The General Terms and Conditions (“T&Cs”) together with the Key Terms (defined below) and Scope of Work (defined below) shall be collectively referred to as the “Agreement.”
The Agreement constitutes a legally binding agreement between the corporate entity, LLP, corporation, LLC, partnership, sole proprietorship, or other business entity signing the Key Terms (“Client”) and Questrics Ltd. (No.15013004) having its Registered Office at 1-3 Manor Road, Chatham, Kent, United Kingdom, ME4 6AE (the “Advisor”).
In the event of a conflict or ambiguity between these T&Cs, the SoW, and the applicable Key Terms, the Key Terms shall prevail. The Advisor reserves the right to amend these T&Cs at any time with notice to the Client. Client’s continued use of the Services (as outlined in the SoW) after notice (of such amendment) will constitute the Client’s acceptance of the updated T&Cs.
1. Definitions
1.1. Abort Fee: Defined in the Key Terms.
1.2. Additional Borrowing Success Fee: Defined in the Key Terms.
1.3. Balancing Success Fee: Defined in the Key Terms.
1.4. Advisor IPRs: Intellectual Property Rights related to materials, documents, information, data, or services provided by the Advisor, excluding Client Materials.
1.5. Business Day: Any day when banks in London are open, excluding weekends and public holidays.
1.6. Charges: All amounts due from the Client, including Fees, and expenses (on actuals) as per the Agreement.
1.7. Client Group Member: Any subsidiary, parent company, affiliate, sister concern, related entity, or any other member of the Client’s corporate group.
1.8. Client Materials: All materials, documents, information, forecasts, financial models, and data provided by the Client to the Advisor.
1.9. Data Protection Agreement: Data protection terms, as updated from time to time, and available on the Advisor’s website.
1.10. Debt Funding: The process by which the Client and/or Client Group Member(s) raises capital by borrowing money from lenders. In exchange for the borrowed funds, the Client and/or Client Group Member(s) agree(s) to repay the loan amount (principal) along with interest, based on the terms (including the Offer Documentation) agreed upon between the Client and/or Client Group Member(s) and the lender.
1.11. Facilitate (or “Facilitation”): Any form of contact (whether direct or indirect) made between the Client and/or Client Group Member(s) and a lender, which is facilitated by the Advisor in any way whatsoever for Debt Funding.
1.12. Fees: The aggregate of (a) the Packaging Fee; (b) the Interim Success Fee (if applicable); (c) the Balancing Success Fee (if applicable); and (d) the Additional Borrowing Success Fee (if applicable).
1.13. Information Memorandum: Document prepared by the Advisor for lenders, with Client assistance, for the purposes of sourcing Offers.
1.14. Interim Success Fee: Defined in the Key Terms.
1.15. Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.16. Key Terms: Each party’s contact details and other terms outlined in Key Terms.
1.17. Loan Amount: The total gross amount a lender commits to lend to the Client or a Client Group Member, including any conditional tranches or facilities described in relevant Offer Documentation or loan documentation.
1.18. Minimum Fee: Defined in the Key Terms.
1.19. Maximum Fee: Defined in the Key Terms.
1.20. Offer: An offer of funding from a lender introduced by the Advisor.
1.21. Packaging Fee: Defined in the Key Terms.
1.22. Scope of Work: Scope of services outlined in the Scope of Work (“SoW”).
1.23. Services: Defined in the Key Terms.
1.24. Services Start Date: The date on which the Key Terms are executed by the Advisor and the Client.
1.25. Term: Defined in the Key Terms.
2. Interpretation
2.1. The Agreement is binding upon and benefits the parties involved, including their personal representatives, successors, and permitted assigns. References to any party include these entities.
2.2. References to statutes or statutory provisions are to be understood as amended, extended, or re-enacted over time. This includes any subordinate legislation made under those statutes or provisions.
2.3. The term “person” encompasses natural persons as well as corporate or unincorporated bodies, regardless of separate legal personality.
2.4. References to a “company” include any corporation or other body corporate, irrespective of its incorporation or establishment method.
2.5. Unless the context dictates otherwise, singular words include their plural forms and vice versa; references to one gender include references to all genders.
2.6. Words following terms like “including,” “include,” “in particular,” or “for example” are illustrative and do not limit the preceding words, descriptions, definitions, phrases, or terms.
2.7. No rule of construction applies to the disadvantage of the Advisor because the Advisor was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
2.8. References to “writing” or “written” encompass email communications but exclude fax transmissions.
3. Exclusivity
3.1. Exclusivity during Initial Term: In exchange for the Services provided, the Client agrees that during the Initial Term, neither it nor any Client Group Member of its Group (officers, employees, agents, advisors) will seek or obtain Debt Funding for itself or any Client Group Member except via the Advisor. This exclusivity includes any Debt Funding opportunities, even if the Client or the Client Group Members are in contact with lenders (that were in Debt Funding discussions with the Client and/or Client Group Member(s) 12 months prior to executing the Agreement) not introduced by the Advisor but the Debt Funding was facilitated by the Advisor. The Advisor shall serve as the exclusive advisor, responsible for Facilitating all Debt Funding, including those involving external lender contacts, to provide full support and coordination for all funding sources.
3.2. Exclusivity during the Extended Term: In exchange for the Services provided, the Client agrees that during the Extended Term, neither it nor any Client Group Member (officers, employees, agents, advisors) will seek or obtain Debt Funding for itself or any Client Group Member except via the Advisor from any of the 15 (Fifteen) lenders listed and facilitated by the Advisor within 10 (Ten) days from the expiry of the Initial Term. The Advisor shall serve as the exclusive advisor, responsible for Facilitating all Debt Funding to provide full support and coordination for all Debt Funding from such 15 (Fifteen) lenders.
3.3. Breach of Exclusivity: In the event of a breach of exclusivity, Client acknowledges and agrees to pay 100% (One Hundred Percent) of the Fee (calculated in accordance with Clause 7) to the Advisor on any Debt Funding and/or Loan Amount procured by the Client and/or any Client Group Member in breach of the exclusivity under Clause 3.1 or Clause 3.2, whether Facilitated through the Advisor or otherwise, during the Term.
4. Client’s Obligations
4.1. The Client and Client Group Member(s) shall:
a) Collaborate in good faith with the Advisor on all matters related to the Services;
b) Provide timely information to the Advisor and ensure its accuracy and completeness to the best of its knowledge, updating any relevant changes;
c) Notify the Advisor promptly of any drawdowns under loan documents subject to Charges, specifying details such as date, requested amount, and borrowed amount;
d) Keep the Advisor informed about any amendments, increases, or conditions met under loan documents subject to Charges;
e) Provide management information as reasonably requested by the Advisor while maintaining confidentiality per the NDA (as defined below).
4.2. The Client’s and any Client Group Member’s obligations under Clause 4.1 persist beyond Agreement expiry or termination until all payable Charges are settled in full.
4.3. The Client and/or any Client Group Member shall not make an offer of employment or otherwise solicit the services of any of the employees of the Advisor for a period of at least 6 (Six) months after the expiry or termination of the Agreement, without first obtaining written approval of the Advisor. For the purposes of this Clause, “employees of the Advisor” shall mean and include anyone who was employed by the Advisor for any period during the Term.
5. Client Acknowledgments
5.1. The Client and Client Group Member(s) acknowledges:
a) It had the opportunity to seek independent advice (including, but not limited to, commercial, legal, tax, etc.) before signing the Agreement;
b) No undue pressure or influence was exerted by the Advisor or anyone on its behalf to induce execution of the Agreement.
6. Warranties and Indemnity
6.1. Each party warrants and undertakes that:
a) It has full authority to enter into and execute actions contemplated by the Agreement;
b) All information, representations, statements, and data provided by it (or its professional advisors) to the other party (or its professional advisors) are true, accurate, complete, and not misleading, to its best knowledge;
c) It will notify the other party promptly if any information, representations, statements, or data provided by it or on its behalf becomes untrue, inaccurate, or misleading;
d) It will notify any change in circumstances relevant to obtaining an Offer or accepting it;
e) Each party indemnifies and holds harmless the other for losses, charges, costs, expenses, or damages incurred due to breaches of these warranties.
6.2. Except as expressly stated in the Agreement, no other conditions, warranties, or terms bind parties regarding actions contemplated by it; implied terms are excluded where lawful.
7. Charges and Payment
7.1. In consideration for the provision of the Services, the Client shall pay the Advisor the Charges in accordance with the Key Terms and this Clause.
7.2. The Client shall pay the Advisor (and the Advisor may invoice in respect of the same), into an account nominated by the Advisor in writing:
a) The Packaging Fee within 7 (Seven) days of signing the Key Terms. This payment covers the Advisor’s time and costs incurred in producing the Information Memorandum and any pre-lending due diligence and loan packaging, as well as the Advisor’s time in soliciting Offers;
b) In the event that the Client or a Client Group Member receives an Offer and the Client or the relevant Client Group Member (as applicable) elects to:
i) Reject such Offer, then no further payments shall be due to the Advisor, subject to the requirements of Clauses 7.3, 7.6, and 8;
ii) Accept such Offer, the Client shall pay the Advisor the Interim Success Fee for each such Offer. Such amount shall be paid within 7 (Seven) days of the Client or the relevant Client Group Member (as applicable) signing the relevant lender’s offer documentation (howsoever presented or entitled and whether or not the documentation is expressed to be an indicative offer subject to further conditions, due diligence, legal documentation and is not a binding commitment to lend) (the “Offer Documentation”);
c) The Balancing Success Fee within 7 (Seven) days from and including the earlier of: (i) the first drawdown of any of the Loan Amount; or (ii) the date of signature of the loan documentation following acceptance of the Offer;
d) If additional Loan Amount is made available to the Client or the relevant Client Group Member (as applicable) over and above the Debt Funding stipulated under the Offer Documentation (Clause 7.2.b.ii) by a lender (the “Subsequent Funding”), then the Additional Borrowing Success Fee shall be due and payable to the Advisor upon the drawdown of the Subsequent Funding and must be paid within 7 (Seven) days thereof;
e) The Abort Fee in the event that the Client or the relevant Client Group Member (as applicable) having accepted an Offer, does not within 60 (Sixty) days from the date of signature of the Offer:
i) Make reasonable endeavours to progress to sign binding legal documentation in respect of the Offer; or
ii) Answer all reasonable requests and use all reasonable endeavours to comply with the Advisor’s directions or instructions, which the Advisor (in its sole discretion) deems required to progress to secure any outstanding credit or other approvals required to progress to signing binding legal documentation. Such Abort Fee shall be paid within 7 (Seven) days of the earlier of: (i) the Client notifying the Advisor of the relevant facts or circumstances; or (ii) the Advisor notifying the Client that the Abort Fee is due and payable;
f) The Abort Fee, in the event that the Client or the relevant Client Group Member (as applicable), having signed binding legal documentation in respect of the Offer, decides not to draw down any of the Loan Amount. The Abort Fee amount shall be paid within 7 (Seven) days of the earlier of: (i) the Client notifying the Advisor of the relevant decision; or (ii) the Advisor notifying the Client that the Abort Fee is due and payable. For the avoidance of doubt, no Abort Fee is payable where the Client has paid the Balancing Success Fee but does not draw down funds.
7.3. All amounts payable by the Client are non-refundable.
7.4. Termination or expiry of the Agreement, howsoever arising, shall not affect the payment obligations set out in this Clause and the Client’s obligation to pay the Charges to the Advisor in accordance with it.
7.5. If the Client fails to make any payment due to the Advisor under the Agreement by the due date for payment, then, without limiting the Advisor’s remedies under Clause 10 (Termination):
a) The Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause will accrue each day at 4% (Four Percent) per annum above the Bank of England’s base rate from time to time, but at 4% (Four Percent) per annum for any period when that base rate is below 0% (Zero Percent);
b) The Client shall indemnify, keep indemnified and hold harmless the Advisor in respect of all costs, fees, charges, and expenses (including those relating to debt collection, legal, and professional advisory services) incurred by the Advisor in relation to the recovery of such overdue sums;
c) The Advisor may suspend all Services until payment has been made in full.
7.6. All amounts due under the Agreement from the Client to the Advisor 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).
7.7. No Abort Fee is payable under Clause 7.2(e) and Clause 7.2(f) where Offer Documentation has been signed by the Client or a Client Group Member and the relevant lender subsequently pulls out of the transaction, does not enter into binding legal documentation and does not proceed with funding the Client or the relevant Client Group Member (as applicable); or where the relevant lender alters the terms of the prospective transaction when compared with the accepted Offer which results in the Client deciding not to proceed with the transaction.
7.8. Any Charge is subject to the Advisor’s Fair Use Policy contained in Clause 14.12.
8. Expenses
8.1. In addition to the Fee, the Client shall be liable for any out-of-pocket expenses or disbursements incurred or paid by the Advisor in the provision of the Services, provided they are pre-agreed in writing.
8.2. The Client shall reimburse the amount of any expenses and/or disbursements approved in accordance with Clause 8.1, following receipt (upon request) from the Advisor of appropriate evidence of the amount claimed, in accordance with Clause 7.
9. Limitation of Liability
9.1. Nothing in the Agreement limits liabilities that cannot legally be limited, including liability for:
a) Death or personal injury caused by negligence;
b) Fraud or fraudulent misrepresentation.
9.2. Subject to Clause 9.1, the Advisor’s total liability is capped at the Fee received from the Client for liabilities arising from contract breaches. This total liability encompasses all liabilities arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise.
9.3. Subject to Clause 9.1, neither party shall in any circumstances be liable to the other party for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or any indirect or consequential loss.
10. Termination
10.1. Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
a) The other party commits a material breach of any term of the Agreement which is irremediable, or (if such breach is remediable) fails to remedy that breach within a period of 14 (Fourteen) days after being notified in writing to do so;
b) The other party becomes insolvent or bankrupt, has a receiving order or administration order made against it, enters into a composition with its creditors, or, if it is a corporation, begins winding up proceedings (except for a members’ voluntary winding up for reconstruction or amalgamation), operates under an administrator or administrative receiver for the benefit of its creditors, or is unable to pay its debts as they fall due.
10.2. Without affecting any other right or remedy available to it, the Advisor may terminate immediately if payment due under this Agreement is not made by its due date.
10.3. Upon termination:
a) The Client must immediately pay all outstanding Charges due under the Agreement, whether or not invoiced;
b) Provisions intended to survive termination remain effective;
c) Termination does not affect accrued rights, remedies, obligations, or liabilities up to termination or expiry date, 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.
11. Data Protection
11.1. The parties do not anticipate any processing of personal data in the provision and receipt of the Services under the Agreement.
11.2. Notwithstanding Clause 11.1, the parties shall comply with the Data Protection Agreement.
12. Confidentiality
12.1. On or around the date of the Agreement, the parties shall enter into a binding confidentiality and non-disclosure agreement in relation to the provision of the Services (the “NDA”).
12.2. The parties shall comply with the terms of the NDA, notwithstanding termination of the Agreement.
13. Announcements
Following the Facilitation of the Debt Funding, the Advisor may, notwithstanding Clause 12 or any NDA, issue a press release and/or any public announcement concerning its contractual relationship with the Client and its involvement in the Client’s successful Debt Funding with prior written approval of the Client.
14. General
14.1. Force majeure: Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.2. Assignment and other dealings:
a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without the Advisor’s prior written consent.
14.3. Entire agreement:
a) The Agreement (and all documents referred to herein, in particular the NDA and the Data Protection 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.
b) Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
14.4. Waiver:
a) A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
b) A failure or delay by a party to exercise any right or remedy provided under the 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 the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.5. Severance: If any provision or part-provision of the 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 the Agreement.
14.6. Notices:
a) Any notice or other communication under or in connection with the Agreement shall be in writing and shall be delivered personally or sent by pre-paid recorded delivery or email to the relevant party at the address specified in the Key Terms or as otherwise notified in written notice.
b) Any such notice shall be deemed to have been given when it was personally delivered or served or, if sent by post, on the second working day after it was posted (and proof of due posting shall be sufficient evidence of delivery) or if sent by email at the time when the email was successfully sent during normal office hours on a Business Day or, if outside normal office hours, the beginning of the next Business Day.
c) This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.7. Relationship between the parties:
a) Except as may expressly be agreed otherwise in writing, the Advisor is not acting in a fiduciary or similar capacity for the Client or any Client Group Member and no previous or separate relationship between the Client/ any Client Group Member and Advisor shall imply or create any fiduciary relationship between them concerning the subject matter of the Agreement.
b) Nothing in the 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.
c) Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.8. Third party rights: A person who is not a party to the Contract may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
14.9. Dispute Resolution:
a) If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of the same (“Dispute”) then, except as expressly provided in the Agreement, the parties shall follow the dispute resolution procedure set out in this Clause as follows:
i) Either party shall give, to the other, written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with any and all relevant supporting documentation. Upon service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
b) If each party is for any reason unable to resolve the Dispute within 30 (Thirty) days of it being referred to them, then the parties may attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR Notice”) to the other party requesting mediation. A copy of the ADR Notice should be sent to CEDR. The mediation will start not later than 30 (Thirty) days after the date of the ADR Notice. Unless otherwise agreed in writing by the parties, the place of mediation shall be London, England.
14.10. Governing law: The 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.
14.11. Jurisdiction: Subject to Clause 14.9, 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 the Agreement or its subject matter or formation.
14.12. Fair Use Policy: The Advisor reserves the right to review and amend the Packaging Fees, and Interim Success Fees. Fee will never be greater than the aggregate of Balancing Success Fee and Additional Borrowing Success Fee (if any). Any changes must be with prior written approval of the Client.
14.13. Non-Disparagement: The Client and/or any Client Group Member(s) shall not, directly or indirectly, make any negative, misleading, or false statements, whether orally, in writing, or through any medium (including social media), about the Advisor to any party, including but not limited to the Advisor’s investors, competitors, and consultants. Any communication by the Client and/or any Client Group Member(s) with the Advisor’s clients, consultants, investors, or regulatory authorities shall be made in good faith, in accordance with this Clause, and in the best interests of the Advisor. This obligation remains in effect after the expiry or termination of the Agreement.