These are the typical terms and conditions for cash advances under £25,000 as of 08/12/2022.

1. Interpretations:

   1.1 Unless inconsistent with the context or otherwise specified these expressions shall have the meaning set out opposite them:

   Applicable Amount

   has the meaning provided in Clause 3.2.2;

   Applicable Percentage

   means the percentage set out in Clause 3.5;

   Bank Accounts

   means the bank account(s) that is attached as a funding source to the Lopay Account held by Merchant;

   Catch-Up Payments

   has the meaning provided in Clause 3.7;

   Fixed Fee

   means the amount set out in Clause 3.5 being the fee charged to the Merchant;

   Future Receivables

   means the Merchant’s rights over prospective payments that will become due and owing to it and which are processed through Lopay after the date of this Agreement. Future Receivables excludes transaction reversals, transactions made between accounts linked to Merchant’s Lopay Account and any non-business and/or non-commercial person-to-person transactions conducted through the Merchant’s Lopay Account; Indemnified Persons has the meaning provided in Clause 8.7;

   Losses

   has the meaning provided in Clause 8.7;

   Merchant

   is the business name listed in the application form and means the natural person or the entity who operates the Lopay Account primarily for business purposes and not for personal, family, or household purposes and who is entering into this Agreement;

   Outstanding Specified Amount

   means, at any given time, the Specified Amount less the aggregate monetary amount received by Lopay under Clause 3;

   Lopay Account

   has the meaning set forth in the User Agreement for Lopay Service to which Merchant has previously agreed;

   Purchase Price

   means the price for which Lopay will purchase Merchant’s Future Receivables, as set out in Clause 3.5;

   Specified Amount

   means the monetary amount as set out in the table in Clause 3.5;

   Trigger Breach

   means any event or circumstance set out in Clause 6 or any such event or circumstance which would (with the giving of notice, the making of any determination under this Agreement or any combination of any of the foregoing) give rise to an event or circumstance specified therein; We means Lopay; and

   You

   means the Merchant.

   1.2 In this Agreement:

   1.2.1 references to another agreement or document shall be construed as a reference to that other agreement or document as the same may have been or may from time to time be amended, varied, supplemented or novated;

   1.2.2 unless otherwise specified, references to Clauses are to clauses of this Agreement;

   1.2.3 references to any of the masculine, the feminine and the neuter shall include the other genders and references to the singular shall include the plural, and vice versa;

   1.2.4 the words “include”, “includes” and “including” shall be construed as if they were followed by the words “without limitation”; and

   1.2.5 headings are for ease of reference only and do not affect the interpretation of this Agreement (save where they are used for the purpose of cross-referencing).

2. Purchase and Sale of Future Receivables

   In consideration of the payment of the Purchase Price, the Merchant hereby sells to Lopay, and Lopay hereby purchases from the Merchant with full title guarantee, free and clear of any and all liens and encumbrances, Future Receivables of the aggregate value of the Specified Amount.

3. Transfer of Future Receivables to Lopay

   3.1 The Merchant will fulfil the transfer to Lopay of all of the Future Receivables purchased by Lopay under Clause 2. In satisfaction of this obligation, the Merchant will transfer to Lopay (and ensure that Lopay receives) in clear funds amounts equivalent to the proceeds attributable to those Future Receivables in accordance with the terms of this Clause 3.

   3.2 For each payment of Future Receivables received by the Merchant, the Merchant irrevocably authorises and instructs Lopay, at its sole discretion, to either:

   3.2.1. deduct the Applicable Percentage directly from the funds processed by Lopay that are designated to be placed into Merchant’s Lopay Account; or

   3.2.2 deduct an amount equivalent to that which Lopay would be entitled to deduct under Clause 3.2.1 (the “Applicable Amount”) directly from the Merchant’s Lopay Account.

   3.3 In accordance with the terms of this Agreement, the deduction of an Applicable Amount shall reduce the Outstanding Specified Amount by the same amount on a cumulative basis until the Outstanding Specified Amount stands at zero.

   3.4 For the avoidance of doubt, the amount to be collected by Lopay for the fulfilment of the transfer of Future Receivables according to this Clause 3.1 shall be calculated after the deduction of Lopay processing fees with respect to the funds processed by Lopay that are designated to be placed into Merchant’s Lopay Account.

   3.5 For purposes of this Agreement, the Merchant, Fixed Fee, the Purchase Price, Applicable Percentage and Specified Amount are:

   Minimum Future Receivables
   	This is the minimum level of Future Receivables to be transferred to Lopay every 90 days, assessed as set out in Clause 4.3 below. (In other communications, this may be referred to as the Minimum Repayment Amount)

   3.6 Lopay shall deduct the Applicable Amount from the Merchant’s Lopay Account, in accordance with Clause 3.2 above, on a real time or daily basis. If for any reason Lopay is unable to or does not deduct the Applicable Amount in accordance with this Clause, Lopay reserves the right to subsequently deduct the relevant Applicable Amount from the Merchant’s Lopay Account, and the Merchant shall hold the amounts due in trust for Lopay.

   3.7 The Merchant will, at all times, keep its Lopay Account in sufficient available and unrestricted funds in the currency of the Purchase Price to cover the Applicable Amounts to be deducted. If, at the time of attempted deduction of an Applicable Amount, there are insufficient funds, the Merchant authorises Lopay to deduct such amount on any subsequent occasion when the Merchant’s Lopay Account holds funds, until the unpaid Applicable Amount has been remitted in full. The deduction of these unpaid Applicable Amounts by Lopay may be referred to elsewhere as Lopay taking “Catch-Up Payments”.

   3.8 If, in the first 30 days after the Purchase Price has been received by the Merchant, Lopay has to take Catch-Up Payments (as described in Clause 3.7) equivalent to more than fifty percent (50%) of the aggregate Applicable Amount recovered over this 30 day period, this shall be considered a Trigger Breach.

   3.9 If the Merchant’s Lopay Account holds insufficient funds in the currency of the Purchase Price to cover the amount to be deducted, Lopay may convert the applicable amount from balances in other currencies in the Merchant’s Lopay Account into the currency of the Purchase Price (for which Lopay’s standard currency conversion fees will apply) and deduct the converted amount as required. Any transfers under this Clause shall, at Lopay’s sole discretion in accordance with Clause 3.2, be made after Lopay deducts the Applicable Amount directly from funds processed by Lopay.

   3.10 Lopay also reserves the right to request that the Merchant adds sufficient funds to its Lopay Account to satisfy any Applicable Amount that could not be deducted due to insufficient unrestricted funds being available.

   3.11 The Outstanding Specified Amount shall be cumulatively reduced by the transfer to and receipt by Lopay of Future Receivables from the Merchant in accordance with this Clause 3.

   3.12 Once the Outstanding Specified Amount is reduced to zero, the transfer to Lopay of all Future Receivables purchased by Lopay under this Agreement shall be fulfilled and the Merchant shall have no further obligation to Lopay under this Agreement. Lopay shall not be required to accept any amounts from any source or party not described herein to facilitate the completion of transfers.

   3.13 For the avoidance of doubt, the Merchant can repurchase the rights to the Future Receivables at any time without penalty by paying Lopay a purchase price equivalent to the Outstanding Specified Amount.

4. Merchant Covenants

   4.1 The Merchant irrevocably covenants and agrees that, during the term of this Agreement, it shall:

   4.1.1 comply with its Lopay Processing Agreement and the User Agreement, which incorporates certain policies including (without limitation) the Privacy Policy and the Acceptable Use Policy for processing payments for duration of this Agreement;

   4.1.2 maintain Lopay as a payment method set forth on Merchant’s website in a no less favorable position than as displayed on the date of this Agreement;

   4.1.3 not claim that another payment method is preferable or superior to Lopay;

   4.1.4 not mischaracterise or disparage Lopay as a payment method;

   4.1.4 not take any action to discourage Lopay use or permit any event to occur which could have an adverse effect on the acceptance, authorisation or use of Lopay by purchasers of the Merchant’s products and/or services or allow any event to occur that could cause a diversion of any of the Merchant’s Future Receivables from Lopay to any other entity;

   4.1.5 maintain its existing line(s) of business;

   4.1.6 at all times conduct its business and carry out its operations in a manner that is, as a minimum, consistent with past practice;

   4.1.7 use its best endeavors to maintain performance at a level that is, at a minimum, consistent with the past 12 months prior to the date of this Agreement;

   4.1.8 conduct its business and carry out its operations under the name provided herein and maintain any and all of its physical or virtual places of business, unless the Merchant provides prior written notification to Lopay; and in a manner that is materially consistent with past practice, and shall not conduct any business other than the business it conducts on the date of this Agreement

   4.1.9 not allow another person or company, including without limitation a franchisor company (if the Merchant is a franchisee), to assume or take over the operation and/or control of the Merchant’s business or business location, whether physical or virtual;

   4.1.10 not sell, dispose, convey or otherwise transfer any of its business or assets (other than in the ordinary course of business), without Lopay’s written consent;

   4.1.11 not permit any event to occur that could cause diversion of any of the Future Receivables from Lopay to any other entity; and

   4.1.12 cooperate fully with Lopay to take all necessary actions required to effectuate each of its obligations hereunder, including but not limited to signing any and all documents Lopay deems necessary and furnishing Lopay with such information (including updated financial statements) as Lopay may reasonably request from time to time.

   4.2 Lopay’s entry into this agreement is based on the performance and consistency of a Merchant’s business. To help support this and the covenants made by the Merchant in Clause 4.1 above, the Minimum Future Receivables transferred to Lopay, in accordance with Clause 3 and as assessed in accordance with Clause 4.3
   It is the Merchant’s responsibility to ensure it conducts its business in a way that allows this level of Minimum Future Receivables to be realised. The failure of the Merchant to meet the Minimum Future Receivables shall be a Trigger Breach actionable in accordance with Clause 6.1.2

   4.3 The Minimum Future Receivables transferred are assessed by Lopay as follows:

   4.3.1 an assessment shall take place every 90 days, measured from when the Purchase Price is received by the Merchant; and

   4.3.2 each assessment under Clause 4.2.1 shall consider the aggregate Future Receivables transferred to Lopay over the prior 90 days, and whether this is equal to or greater than the level of the required Minimum Future Receivables. It is the Merchant’s responsibility to ensure it conducts its business to realise the Minimum Future Receivables. The failure of the Merchant to meet the Minimum Future Receivables shall be a Trigger Breach actionable in accordance with Clause 6.1.2.

   4.4 Where requested by Lopay, the Merchant shall supply to Lopay within 30 days of the end of each three month period of its financial year, the Merchant’s management accounts in respect of the 12 month period ending at the end of that three month period showing sufficient detail to enable Lopay to determine the Merchant’s compliance and on-going ability to comply, with the Minimum Future Receivables requirement in Clause 4.2 above.

   4.5 The Merchant shall supply to Lopay any information regarding the financial condition, business and operations of the Merchant (including but not limited to the Merchant’s bank statements and any processing agreements with a party other than Lopay) as Lopay may request.

   4.6 The Merchant shall notify Lopay of any Trigger Breach (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

   4.7 Merchant shall not:

   4.7.1 create or permit to subsist any mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect over any of the Future Receivables; or

   4.7.2 dispose of any of the Future Receivable on recourse terms or enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts or enter into any other preferential arrangement having a similar effect, in each case, in circumstances where the arrangement or transaction is entered into primarily as a method of raising financial indebtedness or of financing the acquisition of an asset.

   4.8 Without the prior written consent of Lopay, the Merchant shall not:

   4.8.1 incur, or have outstanding, any material financial indebtedness. Material in this context shall mean the lower of £50,000 or the equivalent of 100% of a Merchant’s annual sales;

   4.8.2 in a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary dispose of its business or the whole or substantially the whole of its assets;

   4.8.4 enter into any amalgamation, demerger, merger or reconstruction.

   4.9 The Merchant shall promptly notify Lopay of any dispute of which it becomes aware that affects the Merchant’s business and operations and if any event occurs of which it becomes aware which will or may prevent or render impracticable the carrying on by the Merchant of its business or operations.

   4.10 Merchant shall:

   4.10.1 maintain at all times the Lopay Account in its name as at the date of this Agreement with Lopay;

   4.10.2 ensure that no Lopay Account is closed or terminated by Lopay as a result of anything the Merchant does or fails to do (whether by any words, action, inaction or omission);

   4.10.3 maintain and keep in good standing a Bank Account, which should be the Merchant’s primary current account; and

   4.10.4 if so requested by Lopay, ensure that the Merchant delivers processing reports in respect of the Lopay Accounts of the Merchant to Lopay.

5. Merchant’s Representations and Warranties

   5.1 The Merchant represents and warrants that as of the date of this Agreement and during the term of this Agreement:

   5.1.1 The Merchant is entering into this Agreement wholly or predominantly for the purposes of a business carried on by it or intended to be carried on by it.

   5.1.2 The Merchant has not sold and is not subject to any other contract that provides for the sale, assignment or any other transfer of any interest in the Future Receivables. The Future Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever with any dispute. The Future Receivables will be bona fide and existing obligations of the Merchant’s customers arising out of the sale of goods and/or services in the ordinary course of the Merchant’s business. The Merchant’s receivables are and will be free and clear of all claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever.

   5.1.3 The Merchant acknowledges that Lopay has and will continue to rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on behalf of the Merchant in connection this Agreement and, in particular, with Lopay’s obligations hereunder.

   5.1.4 The Merchant possesses and is in compliance with all permits, licenses, approvals, consents and any other authorisations necessary to conduct its business. The Merchant is in compliance with, and the execution of this Agreement and consummation of the transaction contemplated herein will not conflict with, (i) any laws and regulations, (ii) any agreements to which the Merchant is a party, and (iii) the Merchant’s articles of association or other corporate documents. The Merchant possesses all requisite permits, authorisations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.

   5.1.5 The Merchant has the power and authority to enter into and perform its duties and obligations under this Agreement and any documents required to facilitate the transactions contemplated by this Agreement. The Merchant is not a party to any contract or aware of any existing situation that would prevent the Merchant from entering into this Agreement. The Merchant has taken all necessary action to authorise its execution and delivery of, and performance under, this Agreement. The Merchant is solvent and fully authorized to assign and sell the Future Receivables hereunder.

   5.1.6 The execution and delivery of, the consummation of the transactions contemplated hereunder, and compliance with the provisions of this Agreement, do not and will not conflict with other agreements to which the Merchant is a party or beneficiary, or result in any of the following: (1) breach or default of other agreements to which the Merchant is a party; (2) entitlement of any person or entity to receipt of notice or right of consent; (3) a right of termination, cancellation or acceleration of any obligation or to loss of a benefit; (4) any increased, additional, accelerated or guaranteed rights or entitlement of any person or entity; or (5) creation of any claim on the properties or assets of the Merchant.

   5.1.7 The entry into and performance by the Merchant of, and the transactions contemplated by this Agreement do not and will not conflict with any law or regulation applicable to it or any of the Merchant’s constitutional documents or any agreement or instrument binding upon it or any of its assets.

   5.1.8 The Merchant has the power to own its assets and carry on its business as it is being conducted.

   5.1.9 The obligations expressed to be assumed by the Merchant in this Agreement are legal, valid, binding and enforceable obligations.

   5.1.10 The Merchant has the power to enter into, exercise its rights under, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement.

   5.1.11 All authorisations required or desirable to enable the Merchant to lawfully enter into, exercise its rights and comply with its obligations in this Agreement and to make this Agreement admissible in evidence in any relevant legal jurisdiction have been obtained or effected and are in full force and effect.

   5.1.12 The Merchant is the sole legal and beneficial owner of the Future Receivables, the Lopay Accounts and the Bank Accounts with the right to transfer with full title guarantee all or any part of such Future Receivables and amounts standing to the credit of the Lopay Accounts and the Bank Accounts it has good marketable title to all its business assets including but not limited to the Future Receivables and amounts standing to the credit of the Lopay Accounts and the Bank Accounts.

   5.1.13 No event or circumstance has occurred or is continuing which constitutes a default under any other agreement or instrument which is binding on the Merchant or on its assets.

   5.1.14 All information provided and confirmations given by or on behalf of the Merchant to Lopay (including, without limitation, any financial information in relation to Future Receivables provided to Lopay) was true, complete and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

   5.1.15 The financial projections on the basis of which the Merchant undertakes to deliver the Minimum Future Receivables at the request of Lopay and any other information referred to in this Agreement above have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.

   5.1.16 The Merchant has disclosed to Lopay all covenants, restrictions, easements, encumbrances and outgoings relating to its respective business assets and operations.

   5.1.17 No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency have been started or threatened which, if adversely determined, would reasonably be expected to have a material adverse effect on the Merchant or the Merchant’s business and operations.

   5.1.18 The Merchant is not trading or carrying on, and has not traded or carried on since the date of its incorporation or formation, any business except for the business which it is carrying on the date of this Agreement.

   5.1.19 Merchant does not have any material financial indebtedness other than financial indebtedness, details of which it has provided to Lopay in writing prior to the date of this Agreement or otherwise Lopay has provided it’s written consent to. Material in this context shall mean the lower of £50,000 or 100% of the Merchant’s annual sales.

   5.1.20 Merchant is able to pay its debts as they fall due, has not suspended making payments on any of its debts or, by reason of actual or anticipated financial difficulties, has not commenced negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

   5.1.21 Merchant has sufficient funding available to it to enable it to meet its liabilities for the next twelve months and to fund all expenditure contemplated by or otherwise necessary to carry on its business and operations consistent with past practice.

   5.1.22 The Merchant is not subject to any corporate action, legal proceedings or other procedure or step in relation to any insolvency proceedings including (without limitation) in relation to:

   5.1.22.1 the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Merchant;

   5.1.22.2 a composition, compromise, assignment or arrangement with any creditor of the Merchant;

   5.1.22.3 the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager, trustee in bankruptcy or other similar officer in respect of the Merchant or any of the Merchant’s assets;

   5.1.22.4 enforcement of any security over any assets of the Merchant;

   5.1.22.5 the bankruptcy of the Merchant or of any officer or owner of the Merchant; or

   5.1.22.6 any analogous procedure or step is taken in any jurisdiction.

   5.2 The representations and warranties made by the Merchant in Clause 5.1 shall be deemed to be repeated by the Merchant on each day until all the obligations of the Merchant under this Agreement have been discharged or satisfied in full as if made by reference to the facts and circumstances then existing.

6. Trigger Breaches

   6.1 Each of the following events or circumstances is a “Trigger Breach”:

   6.1.1 Breach of obligations. Merchant does not comply with any term of this Agreement, except for Clause 4.2 a breach of which is addressed in Clause 6.1.2 below.

   6.1.2 Breach of Minimum Future Receivables. At its absolute discretion, Lopay may regard a breach of Clause 4.2 in relation to Minimum Future Receivables as a circumstance which amounts to a Trigger Breach.

   6.1.3 Misrepresentation. Any representation or statement made or deemed to be made by the Merchant in this Agreement or any other document delivered by or on behalf of the Merchant under or in connection with this Agreement is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

   6.1.4 Cross default:

   6.1.4.1 Any financial indebtedness of the Merchant is not paid when due.

   6.1.4.2 Any financial indebtedness of the Merchant is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

   6.1.4.3 Any commitment for any financial indebtedness of the Merchant is cancelled or suspended by a creditor of the Merchant as a result of an event of default (however described).

   6.1.4.4 Any creditor of the Merchant becomes entitled to declare any financial indebtedness of the Merchant due and payable prior to its specified maturity as a result of an event of default (however described).

   6.1.6 Bankruptcy. The Merchant is unable to pay its outstanding debts of more than £750, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties has not paid secured or compounded a statutory demand for the debt in question within three weeks or being served with the demand (and has not applied to Court to set aside the statutory demand).

   6.1.6 Insolvency

   6.1.6.1 The Merchant is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

   6.1.6.2 A moratorium is declared in respect of any indebtedness of the Merchant.

   6.1.7 Insolvency proceedings Any corporate action, legal proceedings or other procedure or step is taken in relation to:

   6.1.7.1 the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Merchant;

   6.1.7.2 a composition, compromise, assignment or arrangement with any creditor of the Merchant; or

   6.1.7.3 the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager, trustee in bankruptcy or other similar officer in respect of Merchant or the Merchant’s assets;

   6.1.7.4 enforcement of any security over any assets of Merchant;

   6.1.7.5 the bankruptcy of the Merchant or any Owner or officer of Merchant; or

   6.1.7.6 any analogous procedure or step is taken in any jurisdiction.

   6.1.8 Creditors’ process. Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Merchant.

   6.1.8 Repudiation. The Merchant repudiates this Agreement or does or causes to be done any act or thing evidencing an intention to repudiate this Agreement.

   6.1.10 Cessation of Business. The Merchant ceases, or threatens to cease, to carry on all or a substantial part of its business.

   6.1.11 Closure of Lopay Account. The Merchant closes its Lopay Account.

   6.1.12 Unlawfulness. It is or becomes unlawful for the Merchant to perform any of its respective obligations under this Agreement.

   6.1.13 Agreement Ineffective. This Agreement is not or ceases to be in full force and effect or is alleged by the Merchant to be ineffective for any reason.

   6.1.14 Change of ownership or control. The Merchant ceases to be legally and beneficially owned by the persons who own the Merchant as at the date of this Agreement or the legal, beneficial or economic interest of these owners in the Merchant is materially reduced.

   6.1.15 Material adverse change. Any event or series of events occurs which Lopay has reason to believe is likely to have a material adverse effect on the business or operations or financial standing of the Merchant which shall include but is not limited to a substantial decline in Future Receivables.

   6.1.16 Action to discourage use of Lopay. The Merchant takes any action to discourage Lopay use or permit any event to occur which could have an adverse effect on the acceptance, authorisation or use of Lopay by purchasers of the Merchant’s products and/or services or allow any event to occur that could cause a diversion of any of the Merchant’s Future Receivables from Lopay to any other entity.

   6.2 On and at any time after the occurrence of a Trigger Breach, Lopay may (and to the extent necessary, the Merchant consents to and authorises the same):

   6.2.1 unilaterally terminate this Agreement;

   6.2.2 recover the Outstanding Specified Amount through any and all funds available in the Merchant’s Lopay Accounts as such funds will be deemed to be Future Receivables;

   6.2.3 debit the Outstanding Specified Amount from Merchant’s Bank Accounts or Lopay Accounts (For the avoidance of doubt, Lopay may exercise this right against any Lopay Account held by the Merchant);

   6.2.4 seek damages equal to the Outstanding Specified Amount;

   6.2.5 seek liquidated damages equal to the Outstanding Specified Amount; and/or

   6.2.6 exercise any rights, powers, discretions, authorities and remedies vested in Lopay by this Agreement, by the User Agreement or by law or equity.

7. Additional Terms

   7.1 Sale of Future Receivables; Not a Loan. The Merchant and Lopay agree that payment of the Purchase Price by Lopay 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 Lopay to the Merchant. Lopay does not charge any origination or broker fees for the Merchant selling its Future Receivables to Lopay. Lopay does not charge any interest, finance charges, points, late fees or similar fees (except as permitted by applicable law in connection with civil judgments). Lopay is purchasing the Future Receivables at a discount and, for the avoidance of doubt, the Merchant and Lopay agree that Lopay shall be the sole and exclusive owner of the Outstanding Specified Amount, and the Outstanding Specified Amount contained in the Lopay Account shall not be part of the Merchant’s estate in a bankruptcy of the Merchant.

   7.2 Return of Any Amounts Determined to be in Excess of Usurious Rate. Notwithstanding the parties’ express intent to the contrary set forth out in Clause 3, in the event that Lopay’s purchase of the Future Receivables is finally determined by a court of competent jurisdiction to constitute a loan from Lopay to the Merchant, the parties agree that Lopay’s sole obligation hereunder shall be to return to the Merchant any interest deemed to have been received by Lopay in excess of the maximum amount of interest permitted by applicable law to be received by Lopay, notwithstanding any other remedy required by or authorised by applicable law.

   7.3 Processing Fees. The Merchant shall be solely responsible for the payment of any fees and charges imposed with respect to its Lopay Account or any processing agreement with Lopay. The amount deducted from your Lopay transactions on a daily basis for repayment of the Outstanding Specified Amount is calculated after the deduction of processing fees.

   7.4 Merchant’s Transactional Information. The Merchant hereby agrees to provide to Lopay, from time to time at Lopay’s request, transaction files maintained by the Merchant, and any other information related to past volumes, Future Receivables, or the transactions contemplated by this Agreement, whether formed for the purpose of audit or otherwise.

   7.5 Term of Agreement. This Agreement shall be in full force and effect until the Outstanding Specified Amount has been reduced to zero pursuant to the terms of this Agreement. Because Lopay is not providing the Merchant with a loan under this Agreement, there are no scheduled payments and no repayment term.

   7.6 Rescission of Agreement. The Merchant agrees that if the Merchant in any way breaches the terms of this Agreement, Lopay may unilaterally terminate this Agreement, subject to the Merchant’s obligation to deliver to Lopay the Outstanding Specified Amount through any and all funds available in the Merchant’s Lopay Account as such funds will be deemed to be Future Receivables.

   7.7 Remedies; Liquidated Damages.

   7.7.1 If the Merchant breaches any provision of this Agreement, Lopay shall be entitled to damages equal to the Outstanding Specified Amount. The Merchant consents to and authorises Lopay to debit from any of the Merchant’s Lopay Account(s) all or any portion of the Specified Amount owed if the Merchant breaches this Agreement.

   7.7.2 In the event the Merchant takes any action that breaches this Agreement, the Merchant agrees that Lopay immediately shall be entitled to, but not limited to, liquidated damages equal to the Outstanding Specified Amount.

   7.7.3 The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.

8. Miscellaneous

   8.1 Currency conversion. If for any reason Lopay is required to carry out a currency conversion any fees charged will be in accordance with the User Agreement or a Payment Processing Agreement.

   8.2 Variation. Except as otherwise expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties.

   8.3 No Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.

   8.4 Notices. The Merchant agrees that Lopay may provide communications about this Agreement and the transactions contemplated herein electronically. Any electronic communications will be considered to be received by the Merchant within twenty-four (24) hours of the time Lopay posts it to its website or emails it to the Merchant. Any communications sent to the Merchant by post will be considered to be received by Merchant three (3) business days after Lopay sends it. Except as otherwise stated, notices to Lopay must be sent by postal mail to: Lopay 20-22 Wenlock Road, London, England, N1 7GU.  

   8.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Merchant, Lopay and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Lopay, which consent may be withheld in Lopay’s sole discretion. Lopay reserves the right to assign this Agreement with or without prior notice to the Merchant.

   8.6 Costs Payable By Merchant. Lopay shall be entitled to receive from the Merchant, and the Merchant shall pay, all reasonable costs associated with a breach by the Merchant of any of its obligations, covenants (including but not limited to the Merchant Covenants) or any of the representations and warranties of the Merchant and the enforcement thereof, including but not limited to court costs and attorney’s fees. For this purpose, “reasonable costs” shall include the costs, including legal fees, associated with defending, protecting, or enforcing Lopay’s rights under this Agreement including in any bankruptcy or insolvency proceeding. If the Merchant files an action against Lopay and the matter is dismissed or Lopay prevails in the matter, the Merchant agrees to pay all of the Lopay’s legal fees and costs incurred in the matter, whether in court or arbitration.

   8.7 Indemnification. In addition to all rights and remedies available to the parties at law or in equity, the Merchant shall indemnify Lopay, its parent, the officers, directors, employees, agents, suppliers, successors, and assigns of Lopay or its parent, (collectively, the “Indemnified Persons”), harmless from and against and pay on behalf of or reimburse each such Indemnified Person for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable legal fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable legal fees and expenses incurred in connection with the enforcement of this Section ) (collectively, “Losses”), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of the Merchant under this Agreement; or (ii) any nonfulfillment, default or breach of any covenant or agreement of the Merchant in this Agreement.

   8.8 Enforceability of Representations, Etc. All representations, warranties and covenants herein will be enforceable upon the execution and delivery of this Agreement and will continue in full force and effect until this Agreement has been terminated.

   8.9 Severability.

   8.9.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

   8.9.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provisions 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.

   8.10 Entire Agreement. This Agreement, and any addendum and forms provided herewith, along with the User Agreement and where applicable a Payment Processing Agreement for Merchant Services and any addendum, contains the entire agreement and understanding between the Merchant and Lopay and each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

   8.11 Resolution and Recovery

   8.11.1 The Merchant acknowledges and agrees that any liability that Lopay may have in connection with the Merchant’s Lopay Account and the Lopay products and services it may provide to the Merchant from time to time may be subject to write-down and conversion powers by a competent regulatory authority that supervises Lopay, notwithstanding any term of any other agreement or arrangement between Lopay and the Merchant. This is due to a requirement in a European Union Directive (2014/59/EU) (as transposed into relevant national law) which provides regulatory authorities with such powers to manage the resolution of relevant financial institutions like Lopay. These powers are intended to avoid or reduce the need for governments and taxpayers to bail out relevant failing financial institutions.

   8.11.2 By the Merchant’s use of its Lopay Account and any Lopay products and services, the Merchant acknowledges and agrees to be bound by the effect of such write-down and conversion powers, which include (among others) (a) a reduction, in full or in part, of any amounts that may be due by Lopay to the Merchant; (b) a conversion of all, or part of, any such liability into shares in Lopay; (c) a cancellation of any such liability; and (d) a variation of any term of Lopay’s relevant agreement(s) in connection with the Merchant’s Lopay Account and any Lopay products and services with a view to enable the effective exercise of these powers. For example, the money that Lopay owes the Merchant may be converted into Lopay shares instead of being paid to it in cash.

   8.12 Confidential Information

   8.12.1 Confidential Information means any information of the disclosing party that the receiving party should reasonably understand to be confidential based on the context of disclosure or the information itself and the terms of this Agreement are included as Confidential Information

   8.12.2 Mutual obligations. Each party shall hold the other party’s Confidential Information in confidence and neither shall disclose such Confidential Information to third parties other than companies under common ownership or control. Neither party may use the other party’s Confidential Information for any purpose other than those of this Agreement

   8.12.3 Exceptions. The obligations of the preceding clause shall not apply to Confidential Information which (a) is already known by the recipient, (b) becomes publicly known through no act or fault of the recipient, (c) is received by recipient from a third party without a restriction on its disclosure or use, or (d) is independently developed by the recipient without reference to any Confidential Information.

   8.12.4 Survival. The obligations of this Clause 8.11 shall survive termination of this agreement for six years.

   8.13 Applicable Law and Jurisdiction

   8.13.1 Applicable law

   The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability and any non-contractual obligations arising out of or in connection with it) shall be governed by and construed in accordance with the laws of England and Wales.

   8.13.2 Jurisdiction

   The Merchant irrevocably agrees for the exclusive benefit of Lopay that the English or Welsh courts shall have exclusive jurisdiction over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability or any non-contractual obligation arising out of or in connection with this Agreement and that accordingly any proceedings in respect of any such claim, dispute or matter may be brought in such courts. Nothing in this Clause 8 shall limit the right of Lopay to take proceedings against the Merchant 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 jurisdiction or jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction or jurisdictions.