27th Feb 2020

Customer Terms and Conditions

These Terms and Conditions along with the Plan and Privacy Policy (collectively, the "Agreement") confirm the terms and conditions relating to the agreement between Eris Group Ltd, trading as Native Finance, (a company incorporated in England and Wales with company number 09479417), ("Native Finance") and the Customer ("Customer"), as identified in the Plan, pursuant to which we, Native Finance, will provide the Services to the Customer.

By accessing and using the Services, the Customer agrees that these Terms and Conditions shall apply.

Agreed terms

  1. Definitions and Interpretation

    1. These definitions shall apply in this Agreement:

      "Authorised User" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

      "Billing Cycle" means the monthly or annual pricing selected by the Customer under an applicable Plan.

      "Controller," "processor", "data subject", "personal data", "personal data breach", "processing" and "appropriate technical and organisational measures" shall have the same meanings as in the Data Protection Legislation and shall be construed accordingly.

      "Customer Data" means any data, information and material inputted by the Customer, Authorised Users or Native Finance on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

      "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 (including, without limitation, the privacy of electronic communications).

      "Documentation" means all information and documents, including information relating to a request for finance, made available to the Customer via the Native Finance Platform.

      "Effective Date" means the date on which the Customer signs up to the Services.

      "Fees" means the fees payable by the Customer to Native Finance for the Services, as set out in an applicable Plan.

      "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).

      "Lender" shall mean those lenders offering financial services and products via the Native Finance Platform.

      "Native Finance Content" means all data, information and material owned by or licensed to Native Finance and comprised within the Services and Documentation but excluding Customer Data.

      "Native Finance Platform" means Native Finance’s proprietary platform made available to the Customer via nativefinance.co.uk or via any one of Native Finance’s subdomains for the provision of the Services.

      "Plan" means one of several plans for the Services showing on the Native Finance Platform.

      "Services" means the services to be provided by Native Finance consisting of provision of and access to the Native Finance Platform and including Native Finance’s premium advisory and/or brokerage services that are available upon request.

      "Software" means any software owned by or licensed to Native Finance and which forms part of or is used in the provision of the Services.

      "Term" means the term set out in an applicable Plan including the Trial Term and any subsequent Term.

      "Tiered Pricing" means the different levels of pricing set out in an applicable Plan.

      "Trial Term" means the trial term of this Agreement, as set out in an applicable Plan or as otherwise agreed between the parties.

      "UK Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

    2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

    3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

    4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

    5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

    6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

    7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

    8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

    9. A reference to writing or written includes faxes but not email.

    10. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

  2. Services

    1. Our Services can be used and accessed only by the Customer. The Customer must provide accurate information to complete the sign-up form on the Native Finance Platform. The Customer accepts the terms of this Agreement by clicking to "sign up" or such other similar button. Use of the Native Finance Platform is subject to the Customer selecting the appropriate Plan.

    2. Following sign up and for the duration of the period set out in an applicable Plan, the Customer is granted a personal, non-exclusive, non-sublicensable and non-transferable license to access and use the Services, subject to the terms of this Agreement.

    3. Each Customer may only select one Plan. If several users need to access the Services each User must sign up to an individual Plan.

    4. Each Customer shall login into the Native Finance Platform with a username and password which should not be shared with or used by anyone else. In the event that Native Finance finds that a Customer has shared its login details, Native Finance reserves the right to charge the Customer accordingly or to suspend or terminate this Agreement at Native Finance’s sole discretion.

    5. The Customer shall not:

      (a) except as expressly permitted by this Agreement, permit any third party to access or use the Services 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 the Services;

      (c) "frame" or "mirror" any Native Finance 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 Customer is permitted to do so under applicable law in circumstances under which Native Finance is not lawfully entitled to restrict or prevent the same), including in order to:

      (i) build a competitive product or service;

      (ii) build a product using similar ideas, features, functions or graphics of the Services;

      (iii) copy any ideas, features, functions or graphics of the Services;

      (e) upload, store, post, email, transmit or otherwise make available 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, inciting violence or hatred, blasphemous, discriminatory (on any ground), 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 Services, as updated by Native Finance from time to time ("Prohibited Content"). Native Finance reserves the right to remove content where Native Finance reasonably suspects that such content is Prohibited Content and to immediately suspend or terminate access to the Native Finance Platform. In relation to 2.5(e), Native Finance shall not be responsible for content that infringes any Intellectual Property Rights of any other person.

    6. The Customer shall be responsible for all access to and use of the Services. The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify Native Finance upon becoming aware of any unauthorised access to or use of the Services and provide all reasonable assistance to Native Finance to bring an end to such unauthorised access or use.

    7. The Customer understands that the Services and/or Software may include security components that permit digital materials to be protected, and that use of these materials is subject to content providers who provide content to the Services. The Customer may not attempt to override or circumvent any of the usage rules embedded into the Services. Any unauthorised reproduction, publication, further distribution or public exhibition of NativeFinance Content, in whole or in part, is strictly prohibited.

    8. Misuse of the Services. The Customer shall not (a) extract, export or otherwise scrape Native Finance Content for use outside the Services; (b)copy and save Native Finance products, recommendations, business names,addresses or otherwise or other contact information; (c) create content based on Native Finance Content; or (d) use the Services to create a product or service with features that are substantially similar to or that re-create the features of another Native Finance product or the Services.

    9. Native Finance sets and enforces limits on the Customer’s use of the API at Native Finance’s sole discretion and may change the limits from time to time. The Customer shall not attempt to exceed or circumvent limitations on access, calls or other uses of the API, and shall not otherwise use theAPI in a manner that is excessive, abusive, or otherwise deemed inappropriate by Native Finance.

  3. Native Finance Warranties

    1. Native Finance warrants that: (i) it shall use due care and follow the highest professional standards while providing the Services to Customer; (ii) it has all necessary rights, authorisations and licences to provide the Services; (iii) it shall provide the Services in accordance with all applicable laws and regulations (including, without limitation, Data Protection Legislation); (iv) the use of the Services shall not infringe or violate any, copyrights, trade secrets, licences or other proprietary rights of any third party; (v) it shall report to the Customer on progress made with respect to any inquiry made by the Customer for financing.

    2. Native Finance shall use commercially reasonable endeavours to make the Services available during Normal Business Hours except for: (i) planned maintenance; and (ii) unscheduled maintenance performed outside Normal Business Hours. Native Finance does not warrant that the use of the Services by the Customer will be uninterrupted or error free or that the information obtained by the Customer through the Services will meet the Customer’s requirements.

    3. Native Finance is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet,and the Customer acknowledges that the Services may be subject to limitations,delays and other problems inherent in the use of such communications facilities.

    4. This Agreement does not prevent Native Finance from entering into similar agreements with third parties, or from independently developing, using,selling or licensing documentation, products and /or services which are similar to those provided under this Agreement.

  4. Customer Warranties

    The Customer warrants that it shall (i) provide Native Finance with all necessary co-operation and access to all necessary information and may be reasonably required by Native Finance to provide the Services; (ii) not access, store, distribute or transmit any viruses; (iii) ensure always that its use of the Services is in accordance with applicable laws and regulations(including, without limitation, Data Protection Legislation); (iv) obtain any necessary consents for its use of the Services; (v) not attempt to copy,modify, duplicate, create derivative works from, frame, mirror, republish,download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means or attempt to reverse compile,disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services.

  5. Third Party Providers

    The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Native Finance makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Native Finance. Native Finance recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Native Finance does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

  6. Fees

    1. The Customer shall pay the appropriate Tiered Pricing that it selects when signing up for the Pricing. Such Fees shall be paid in advance on a monthly recurring basis. For the avoidance of doubt, Native Finance may terminate, suspend or otherwise restrict access to the Native Finance Platform if payment is not received.

    2. 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.

  7. Data Protection

    Native Finance shall: (a) comply with and meet its obligations under Data Protection Legislation and its obligations with respect to personal data under this Agreement and in particular, without limitation, where the Data Protection Legislation includes the GDPR, those obligations referenced in Article 28 of the GDPR; (b) implement appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss,destruction, damage, alteration or disclosure.

  8. Confidentiality

    Each party acknowledges that it or its employees may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to that party or its affiliated companies or their clients or to third parties to whom the party owes a duty of confidentiality. Any and all non-public information of any form obtained by a party or its employees while providing or in receipt of the Services shall be deemed to be confidential and proprietary information. Each party agrees to hold such information in strict confidence and not to copy, record, reproduce (using any medium), sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of the Services to the Customer and to advise each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential.

  9. Intellectual Property

    1. Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.

    2. Native Finance and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Native Finance’s brands, trademarks and logos, the Services (including Documentation, the Native Finance Content and the Native Finance Platform but excluding Customer Data) and the Software. Except as expressly permitted by this Agreement, the Customer may not use any of Native Finance’s Intellectual Property Rights without Native Finance’s prior written consent.

    3. The Customer acknowledges that it may create Intellectual Property Rights by improving or suggesting improvements of Software to Native Finance.Any and all improvements to the Software, Service and/or Support Services developed by the Customer which result in the creation of Intellectual Property Rights shall be owned by Native Finance. The Customer hereby assigns any and all rights to such Intellectual Property Rights in respect of the Software, Service and/or Support Services toNative Finance and waives its moral rights in respect thereof.

    4. The Customer grants to Native Finance a transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of Customer Data.

    5. Each party shall promptly bring to the attention of the other any improper or wrongful use of any Intellectual Property Rights of the other party which comes to their notice.

    6. The Customer shall indemnify Native Finance against all damages and legal costs finally awarded against Native Finance by a court of competent jurisdiction and/or amounts paid by Native Finance further to a final settlement approved by the Customer, together with associated legal fees reasonably incurred by Native Finance as a result of the Customer’s use of Infringing Material on the Service and Customer or its Authorised Users' breach of this Agreement and/or the Service infringes the Intellectual Property Rights of any third party.

  10. Indemnities

    1. The Customer shall indemnify and hold harmless Native Finance, its directors or employees, against any and all actions, claims, costs,expenses, damages, fines, penalties and any other liabilities (including reasonable legal fees) arising out of or in connection with the Customer’s use of the Services.

    2. This indemnity is subject to the indemnified party promptly notifying the indemnifying party of such a claim, allowing the indemnifying party sole conduct of the defence, negotiation or settlement and providing all reasonable co-operation in relation to any claim.

  11. Limitation of Liability

    1. Native Finance shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of: (a) the use of the Services except for its normal intended purpose; (b) any adaptation or modification of the Services, or integration or combination with any other equipment, software, product or material not supplied by Native Finance, in each case carried out by anyone other than Native Finance or without Native Finance’s express written consent; (c) any Customer Data; or (d) the continued use of a version or release of the Services after Native Finance has made an alternative version or release of the Services available to the Customer, to the extent that any claim in respect of which Native Finance would otherwise be obliged, under this Agreement, to indemnify would have been avoided by the use of such alternative version or release.

    2. To the extent permitted by law, (i) neither Native Finance nor the Customer shall have any liability to the other in connection with the Agreement (and for the avoidance of doubt including any indemnity liabilities) for any indirect, economic or consequential loss and damage, and (ii) the total liability of both Native Finance and the Customer in connection with the Agreement for direct loss and damage, whether arising in tort (including negligence and strict liability), contract, or otherwise, shall not exceed the Fees paid or payable in the 12 months preceding the event that triggered such liability.

    3. Notwithstanding the aforesaid, no limitation, exclusion or restriction of liability under this Agreement shall apply to any liability arising out of either party’s negligence, fraud, misrepresentation or wilful default.

  12. Term and Termination

    1. This Agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for the Term. The Customer may terminate this Agreement on giving a calendar months notice before the end of the billing cycle.

    2. Either party may terminate this Agreement, at any time, by giving the other written notice if the other: (a) materially breaches any term of this Agreement and it is not possible to remedy that breach; (b) materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within 14 days of being requested in writing to do so; or (c) becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole ora substantial part of its assets appointed, or an is order 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.

    3. Without prejudice to the above, Native Finance may, in addition, and without liability, terminate this Agreement, or alternatively, may suspend access to and use of the Services, by giving the Customer written notice if: (a) any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment and 30 days written notice of late payment has been notified to the Customer by NativeFinance; (b) any unauthorised use of the Services; and/or (c) the Customer 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).

    4. Both parties may in addition, and without liability, terminate this Agreement, or alternatively, by giving the other party written notice if the breaching party 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).

    5. In relation to suspensions under clause 12.3, access to the Services will be restored promptly after Native Finance receives payment in full and cleared funds.

    6. Fees shall remain payable during any period of suspension notwithstanding that the Customer or some of the Authorised Users may not have access to the Services.

  13. Consequences of termination

    Upon termination of this Agreement for any reason the Customer’s access to the Services and the Native Finance Platform will cease.

  14. General

    1. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

    2. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by prepaid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

    3. Any notice shall be deemed to have been received:

      a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

      b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

    4. Clauses 14.2 and 14.3 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

    5. This Agreement constitutes the entire agreement between the parties in relation to their subject matter and replaces and supersedes all other agreements, written or oral with respect to its subject matter. Each party acknowledges that it does not rely on any undertaking, promise, assurance,statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement other than as expressly set out in this Agreement.

    6. No variation of this Agreement shall be effective unless it is in writing and agreed between the parties.

    7. Native Finance shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation,strikes, lock-outs or other industrial disputes (whether involving the workforce of Native Finance or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.

    8. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises,assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    9. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement

    10. The Customer shall not, without the prior written consent of Native Finance,assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

    11. Native Finance may at any time assign, transfer, charge, sub-contract ordeal in any other manner with all or any of its rights or obligations under this Agreement.

    12. This Agreement and any non-contractual obligations arising out of or in relation to this Agreement shall be governed in all respects by English law and the parties agree that the English courts shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising out of or in connection with this Agreement including any non-contractual obligations arising out of or in connection with this Agreement.