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Terms

The wording on this website is the current version of the Creative Capital Limited

Selective Invoice Finance General Conditions

1 Use of certain words

1.1 These words have the meanings given when used in this document:

Application
The form containing information about you completed when applying for this invoice finance facility.

Associate
Any of your directors, officers, partners, employees or any person (or their spouses) is within the meaning of associate in section 435 Insolvency Act 1986.

BACS
Bankers’ Automated Clearing Services.

Client Account
Accounts in your name upon which we record all the transactions between you and us.

Collection Date
The date when our bank account receives cleared funds in payment of a Debt or its Rights.

Contract
Your standard contract for the sale of Goods.

Credit Check Charge
Our charge for carrying out any credit check, as set out in the Particulars.

Customer
Any person to whom you supply Goods under a Contract.

Debt
The amount (or part of the amount where appropriate) of any indebtedness or obligation, present, future or contingent (including any tax or duty payable) owing to you by a Customer under a Contract.

Default
The occurrence of any of the events after which we can end this Agreement straight away, as set out in condition 11.

Delivered
For goods, actually delivered; for services, completely performed; and for hiring, completed.

Designated Account
Your bank account notified to us for payment of the Price.

Disbursements
Any charges and expenses incurred by us, in any way, in entering into or enforcing the terms of this Agreement or any guarantee, indemnity or other security taken in respect of your obligations, or any release waiver or priority given to us, or preparing written assignments of Debts and Rights, or in attempting to collect (including bank or other charges in our dealing with cheques and other instruments of payment returned unpaid),compromise or enforce payment of any Debts or realise any Rights, and following any breach of any undertaking or warranty by you under this Agreement.

Disclosure
The giving of a Purchase Notice to any Customer.

Finance Charge
Our charge for each transaction, as set out in the Particulars.

Full Invoice Value
The amount of a Debt payable by your Customer set out in the invoice (including any tax or duty) before taking off any allowance or settlement discount available to the Customer.

Goods
Actual goods or services or hiring.

Initial Payment
A payment by us to you on account of the Price of any Debt before its Collection Date up to the Initial Payment Percentage of the Full Invoice Value of the Debt, as set out in the Particulars.

Initial Payment Percentage
The percentage to be applied to the Full Invoice Value of the Debt for calculating the Initial Payment, as set out in the Particulars.

Insolvency Action
The issue of a statutory demand, or a petition for winding up, bankruptcy or administration, or the taking of any step by any person to place in administration, or a proposal for a voluntary arrangement or the calling of a meeting of creditors or the appointment of a receiver to any part of an entity’s assets or undertaking, with a view to formal insolvency under the Insolvency Act 1986.

Liabilities
All your actual, contingent or prospective financial or other obligations howsoever incurred at any time under this Agreement or otherwise.

Minimum Finance Charge
Our minimum charge for each transaction, as set out in the Particulars.

Offer
The form offering to sell to us any Debt.

Outstanding
Unpaid and owned by, or held in trust for, us.

Payment Terms
Your standard terms for payment of any Debt and settlement discount, as set out in the Particulars.

Price
The price we pay to you for a Debt calculated as set out in condition 3.1.

Privacy Policy
Our policy statement on data protection which explains how we store and use data about individuals.

Purchase Notice
A notice in our format, [signed by you on your letterheading or by us on ours,] telling the Customer that we have purchased a Debt and that payment can only be made to us.

Recourse
Our right to ask you to repurchase any Outstanding Debt at a price the same as the Full Invoice Value of the Debt included in an Offer.

Recourse Period
The period from the date of the relevant invoice of any Debt, as set out in the Particulars.

Refinance Charge
Our additional charge payable for our service for any Debt Outstanding beyond the Recourse Period where we choose not to exercise Recourse, as set out in the Particulars.

Repurchase Price
The price you must pay to us to repurchase any Outstanding Debt.

Residual Payment
A payment by us to you of the balance of the Price after taking off any Initial Payment, unpaid Disbursements and charges or other amounts due to us.

Rights
All your rights under the Contract (other than ownership of any Goods); the right to possession of all ledgers, computer data, records or documents on or by which any Debt is recorded or evidenced; the benefit of any guarantee, indemnity, insurance or security given to you; any cheque or negotiable instrument available to you; any Goods returned rejected or repossessed; any Transferred Goods and any statutory or contractual interest.

Surety
Any person who gives to us a guarantee or indemnity in respect of your Liabilities.

Transferred Goods
Any Goods in respect of which we have exercised our right to ownership under condition 4.6.

1.2 You should also note that in this Agreement:

1.2.2 Headings are for convenience only and can be ignored;

1.2.3 The singular includes the plural and the other way around and any gender includes any other;

1.2.4 The use of “we/us/our” means Creative Capital Limited and our successors and the use of “you/your” means the client to whom we provide our services;

1.2.5 Reference to “person” includes any legal entity;

1.2.6 General words introduced by the word “other” are not limited by reference to any words before them;

1.2.7 Reference to a statute or directive includes any amendment replacement or re-enactment of it and any instruments orders or other subordinate legislation made under it;

1.2.8 References to “clause” are to clauses of the Selective Invoice Finance Agreement and to “condition” are to these Conditions;

1.2.9 References to “writing” shall include any ways of reproducing words in a legible and permanent form, including fax and email and “written” is to be construed accordingly.

2 Invoice finance

2.1 For as long as this Agreement continues you will be able to offer to sell to us with full title guarantee any Debt and its Rights covered by this Agreement by forwarding to us a copy invoice with an Offer.

2.2 If we ask you will forward any supporting documents confirming the Debt and we may make such enquiries as we need to verify the Debt.

2.3 We will send you a notice of rejection or acceptance of any Debts in the Offer as soon as practicable.

2.4 After acceptance, we shall automatically own the Debt and its Rights without any further formality.

3 Price and payment

3.1 The Price of each Outstanding Debt will be the Full Invoice Value after taking off any settlement discount or allowance taken or claimed by the Customer and the amount of the Finance Charges and any Refinance Charges attributable to that Debt. As soon as we accept the Offer the Full Invoice Value will be credited to the Client Account before making any deductions which will be debited once known.

3.2 Subject to condition 3.5 we will as soon as practicable pay you the Initial Payment. Unless we agree otherwise, all our payments to you will be made in sterling by BACS to your Designated Account. Payment by any other method will result in a further charge.

3.3 The amount of the Initial Payment will be calculated by applying the current Initial Payment Percentage to the Full Invoice Value of the Debt.

3.4 Any Initial Payment will be taken off the Price. We shall pay to you the Residual Payment as soon as practicable after the relevant Collection Date.

3.5 After any Default entitling us to end this Agreement straight away, whether we end it or not, we shall be able to withhold any payment and ask you to pay to us the amount of all Initial Payments made for Outstanding Debts. We may also ask you to pay to us the full amount of your Liabilities.

4 Ownership, notice and trust

4.1 We shall own any Debt and its Rights as soon as we send the confirmation of our acceptance of any Debt included in an Offer.

4.2 You will hold on trust for us any Debt and its Rights purchased by us which fail for any reason to belong to us absolutely.

4.3 If this facility requires Disclosure as set out in the Particulars we shall send to each Customer a Purchase Notice covering each Outstanding Debt as soon as practicable after we accept any Offer. You agree that you will not act in any way contrary to the terms of any Purchase Notice whilst any Debt remains Outstanding.

4.4 If this facility does not require Disclosure as set out in the Particulars or later agreed with you, you do not need to send to each Customer a Purchase Notice covering each Outstanding Debt until we ask. We will act in your name in collecting each Outstanding Debt .[OR You will act as our agent in collecting each Outstanding Debt in accordance with the instructions we give to you.]

4.5 You will straight away send to us any payment you receive from a Customer or any other person in respect of an Outstanding Debt and you agree not to mark or endorse any negotiable instrument covering such a Debt other than in our favour. You will hold any such remittance on trust for us until we receive it and will not bank or otherwise deal with such payment for your own account.

4.6 If, in relation to an Outstanding Debt, any Goods are returned to, or repossessed by you, they shall be held on trust for us, marked in our name as owner and kept separate from your own property until they are resold with our permission or we are fully reimbursed in relation to such Debt. We shall have the right to sell such Goods or to ask you to sell them for such price and on such terms as we think fit. You agree to tell us straight away about such Goods.

4.7 We may, in relation to any Outstanding Debt, ask you, at any time, by speaking or writing to you, to transfer to us the ownership of any Goods included in the Contract giving rise to such Debt (other than any Goods included in the Rights) so long as the ownership of such Goods has not already transferred to the Customer. If for any reason such Transferred Goods shall fail to belong to us effectively you will hold the same on trust for us.

4.8 After any Insolvency Action occurs against you our request to transfer any Goods will be deemed to have been made so that it would be effective on the day before in respect of any Goods the subject of an Outstanding Debt which remain in your possession awaiting Delivery despite your assurances and warranties to the contrary.

4.9 If we ask, at any time, you will, complete and deliver to us a further written assignment of any Outstanding Debt and its Rights and if Disclosure is required we will send a Purchase Notice to the Customer.

5 Our charges

5.1 You will pay to us:

5.1.1 The Finance Charge calculated by applying the relevant percentages set out in the Particulars to the Full Invoice Value of each Debt purchased by us dependent upon the period the Debt is Outstanding, on the Collection Date. Each transaction will always be subject to the Minimum Finance Charge set out in the Particulars; and

5.1.2 The Refinance Charge calculated by applying the percentage set out in the Particulars to the amount of any Debt Outstanding beyond the Recourse Period for each day or part during which such Debt is Outstanding, on the Collection Date. This charge will be in addition to the Finance Charge; and

5.1.3 Any Credit Check Charges, when we incur them; and

5.1.4 any Disbursements, on the Collection Date.

5.2 All our charges are quoted in the Particulars exclusive of Value Added Tax.

5.3 We may on giving 24 hours written notice to you vary the Finance Charge, Minimum Finance Charge, Refinance Charge and Credit Check Charges. The new rates will only apply to any transaction after the notice to you and will be treated for the purpose of this condition as the relevant charge “set out in the Particulars”.

6 Accounts and set-off

6.1 All the transactions between you and us will be recorded in the Client Account run by us in your name.

6.2 We may at any time debit to the Client Account any of your Liabilities and set off the amount against any money we may owe to you. If we cannot calculate any of your Liabilities we can make an estimate and adjust once the amount is known.

6.3 You agree that you will not at any time attempt to set off any money owed to us against any money we may owe you.

6.4 Apart from any obvious errors you agree to be bound by a statement signed by any of our directors as to the position on the Client Account and the amount of the Liabilities at any time and for any purpose.

7 Collection of debts and credit notes

7.1 We shall have the sole right to collect and enforce payment of any Outstanding Debt or realise its Rights in any way we consider fit.

7.2 You will not interfere in any way in our collection activity unless we ask you to assist when you will then cooperate with us fully, at your cost, in any way we require including providing documents and giving evidence.

7.3 If a dispute arises with a Customer you must tell us about it straight away and try to resolve it quickly in any way we ask. If you cannot resolve it we may, but will not have to, attempt to do so, at your cost. We may compromise in any way, in your name, and you agree to be bound by anything done by us in spite of any resulting cost to you including any reduction in the Price.

7.4 If the Customer has a valid claim you must contact us for prior written approval of the issue of any credit note and send the credit note once issued to us to forward to the Customer. We may ask you to send a cheque for the amount of the credit note or set off the amount against any money we may owe to you.

7.5 You irrevocably authorise us to pay any credit balance due to a Customer (whether as a result of a credit note or otherwise) out of any money we may owe to you.

8 Your assurances and acknowledgements

8.1 You represent to us that before we entered this Agreement you had told us about everything you knew or ought to have known might influence our decision to enter into or continue with this Agreement or as to its terms, or our accepting any person as Surety for your Liabilities and that all information given to us in the Application is true and accurate.

8.2 By sending to us any Debt in an Offer you warrant to us in respect of the Debt that:

8.2.1 The Goods have been Delivered in accordance with the Contract;

8.2.2 It arises from a Contract entered into by you in the normal course of your business as set out in the Particulars;

8.2.3 Your Payment Terms apply;

8.2.4 You have performed everything required under the Contract and the Customer has not disputed and, as far as you are aware, will not dispute, liability for payment of the Full Invoice Value (less any allowance in your Payment Terms) when due;

8.2.5 There are no restrictions on assignment;

8.2.6 The Customer has no right to claim any money from you, to set off, make any deduction or counterclaim apart from under the Contract;

8.2.7 The Customer has an established place of business, is not an Associate and incurred the Debt in good faith;

8.2.8 No other person has any interest or rights in it or any Goods;

8.2.9 It will be paid by the end of the Recourse Period;

8.2.10 no Insolvency Action has started against you or the Customer;

8.2.11 all details in the invoice and Offer are correct.

8.3 In relation to any Outstanding Debt you agree:

8.3.1 Not to vary the terms of the Contract;

8.3.2 Not to attempt to collect payment unless we ask you to assist us;

8.3.3 Not to issue any credit note without our prior written approval;

8.3.4 To tell us straight away about any dispute or Insolvency Action against the Customer;

8.3.5 To indemnify us against any claim from a Customer apart from anything due to our own default;

8.3.6 To pay to us straight away the Repurchase Price on Recourse.

8.4 You also agree:

8.4.1 To keep proper books and accounts and record in them the sale to us of any Debts;

8.4.2 Not to create any security interest over your assets without our prior written approval;

8.4.3 Not to enter into any invoice finance arrangement of your Debts (other than with us) without our prior written approval;

8.4.4 To tell us straight away about any Default;

8.4.5 To indemnify us in respect of any Disbursements;

8.4.6 that you will comply fully with your obligations under the Data Protection Act 1998 and all relevant individuals have been or will be informed of how you may pass data about them to us;

8.4.7 To comply with all procedures for the operation of this Agreement we tell you about.

8.5 You acknowledge and confirm that before making this Agreement:

8.5.1 You have read and understood all its terms; and

8.5.2 You have been given a sufficient opportunity to take independent legal advice regarding the respective rights and obligations of both you and us under it; and

8.5.3 All relevant individuals have read and understood the Privacy Policy and agree to our use and storage of data as set out in it; and

8.5.4 You are aware that we shall rely on this acknowledgment in entering into this Agreement.

8.6 If in relation to any Debt you are unable to give us all the warranties set out in condition 8.2 above, you may send to us a separate Offer containing only that Debt, clearly endorsed by you as “an Offer under condition 8.6” and accompanied by an explanation why you cannot comply. We will then consider the Offer in accordance with condition 4.

9 Recourse

9.1 We may Recourse any Outstanding Debt at any time after:

9.1.1 The Recourse Period; or

9.1.2 Any Default; or

9.1.2 You or we give notice to end this Agreement.

9.2 We may write to you asking for payment of the Repurchase Price or simply debit it to the Client Account and set off the amount of the Repurchase Price against any money we may owe to you.

9.3 Any Outstanding Debt subject to Recourse will remain our property until the full Repurchase Price has been received by us.

9.4 You agree to pay to us straight away the Repurchase Price when we ask you. We may, but do not have to, agree with you to accept further Offers of Debts and exercise our right of set off against any Initial Payment due to you.

10 Information

10.1 You agree to give us any information or documents in support of any Debt we may ask you for and will allow us to enter your premises at any convenient time during the day to inspect and, if we need, take possession of the records and data included in the Rights of any Outstanding Debt.

10.2 You will keep us up to date with your financial position by giving us copies of any of your final and management accounts as we ask for and will allow us to enter your premises at any convenient time during the day to inspect your financial records.

10.3 You authorise us to disclose any information we have about you to:

10.3.1 Your bankers;

10.3.2 Your accountants; or

10.3.3 Any person to whom we may wish to transfer this Agreement.

11 Default

11.1 We may end this Agreement straight away by writing to you if any of these events occur:

11.1.1 You breach any warranty or undertaking made, or any obligations accepted, under this Agreement which we, in our sole discretion, consider material;

11.1.2 Any Insolvency Action is started against you;

11.1.3 Your members pass a resolution for winding up;

11.1.4 Any part of your income or assets is seized under any execution legal process or distress for rent or the making or threat of a third party debt order or other attachment on any amount owing to you;

11.1.5 Any of the events in 11.1.2, 11.1.3 and 11.1.4 occurs to any Surety or he dies or ends his guarantee or indemnity;

11.1.6 You cease to carry on business;

11.1.7 There is any change in the nature of your business or in the ownership, control or constitution of it which we, in our sole discretion, consider material;

11.1.8 Any person who has given us a waiver, release or priority in relation to any security interest over any of your assets withdraws it;

11.1.9 Any loan or financial facility becomes due for earlier repayment due to your default;

11.1.10 Any adverse change in your financial position or performance which we in our sole discretion, consider may result in the recovery of the Liabilities being at risk.

11.2 After any Default, whether we end this Agreement or not, we may:

11.2.1 Recourse any Outstanding Debt;

11.2.2 Hold back any payments due to you;

11.2.3 Ask you to pay all your Liabilities;

11.2.4 Appoint accountants at your cost to verify all Outstanding Debts and your financial position.

12 Your authority to act

12.1 In order to ensure the performance of all you have agreed to do in this Agreement you irrevocably appoint us and our directors at any time, either together or separately, as your attorney to act in your name and on your behalf to sign all deeds and other documents and to do whatever is needed to give effect to this Agreement or our rights including under any Contract, to make any arrangement or compromise, to take or defend any legal proceedings, to endorse any negotiable instrument on your behalf and to execute any further written assignment of any Outstanding Debt or its Rights covered by this Agreement.

12.2 If we need to use this authority you agree to be bound by anything we do under it.

13 Your status

13.1 If you are more than one person you agree that:

13.1.1 References to “you” or “your” in this Agreement include references to any one or more of you or to events relating to any one or more of you;

13.1.2 All undertakings, warranties, acknowledgements, appointments and authorities given and made by you in this Agreement shall be deemed to have been given, incurred and made by every one of you;

13.1.3 All your Liabilities shall be joint and several and we may release or compromise with any one or more of you without affecting our rights against the others; and

13.1.4 we may (but shall not have to) treat any notice to or demand on any one or more of you as notice to or demand on you all and any notice to us by any of you as notice by you all.

13.2 If you are a partnership (other than a limited liability partnership) all the persons who have signed the Agreement warrant that all the present persons comprising your partnership are named in this Agreement and you undertake to ensure that any new partner will execute such documents as we may require to bind him to the terms of this Agreement.

13.3 Save as provided in condition 11 this Agreement including all its terms will remain in full force and effect in spite of any change in your constitution.

13.4 We shall need a guarantee and indemnity from Sureties to cover your Liabilities if you are a limited company or limited liability partnership. We may also ask for additional security.

14 Notices

14.1 Any written notice or demand from us to you under this Agreement will be validly served or made if handed to any of your officers or if delivered or sent by first class prepaid post to your address stated in this Agreement or to any address at which you carry on business or to your registered office or if transmitted by facsimile or e-mail to your facsimile number or e-mail address made known to us by you at any time.

Any such notice or demand, if served personally, will take effect upon service and, if sent by post, within 48 hours of the time of its posting and, if transmitted by facsimile or email, upon its transmission.

14.2 Any notice from you to us will be validly given if sent to us at our registered office by prepaid first class post and will be effective upon its receipt.

15 General

15.1 This Agreement contains all the terms and conditions agreed between you and us to the exclusion of any agreement, representation or other statement made by us or on our behalf by any means before the Agreement was made.

15.2 Unless clearly stated otherwise in this Agreement, any variation of it may be effected only in writing signed by or on behalf of you and us.

15.3 Our rights under this Agreement will not be affected in any way by any grant by us of any time or indulgence to you or any other person nor by any delay or failure in our exercise of any right under it or otherwise.

15.4 If we ask at any time you will sign such documents and do such things as are necessary to give full effect to this Agreement.

15.5 If any term of this Agreement is held to be invalid or unenforceable no other terms will be affected and they will remain in full force and effect.

15.6 We may rely upon any act done or any letter or document signed or any communication sent to us by facsimile or by e-mail by any person purporting to act or sign or send on your behalf despite any defect in or absence of any authority of such person.

15.7 We may transfer this Agreement (including all our rights in connection with it) and you consent to such transfer to any person whether by novation, assignment, delegation or otherwise and you agree to sign any documents we may require from you to do so. You will not assign or create any charge over any of your rights or benefits neither under this Agreement nor to delegate any of your obligations under it, without our prior written consent.

15.8 Save as clearly stated otherwise in this Agreement, the ending of it will not affect the rights and obligations of either you or us in relation to any transaction started before the date it is ended or any Debt Outstanding on that date and such rights and obligations will remain in full force and effect until fully satisfied. Any authority or permission given to us by you in this Agreement is irrevocable and will continue after the ending of it until all your Liabilities have been fully satisfied.

15.9 No term of this Agreement is to be enforceable by any person who is not a party to it and we and you may, subject to its terms, rescind or vary it without the consent of any other person.

15.10 This Agreement will be construed and take effect in accordance with English law and you submit to the jurisdiction of the English courts without prejudice to our right to bring proceedings in the courts of any country in which you carry on business.

Need Help?

If you require any help submitting your application, please call us on 01244 561343.

We are available Monday-Friday, 09:00 - 17:00