TERMS & CONDITIONS
THIS AGREEMENT IS MADE THE DAY OF 2018
- COPIOUS CAPITAL LTD incorporated and registered in England and Wales with company number 11481913 whose registered office is at 324 Southampton Road, Titchfield, Fareham PO14 4AZ, trading as PayMeToday (“PayMT”); and
- [EMPLOYER] incorporated and registered in England and Wales with company number [ ] whose registered office is at the [ ](the “Employer”).
- The Employer intends to fund advance salaries to its employees and contractors (or their agency) and those of its Group Companies.
- The Employer wishes to borrow funds in order to fund the payment of those advance salaries.
- PayMT has agreed to provide funding and support to the Employer in accordance with the terms of this Agreement.
- The following definitions and rules of interpretation apply in this Agreement:
“Agency” means, in respect of a Contractor, a third party person which is responsible for paying that Contractor’s salary in respect of that Contractor.
- 1.“Applicable Laws” means all applicable laws, statutes, regulations and codes from time to time in force including but not limited to the Data Protection Legislation, the Financial Services and Markets Act 2000 and any other laws, statutes, regulations and codes including those regulated or enforced by the Financial Conduct Authority and/or Her Majesty’s Revenue Customs.
- 2.“Assessment Criteria” has the meaning given to it in the Schedule.
- 3.“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- 4.“Commencement Date” means the date of this Agreement.
- 5.“Contractor” means an independent contractor employed, or engaged, either by the Employer or an Employer Group Company or by an Agency.
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression “Change of Control” shall be construed accordingly.
“Data Protection Legislation” means (i) the Data Protection Act 1998, until the effective date of its repeal (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
- 6.“Debt” means a monetary obligation (including Interest) owed by the Employer to PayMT as a result of PayMT providing a Loan in connection with a Salary Advance and a Debt is deemed to have been created as soon as the Employer is in receipt of payment from PayMT for the Salary Advance.
“Employee” means an employee of the Empployer or its Group Company.
“Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation, acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; and collapse of buildings, fire, explosion or accident but not including any labour or trade dispute, strikes, industrial action or lockouts; and non-performance by third party agencies, suppliers or subcontractors.
- 7.“Group” means, in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
“Information” means the information in respect of Employees, Contractors, Salary Advances, the PCA Account and/or other ancillary information required by PayMT from time to time to verify, assess and/or approve requests for Salary Advances in accordance with this Agreement.
- 8.“Interest” means the interest payable by the Employer on each Loan.
- 9.“Loan” means each loan by PayMT to the Employer in accordance with this Agreement in connection with a Salary Advance.
- 10.“Employer Group Company” means the Employer or any company or entity within its Group.
“PCA Account” has the meaning given to it in the Schedule.
“Potential Termination Event" means any event or circumstance specified in clause 13 that would, on the giving of notice, expiry of any grace period or making of any determination under this Agreement, or satisfaction of any other condition (or any combination thereof), become a Termination Event.
“Employer System” means any information technology system or systems owned or operated by the Employer from which Information is received in accordance with this Agreement.
- 11.“Support” means the funding and administration of Salary Advances as more particularly described in the Schedule.
- 12.“Salary Advance” means the advance payment by the Employer of all or a proportion of an Employee’s or Contractor’s weekly or monthly salary or remuneration as more particularly described in the Schedule.
- 13.“Shared Personal Data” means the personal data to be shared between the parties pursuant to and in connection with this Agreement.
- 14.“System” means the information technology system or API system owned or operated by PayMT which interfaces with the Employer System for the purposes of the Salary Advances.
- 15.“Term” means the period from Commencement Date until the termination of this Agreement in accordance with its terms.
- 16.“Termination Event” means any event or circumstance listed in clause 13.
- 17.“VAT” means value added tax chargeable under the Value Added Tax Act 1994.
- Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- This Agreement shall be binding on, and endure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. Any reference to this Agreement includes the Schedules. A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to “writing” or “written” includes email. A reference to “this Agreement” or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule. If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to a “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
- Commencement and duration
- This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 13, until either party gives to the other no less than 3 months’ written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
- LOAN FACILITY & SUPPORT OBLIGATIONS
- During the Term, PayMT may:
- make available each Loan to the Employer, up to a maximum aggregate principal amount of £250,000 (“Maximum Facility Amount”);
- provide the Support (including reasonably sufficient resources and assistance as reasonably required by the Employer) in supporting Employees, Contractors and Agencies regarding each Salary Advance, on and subject to the terms and subject to the conditions of this Agreement.
- PayMT shall use reasonable endeavours to meet any deadlines specified in the Schedule but any such dates shall be estimates only and time for performance by PayMT shall not be of the essence of this Agreement.
- Any request for a Loan made by the Employer shall be irrevocable and must relate to an individual Salary Advance. For the avoidance of doubt, funding in connection with a series of Salary Advances to the same person shall be considered as a separate Loans.
- This loan facility is uncommitted and each Loan shall be in the sole and absolute discretion of PayMT.
- This loan facility shall be revolving and each Loan which is repaid may be redrawn up to the Maximum Facility Amount, subject to the other terms of this Agreement.
- The Employer will use each Loan solely for the purpose of the payment of a single Salary Advance.
- PayMT is not obliged to monitor or verify how any amount advanced under this Agreement is used.
- Conditions precedent
- PayMT’s obligation to make a Loan is subject to the condition precedent that, on both the date of the request, notice or advice to provide the Loan and the proposed date of advancing the Loan:
- the representations and warranties in clause 6 are true and correct in all material respects and will be true and correct in all material respects immediately after PayMT has made the proposed Loan; and
- no Termination Event or Potential Termination Event is continuing or would result from the proposed Loan;
- Without prejudice to the conditions in clause 5.1, PayMT’s obligation to provide the Loan and the corresponding Support in the form of a Salary Advance shall be further conditional on the following:
- PayMT is satisfied that the request for the Salary Advance made by the Employee or Contractor and the Employer, and the Information in respect of that Salary Advance, is genuine (i.e. not fraudulent);
- the Employer provides the Information in respect of the request in accordance with the requirements set out in the Schedule; and
- the Employee or Contractor and Information associated with him or her, and the request overall, passes the Assessment Criteria to PayMT’s satisfaction.
- The conditions specified in this clause 5 are inserted solely for PayMT's benefit. PayMT may waive or vary them, in whole or in part and with or without conditions, without prejudicing PayMT's right to require subsequent fulfilment of such conditions. For the avoidance of doubt, PayMT may vary the Assessment Criteria at any time in its sole and absolute discretion.
- representations and warranties
- The Employer represents, warrants and undertakes that:
- it is a duly incorporated limited liability company or entity validly existing under the laws of its jurisdiction of incorporation and has the power to own its assets and carry on its business as it is being conducted;
- it has the power to enter into, deliver and perform, and has taken all necessary action to authorise its entry into, delivery and performance of, this Agreement and the transactions contemplated by it;
- no limit on its powers will be exceeded as a result of the borrowing contemplated by this Agreement;
- its obligations under this Agreement are legal, valid, binding and enforceable in accordance with its terms;
- 6.1.5.the entry into and performance by it of, and the transactions contemplated by, this Agreement, do not and will not contravene or conflict with its constitutional documents or any agreement or instrument binding on it or its assets or constitute a default or termination event (however described) under any such agreement or instrument;
- 6.1.6.no Termination Event or Potential Termination Event has occurred or is continuing, or is reasonably likely to result from making the Loan or the entry into, the performance of, or any transaction or obligation contemplated by this Agreement;
- 6.1.7.no other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination thereof, would constitute) a default or termination event (howsoever described) under any other agreement or instrument which is binding on the Employer or to which any of its assets is subject which has or is likely to have a material adverse effect on its business, assets or condition or ability to perform its obligations under this Agreement;
- No litigation, arbitration or administrative proceedings are taking place, pending, or to the Employer's knowledge, threatened against it, any of its directors or any of its assets, which might reasonably be expected to have a material adverse effect on its business, assets or condition, or its ability to perform its obligations under this Agreement;
- no litigation, arbitration or administrative proceedings are taking place, pending, or to the Employer's knowledge, threatened against it, any of its directors or any of its assets, which might reasonably be expected to have a material adverse effect on its business, assets or condition, or its ability to perform its obligations under this Agreement;
- it shall co-operate with PayMT in all matters relating to this Agreement (including without limitation the Loan and Support);
- it shall provide to PayMT in a timely manner all documents, information, items and materials in any form (whether owned by the Employer or third party) required under the Schedule or otherwise reasonably required by PayMT in connection with this Agreement and ensure that they are accurate and complete;
- it shall obtain and maintain all necessary licences and consents and comply with all Applicable Laws, including in relation to the use of software and technology, in all cases before the date on which the Support is to start;
- it shall not, without the prior written consent of PayMT, at any time during the term of this Agreement, solicit or entice away from PayMT or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of PayMT in the provision of the Services;
- it shall not, without the prior written consent of PayMT, at any time from the Commencement Date to the expiry of 3 months after the termination or expiry of this Agreement, solicit or entice away from PayMT or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of PayMT in the provision of the Services;
- it shall permit PayMT (at PayMT’s request) to access, and take copies of, the Information and any other information held on the Employer System in order to allow PayMT to provide the Support;
- the supply of the Information or use of (or connectivity to) the Employer System will be free from interruption;
- the Information provided is at all times accurate, complete, reliable, secure, useful, fit for purpose and timely;
- it has obtained from all relevant third parties (including Employees and Contractors) all necessary consents and licences to supply the Information to PayMT;
- it has obtained and maintained all such insurance policies as would be maintained by prudent organisations carrying on business of the type carried on by the Employer in its Business and has complied in all material respects with the terms and conditions of such policies; and
- it will not commit any fraud or dishonesty or act in a manner which is likely to bring PayMT into disrepute;
- any application made by an Employee or Contractor is genuine (i.e. not fraudulent) and it shall use all commercially reasonable endeavours, and have adequate measures within the Employer System or otherwise, to ensure that the Employee or Contractor making the request is an identifiable person (as opposed to a ‘fake’ request generated fraudulently by way of example);
- all Employees and Contractors are treated equally and fairly in respect of the Salary Advances;
- any funding provided by PayMT to the Employer under this Agreement is not used by the Employer for any purpose other than the payment of Salary Advances as requested by Employees or Contractors in accordance with the terms of this Agreement;
- all Debts and requests for Salary Advances will arise in the ordinary course of the Employer’s business; and
- where the Employer is part of a Group, it is the ultimate holding company within the Group or otherwise with approval from PayMT it will provide a guarantee and indemnity (in a form and substance satisfactory to PayMT) from the ultimate holding company in connection with its obligations under this Agreement.
- at all times comply with its obligations in the Schedule.
- Each of the representations and warranties in this clause 6 is deemed to be repeated by the Employer on:
- the date of the request to provide the Loan;
- the date that the Loan is actually advanced; and
- each date immediately succeeding the date on which interest is due or paid under this Agreement, by reference to the facts and circumstances existing on each such date.
- If PayMT's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Employer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, PayMT shall be allowed an extension of time to perform its obligations equal to the delay caused by the Employer.
- In performing their obligations under this Agreement, both parties shall comply with all Applicable Laws.
- The Employer covenants with PayMT that, as from the date of this Agreement and until all its liabilities under this Agreement have been discharged:
- it will promptly, after becoming aware of them, notify PayMT of any litigation, arbitration or administrative proceedings or claims of the kind described in clause 6.1.9;
- it will promptly obtain all consents or authorisations under any law or regulation (and do all that is needed to maintain them in full force and effect) to enable it to perform its obligations under this Agreement and to ensure the legality, validity, enforceability and admissibility in evidence of this Agreement in its jurisdiction of incorporation;
- it will procure that any of its unsecured and unsubordinated obligations and liabilities under this Agreement rank, and will rank, at least pari passu in right and priority of payments with all its other unsecured and unsubordinated obligations and liabilities, present or future, actual or contingent, except for those obligations and liabilities mandatorily preferred by law and of general application to companies;
- it will notify PayMT of any Potential Termination Event or Termination Event (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence;
- if PayMT is obliged for any reason to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Employer will, promptly on the request of PayMT, supply (or procure the supply of) such documentation and other evidence as is reasonably requested in order for PayMT to be able to carry out, and be satisfied that it has complied with, all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement; and
- it will carry on and conduct its business in a proper and efficient manner and will not make any substantial change to the general nature or scope of its business as carried on at the date of this Agreement.
- The Employer will supply financial information (in the form of summary management accounts and audited financial statements) on reasonable request by PayMT.
- The Employer shall pay a fixed rate of interest on each Loan of 4%, or such other amount agreed in writing between the parties.
- Interest shall be payable on the date stipulated in clause 9.
- Each Loan and Interest thereon shall be repayable by the Employer to PayMT immediately and conditional upon repayment of the corresponding Salary Advance by the Employee or Contractor or Agency on behalf of the Contractor.
- The Employer shall be responsible for the repayment of all other Debts within the timescale specified in the Schedule.
- If any Salary Advance is partially repaid, then the partial repayment must be repaid to PayMT.
- Where, in respect of a Debt, a corresponding debt is owed to the Employer by a Contractor, Agency or otherwise, the Employer shall use its best endeavours to recover payment of those debts in order to repay any Debt as soon as possible (and no later than the timescale specified in the Schedule) including, without limitation, taking the following steps:
- regularly notifying the respective debtors of their obligation to repay;
- in relation to Contractors engaged directly by an Employer Group Company, taking appropriate disciplinary action; and
- instructing recovery via debt collection agencies or county courts.
- Pursuant to its obligations under clause 9.3 above the Employer will not incur any expenses in order to recover the Salary Advances without the prior agreement of PayMT. Where an agreed expense is not recovered from the Employee or Contractor, PayMT agrees to reimburse the Employer 75% of all agreed but unrecovered expenses.
- The Employer will not agree to accept anything less than the amount of the Salary Advance plus any recovery expenses in settlement of the relevant debt without the prior agreement of PayMT. Where such agreement is received payment of the reduced sum will discharge all liability due from the Employer to PayMT in respect of that relevant Loan.
- Subject to clause 9.3, if the Employer is informed that a corresponding Salary Advance cannot be repaid because it relates to a fraudulent request, the Employer shall provide to PayMT satisfactory evidence demonstrating that such a request was actually fraudulent and the Employer shall regularly keep PayMT up to date as requested by PayMT from time to time.
- All sums payable to PayMT under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- ChangeS TO STRUCTURE
- Either party may propose changes to the scope or execution of the Support but no proposed changes shall come into effect until a “Change Order” has been signed by both parties. A Change Order shall be a brief document setting out the proposed changes and the effect that those changes will have on the Support, PayMT’s existing charges, any timescales and any of the terms of this Agreement.
- If either party wishes to make a change to the Support it shall provide a draft Change Order to the other party.
- If the parties:
- agree to a Change Order, they shall sign it and that Change Order shall amend this Agreement; or
- are unable to agree a Change Order, they shall seek to resolve any disagreement promptly between senior management of both parties, and if not such resolution is achieved, either party may terminate this agreement.
- Notwitstanding this clause 10, in the event of a change in Applicable Law or any other change of circumstances, which results or may result in it becoming uneconomic or undesirable (in PayMT’s sole and absolute discretion) to continue providing Loans, PayMT may at any time adjust the structure and/or terminate this Agreement and all the Loans.
- Confidentiality AND DATA
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
- The Employer represents and warrants, in connection with all and any Shared Personal Data (relating to the Employer, Employees, Consultants, Agencies or otherwise) which it may transfer to PayMT for processing in connection with this Agreement, that it has all necessary notices and consents in place to enable lawful transfer of and processing by PayMT (and its Group and affiliates) of such Shared Personal Data.
- The Parties agree as follows:
- to maintain appropriate technical and organisational measures, which may be reviewed and approved by the other party on request, to protect against unauthorised or unlawful processing of Shared Personal Data and against accidental loss or destruction of, or damage to, personal data;
- to ensure that any transfer of personal data outside of the EEA either, (i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller) and (ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer;
- to consult with the other party about any notices given to data subjects in relation to their Shared Personal Data;
- to provide prompt notice of and reasonable assistance to the other party in connection with any data subject access request relating Share Personal Data;
- to notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation in connection with this agreement;
- to maintain complete and accurate records to demonstrate compliance with this clause 11.5; and
- not to disclose Shared Personal Data except to their employees, consutlants, agents and advisors who need to know such Shared Personal Data in connection with this agreement and provided further that such recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement.
- Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
- Limitation of liability
- Nothing in this Agreement shall limit or exclude PayMT's liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be limited or excluded by applicable law.
- Subject to clause 12.1, PayMT shall not be liable to the Employer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
- loss of profits (whether direct or indirect);
- loss of sales or business including loss of business from Contractors (whether direct or indirect);
- loss of agreements or contracts (whether direct or indirect);
- loss of anticipated savings (whether direct or indirect); or
- any indirect or consequential loss.
- PayMT makes no representation, warranty or guarantee of the creditworthiness or performance by an Employee, Contractor, Agency or other recipient, which complies with the Assessment Criteria for a Salary Advance. Moreover, PayMT shall have no liability for any losses, expenses, costs or claims incurred by the Employer resulting from a Salary Advance approved by PayMT under the Assessment Critera.
- Subject to clauses 12.1, 12.2 and 12.3, PayMT's total liability to the Employer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Support provided under this Agreement shall be limited to the lower of (i) the aggregate amount of Interest received by PayMT at the date of the breach (ii) one percent of the aggregate amount outstanding of the Loans at the date of the breach and (iii) £5,000.
- Termination EVENT
- Without affecting any other right or remedy available to it, PayMT may terminate this Agreement with immediate effect in respect of any or all the Loans by giving written notice to the other party if:
- the Employer fails to pay any sum payable by it under this Agreement, unless its failure to pay is caused solely by an administrative error or technical problem and payment is made within three Business Days of its due date;
- the Employer commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the Employer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- any representation, warranty or statement made, repeated or deemed to be made by the Employer in, or pursuant to, this Agreement is (or proves to have been) incomplete, untrue, incorrect or misleading in any material respect when made, repeated or deemed to be made;
- the Employer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Employer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Employer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Employer (being a company);
- the holder of a qualifying floating charge over the assets of the Employer (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the Employer or a receiver is appointed over all or any of the assets of the Employer;
- a creditor or encumbrancer of the Employer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Employer's assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Employer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.3 to clause 13.1.9 (inclusive);
- any event occurs (or circumstances exist) which, in the reasonable opinion of PayMT, has or is likely to materially and adversely affect the Employer's ability to perform all or any of its obligations under, or otherwise comply with the terms of, this Agreement;
- if there is a Change of Control of the Employer; or
- the Employer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- Consequences of termination
- On termination or expiry of this Agreement PayMT may, by notice to the Employer:
- cancel all or part (in PayMT’s discretion) of outstanding obligations under this Agreement, whereupon they shall immediately be cancelled;
- declare the Employer shall immediately pay to PayMT all outstanding Debt (including Interest) and all other amounts due) which is due but unpaid, whereupon the Debt shall be immediately due and payable;
- declare all the outstanding Debt (including Interest and all other amounts due) which is due but unpaid PayMT shall be payable on demand, whereupon it shall become immediately payable on demand by PayMT.
- For the avoidance of doubt, this agreement may be terminated by PayMT under clause 14 severally in relation to all or part of the Loans outstanding. If PayMT terminates some but not all of the Loans, this agreement shall remain in full force and effect in connection with any outstanding Loans which are not terminated.
- Clauses which expressly or by implication survive termination of this Agreement shall continue in full force and effect and, for the avoidance of doubt, the following clauses shall continue in force: clause 1 (Interpretation), clause 8 (Interest), clause 9 (Repayment), clause 11 (Confidentiality and Data), clause 12 (Limitation of liability), clause 13 (Termination Event), clause 14 (Consequences of Termination), clause 17 (Set Off), clause 18 (Calculations Accounts Certificates), clause 19 (General), clause 21 (Governing Law and Jurisdiction) and any post-termination obligations set out in the Schedule.
- Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
- Force majeure
- If PayMT is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, PayMT shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
- If the Force Majeure Event prevents, hinders or delays PayMT's performance of its obligations for a continuous period of more than 4 weeks, the Employer may terminate this Agreement by giving 1 week’s written notice to PayMT.
- Assignment and other dealings
- PayMT may assign any of its rights under this Agreement or transfer all its rights or obligations by novation.
- The Employer shall not take, or attempt, any action to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement. For the avoidance of doubt, any breach of this clause 16.2 shall be a material breach for purposes of clause 13.1.2.
- SET OFF
- PayMT may at any time, without notice to the Employer, set off any liability of the Employer to PayMT against any liability of PayMT to the Employer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by PayMT of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.
- PayMT is not obliged to exercise any of its rights under clause 17.1, but if the rights are exercised, PayMT shall promptly notify the Employer of the set-off that has been made.
- Calculations, accounts and certificates
- PayMT shall maintain accounts evidencing the amounts owed to it by the Employer, in accordance with its usual practice. Entries in those accounts shall be prima facie evidence of the existence and amount of the Employer's obligations as recorded in them.
- If PayMT issues any certificate, determination or notification of a rate or any amount payable under this Agreement, it shall be (in the absence of manifest error) conclusive evidence of the matter to which it relates.
- Each party shall be responsible for its own costs in connection with entering into and performing this agreement.
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- The Employer shall, at its own expense, take whatever action PayMT or any assignee may reasonably require for facilitating the exercise of any right, power, authority or discretion exercisable by PayMT in respect of any Loan under the terms of this Agreement.
- If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 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.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- No one other than a party to this Agreement shall have any right to enforce any of its terms.
- A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
- 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 pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case).
- Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
- if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
- This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Governing law AND JURISDICTION
- This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. Nothing in this clause shall limit the right of PayMT to take proceedings against the Employer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
Funding of Advances and Payment Cycle
- “PCA Account” means the ‘Employer Salary Advance Account’, being the bank account opened by PayMT on behalf of the Employer for the sole purpose of depositing Loans for Salary Advances in connection with this Agreement.
- “FW System” means the PayMT computer system used by the Employer to manage the Advances.
- At any given time, for the duration of this Agreement, an Employee or Contractor may submit a request for an Salary Advance to the Employer or an Employer Group Company.
- The FW System will consider the requests and accept or reject them applying the Assessment Criteria and in accordance with the terms of this Agreement.
- If the FW System deems the request acceptable, the Employer will offer the Employee or Contractor a Salary Advance, stating clearly the advance amount that will be deposited into their bank account and the administration fee charged.
- If the Employee or Contractor (or Agency on behalf of the Contractor) accepts the offer, the FW System will transfer the net funds from the PCA Account to the Contractors Account.
- Subject to clause 9, within 48 hours of the debt or part of the debt being repatriated to the Employer, the Employer, must transfer the funds back to the PCA.
The Assessment Criteria consists of the criteria used by PayMT to verify an application requesting an Salary Advance by an Employee or Contractor (and then subsequently forwarded to PayMT) and determine whether to provide funding in respect of that Salary Advance or not (i.e. accept or reject that Salary Advance). By way of illustration, this includes (but is not limited to) the following factors which are taken into account by PayMT based on the Information provided:
- the Employee’s or Contractor’s average weighted daily net rate;
- the number of requests made by the Employee or Contractor prior to this request;
- the amount of time worked by the Employee or Contractor in the last week and/or month; and
- the number of payslips received by the Employee or Contractor in the last month, 6 months or otherwise.
Administration Fee: £2 for every £25 advanced
The Administration Fee is payable by the Employee or Contractor to the Employer in respect of the requested Salary Advance. Under this Agreement, the Administration Fee is payable by the Employer to PayMT in respect of each Salary Advance to an Employee or Contractor, together with the Debt which is repayable by the Employer.
After termination of this Agreement (howsoever arising), subject to completion of any on going Salary Advance requests, all monies in the PCA Account shall be immediately repayable to PayMT and the Employer shall transfer the monies as soon as reasonably practicable, and no later than 3 Business Days, after termination.
Salary Advance deposited in Contractors bank: £100
Administration Fee charged: £4
Actual amount recovered from Employee, Contractor (or Agency where relevant): £104
Actual amount deposited in PCA Account and subsequently returned to PayMT: £103.33
VAT retained by Employer £0.67