v.22/10
1. Scope
These terms and conditions (“GTC") apply to the usage of the Aequitex digital marketplace for the trade in invoice receivables between counterparties ("Platform") and related services such as the website https://www.aequitex.com (together the "Services") operated by Aequitex AG ("Aequitex").
Aequitex is registered in Switzerland with its registered office place at Aequitex AG, Gubelstrasse 24, 6300 Zug, Switzerland. By visiting the Platform, User ("User") accepts these GTC. If User does not agree to these GTC, User cannot visit, use, or access the Platform.
This Platform uses cookies and similar technologies. By continuing to use this Platform, User agrees to the use of cookies in accordance with Aequitex's cookie policy ("Cookie Policy"), available here. These GTC incorporate by reference Aequitex's privacy policy ("Privacy Policy") which can be found here.
The GTC takes effect when User confirms User's consent to these GTC electronically by clicking on the ‘I accept’ button. Aequitex reserves the right to change these GTC at any time. The amended GTC become effective upon being published on the Platform, and by using this Platform, User is expected to review such GTC on a regular basis. If User objects to any of the changes to the GTC, User must cease using this Platform.
2. Service Description
Aequitex provides an online peer-to-peer platform which serves as a marketplace for invoice sellers ("Sellers") and invoice buyers ("Buyers"). Upon registration, Sellers and Buyers (together "Registered Users") can trade in invoice receivables, or fractions thereof, that are not due yet ("Invoice Receivables"). Whenever a Buyer purchases an Invoice Receivable from a Seller, a trade agreement ("Trade Agreement") is formed. These Invoice Receivables result from agreements ("Sale Agreements") between Sellers and their respective debtors ("Debtors").
Aequitex is neither a party to the commercial contracts nor the sales agreements and only acts as an intermediary. Commercial agreements are always concluded between sellers and buyers.
The Services may contain options where the identity of Registered Users participating in a Trade Agreement will not be made available to the other party of such Trade Agreement. Such options will be clearly marked as such to the participating Registered Users before closing of the Trade Agreement. By using such options, the participating Registered Users explicitly agree to not receiving the identity of the other party to such Trade Agreement.
3. Registration
To access the Services, Users need to register on the Platform on behalf of a Buyer or a Seller. Sellers can be companies and Buyers can be companies or individuals. The Registered Users will be able to use the Platform once their user account ("User Account") is activated by Aequitex.
If any information Registered Users provided to Aequitex changes, the Registered User shall apply such changes in their User Account or, if that is not possible, inform Aequitex via info@aequitex.com, within two business days.
Aequitex reserves the right to repeat the user verification process from time to time during the term of the agreement and to introduce changes to its user verification process practices and policies. The user verification process itself can take up to ten business days.
3.1 Registration and User Account
Users registering on the Platform must provide the requested information and confirm explicitly, by clicking on the relevant box, that they accept and agree with these GTC.
Registered Users may log into their User Account with their system-generated username and a chosen password. The User Account is private, and only the owner of the User Account is authorized to access it and use it. The registered password should always be kept secure. Registered Users are advised to change their password from time to time on their User Account.
3.2 Assessment of Sellers
After an initial assessment of Seller's compliance with the minimum participation criteria for the use of the Services, Aequitex proceeds with the assessment of certain business information about the Seller and the Debtor of the Invoice Receivable to create the invoice scorings as set out below.
By accepting and agreeing to this GTC, the Seller authorizes Aequitex to assess financial information about the Seller and its Debtors based on publicly available information and the complied information provided by business intelligence providers, which will result in the invoice scoring of each Invoice Receivable listed by the Seller. A detailed description of the risk assessment performed by Aequitex can be found here.
Aequitex provides any credit scoring 'as is' and 'as available' in accordance with the published criteria. The credit scoring does in no way guarantee the solvency of the debtor and Aequitex disclaims all warranty and liability relating to the credit scores.
3.3 Refusal of Services and User Account Suspension
Aequitex may refuse the activation of a User Account or may, at any later time, suspend the activated User Account and the related rights to access and use of the Platform, without being obliged to give reasons for doing so.
The suspension of the User Account and the rights to use the Services may include the cancellation and removal of any listed Invoice Receivables from the Platform. However, such suspension does not release the Registered User from any Trade Agreement executed prior to suspension, and warranties, undertakings, and other obligations or liabilities to Aequitex or to other Registered Users, according to these GTC.
A suspended User Account may be activated again and the use of the Platform enabled, if, based on the Registered User request, Aequitex determines, at its sole discretion, that the reasons for suspension no longer exist.
Aequitex reserves the right to reject upload attempts by the Seller or deactivated uploaded Invoice Receivables without being obliged to give reasons for doing so.
4. Transaction Process
4.1 General Process
Transactions in Invoice Receivables are performed as follows:
The Seller issues an Invoice Receivable to be paid by the Debtor and uploads it on the Platform for it to be listed.
4.2 Transfer to Aequitex
Sellers are solely responsible for assessing the compatibility of their respective Invoice Receivables with the Platform.
4.2.1 From Debtor
If the Debtor:
4.2.2 From Seller
Sellers may be given the option to upload an Invoice Receivable that will be paid to Aequitex by the Seller instead of the Debtor. In order for the Seller to choose this option, Seller must provide sufficient (at Aequitex’s sole discretion) collateral.
If the Seller:
4.3 Transfer from Aequitex to Buyer
Aequitex further provides an invoice scoring service to Buyers consisting of the following:
5. Fees and money flows
If not agreed otherwise, the pricing plans according to the Platform are applicable. The subscription fee is charged from the Seller's balance on the Aequitex settlement account ("Aequitex Account") at the beginning of the subscription ("Subscription").
The service fee is charged from the Seller's balance in the indicated currency on the Aequitex settlement account ("Aequitex Account") when the Trade Agreement is executed and amounts to a percentage of the purchase price of the purchased Invoice Receivable in accordance with the fee table, plus VAT, if applicable.
All fees quoted, unless expressly stated otherwise, are exclusive of any sales, value-added or similar taxes. Any right to set off, retain, deduct, counterclaim and withhold any payments due under these GTC vis-à-vis Aequitex is hereby expressly waived and excluded.
Unless indicated otherwise, the Subscription is invoiced on an annual basis in advance according to the applicable pricing plan or paid through another method as set out on the Platform.
Whenever a Buyer purchases an Invoice Receivable from a Seller, the balance in the indicated currency of the Buyer in the Aequitex Account is adjusted to account for the corresponding payment in the indicated currency made by Aequitex to the Seller, on behalf of the Buyer.
6. Obligations
6.1 Aequitex’s Rights and Obligations
The Platform and the Services are provided on “as is” and “as available” terms, with no guarantee or warranty expressed or implied, especially as to their availability and functionality. Aequitex may add, change or remove any Service or feature thereof at its sole discretion.
If Aequitex becomes aware of any circumstances that could affect the performance of its Services, it will make all reasonable efforts to immediately notify the User thereof in an appropriate manner, usually via a notification posted on the Platform or through the messaging service.
Regardless of whether Aequitex is a party to the Trade Contracts, it reserves the right to suspend any transaction, if it determines there is a risk that by acting, or refraining to act, it may violate a law, a regulation, or a requirement of any governmental, or other, authority or if it determines that there are reasons that warrant the Suspension of the User Account according to Section 3.3 or the Termination of the User Account according to Section 10.
Due to legal requirements, Aequitex will not retain funds from registered users or debtors on its accounts for a period longer than sixty days at any time.
After the purchase of an Invoice Receivable and once Aequitex receives payment from the Debtor, or in the case of Silent Factoring, the payment from the Seller, Aequitex is obliged to transfer it to the respective Buyer via the Platform.
Aequitex further undertakes to facilitate the Transaction Process by delivering specific messages, in the name of the Seller, to the Debtor, especially concerning the change of payment modalities.
Aequitex reserves the right, to assign the claim from the sale of the Invoice Receivables to itself or to the Buyer after the upload of an Invoice Receivable by the Seller. Aequitex undertakes to transfer the claim from the sale of the Invoice Receivables to the Buyer after a text notice from the Buyer.
Aequitex provides Buyer with a written assignment from Seller should the Debtor remain silent or uncooperative for more than 48 hours following the Debtor having been made aware of the new payment recipient and the proposed change in payment modalities if applicable.
Aequitex reserves the right to request additional information and/or collateral from the Seller at its own discretion, if the Seller wishes to upload an Invoice Receivable.
In the event that an Invoice Receivable represents a fraction of the original invoice and such fractions of the same invoice are purchased by multiple Buyers, Aequitex assigns the claims to the Buyers.
In the event of non-payment by the debtor in the invoice expiration date, the buyer may pursue the claim himself, in which case Aequitex will make the assignment available to the buyer for his own action.
Alternatively, the buyer may choose for Aequitex to pursue debt enforcement and collection through the appropriate government offices. Such choice must be made in writing [latest] within 5 days of notification of default/late payment. Aequitex will charge no additional fees for these services. But it may pass on the public enforcement costs of approximately [CHF 250] depending on the canton.
6.2 Seller’s Rights and Obligations
Once uploaded, the Invoice is scored and a rate is displayed. The rate shall be applied on the nominal value of the Invoice Receivable and shall directly translate into the purchase price.
By uploading a receivables invoice, the seller expressly authorizes and instructs Aequitex to execute the commercial contract in accordance with the respective commercial contract conditions.
By uploading an Invoice Receivable, the Seller, furtherexpressly agrees, to provide Aequitex with a power ofattorney to execute a written assignment for the uploaded Invoice Receivable and undertakes to notify the Debtor about the new payment recipient and the proposed change in payment modalities if applicable.
Should the Debtor remain silent or uncooperative for more than 48 hours following the Debtor having been made aware of the new payment recipient and the proposed change in payment modalities if applicable, the Seller may sell the uploaded Invoice at a discounted rate ("Flash Sale"). If a Flash Sale takes place, the Seller is fully liable to Buyer for the outstanding debt if the Debtor defaults.
If the Seller receives a payment from the Debtor for an Invoice Receivable uploaded by the Seller, the Seller is obliged to immediately transfer the full amount received from the Debtor to Aequitex.
6.3 Buyer’s Rights and Obligations
In order to be entitled to access the Aequitex marketplace and purchase Invoice Receivables, Registered Buyers must charge the transactional Account on their User Account ("Transactional Account") with the minimum amount of the indicated currency of the Invoice Receivable in question and the service fee amount to. The Transactional Account can only be used as a transitory account.
The Buyer has the right to compel the Seller to enter into a written assignment Trade Agreement, should the Debtor remain silent or uncooperative for more than 48 hours following the Debtor having been made aware of the new payment recipient, and the proposed change in payment modalities if applicable.
By buying an invoice or a fraction of an Invoice Receivable, the Buyer gives Aequitex the power of attorney to re-assign the claim back to Aequitex and, in the event of a debt enforcement process, to enforce the debt at the Buyer’s cost.
The Buyer expressly agrees to grant Aequitex the right to collect the Invoice Receivables under the Trade Agreements from the Debtor or Seller in its own name but for the benefit of the Buyer.
Aequitex is currently not available to residents of the U.S. or the U.S. Territories (Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands).
Aequitex will not be available to Registered Users related to countries where international organizations, such as the European Union (EU), the Organization for Economic Co-operation and Development (OECD), the United Nations Office on Drugs and Crime (UNODC), or the Financial Action Task Force (FATF), have declared a high or increased risk of money laundering or terrorism financing. Aequitex has the right to immediately and without any notice, suspend a UserAccount and prevent Invoice Buyers from using Aequitex, if suspicion exists that Invoice Buyers are related to countries with high or increased risk of risk of money laundering or terrorism financing. The list of excluded countries is currently as follows: Afghanistan, Algeria, Bahamas, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Brunei, Colombia, CostaRica, Dominican Republic, Egypt, Ethiopia, Guyana, Indonesia, Iran, Iraq, Jordan, Kenya, Kuwait, Laos, Lebanon, Liberia, Libya, Liechtenstein, Malaysia, Maldives, Mali, Marshall Islands, Mauritania, Mauritius, Morocco, Myanmar, Nigeria, North Korea, Oman, Pakistan, Palestine, Panama, Peru, Philippines, Qatar, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, Saudi Arabia, Senegal, Serbia, Seychelles, Somalia, Sri Lanka, Syria, Tanzania, Trinidad and Tobago, Tunisia, Uganda, Ukraine, Uruguay, Vanuatu, and Yemen.
7. IP Clause / License
7.1 Aequitex's Intellectual Property
Aequitex is the owner or the licensee of all intellectual property rights made available with the Service and on the Platform (the "Content"). The Content is protected by intellectual property laws and treaties around the world. All Content rights are reserved for Aequitex. The Registered Users shall also respect any third party intellectual property offered for providing the Services on Aequitex (e.g. the information used to prepare the invoice scorings).
User is granted a limited license only, subject to the restrictions provided in these Terms, for the purposes of viewing, using, and accessing this Platform. User must not use any part of the content on the Platform for commercial purposes without obtaining a license to do so from Aequitex or Aequitex's licensors.
All Aequitex trademarks, service marks, trade names,logos, domain names, and any other features of Aequitex brand are the sole property of Aequitex or Aequitex's licensors. The GTC do not grant Users anyrights to use any such brand features whether for commercialor non-commercial use.
7.2 User's Intellectual Property
User remains the owner of all intellectual property rights to information imported to the Service by User or on User's behalf. In the event of termination of these GTC, Aequitex will deliver User upon request with a copy of all User intellectual property within 30 days.
User grants Aequitex a license to User's intellectual property as required for the provision and improvement of the Services. Aequitex may conduct anonymized analyses based on aggregated User intellectual property, e.g., to generate anonymized statistics.
8. Liability
8.1 Liability of Aequitex
Aequitex will, to the maximum extent permitted by law, not be held liable for the incompatibility of the Services that it provides with the specific objectives that the User is hoping to achieve.
Under no circumstances can Aequitex, its affiliates, members of the board of directors, employees, attorneys, agents, or sub-agents, be held liable for indirect damage, that is to say that which does not result directly and exclusively from the partial or total failure of the Service provided by Aequitex, such as commercial damage, loss of orders, deterioration of the brand's image, any commercial disturbances, loss of profits or Users (for example, inappropriate disclosure of confidential information about them as a result of a system malfunction or hacking), for which the User will be its own insurer or will be able to take out the appropriate insurance. Any action against the User by a third party constitutes indirect damage and therefore does not give rise to compensation.
In any case, and to the extent permitted by law, the amount of damages and interest that could be charged to Aequitex, if its liability is engaged, would be limited to (i) 10% of the purchase price for and in respect to each Trade Agreement which triggered liability for damages and to (ii) CHF 5,000 for and in respect to any other damage liability in relation to using and/or trading on Aequitex. On an annual level (per each calendar year), the total damage liability in respect to using and/or trading on Aequitex (all executed Trade Agreements will be considered) and/or using the Services, to each Registered User, shall be limited to CHF 20,000.
The User acknowledges that no stipulation herein will release them from the obligations to pay all amounts due to Aequitex hereunder.
The User expressly accepts that the liability of Aequitex shall, to the extent permitted by law, in no case be higher thanthe amount paid by the User in the year preceding that of the compensation claim and which concerns the same Services as those subject to the compensation claim. This amount is defined as the reported damage, with several damages related to a single case being considered as a single instance of recoverable damage.
Aequitex does not supervise, control, check, or verify any of the information, and/or documents, and/or any other content, statements including any offers, listings, orders, instructions to buy or sell an Invoice Receivable, and any other transactions, or actions provided by the Registered Users on Aequitex. Aequitex does not check, verify, supervise, control, or have any influence on such information and documents and therefore, Aequitex does not bear any liability in this respect.
Sellers are solely responsible for assessing the compatibility of respective Invoice Receivables with the functioning of the Platform. Registered Users are responsible for safeguarding their User Credentials and for ensuring that the User Account is used only by them personally or by their legal representatives or authorized persons. Aequitex does not bear any liability in this respect.
All actions made under the Registered User’s User Account and using the Registered User’s Credentials shall be deemed as being carried out by the Registered User, regardless of whether or not the person actually using the User Account was duly authorised for its use.
8.2 Liability of the Seller
In the event that any of the Seller’s representations or warranties are untrue or inaccurate, or if these GTC have been otherwise violated by the Seller, it is obligated to reimburse the Buyer and/or Aequitex for all the losses, costs and expenses, including, but not limited to, costs for legal services, administrative and court fees, resulting from and caused by the Breach.
In the event of a Flash Sale or where recourse is explicitly accepted by the Seller during upload of an Invoice Receivable, the Seller is obligated to reimburse the Buyer and/orAequitex for all the losses, costs and expenses, including, but not limited to, costs for legal services, administrative and court fees, resulting from and caused by the Debtor’s default.
In the event that the Seller has provided collateral, in the course of non-fulfilment of the respective Invoice Receivable, the Seller is obliged to release the respective collateral to cover the outstanding debt, caused by the default.
Further, the Seller is obligated to reimburse Aequitex for all the losses, costs, and expenses, including, but not limited to, the costs of legal services, administrative and court fees, resulting from:
Seller will defend, indemnify and hold Aequitex and Buyer harmless against any and all claims, liability, loss, costs, penalties, and damages, including reasonable attorney fees, arising out of Seller's breach of any Seller obligations.
8.3 Liability of the Buyer
In the event that these GTC have been violated by the Buyer, it is obligated to reimburse the Seller and/or Aequitex all the losses, costs and expenses including, but not limited to, costs for legal services, administrative and court fees, resulting from and caused by the relevant Buyer’s Breach.
Further, the Buyer is obligated to reimburse Aequitex all the losses, costs and expenses, including, but not limited to, costs for legal services, and administrative and court fees, resulting from:
9. Confidentiality
The Sellers, the Buyers and Aequitex shall treat as strictly confidential the existence and content of their contractual relationship, all information received based upon, or in connection with, the Trade Agreement, confidential information, and information that is related to the business or financial affairs of Debtors, as well as any other information of a confidential nature, including information about the identity of Debtors or the existence of and contents of the Trade Agreement.
The Sellers, the Buyers and Aequitex shall ensure that their respective employees and agents will treat any confidential information by another party, as strictly confidential and will not disclose such information to anyone.
All confidential information provided by a party hereto shall be used by the other parties hereto solely for the purpose of rendering or obtaining the Platform Services and, except as may be required in carrying out the parties’ contractual relationship, shall not be disclosed to any third party without the prior consent of such providing party.
The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of these GTC, or that is required to be disclosed by or to any regulatory authority, any auditor of the parties, or by judicial or administrative process or otherwise based on an applicable legal obligation.
The obligations of each party pursuant to this Section 9 shall survive any termination, or purported termination, of the Services.
10. Term & Termination
These GTC become effective upon registration by the User and are effective until User cancels its Subscription or until terminated by Aequitex. User may cancel its Subscription at any time.
To ensure uninterrupted provision of the Services, all Subscriptions to the Services are renewed automatically. User authorizes Aequitex to charge Subscription Fees for the renewal period to the payment method on file. All Subscriptions are renewed at the pricing plans and Fees in effect at the time the then-current Subscription term ends.
If User cancels after the Subscription renewal date, User will not receive a refund for any amounts that have been charged. The cancellation will be effective at the end of User's then- current Subscription period, subject to applicable law, and User may use the Services until the cancellation is effective.
Either party may terminate for cause at any time in case of material breach of these GTC by the other party.
The termination of these GTC does not affect any rights, obligations or liabilities of either party which have accrued under this agreement before termination or which are intended to continue to have effect beyond termination. Aequitex may suspend any or all access to the Platform or the User's account based upon Aequitex's reasonable determination of the occurrence or potential for occurrence of illegal or wrongful activity, fraudulent use or attempted fraudulent activity by User. In case of a suspension, User remains liable for all charges and fees incurred during the suspension period.
11. Miscellaneous
Entire agreement: These GTC constitute the entire agreement between Aequitex and User, and supersede all prior agreements, between the parties relating to the subject matter hereof. All other provisions set out by Aequitex governing its relationship with User, particularly with regards to the use of the Software and Aequitex's confidentiality policy, supplement the GTC. In the event of a contradiction between them, priority will be given to these GTC.
Links: This Platform may contain third party content or links to third party websites. Aequitex does not assume any responsibility for and does not make any warranties or representations as to, any third-party content or websites, including but not limited to, the accuracy, subject matter, quality or timeliness.
Notices: Express where explicitly mentioned otherwise, notices hereunder shall be given in text form to the last communicated or available address. Notices in text form may also be given in digital form. Notices in written form must contain a wet ink signature or a qualified electronic signature.
Communication: User agrees that any communication or transmission of information, including but not limited to the downloading of the GTC and the sending of the confirmation of its orders, shall be made validly by computer PDF or email.
No assignment: Neither party may assign any of its rights, obligations or claims under these GTC.
Severability: If any provision of these terms and conditions (in whole or in part) is found to be unlawful, invalid, or otherwise unenforceable, the remaining provisions of these terms and conditions and the agreements between the parties shall remain unaffected by such a determination. In place of an unlawful, invalid, or otherwise unenforceable provision, a legally permissible provision shall apply that most closely achieves the intended economic purpose of the unlawful or invalid provisions and would have been agreed upon by the parties with knowledge or possible knowledge.
Governing law & jurisdiction: Subject to the provisions of any other legal system that may be mandatorily applicable the parties agree that all legal relationships arising from this contractual relationship shall be governed by material Swiss law under exclusion of the conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods (CISG). The ordinary courts of Zug, Switzerland, shall have exclusive jurisdiction arising in connection with the fulfilment of this.
