Cash Advance - Terms and Conditions
These Terms and Conditions are valid on cash advances requested prior to the 18th of June 2020. For the current legal terms, please visit https://sumup.co.uk/terms-cash-advance/.
SUMUP CASH ADVANCE TERMS AND CONDITIONS
1. These SumUp Cash Advance Terms and Conditions (“CATC”) are a binding legal agreement between you (“you”, “your”) and SumUp Payments Limited (“SumUp”, “we,” “our” or “us”). SumUp is a limited liability company incorporated in England and Wales, registered number 07836562, authorised by the Financial Conduct Authority, having its registered office at 32-34 Great Marlborough Street, London W1F 7JB, United Kingdom.
3. Capitalized terms will have the same meaning as those found in the Terms, unless otherwise defined herein.
4. Deduction means any withholding of funds from your Payouts or debiting of funds in your SumUp Account in order to satisfy the Outstanding Amount.
5. Deduction Percentage (also referred to as Repayment Percentage) means the percentage by which your Payouts will be reduced to satisfy the Outstanding Amount. Your Repayment Percentage is specified in the Cash Advance Plan screen in your SumUp Account dashboard and is incorporated by reference and a part of these CATC.
6. Fixed Fee means the amount charged by SumUp to purchase your Future Receivables. The Fixed Fee applicable to you is specified in the Cash Advance Plan screen in your SumUp Account dashboard and is incorporated by reference and a part of these CATC.
7. Future Receivables means future payments that will become due and owing to you after the Purchase Date. Future Receivables does not include reversed or held payments.
8. Initial Outstanding Amount (also referred to as Total Payback Amount) means the Purchase Price plus the Fixed Fee. Your Total Payback Amount is specified in the Cash Advance Plan screen in your SumUp Account dashboard and is incorporated by reference and a part of these CATC.
9. Minimum Future Receivables (also referred to as Minimum Repayment Amount) means one quarter of the Initial Outstanding Amount.
10. Outstanding Amount means the Initial Outstanding Amount, less any Deductions.
11. Purchase Date means the date on which the Purchase Price is transferred to the bank account associated with your SumUp Account.
12. Purchase Price (also referred to as Advance Amount) means the amount that SumUp will pay you, via a transfer to the bank account associated with your SumUp account for your Future Receivables. Your Advance Amount is specified in the Cash Advance Plan screen in your SumUp dashboard and is incorporated by reference and a part of these CATC.
13. The Program enables you to sell Future Receivables to SumUp in exchange for payment of the Purchase Price. SumUp charges a Fixed Fee for the transaction. Over the course of the twelve months after the Purchase Date, you must transfer Future Receivables to SumUp in an amount equal to the Initial Outstanding Amount. SumUp will deduct a percentage of your Payouts and credit that amount to reducing the Outstanding Amount. Every three months, you are required to have transferred to SumUp an amount at least equal to the Minimum Future Receivables.
Payment of Purchase Price; Transfer of Future Receivables
14. In consideration of the payment of the Purchase Price, you hereby sell to SumUp with full title guarantee, free and clear of any and all liens and encumbrances, Future Receivables in the amount of the Initial Outstanding Amount.
15. Within 12 months of the Purchase Date, you will transfer the Future Receivables to SumUp. You will conduct business in a way that results in Future Receivables sufficient to ensure that SumUp receives at least the Minimum Future Receivables every three months (measured starting on the Purchase Date).
16. For any and all Future Receivables you receive, you irrevocably authorise and instruct SumUp, at its absolute discretion, to either (a) reduce your Payouts by the Deduction Percentage until the Outstanding Amount is reduced to zero or (b) deduct from your Payouts and/or your SumUp Account any amount necessary to ensure that you meet the obligations set forth in clause 16 above. Any Deductions pursuant to (a) or (b) will be credited toward reducing the Outstanding Amount.
17. SumUp may request that you add sufficient funds to your SumUp Account to satisfy any Deduction that could not be made due to insufficient unrestricted funds being available.
18. If for any reason SumUp cannot or does not make Deductions due to insufficient funds or any other reason, SumUp shall be entitled subsequently, at any time, to make Deductions as necessary to satisfy the Outstanding Amount.
19. You can repurchase the rights to the Future Receivables at any time without penalty by paying us a purchase price equivalent to the Outstanding Amount.
20. Payment of the Purchase Price in exchange for the Future Receivables as described herein is a purchase of receivables and is not intended to be, nor shall it be construed as, a loan from SumUp to you. SumUp is purchasing the Future Receivables at a discount and shall be the sole and exclusive owner of the Outstanding Amount.
21. These CATC shall be in full force and effect until Future Receivables have been transferred to SumUp in an amount sufficient to reduce the Outstanding Amount to zero. Because we are not providing you with a loan under these CATC, there are no scheduled loan payments and no loan repayment term.
Reliance on Information You Provide
22. You acknowledge that SumUp will rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on your behalf in relation to these CATC and you hereby confirm and declare that all information that has been or will be provided by you or on your behalf to SumUp is true, complete and accurate in all material respects as of the date it was provided.
23. You shall supply to SumUp any information regarding your financial condition, business and operations (including but not limited to your bank statements and any processing agreements with a party other than SumUp), transaction files maintained by you, and any other information related to past volumes, receivables, or the transactions contemplated by these CATC, as we may request from time to time.
25. You have disclosed to us all covenants, restrictions, easements, encumbrances and outgoings relating to your respective business, assets, or the Future Receivables.
26. You shall promptly notify us of any dispute that affects or would affect your business and operations and of any other event that has occurred or might have occur and prevent or render impracticable the carrying on of your business or operations.
Your Covenants, Representations and Warranties
27. The following representations and warranties given by you below are fully valid as of the date of your agreement to these CATC and will remain valid during the term of the CATC until all your obligations hereunder have been discharged or satisfied in full:
27.1. You have the power and authority to enter into and perform your obligations under these CATC and any related documents required to facilitate the transactions contemplated herein.
27.2. You own your assets and you are fully entitled to carry on your business. You are solvent and fully authorized to assign and sell the Receivables under the conditions of these CATC.
27.3. You possess and are compliant with all permits, licenses, approvals, consents and any other authorizations necessary to conduct your business. Your entering into these CATC will not conflict with, (i) any laws and regulations, (ii) any agreements to which you are a party, and/or (iii) your articles of association or other constitutional and/or corporate documents.
27.4. You are the sole legal and beneficial owner of the Future Receivables, your SumUp Account and the related bank account/s with the right to transfer with full title guarantee all or any part of the Future Receivables and amounts under your SumUp Account and bank account/s.
27.5. The Future Receivables are and will remain free and clear of all claims, charges, liens, restrictions, encumbrances or security interests of any nature. You have not sold, and you have not entered into any contract (including preliminary) for the sale, assignment or any other transfer of the Future Receivables or part of these.
27.6. No litigation, arbitration or administrative proceedings have been started or threatened which would reasonably be expected to materially affect you, your business and operations and/or the Future Receivables, including any insolvency proceedings.
28.1. maintain at all times your SumUp Account in your name and ensure that it is not closed, as well as maintain and keep in good standing your bank account, which is your primary current account;
28.2. make sure that all your existing physical or virtual places of business remain unchanged;
28.3. cooperate fully with us to take all necessary actions with regard to fulfillment of your obligations hereunder, including but not limited to signing all documents that SumUp deems necessary.
29. You further irrevocably agree that until the Outstanding Amount is reduced to zero and unless otherwise agreed by us in advance and in writing you will not, through action or omission:
29.1. indicate SumUp as a less favorable payment method than as displayed on the Purchase Date;
29.2. claim that another payment method is preferable or superior to SumUp;
29.3. take any other action to discourage the use of SumUp or allow any event to occur that could cause a diversion of any of the Future Receivables from SumUp to any third party;
29.4. allow any third party to assume or take over the operation and/or control of your business or business location (physical and/or virtual);
29.5. transfer or otherwise dispose of any of your business or assets (other than in the ordinary course of business);
29.6. establish a mortgage, charge, pledge, lien or other encumbrance in favour of any third party over the Future Receivables or part of them;
29.7. make any substantial investment which might change the conduct or scale of your business as compared to the Purchase Date;
29.8. conclude or execute transactions with your affiliates or other related parties beyond the common business practice; or
29.9. incur financial indebtedness or initiate a voluntary liquidation.
30. Each of the following constitutes a breach of these CATC (“Breach Event”):
30.2. You fail to comply with your obligations relating to Minimum Future Receivables, which SumUp at its absolute discretion may deem a Breach Event.
30.3. Any representation or statement made or deemed to be made by you in or relating to these CATC is or proves to have been incorrect, false or misleading in any material respect when made or deemed to be made.
30.4. Any financial indebtedness of yours is (a) not paid when due; (b) becomes due and payable prior to its specified maturity; (c) is cancelled or suspended by a creditor as a result of an event of default.
30.5. You are unable to pay or admit inability to pay your debts as they fall due, suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commence negotiations with one or more of your creditors with a view to rescheduling any of its indebtedness.
30.6. A moratorium is declared in respect of any indebtedness of yours.
30.7. Any insolvency proceedings are commenced in respect of any indebtedness of yours.
30.8. Any legal action is taken by a creditor or any other party that affects or potentially affects the Future Receivables any of your assets.
30.9. You cease, or threaten to cease, to carry on all or a substantial portion of your business.
30.10. You close your SumUp Account.
30.11. It is or becomes unlawful for you to conduct your business or to perform any of your obligations under these CATC.
30.12. Any event or series of events occurs which SumUp has reason to believe is likely to have a material adverse effect on your business or operations or financial standing, including but not limited to a substantial decline in Future Receivables.
SumUp’s Rights in Case of a Breach Event
31. If SumUp reasonably determines that a Breach Event has occurred, you agree and authorize that SumUp, at its absolute discretion, may:
31.1. unilaterally terminate these CATC, subject to your obligation to deliver to SumUp the Outstanding Amount, as such funds will be deemed to be Future Receivables;
31.2. recover or debit any unpaid parts of the Outstanding Amount through any and all funds available in your SumUp Account or your linked bank account/s;
31.3. seek any kind of damages equal to the unpaid Outstanding Amount;
31.4. exercise any rights, powers, discretions, authorities and remedies vested in SumUp by these CATC, the Terms, any other agreement or by law or equity.
Indemnification; Limitations of Liability
32. In addition to all rights and remedies available to the parties at law or in equity, you will indemnify, defend, and hold us and our parent, officers, directors, employees, agents, suppliers, and successors harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these CATC; (b) your wrongful or improper use of the Program or the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or IP Rights; (d) your violation of any applicable law, rule or regulation; (e) any other party’s access and/or use of the Program or the Services on your behalf.
33. To the maximum extent permitted by applicable law, in no event will SumUp be liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses, that result from your participation in the Program, and the use of, inability to use, or unavailability of the Service. In all cases, SumUp will not be liable for any loss or damage that is not reasonably foreseeable. The limitation of SumUp’s liability applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis.
34. SumUp’s total liability to you under these CATC, whether arising in tort (including negligence), contract, or otherwise, will not exceed the Purchase Price. You agree that this is a reasonable allocation of risk, which SumUp has relied upon in pricing the Program and without which SumUp would not have entered into these CATC.
35. You agree that we may provide communications about the CATC electronically, and in accordance with the procedure set out in the Terms. Written communication and notices from us to you will be sent by email to the email address on your SumUp Account or posted on our website. Such communication and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered.
36. Apart from communicating via email, we reserve the right to contact you via letter or telephone, when appropriate. Any communication or notice sent by post will be deemed received three (3) Business Days from the date of posting for UK post or within five (5) Business Days of posting for international post.
37. Any notice to SumUp under these CATC must be sent by mail to SumUp Payments Limited, 32-34 Great Marlborough Street, London W1F 7JB, United Kingdom.
Currency Conversion Fees
38. If for any reason we are required to carry out a currency conversion in connection with your participation in the Program, reasonable fees may be charged.
Intellectual Property Rights
39. Intellectual Property Rights (“IP Rights”) means any and all rights related directly or indirectly to our Program, Services and Terminals, the website, the internet domain names, all content, the technology related to the thereto and all logos including, but not limited to, copyrights, moral rights, database rights, trademarks, name rights, utility models and design rights, patents, and all other exclusive and non-exclusive rights worldwide as may now exist or come into existence, are granted or transferred in the future.
40. We (or our licensors) are the exclusive owner of all IP Rights and nothing in the CATC or the Terms shall be construed as transfer or concession of the IP Rights to you. You may not copy, imitate or use the IP Rights without our prior written consent. Logos, trademarks and images in particular may not be copied, used, linked, disseminated, etc. without our prior express written approval.
41. We grant you a personal, limited, non-exclusive, revocable, non-transferable license (without the right to sublicense) to electronically access and use the Services for the purposes of the Program and in order to accept Transactions. You must not use our intellectual property as your own, except as permitted under the CATC or the Terms, and to enjoy the Program and our Services. You may not duplicate, publish, modify, create derivative works from, participate in the transfer of, post on the World Wide Web, or in any way distribute or exploit the Program and our website for any public or commercial use without our express written consent.
42. If you decide to submit comments or ideas about the Program (“Ideas”), you agree that we are free to use the Ideas without any additional compensation to you, and/or to disclose or exploit the Ideas as we wish.
43. If any part of these CATC is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the CATC, which shall continue to be valid and enforceable to the fullest extent permitted by law.
44. We are entitled to freely assign our rights and obligations under these CATC to any third party and your consent for any such assignment is granted by virtue of your agreement to these CATC.
45. You may not assign any of your rights and obligations under these CATC to third parties without our prior written consent.
47. No failure or delay by a party to exercise any right or remedy provided under these CATC or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. In particular, if you breach the CATC and we don't enforce our rights, or we delay in enforcing them, this will not prevent us from enforcing those or any other rights at a later date.
48. Any complaints relating to these CATC or the Program shall be addressed to us in the first instance by contacting our customer service department. Any disputes relating to these CATC or the Program will be decided in the courts of England.
49. Before referring the dispute to court, you and SumUp will endeavour to resolve the dispute by amicable negotiations.
50. These CATC shall be governed by and construed under and in accordance with English law.
Links to Other Websites
51. Our Website may contain links to third party websites related to the Program. The inclusion of any website link does not imply an approval, endorsement, or recommendation by SumUp. Such third-party websites are not governed by these CATC or the Terms. You access any such website at your own risk and we expressly disclaim any liability for these websites.
52. If these CATC are translated into another language, the translation is for reference only and the English version will govern and apply.