.
4.4. Assignment of claims
4.4.1. If the Auction is successful, then the Invoice Seller shall fully assign the Claim(s) (incl. side claims and all claims securing the Claim) underlying the Invoice subject to the automatically concluded Factoring Agreement(s) to the Winning Investor(s), taking into account that:
4.4.1.1. The Claim, in the part it must be assigned to the Winning Investor(s), shall be assigned in parts to each Winning Investor, whereas each Winning Investor acquires part of the Claim to the extent and in the amount that is proportional to the amount of Sales Price he/she paid.
4.4.1.2. The assignment of Claim(s) on behalf of the Invoice Seller shall take place at the same time as the Auction ends and shall in any case be deemed to have taken place from the moment when the Sales Prices has been paid to the Invoice Seller.
4.4.2. The assignment of Claim(s) shall take place by Assignment with notification or Assignment without notification.
4.4.3. In case of Assignment with notification, the Portal Manager shall inform the respective Buyer of the assignment of Claim automatically by forwarding the Buyer a relevant e-mail and the information of the representative of the new creditors for the payment of the Invoice to the Portal Managers account, unless the Buyer was notified of the assignment of the Claim upon issuing the Invoice. The Portal Manager may demand that before the payment of the Sales Price, the Invoice Seller must inform the Buyer of the assignment of Claim(s) underlying the Invoice, and refuse from paying the Sales Price to the Invoice Seller before the latter has submitted evidence of doing so.
4.4.4. In case of Assignment without notification, the respective Buyer shall not be informed of the assignment of Claim and at the end of the Auction and before transferring the Sales Price, the Invoice Seller must give the Buyer an order to pay the Invoice to the bank account and in accordance with the instructions given by the Portal Manager. The Invoice Seller is obliged to forward to the Portal Manager the order (which can also be the Invoice itself), in which he/she gives the Buyer an order to pay the Invoice to the bank account and in accordance with the instructions given by the Portal Manager.
4.4.5. If the Claim assigned to the Winning Investor(s) on the basis of the Factoring Agreement(s) is secured with a credit insurance (or another similar insurance), according to which the insurer shall compensate for any damage caused by the non- payment of the Claim and the beneficiary of such insurance contract is the Invoice Seller, it is deemed that the rights (incl. the right to get insurance indemnity) arising to the Invoice Seller from such contract are assigned to the Winning Investors and/or the Portal Manager.
4.5. Payment of the invoice
4.5.1. The Buyer undertakes to pay the Invoice Amount in full to the account of the Portal Manager by the Payment Deadline in accordance with the information indicated on the Invoice or on the Claims assignment notice sent by the Portal Manager to the Buyer.
4.5.2. From the Invoice Amount paid by the Buyer, the Portal Manager shall transfer the amount paid to Investly account by the Buyer in corresponding amount(s) to the Investly Account(s) of the Winning Investor(s) (i.e. the Portal Manager divides and transfers the remaining amount to the Winning Investors' Investly accounts proportionally in accordance with the ratio of the Purchase Amount resulting from the Factoring Agreement concluded with each Winning Investor separately to the Sales Price of the Invoice).
4.5.3. If by the Invoice Payment Deadline, the Buyer has not fully paid the Invoice reflecting the Claims assigned to the Investor(s), then the Portal Manager is entitled to demand (incl. on behalf of the Winning Investor (s)), that the Buyer pays Contractual interest on arrears for the unpaid Invoice Amount for the period between the Invoice payment deadline and the complete payment of the Invoice. The Portal Manager has the right to use this right, regardless of whether the Invoice Seller has fulfilled his/her obligation to pay the Delay Fee and the interest on arrears or not.
4.5.4. When the Buyer has paid the Invoice to the Invoice Seller (including the Contractual Interest on Arrears or has paid the Invoice partially), the Invoice Seller undertakes to immediately notify the Portal Manager about this payment and transfer the corresponding amount to bank account indicated by the Portal Manager the latest within three (3) banking days from its receipt. After receiving the payment from the Invoice Seller, the Portal Manager shall transfer the relevant amount on the same basis as if it were paid to the Portal Manager account by the Buyer.
4.5.5. The Portal Manager shall keep a record on the Claims assigned and if necessary, send reminders to the e-mail of the Buyer for the payment of the Invoice and Contractual interest on arrears.
4.5.6. If, with the consent of the Portal Manager, the Invoice Seller sends a credit invoice to the Buyer or reduces by any other means the amount payable by the Buyer according to the Invoice, or if the Invoice Seller makes the Buyer a proposal to get a discount, the Invoice Seller undertakes to pay within five (5) working days from the implementation of such discount to his/her Investly account (or the bank account indicated by the Portal Manager) the amount which corresponds to the reduction made to the amount payable according to the Invoice or to the discount made. After receiving the payment from the Invoice Seller, Portal Manager shall transfer the relevant amount to the Winning Investors proportionally to the amount of the amount received and taking into account the amount each Winning Investor is entitled to receive. The Invoice Seller undertakes to immediately issue the relevant credit invoice to the Portal Manager. If the Invoice Seller does not perform these obligations promptly, the Portal Manager is entitled to claim (incl. in the name of Winning Investors) the Invoice Seller to immediately perform his/her Repurchase Obligation.
4.5.7. In case after the Buyer has paid the Invoice, the Winning Investor(s) is/are requested to pay VAT or any other tax due to interpretation or amendment of legislation, then the Invoice Seller is liable for the immediate payment of such taxes on behalf of the Winning Investor(s).
4.6. General obligations of the invoice seller
4.6.1. The Invoice Seller undertakes to:
4.6.1.1. Not offer any discount or other deduction to the Buyer without the prior written approval of the Portal Manager, which would bring about a smaller sum to be paid under the Invoice;
4.6.1.2. Not modify the Invoice and Contract underlying the Claim underlying the Invoice without the prior written approval of the Portal Manager;
4.6.1.3. Not make any transactions or operations without the prior written approval of the Portal Manager, which would bring about the decrease in the value of the assigned Claim (incl. the encumbrance of the claim) and/or that would affect its recoverability or payment terms;
4.6.1.4. Not give the Buyer any instructions which would bring about the payment of the Invoice by other means and/or according to other instructions than those given to the Invoice Seller and/or Buyer by the Portal Manager;
4.6.1.5. Compensate the Portal Manager and Winning Investor(s) for any damage caused by confirmation(s) with false content given by the Invoice Seller and/or the Buyer or by acting against good will;
4.6.1.6. Provide the Portal Manager and the Winning Investors any help in proving the presence of the assigned Claim and its recoverability, and submit all documents proving the Contract underlying the Claim within five (5) working days from the receipt of the relevant request;
4.6.1.7. Inform the Portal Manager of all circumstances related to the Claim;
4.6.1.8. If the Buyer has not paid the Invoice in full by the Invoice Payment Deadline, pay the Delay Fee for each day until the deadline for the payment of the Repurchase Price (incl.);
4.6.1.9. Perform his/her Repurchase Obligation;
4.6.1.10. In case of delay in the performance of an obligation arising from the Factoring Agreement(s) and/or these General Terms (incl. in case of delay in the payment of the Repurchase Price), pay interest on arrears on the amount due for each delayed day according to the Interest rate;
4.6.1.11. Inform the Portal Manager of any disputes with the Buyer or any possibility thereof. If a Dispute arises, the Invoice Seller undertakes to settle the dispute and perform his/her obligations under the Agreement subject to such Claim.
4.6.1.12. The Invoice Seller shall remain responsible that the Buyer will pay the Invoice and is together with the Buyer a solidary obligor in front of the Winning Investors and Portal Manager.
4.6.1.13. The Invoice Seller is obliged to inform the Portal Manager if the Invoice Seller is using the services of other factoring service provider in order to factor/finance invoices/claims concurrently during the term of this agreement.
4.7. Repurchase obligation
4.7.1. If the Buyer has not paid the Invoice(s) in full by the Repurchase Deadline, the Invoice Seller undertakes to buy back the Claims(s) assigned under the Factoring Agreement (fulfil the Repurchase Obligation) within three working days from the Repurchase Term.
4.7.2. In the event of the application of Repurchase Obligation, the Invoice Seller undertakes to pay the Winning Investor(s) the Repurchase Price, Delay Fee and interest on arrears.
4.7.3. The Invoice Seller undertakes to transfer the Repurchase Price, Delay Fee and interest on arrears to the bank account from which he was paid the Sales Price or in accordance with other instructions given by the Portal Manager. Payment description marked in the payment order has no legal effect.
4.7.4. The payments made by the Invoice Seller shall be forwarded to the Investly Account(s) of the Winning Investor(s) proportionally to the amount of the sum received and taking into account how big sum each Winning Investor is entitled to get after deduction of recovery costs.
4.7.5. The payment(s) made by the Invoice Seller are deemed to be in the following order: firstly, recovery costs (from the Invoice Seller or the Buyer), secondly, the Delay Fee, thirdly, interest on arrears, and fourthly, the Repurchase Price.
4.7.6. If the Repurchase Obligation applies, but prior to that, the Buyer had partially paid the Invoice, or the Buyer pays the Invoice in part or in full after the application of the Repurchase Obligation, the payments made by the Buyer are deemed to be in the following order: firstly the recovery costs, then the Delay Fee and Interest on Arrears and then, the Invoice Amount (to the extent of what was left after the payment of contractual Interest on Arrears/Delay Fees). On the account of the payment of the Invoice, the obligations of the Invoice Seller arising from the Repurchase Obligation shall be reduced.
4.7.7. In the event where the Claim assigned to the Winning Investor(s) is insured with a credit insurance, the obligations of the Invoice Seller arising from the Repurchase Obligation shall be reduced on the account of the sum compensated to the Winning Investor(s) or the Portal Manager only in regards to the Invoice Amount.
4.7.8. If the Invoice Seller has completely performed all his/her obligations arising from the Repurchase Obligation, the Winning Investors and/or the Portal Manager shall automatically assign back the Claim(s) underlying the Invoice to the Invoice Seller to the extent where the Buyer has not paid up the Claim(s) or to the extent where the insurer has not acquired the Claim(s). If the Claim to be assigned back is fully paid up by the Buyer or fully acquired by the insurer, this Claim shall not be assigned back to the Invoice Seller, but it shall not invalidate the Invoice Sellers obligation to pay up the obligations arising from the Repurchase Obligation.
4.7.9. Until the Repurchase Obligation is fully and duly met, incl. until the Delay Fee, the interest on arrears and the Agreement Fee are fully paid, the right of ownership of Contractual Claims shall belong to the Winning Investor(s), or only to the Portal Manager according to Article 4.9.4. of the General Terms. Hereby, when the Repurchase Obligation is fully met, the Invoice Seller will get back the claim for Contractual Interest on Arrears related to the Claims, except for the interest on arrears regarding which the Buyer has already paid the Contractual Interest on Arrears to the Portal Manager as the representative of the Winning Investor(s) or to the Portal Manager himself/herself.
4.7.10. If the Buyer has offset the Claim assigned to the Winning Investor and the portal manager with the claim against the Invoice Seller, lowered the price or withdrawn from the Contract underlying the Invoice (or terminated the Contract), or uses his/her right to refuse from the performance of mutual obligation, then a Repurchase Obligation arises for the Invoice Seller, which he/she undertakes to perform within three (3) working days from the receipt of the relevant claim submitted by the Portal Manager, regardless of whether such action of the Buyer is legal or not.
4.7.11. The Winning Investor and the Portal Manager have no obligation to notify the Buyer of the performance of
Repurchase Obligation on behalf of the Invoice Seller.
4.7.12. Repurchase Price is the fee which the Invoice Seller undertakes to pay to the Winning Investor(s) for assigning back the Claims in case the Repurchase Obligation applies. The Repurchase Price (and its amount) shall be established as follows: Invoice Amount – the sum in which part the Invoice is already paid.
4.8. Interest on arrears and contractual penalties
4.8.1. In case of delay in the payment of the Repurchase Price or any payments arising from the Factoring Agreement and/or the General Terms, the Invoice Seller undertakes to pay the Winning Investor(s) interest on arrears for each delayed day in accordance with the Rate of Interest on Arrears. The Rate of Interest on Arrears is the same as the Interest Rate. The daily Interest on Arrears rate equals the Interest Rate/365.
4.8.2. Charging the Contractual Interest on Arrears from the Buyer on behalf of the Portal Manager and/or the Winning Investor(s), and the payment of Contractual Interest on Arrears by the Buyer does not invalidate the Portal Managers and/or the Winning Investors right to claim the Invoice Seller to pay interest on arrears in case of delayed payment of the Repurchase Price.
4.8.3. In the event that the Buyer does not pay Invoice by the Invoice Payment Deadline (regardless of whether the Invoice was left unpaid in part or in full), then the Invoice Seller undertakes to pay the Winning Investor(s) and/or the Portal Manager contractual penalty (Delay Fee).
4.8.4. Delay Fee must be paid for each day between the Invoice Payment Deadline and the Repurchase Price payment deadline (incl. the Repurchase Price payment deadline), when the Invoice is not paid in full.
4.8.5. The Portal Manager has the right to not claim, on behalf of the Winning Investor(s), the payment of the Delay Fee, and withdrawn from the Delay Fee claim, if the Buyer delays a maximum of three (3) working days.
4.8.6. The Delay Fee shall be calculated on the unpaid Invoice Amount for each day in the rate that is the Interest Rate established during the Auction, recalculated as the daily interest rate (Interest Rate/365).
4.8.7. The Portal Manager has the right to claim, on behalf of the Winning Investor(s), contractual penalty from the Invoice Seller up to two percent (2%) of the Invoice Amount, if any confirmation or data submitted by the Invoice Seller prove to be false or if the Seller has breached these General Terms and/or Factoring Agreement in a way that it affects the payment of the Invoice to the Winning Investor(s) and/or Portal Manager in a way that it damages them or their interests.
4.9. Payment failures and automatic assignment of claims
4.9.1. If the Buyer does not pay the Invoice in full by the Invoice Payment Deadline, or if the Invoice Seller does not perform his/her obligations under the Repurchase Obligation, the Portal Manager shall carry out the recovery of Claims (incl. Contractual Interest on Arrears) from the Buyer and/or the recovery of Repurchase Price, interest on arrears, Delay Fee and any other contractual penalties on behalf of the Winning Investor(s) and at his/her own discretion.
4.9.2. The Portal Manager has the right to forward the information about the payment default of the Buyer and/or the Invoice Seller to third parties (incl. the Payment Defaults Register of AS Krediidiinfo), by forwarding the Buyers and/or Invoice Sellers business name, registry code, start and end date of the payment default, amount of the payment default, and information on the nature of contractual relationship. AS Krediidiinfo has the right to forward the above mentioned data to credit institutions and other persons who have a legitimate interest in the solvency of the persons entered in the registry. The Invoice Seller or the Buyer are entitled to file a complaint in accordance with the procedure laid down on the website of AS Krediidiinfo.
4.9.3. If the Invoice Seller fails to comply in time and in full with any financial obligation arising from the Factoring Agreement(s) and/or the General Terms, or the Buyer fails to pay the Invoice (the underlying Claim), then the Portal Manager shall estimate whether the recovery of the financial obligation from the Invoice Seller, the Buyer, or the person who has given the surety or guarantee is likely and probable.
4.9.4. If the Portal Manager estimates that the terms and conditions laid down in Article 4.9.3. of the General Terms (i.e. the Portal Manager estimates that the recovery of the financial obligation is likely and probable), then all the rights of the Winning Investor and recoverable claims (incl. the claims for the payment of the Repurchase Price, Agreement Fee, Delay Fee, interest on arrears and other fees), as well as any other future claims with other collaterals and/or surety (or insurance claims) arising from the Factoring Agreement concluded between the Winning Investor and the Invoice Seller shall automatically be transferred to the Portal Manager at the moment of estimation given by the Portal Manager under Article 4.9.3. of the General Terms. The purpose of the assignment of the Claim provided for in this Article is to carry out the right to recover the Claim by the Portal Manager and in the interests of the Winning Investor.
4.9.5. Claims shall be forwarded (assigned) to the Portal Manager in accordance with the procedure laid down in Article 4.9.4. without term. If the Portal Manager estimates that the recovery of claims is not likely or probably, but however, it appears later that the recovery and execution of such claims was at least partially possible, it does not bring about any obligations or liability of the Portal Manager.
4.9.6. Hereby, the Investor gives the Portal Manager an authorisation with instructions, consent and the right of subdelegation to carry out, in his/her name, any act and/or transaction (incl. to represent the Investor in legal proceedings) that the Portal Manager estimates to be necessary for the recovery of a financial claim or execution of a right of the Investor arising from the Factoring Agreement concluded between the Investor and the Invoice Seller. The Portal Manager has the right to enter into compromises, on the basis of which the claim under recovery or its ancillary claims may be partially waived.
4.9.7. Hereby the Investor who becomes the Winning Investor authorises the Portal Manager to inform, in his/her name, the debtor of the assignment of the claim arising from the Factoring Agreement (or the related surety or guarantee).
4.9.8. If the Portal Manager manages to recover from the Invoice Seller, Buyer and/or the person who gave a surety or guarantee any financial claim arising from the Factoring Agreement or any other agreement, or receive insurance indemnity from the insurer, the right of recovery of which would have belonged to the Winning Investor(s) without the assignment of the right under Article 4.9.4. of the General Terms, then upon receipt of such amounts, the Portal Manager undertakes to notify the Winning Investor(s) of the receipt of such amounts, and to transfer the relevant amount to the Investly account(s) of the Winning Investor(s), having previously deducted and paid all the fees and costs related to such transactions (incl. the fact that the Portal Manager has the right to firstly deduct recovery and legal assistance costs), and taking into account that after such deductions are made, the received amount shall be divided between the Winning Investors proportionally to how big amount of the Claim the Winning Investor originally acquired.
4.9.9. The Invoice Seller shall bear all the costs, incl. legal assistance and procedural costs arising from the recovery of claims, registration, maintenance and execution of surety, or execution of insurance (incl. Deductible) arising from the Factoring Agreement(s). If the above costs cannot be recovered from the Invoice Seller or such costs are not payable to the benefit of the Portal Manager, or their recovery in the execution proceeding is unsuccessful, these costs shall be borne by the Winning Investor(s) and they shall be divided between them proportionally to how big amount of the Claim the Winning Investor originally acquired.
4.9.10. The Portal Manager may stop the recovery of claims assigned to him/her under Article 4.9.4. of the General Terms at any time, or not proceed with the recovery, if:
4.9.10.1. The Portal Manager estimates that the recovery of claims or the execution of sureties as a result of the relevant steps and proceedings is not probable or the profit probably earned is smaller or equivalent to the expected costs of such steps and proceedings; or
4.9.10.2. The Invoice Seller, Buyer and/or person who gave the surety or guarantee have paid the Portal Manager under the assigned claims an amount corresponding to the amount of the Repurchase Price, interest on arrears, Delay Fee and other contractual penalties or Agreement Fee (with VAT); or
4.9.10.3. If the Buyer has fully paid the Invoice Amount.
4.9.11. The Portal Manager has no obligation to carry out the recovery of Claims that the Buyer has not paid by the Invoice Payment Deadline, or the recovery of Contractual Interest On Arrears payable by the Buyer (incl. to initiate court or arbitration proceedings, execution proceedings, bankruptcy proceedings or any other insolvency proceedings in accordance with the procedure laid down by law) on behalf of or in the interests of the Winning Investor(s) even if the Contract underlying the Invoice is not subject to the Legislation of the Republic of Estonia or if the Contractual claim indicated in the Invoice cannot be executed in the Republic of Estonia.
4.9.12. In cases stipulated in Articles 4.9.10. or 4.9.11. of the General Terms, the Portal Manager shall have no obligations or liability to the Winning Investors and the Portal Manager may, under the relevant request of the Winning Investor or on its own initiative, assign back the claim previously assigned by the respective Winning Investor at his/her own expense. The Portal Manager shall inform the relevant Winning Investors of his/her decision to not engage in the recovery of claims via the portal or by e-mail.
4.9.13. If the Claim assigned to the Winning Investor(s) under the Factoring Agreement was insured with credit insurance (or any other similar insurance) and the insurer pays the insurance indemnity related to the Claim to the Portal Manager and /or Winning Investor(s) (or pays the Invoice for the Buyer), then the Portal Manager has the right to assign the Claim to the insurer to the extent of insurance indemnity paid by the insurer. If the insurance indemnity is paid so that the deductible is deducted, then the Portal Manager may assign the Claim to the insurer to the extent of the deductible.
4.9.14. Upon payment of the insurance indemnity to the Portal Manager, the Repurchase Obligation and other obligations of the Seller of the relevant Invoice to the Winning Investor(s) under the Factoring Agreement are deemed to be fulfilled to the extent of the insurance indemnity paid to the Portal Manager, minus the Portal Manager´s recovery and legal assistance costs in accordance with the Factoring Agreement and the General Terms.
5. Payments made under the unfactored invoices
5.1. If a Buyer carried in the List of Buyers makes a payment to the bank account of the Portal Manager under an Invoice issued to him/her by the User, but for which a Factoring Agreement has not been concluded in Investly, then the Portal Manager shall forward the money paid to the bank account of the Portal Manager in such way to the User only if. The User shall provide the Portal Manager with sufficient evidence that the User is entitled to receive the amount paid by such Buyer to the bank account of the Portal Manager, and that the obligation underlying such right is valid and that the amount paid is not encumbered with the Buyers or any third partys right, and there are no restrictions that could prohibit the transfer of such amount to the User;
5.2. If the terms and conditions stipulated in Article 5.1. of the General Terms are met, the Portal Manager shall transfer the amount corresponding to the relevant amount transferred to the bank account of the Portal Manager by the Buyer to the bank account of the user within three (3) working days. The Portal Manager has the right to deduct transaction fee from the amount to be transferred. The User is solely responsible for any claims or complaints of the Buyer, which might occur in relation with the respective invoice or the payment made under this invoice, and he/she shall compensate in advance any costs or damages arising from the transfer of payment made by the Buyer to Investly bank account to the User's bank account.
5.3. If the User has a debt to the Portal Manager and/or to other Users under the Factoring Agreement(s) concluded via Investly, and the terms and conditions of Article 5.1. of the General Terms have been met, then the Portal Manager is authorised and has the right to pay on behalf of such User in accordance with Article 5.1. of the General Terms and from the amount paid to the bank account of the Portal Manager the debts of the User to the Portal Manager and/or other Users, and transfer the remaining amount to the User.
5.4. Portal Manager has the right to refuse from forwarding the payment made according to Article 5.1., the to the Investly bank account by the Buyer to the bank account of the User, if the Portal Manager suspects that such payment is made without a legal basis or any payment-related dispute arises between the Buyer, User and/or the Portal Manager, or if the User fails to perform his/her obligations stipulated in Article 5.1. within five (5) working days after becoming aware of such payment. In that case, the Portal Manager shall return the respective Amount to the Buyer within a reasonable amount of time.
6. Disclaimers of the portal manager
6.1. In addition to what has been stipulated elsewhere in these General Terms, the Portal Manager shall not be liable for:
6.1.1. The inaccuracy or incompleteness of the data provided by the User(s) and the behaviour of the User(s) which is in breach of the contract, illegal or against the good practice;
6.1.2. The Users inappropriate performance of obligations arising from the General Terms or the Factoring Agreement(s) and for any other damage arising during the use of Investly or in relation to the Factoring Agreement(s);
6.1.3. User(s) by any means, if the Invoice Seller and/or the Buyer do not perform their obligations;
6.1.4. The lack of right of representation of the person acting on behalf of the User and for the damage it causes;
6.1.5. The validity and and legality of Factoring Agreements concluded under the process of concluding contracts and/or contract documents in Investly of via Investly;
6.1.6. The Invoice Seller suffering damage due to the fact that the Winning Investor does not pay the Sales Price;
6.1.7. The Failure of the Auction or the damage caused by the Portal Manager managing the Auction;
6.1.8. The legal content of any contractual documents and forms made available to Users by the Portal Manager;
6.1.9. Any damage related to forwarding, not forwarding or accepting the declarations of intent of the User(s), and to submitting declarations of intent on behalf of the User(s).
6.1.10 Closing, reducing and/or increasing whatever limits provided to the User (including credit limit) and the Portal Manager has the right to change all the limits provided to the User at any time at its own discretion and without prior notice.
6.1.11. for the delay of transferring the proceeds obtained according to the Claim owned by the Winning Investor(s) in a situation where the respective payment was made to the Portal Manager during non-working hours. In this case, the Portal Manager will make a transfer to the Winning Investor (s) on the first business day following the payment.
7. Withdrawal from, cancellation and amendment of the factoring agreement
7.1. The Portal Manager as the representative and on behalf of the Winning Investors, and the Winning Investor himself /herself is entitled to extraordinarily terminate the Factoring Agreement or withdraw from it, if:
7.1.1. The Invoice Seller has submitted false data to the Portal Manager and/or other Users, the confirmation submitted by the Invoice Seller to turns out to be false or the Invoice Seller has failed to submit information which has material impact on the obligations arising from the Factoring Agreement or the Agreement;
7.1.2. The Invoice Seller fails to duly comply with the Repurchase Obligations and/or other related obligations arising from the Factoring Agreement;
7.1.3. The Invoice Seller fails to perform his/her obligations arising from the Factoring Agreement and/or does not respond to the reminder or warning sent regarding meeting the terms and conditions of the Factoring Agreement;
7.1.4. The Invoice Seller does not inform the Portal Manager as the representative of the Winning Investor(s) immediately, but no later than on the day of submission of the application, of its intention to turn to court in order to initiate his/her own reorganisation or bankruptcy proceedings;
7.1.5. A merger, division, transformation, reorganisation, transfer of the company of the Invoice Seller or a part thereof takes place;
7.1.6. The security or insurance given for the performance of the Invoice Seller's obligations arising from the Factoring Agreement cannot be disposed of or the grantor of security refuses to perform the security agreement.
7.2. In case of cancellation of or withdrawal from the Factoring Agreement, the Invoice Seller will be subject to Repurchase Obligation with regard to all Claims assigned to the Winning Investors, which at the moment of cancellation of the Factoring Agreement are fully or partially unpaid by the Buyers. Additionally, the Invoice Seller undertakes to pay the Winning Investor(s) and the Portal Manager all financial obligations arising from the Factoring Agreement or the General Terms not performed so far, and all expenses and losses of the Winning Investor(s) caused by the conclusion, performance, termination of or withdrawal from the Factoring Agreement.
7.3. All amendments to the Factoring Agreement shall be made in writing. The Portal Manager is authorised to amend the Factoring Agreement on behalf of the Winning Investor(s).
8. Amendment of the general terms on behalf of the portal manager
8.1. The Portal Manager has the right to modify and amend the General Terms unilaterally and by any means, by notifying the User(s) thereof by sending a relevant notification to the E-mail address of the User and/or publishing the new version of the General Terms in Investly or on the website investly.co>www.investly.co at least 30 days before the modifications (or the new version of the General Terms) enter into force. If the User does not agree to the modifications of the General Terms (or the new version of the General Terms), the User has the right to immediately terminate the contract concluded between him/her and the Portal Manager which enables him/her the use of Investly under the General Terms until the entry into force of the modifications (or the new version of the General Terms), by informing the Portal Manager thereof in a form which can be reproduced in writing. If the User does not submit the Portal Manager the above mentioned notification to terminate the contract by the date of entry into force of the modifications of the General Terms (or the new version of the General Terms) at the latest, the User is deemed to have agreed to the modifications (or the new version of the General Terms).
8.2. If the legal acts or standards regulating the relations arising from the General Terms are changed and the modification of the General Terms is necessary to comply with the new legal acts and/or standards, the Portal Manager is entitled to unilaterally modify the General Terms by notifying the User of such changes in accordance with the provisions specified in Article 8.1. of the General Terms, but in that case, the notice deadline is twenty-four (24) hours and within this time, the User has the right to terminate the contract concluded between him/her and the Portal Manager under the General Terms by informing the Portal Manager thereof in a form which can be reproduced in writing.
8.3. If the User decides to terminate the contract concluded between him/her and the Portal Manager in accordance with Article 8.1. and 8.2., then it does not invalidate his/her obligations arising from the contracts concluded between him/her and other Users and/or the Portal Manager.
8.4. Unilateral modifications made by the Portal Manager in the General Terms dont have a retrospective effect and they do not affect or change the rights and obligations of the Users arising from the Factoring Agreements already concluded between the User(s) and the Portal Manager.
9. Final provisions
9.1. The legal relations arising from the use of Investly (incl. the Factoring Agreements) shall be subject to the substantive and procedural law of the Republic of Estonia and they shall be resolved in the courts of the Republic of Estonia.
9.2. The Users and the Portal Manager shall strive to resolve their mutual conflicts by way of negotiations. If the User is a natural person, the dispute shall be resolved in the court of the place of residence of the User. If the User is a legal person, the dispute shall be resolved in Harju County Court. If the dispute is going on between the Portal Manager and the Invoice Seller (also in cases where the Winning Investors have assigned their claims to the Portal Manager), it shall be resolved in Harju County Court.
9.3. These General Terms are valid and applicable between the Users and the User(s) until they are terminated or amended in accordance with the provisions of these General Terms.
9.4. The User has at any time the right to terminate the contract concluded between him/her and Portal Manager which gives him/her the right to use of Investly, provided that he/she has fulfilled all of his/her obligations arising from the use of Investly towards other Users and Portal Manager. For such termination the User has to submit the Portal Manager his/her wish in form which can be reproduced in writing at least three workdays before the termination. Once the Portal Manager has received such declaration of will and the User has fulfilled all his/her obligations towards other Users and/or the Portal Maager, the contract which gives the User the right to use Investly will be terminated starting the fourth day the Portal Manager received such declaration on will.
9.5. These General Terms are the amendment of the Investly General Terms valid until 06.09.2020, and it has no retroactive effect. These General Terms have been drawn up in Estonian. The English text of the General Terms is a translation and upon the interpretation of the content of the General Terms, the original, i.e. the Estonian text, shall prevail.