Nester Service Terms
These terms and conditions (“Service Terms”) govern the use by you (“Client”, “you”, “your”) of thepeer-to-peer finance service operated by Nester Platform Limited, whose details are set out in Clause 2.9 (“Nester”,“we”,“us” and “our”) via https://nester.com/, (the “Service”) where your application to use the Service is approved by us.
By accepting these Service Terms you also agree to:
- the investors’ risk statement at https://nester.com/ (“Risk Statement”);
- our conflicts policy at https://nester.com/ (“Conflicts Policy”); and
The Service Terms take effect when accepted by you and we have notified you that your application to use the Service has been approved, and shall continue thereafter unless and until they are terminated under Clause 16.
Note: Cancellation of these Service Terms
If you are an Investor who, for the purpose entering into these Service Terms, makes exclusive use of one or more means of distance communications up to and including the time at which these Service Terms are entered into, you shall be entitled to cancel these Service Terms within the 14 day period that begins on the day after you enter into it (“Statutory Cancellation Period”). However, in the event that you make an Offer under Clause 4 of these Service Terms during the Statutory Cancellation Period, you will no longer be able to cancel these Service Terms (or that Offer). You may exercise your right of cancellation by emailing us to that effect at firstname.lastname@example.org.
2. The Service
Subject to the provisions of these Service Terms, the Service enables each Client who we register to make funds available (“Investor”) to make an offer of Sharia-compliant credit under Clause 4 (“Offer”) to any Client we register and allow to make a Finance Request under Clause 5 (“Buyer”). The resulting finance is by way of the back-to-back purchase and sale of a specific quantity of a commonly traded commodity (“Commodity”), so that the Buyer’s total funding requirement is met from multiple Investors on certain deferred payment terms under a separate murabaha contract for each £1,000 being invested (“Murabaha Contract”). Each Murabaha Contract is subject to a standard set of finance terms and conditions (“Murabaha Conditions”) which each Investor must read and agree before making an Offer and each Buyer must read and agree before making a Finance Request. We also provide the Buyer with a summary of all the Murabaha Contracts it enters into at or about the same time (“Murabaha Contract Summary”), which is used by us to administer all the relevant Murabaha Contracts in the same way.
In accordance with the terms of each Murabaha Contract, on the Start Date and each subsequent Payment Date, Nester Security Trustee Ltd, whose details are in Clause 2.9 (“the Security Trustee”) acting as trustee for and on behalf of the Investor, purchases the Commodity from a third party broker (“Selling Broker”) at the spot market price (“Cost Price”). The Investor then immediately sells the Investor’s right, title and interest in the Commodity to the Buyer at a price that includes a profit element (“Profit”) and all applicable Fees (“Murabaha Price”), and the Security Trustee shall then hold the legal title to the Commodity as trustee for and on behalf of the Buyer; and the Security Trustee then immediately sells the Commodity to a third party broker (“Buying Broker”) at the Cost Price. The perpetuity period of each of the respective trusts arising under this Clause 2.2 shall be 125 years.
Both the Investor and the Buyer respectively consent to, and authorise, the Security Trustee to make the initial purchase of the Commodity from the Selling Broker, and ultimate sale of the Commodity to the Buying Broker, on the commodity trading platform (“Commodity Trading Platform”) operated by DDCAP Limited, whose details are in Clause 2.9 (“Commodity Platform Operator”) under the then current standard terms and conditions applicable to such trades from time to time available on request by emailing email@example.com (“Commodity Sale Terms”).
The Investor may invest in each Murabaha Contract as either the initial Investor; or by replacing the then current Investor (“Outgoing Investor”) in accordance with the novation process specified in Clauses 6.7 to 6.9 of these Service Terms.
In addition to each Murabaha Contract, a Buyer and any other grantor of security must enter into certain security documents (each a “Security Document”) with the Security Trustee, under Clause 5.10(a) to secure the repayment obligations of the Buyer under the Murabaha Contracts entered into by that Buyer. The Security Document(s) in relation to each Buyer will be held in trust by the Security Trustee in accordance with the provisions of Clause 5.10 for the benefit of each Investor to which the Buyer is indebted under Murabaha Contracts. The Security Trustee shall also act in accordance with any written instructions given to the Security Trustee at any time by Nester as part of arrangements (a) the purpose of which is to compensate an Investor when a Buyer fails to pay any sum due to that Investor under a relevant Murabaha Contract or (b) which form a necessary part of our regulated activities in operating the Service; or as otherwise agreed in the Murabaha Contract(s) with the Buyer. All Investors agree that any such instructions given to the Security Trustee will be binding on all Investors and shall not give rise to any liability to such Investors for any losses (including loss of profit), claims, demands, actions, proceedings, damages and other payments, costs, expenses and other liabilities of any kind resulting from any such instructions (except in the event of gross negligence, wilful misconduct or fraud).
While the Service is designed to match Investors and Buyers in accordance with these Service Terms, we do not undertake to find Finance Requests, Offers, Murabaha Contracts, Investors or Buyers for you (as the case may be).
If and when we offer the ability to invest in Murabaha Contracts through a Nester Innovative Finance Individual Savings Account (“Nester IFISA”) in accordance with Clause 8, it will be managed by the IFISA Manager (as defined in Clause 2.9) and your money will be held in a client money account operated by the IFISA Manager (your “IFISA Account”).
We, the Security Trustee, the Payment Service Provider, the IFISA Manager and the Commodity Platform Operator do not warrant or represent that:
- the use of any document(s) supplied as part of the Service, including these Service Terms and the documents referred to in or provided under them, are suitable or appropriate for you or any person entering into a Security Document, or your or their requirements, and you and they must take independent legal and other advice on the terms of such documents;
- any expected bad debt estimates supplied on the Service are accurate or reliable.
The regulatory details of Nester, the Security Trustee, the IFISA Manager, the Payment Service Provider and the Commodity Platform Operator are:
- Nester Platform Limited is authorised and regulated by the Financial Conduct Authority, and entered on the Financial Services Register under firm registration number 915346; it is incorporated in England and Wales (company number 12097430), with its registered office at 20-22 Wenlock Road, London N1 7GU; and registered with the Office of the Information Commissioner (registration number ZA573383).
- Security Trustee: Nester Security Trustee Ltd is incorporated in England and Wales (company number 12536813), with its registered office at 20-22 Wenlock Road, London N1 7GU; and registered with the Office of the Information Commissioner (registration number ZA756742);
- IFISA Manager and Payment Agent: Goji Financial Services Limited is a company incorporated in England and Wales under company number 10234133 with its registered office at 133 Whitechapel High Street, London, E1 7QA and:
- is authorised and regulated by the Financial Conduct Authority under firm reference number 805323;
- is approved as an ISA manager by HMRC.
- Payment Service Provider: Modulr FS Limited, a company incorporated in England and Wales under company number 09897919 and Modulr Finance Limited, a company incorporated in England and Wales under company number 09897957, both having their registered office at One Hammersmith Broadway, London W6 9DL; Modulr FS Limited is authorised by the Financial Conduct Authority under the Electronic Money Regulations 2011 (reference number 900573) for the issuing of electronic money; and both Modulr Finance Limited and Goji Financial Services Limited, are registered agents of Modulr FS Limited for the purpose of providing the payment services under the Payment Services Agreement in relation to the Service.
- Commodity Platform Operator: DD&CO Limited is incorporated in England and Wales (company number 00228785), with its registered office at 8-10 Grosvenor Gardens London SW1W 0DH United Kingdom.
We may refuse to register you to use the Service for any reason, in our sole and absolute discretion.
To be eligible to apply to use the Service as an Investor, you must be either:
- an individual and you must:
- be at least 18 years old;
- have a payment account in your name at a duly authorised UK financial institution (“Nominated Payment Account”); and
- not be a Buyer or obtaining finance via the Service;
- a corporation and:
- be incorporated or established in the UK; and
- hold a Nominated Payment Account in your name;
Where you are classified as a “retail client” for the purposes of FCA Rules (as defined in Clause 3.4) you must also satisfy any “appropriateness” assessment and/or certification required under FCA Rules.
To be eligible to apply to use the Service as a Buyer you must be either: a Consumer or a Business, and
- a Business; or
- a Consumer, in which case none of the property provided by you as security under the Security Documents (“Property”) can be land that is used, or intended to be used, as or in connection with a dwelling by:
- the Buyer or by an individual who is a beneficiary of any trust in respect of which the Buyer is a trustee; or
- by a person related to the Buyer or any such beneficiary in any of the following respects:
- that person’s spouse or civil partner; or
- a person (whether or not of the opposite sex) whose relationship with that person has the characteristics of the relationship between husband and wife; or
- that person’s parent, brother, sister, child, grandparent or grandchild.
You must provide us with all information in any form (“Information”) reasonably requested during your application for registration to enable us to comply with all laws, regulations, rules and regulatory guidance applicable to the Service including anti-money laundering and sanctions requirements, the Financial Services and Markets Act 2000 (“FSMA”) and the Handbook of rules of the Financial Conduct Authority (“FCA”) available at http://fshandbook.info/FS/html/FCA/ (“FCA Rules”) as amended, or replaced from time to time (“Applicable Law”). If you apply to be a Buyer, we will carry out credit and fraud checks on you, your director(s) and your business.
Upon completion of the registration process, including satisfaction of any required verification checks and acceptance by us, we will open a data account in your name in our systems (“Nester Account”). Your Nester Account does not hold any funds, but is used to record transactions and other information, including a list of your respective Investors or respective Buyers (as the case may be), amounts paid by you or owed to you, but does not hold any funds. If we approve your application for a Nester Account, you may be asked to choose a username and password (“Security Codes”).
If you accept these Service Terms and become a Client, the Payment Agent will make one or more payment accounts available to you (your “Payment Account(s)”) which you can use to send and receive funds when using the Service. Your Payment Account(s) will be e-money accounts which are administered by the Payment Agent and any funds in them will be owned by you
We reserve the right, in our sole discretion, to refuse to register you to use the Service for any reason. You must comply with all Applicable Law and the provisions of these Service Terms relating to your activities on and in connection with the Service. If at any time whilst you are a Client we consider that you no longer meet our eligibility criteria, we may terminate these Service Terms and close your Nester Account as set out at Clause 16.
You must tell us immediately if any of the Information that you have provided to us before you opened a Nester Account subsequently changes.
You cannot be both an Investor and a Buyer unless you have received our explicit written consent to do so. If you attempt to become both an Investor and a Buyer at any time we will regard that as a fundamental breach of these Service Terms and we may terminate these Service Terms and close your Nester Account with immediate effect as set out at Clause 16.
Each time you seek to access your Nester Account, we will check your identity by asking for your Security Codes. As long as your correct Security Codes are entered, we will assume that you are the person giving instructions and you will be liable for them, except to the extent provided for in Clause 3.11. You must therefore keep the Security Codes secret and make sure that they are not stored in a way that enables others to access them or impersonate you. In addition, if you disclose the Security Codes to any person whom you authorise to access your Nester Account, you are also responsible and liable for any access, use, misuse or disclosure of your Security Codes or your Nester Account by such person.
Unless and until you tell us that you believe that someone acting without your authority knows the Security Codes or can use the Service by impersonating you:
- you will be responsible for any instruction which we receive and act on, even if it was not given by you; and
- we will not be responsible for any unauthorised access to confidential Information about you in your Nester Account.
We can refuse to act on any instruction that we believe: (i) was unclear; or (ii) was not given by you or someone acting on your behalf with your authority; or (iii) might cause us to breach a legal or other duty; or (iv) if we believe the Service is being used for an illegal purpose.
You acknowledge and agree that you are responsible for transactions associated with your Nester Account, your Payment Accounts and your IFISA Account (if you have one). If there is cause for us, the Payment Service Provider and/or the IFISA Manager to correct errors or abuse in relation to your Nester Account, your Payment Accounts and/or your IFISA Account, as the case may be, including unwinding transactions to meet our respective regulatory obligations to treat customers fairly we, the Payment Service Provider and/or the IFISA Manager, as the case may be, shall be entitled to do so.
4. Making an Offer – General
You may make an Offer to enter into a Murabaha Contract via the Service in response to either a Finance Request or another Investor’s request to novate an existing Murabaha Contract on the terms specified in Clauses 6.7 to 6.9 by following the instructions in your Nester Account and the provisions of these Service Terms.
You should consider carefully these Service Terms, including the Risk Statement, before making an Offer. We shall not be responsible for the suitability of any Murabaha Contract for you or any purpose for which you enter into it (whether by novation or otherwise).
Before making an Offer, you must first transfer the sum you wish to offer by bank transfer from your Nominated Payment Account to your Payment Account or your IFISA Account, quoting the unique reference number shown in your Nester Account, in which case:
- Each funds transfer will also be shown in your Nester Account when we are notified by the Payment Agent;
- The funds transfer is complete when recorded in your Nester Account;
- You may then make an Offer in respect of any of your cleared funds that are shown as available;
- Any Offer in relation to those funds on the Service is a separate transaction from the earlier transfer of those funds.
By making an Offer:
- you agree that the acceptance of your Offer via the Service under Clause 5.10 creates a separate, direct Murabaha Contract between you as an Investor and the relevant Buyer to which neither we nor the Security Trustee is a party;
- you agree to the Security Trustee acting as trustee for you and the other Investors for the purposes of purchasing the Commodity from the Selling Broker on the Commodity Trading Platform for immediate sale of your right, title and interest in the Commodity to the Buyer in accordance with your obligations under the Murabaha Contract via the Service, whereupon the Security Trustee shall then hold the legal title to the Commodity as trustee for and on behalf of the Buyer, pending sale to the Buying Broker;
- you hereby authorise the Security Trustee to act as trustee for you and on your behalf for the purpose of the trust arrangement specified in Clause 4.4(b) and the perpetuity period of that trust shall be 125 years;
- you acknowledge and agree that our decision to allow the Buyer to make the Finance Request or to facilitate the novation of a Murabaha Contract with that Buyer does not constitute any approval or endorsement by us or the Security Trustee;
- you acknowledge and agree that, while certain Due Diligence is carried out under Clause 5.6, neither Nester nor the Security Trustee will verify or audit statements made by the Buyer in relation to any Finance Request, for which the Buyer is solely responsible to you.
- you acknowledge and agree that we shall not advise you or make any personal recommendation as to any Finance Request or Murabaha Contract. You are solely responsible for making your own independent appraisal and investigation of the risks of entering into each Murabaha Contract. If you require specialist advice, you should consult your own appropriately qualified independent adviser(s).
- you acknowledge and agree that the performance of each Buyer’s obligations to you under the Murabaha Contract will be secured by the Security Document(s) entered into between the Buyer (and any third party) and the Security Trustee in accordance with the provisions of Clause 5.10(a). The Security Trustee will hold the Security Document(s) and rights and interests created by the Security Document(s) in trust for the benefit of all the relevant Investors to that Buyer from time to time, and will enforce the Security Documents for the benefit of such Investors in accordance with Clause 6.5. The perpetuity period of that trust shall be 125 years.
- you acknowledge that you have read and understood the Finance Request and the Due Diligence Material in relation to which you are making the Offer, including Risk Statement and the Murabaha Contract;
- you acknowledge and agree that our decision to allow the relevant Buyer to publish the Finance Request does not constitute any approval or endorsement of the Finance Request or any representation by us or the Security Trustee that the Due Diligence Material accurately reflects the risks associated with the Finance Request; and further that you accept and agree that none of we, the Security Trustee or the Commodity Platform Operator warrants or represents that use of any of the documents supplied as part of the Service including, without limitation to the generality of the foregoing, those relating to the Murabaha Contract are suitable or appropriate for your needs and you must take your own independent legal and other advice on the terms of such documents; and
- you acknowledge that expected bad debt estimates are estimates for general guidance only and neither Nester nor the Security Trustee warrants their accuracy, timeliness or reliability.
We reserve the right to reject an Offer for any reason, or no reason, at any time.
When you make an Offer, the amount specified in that Offer (the “Offer Amount”) will immediately be shown as reserved in your Nester Account and will not be available to be allocated to other Offers or to be withdrawn from our Payment Account or your IFISA Account (as relevant) for a period ending on the earlier of the date on which:
- the required funding specified in the relevant Finance Request is achieved and subsequent acceptance process is completed under Clause 5.10(a); or
- the relevant Finance Request fails to attract the required funding within the time specified in the Finance Request; or
- the relevant Murabaha Contract(s) matching your Offer is (are) novated; or
- the relevant Finance Request is withdrawn or is otherwise terminated in accordance with these Service Terms.
If the Finance Request target funding level is not met or the Finance Request is withdrawn in accordance with the terms of these Service Terms, the Offer Amount will no longer be reserved in your Nester Account and you as an Investor will be free to allocate that amount to another Offer.
We shall not be responsible for the suitability of any Offer or Finance Request for you or any purpose for which you make any Offer. You should consider carefully the terms of the Risk Statement before making an Offer.
The relevant Offers matching the relevant Finance Request will be accepted by Buyers in accordance with Clause 5.10(a) in the order in which they are entered on the Service, provided that we may deem an Offer to be void for any reason, or no reason, at any time whatsoever in our absolute discretion (which we may not be able to explain where prohibited from doing so under Applicable Law).
There will not be a statutory right to cancel any Offers made under these Service Terms.
5. Posting a Finance Request
Where we approve your application to be a Buyer, you will be able to initiate a request for funding via the Service according to the form and processes specified in your Nester Account and in accordance with the terms of these Service Terms (“Finance Request”).
You must ensure all Information provided in relation to your Finance Request is complete, accurate, up to date, clear, fair and not misleading.
We may reject a Finance Request for any reason at any time whatsoever, in our sole and absolute discretion.
You may withdraw a Finance Request from the Service at any time before you enter into the Murabaha Contracts under Clause 5.10(a), in which case (or if the Finance Request does not complete for any reason whatsoever) as the Buyer you shall be responsible for the charges incurred by us and the Security Trustee under Clauses 5.6 and 5.7, and you shall keep us and the Security Trustee fully and effectually indemnified in respect thereof.
Regardless of any other assets that are also included, each Buyer warrants and represents that none of the Property will be land that is used, or is intended to be used, as or in connection with a dwelling by:
- the Buyer or by an individual who is a beneficiary of any trust in respect of which the Buyer is a trustee; or
- by a person related to the Buyer or any such beneficiary in any of the following respects:
- that person’s spouse or civil partner; or
- that person’s parent, brother, sister, child, grandparent or grandchild.
By initiating the preparation of a Finance Request to your Nester Account, as a Buyer you shall:
- supply all Information reasonably required by a reasonably prudent Investor to determine whether or not to accept your Finance Request (“Due Diligence Material”) including but not limited to the Tenancy Schedule, Leases, the Construction Documents, Material Contracts, Development Planning Permission, Collateral Warranty, Agreement for Lease and Appointment of the Professional Team as those terms are defined in the Security Document(s);
- pay the fees incurred by the Security Trustee in connection with the purchase and sale of the Commodity on the Commodity Trading Platform;
- pay for a valuation of the Property initiated by the Security Trustee (“Valuation”) by a professionally qualified valuer who is a member of the Royal Institution of Chartered Surveyors, chosen by the Security Trustee (“Valuer”), as well as any update to the Valuation, as directed by the Security Trustee;
- pay the cost of such chartered surveyor or other relevant professional as the Security Trustee may appoint from time to time to monitor the progress of any building project related to the property (“Project Monitoring Surveyor”);
- provide a fully completed and properly addressed certificate of title for the Property (“Certificate of Title”) from your own solicitor at your own cost and instruct your solicitor to make such amendments to the Certificate of Title as are required to satisfy the solicitors acting for the Security Trustee that the Certificate of Title is complete, accurate and can be relied upon for the purpose of the Security Document(s);
- pay the legal fees of the Security Trustee in connection with the negotiation and entry into the Security Document(s) and any legal review of the Certificate of Title;
- pay all of your own legal fees incurred directly or indirectly in relation to the Finance Request;
- pay to us the Fees applicable under Clause 11; and
- pay the cost of any appropriate insurance that the Security Trustee obtains in relation to the title risk of the Property, which shall be from a reputable insurer, the details of which insurance will be made available to Investors and the benefit of which will be held on trust by the Security Trustee for the Investors, the perpetuity period of such trust being 125 years.
Once you begin the preparation of your Finance Request on the Service:
- We will obtain Information about you as the Buyer, including credit reference Information about you and each of your directors, to assess your creditworthiness and the affordability of the total amount of finance you are seeking in the Finance Request; and
- We and the Security Trustee will carry out certain due diligence specified below on each Finance Request (“Due Diligence”) and make the resulting Information, and any other Information the Security Trustee reasonably deems necessary, available for each prospective Investor to view in a specific area of the Service for the purpose of considering whether or not to make an Offer, including:
- the Finance Request, sample Murabaha Contract and the Murabaha Conditions;
- full and exact details of the Commodity, including the specification of the quality, quantity and location thereof;
- the terms and conditions relating to the purchase and sale of the Commodity on the Commodity Trading Platform; and
- certain Information about the Property, including the Valuation, lease(s), tenant(s) and their covenants, the Certificate of Title, the result of any review of the Certificate of Title carried out by the solicitors acting for the Security Trustee, the details of any Title Insurance;
- Information relating to any building project related to the property, including any certificate issued by the Project Monitoring Surveyor;
- the Security Document(s) and Information about any other party entering into Security Document(s), including identity and credit reference checks.
Once the Due Diligence is completed to the Security Trustee’s satisfaction:
- you will be notified by the Security Trustee who will send you the final version of the Security Documents for you to review in consultation with your own independent legal adviser;
- we will be notified by the Security Trustee, in which case we will notify you that you may post your Finance Request on the Service.
By publishing your Finance Request on the Service, you agree that:
- subject to Clause 5.10 and the satisfaction of any conditions precedent stated in the Murabaha Contract (“Special Conditions”), the acceptance by you of each Investor’s Offer will create a direct Murabaha Contract between you and each Investor, governed by the Murabaha Conditions under which you buy the Investor’s right, title and interest in the Commodity, whereupon the Security Trustee shall then hold the legal title to the Commodity as trustee for and on behalf of the Buyer, pending sale to the Buying Broker (and the perpetuity period of that trust shall be 125 years);
- you agree to the Security Trustee, acting as trustee for and on your behalf for the purposes of immediately selling your right title and interest in the Commodity to the Buying Broker as contemplated by the terms of the Murabaha Contract;
- you authorise the Security Trustee to act as trustee for you and on your behalf for the purpose of the trust arrangement specified in Clause 5.9(b) and the perpetuity period of that trust shall be 125 years;
- you shall enter into, and procure the entry into by any necessary third party, the Security Documents.
If within the period specified in the Finance Request your Finance Request receives Offers that equal the total amount you are seeking to borrow, then within a further 5 Business Days you must either:
- accept each of the Offers (including any subsequent Offers by Investors agreeing to novation) by:
- satisfying the Special Conditions; and
- entering into and returning the duly executed Security Documents to the Security Trustee;
- entering into the Murabaha Contracts in accordance with the electronic signing instructions on the Service, which shall also constitute your irrevocable continuing agreement to the novation of any such Murabaha Contracts by the relevant Investors (and each subsequent novation of such novated Murabaha Contracts) as often as the relevant Investors agree in accordance with these Service Terms; or
- notify us that you decline to accept the Offers.
You acknowledge and agree that you are solely responsible and liable for:
- the statements made by you in relation to your Finance Request(s);
- obtaining your own independent financial, legal, environmental, accounting, tax advice and any other professional advice you require in relation to your Finance Request, the Due Diligence, the Murabaha Contracts (including the Murabaha Conditions) and the Security Documents.
By submitting any Information to us or Investors via the Service, you warrant and represent to us and each Investor that:
- any statements made by you as a Buyer have the approval of your board of directors and that you have taken all appropriate legal, tax and accounting advice;
- any statements you make are complete, clear, fair and not misleading; and
- any projections or forward-looking statements which you make are reasonable and can be supported by evidence.
You acknowledge and agree that neither we nor the Security Trustee:
- will verify or audit statements made by you in relation to any Finance Requests, for which the Buyer is solely and exclusively responsible;
- will supply you with any financial, legal, accounting or tax advice; and
- warrants or represents that use of any of the documents supplied as part of the Service is or are suitable or appropriate for your needs and you must take your own independent legal and other advice on the terms of such documents.
We shall have no duty to disclose to you any Information which we receive in the course of providing the Service or other services to other persons including, without limitation to the generality of the foregoing, to any Buyer or Investor or potential Buyer or potential Investor.
6. After the Murabaha Contract is formed
Subject always to our right to reject a Finance Request, upon a Finance Request achieving the required funding amount and acceptance under Clause 5.10(a) and the provisions in each Murabaha Contract concerning disbursement:
- we will provide to the Buyer a Murabaha Contract Summary and agree the amount of any Fees owed by the Buyer under Clause 11 of these Service Terms or the Murabaha Contract Summary (together, “Fees”) and any amount(s) due to any relevant third party by the Buyer;
- we will debit the Offer Amount from each Investor’s Nester Account and credit the Buyer’s Nester Account for that amount, less:
- the amount of any Fees owed by the Buyer; and
- any amount(s) due to any third party by the Buyer;
- each Investor hereby authorises us, and we undertake, to instruct the Payment Agent to deduct and pay from their Payment Account or their IFISA Account (as appropriate) to either:
- the trust account of the solicitors acting for Nester Security Trustee Ltd on behalf of the Investor, where the funds will be held pending execution of the Security Documents after which we undertake to instruct Nester Security Trustee Ltd to instruct the solicitor to transfer the funds to the Buyer’s solicitor or such other payee nominated by the Buyer or the Buyer’s solicitor; or
- as may otherwise stipulated in the Murabaha Contract, net of any amounts payable by the Buyer under Clause 6.1(b) which you hereby authorise us, and we undertake, to instruct the Payment Agent to deduct and pay to us or the relevant third party.
For administrative convenience, each Buyer shall pay each of the Murabaha Instalments under all the Murabaha Contracts entered into at or about the same time in a single payment specified in the Murabaha Contract Summary to their Payment Account. Each Buyer hereby authorises us, and we undertake, to instruct the Payment Agent to distribute each Murabaha Instalment from the Buyer’s Payment Account to each of the Investors under whose Murabaha Contracts a relevant Murabaha Instalment is due and to pay us or any third party any amounts specified in the Murabaha Contract as being payable by the Buyer to us or any such third party from that Murabaha Instalment. We also undertake to record the payment of those Murabaha Instalments in the Nester Account of each Investor and Buyer when informed of their processing by the Payment Agent. Profit due under each Murabaha Contract will be paid gross to the relevant Investors, and each Investor shall be responsible for accounting for and paying any taxes due on such profit.
If the Buyer misses a payment or only partially pays the amount due to you as the Investor, you authorise us or a collections agency nominated by us and whose details we provide to you in writing (“the Collections Agency”), acting on your behalf, (and we undertake to, or direct the Collections Agency on your behalf to, as the case may be) take steps to procure the payment of an amount equivalent to the outstanding payment and any additional fees and charges due under the relevant Murabaha Contract.
We will keep Investors informed of the progress of the attempts to collect the outstanding payment(s).
In the event of the occurrence of any Event of Default (as defined in the Murabaha Conditions) the Security Trustee shall enforce all or any of the Security Documents and the relevant proportion of any sums recovered by the Security Trustee will be paid to each eligible Investor, subject to deduction of the costs of recovery (including legal fees and expenses and those of any manager, receiver or administrator appointed by the Security Trustee) from the gross proceeds recovered, such that the net amount recovered shall be apportioned according to the proportion that the Outstanding Amount (as defined in each Murabaha Contract) under each of your Murabaha Contracts represented to the total amount of finance obtained by the Buyer under all such Murabaha Contracts (“Total Outstanding Amount”), as shown in the relevant Murabaha Contract Summary. The Security Trustee will keep each Investor informed of the progress in enforcing the Security Document(s) concerned.
As an Investor, you acknowledge the possibility that the proceeds recovered (if any) as a result of any recovery and enforcement activity may not be sufficient to discharge all the relevant Buyer’s obligations to you. In that case, you will only be entitled to recover a share of any recovery proceeds, subject to deduction of the costs of recovery (including legal fees and expenses and those of any manager, receiver or administrator appointed by the Security Trustee) from the gross proceeds recovered, such that the net amount recovered shall be apportioned according to the proportion that the Murabaha Price, less Operating Fee (as defined in each Murabaha Contract) under each of your eligible Murabaha Contracts represented to the Total Outstanding Amount.
Novation of Murabaha Contracts
As the Investor under an existing Murabaha Contract, you may effectively sell your interests by way of novation on any Payment Date specified in the Murabaha Contract (“Payment Date”). Novation is a means of transfer that cancels the Outgoing Investor’s rights and obligations under the Murabaha Contract that is being novated (“Prior Murabaha Contract”), as well as the Outgoing Investor’s related rights and obligations in the Service Terms and the Security Documents; and creates a new Murabaha Contract between the Buyer and the new Investor, who pays the Outgoing Investor the outstanding Murabaha Price in accordance with Clause 6.8. In this way, the new Murabaha Contract replaces the Prior Murabaha Contract, in return for the new Investor assuming identical rights and obligations under the new Murabaha Contract to those of the Outgoing Investor under the Prior Murabaha Contract. The Buyer agrees in advance to each novation of the Buyer’s Murabaha Contracts under Clause 5.10(a), but none of the terms of the Murabaha Contract(s), these Service Terms or Security Documents is changed by the novation process.
As the Investor under an existing Murabaha Contract, you may initiate the novation process referred to in Clause 6.7 by specifying in your Nester Account the Murabaha Contract(s) that you wish to novate, in which case you hereby irrevocably offer to cancel all your rights and obligations under the Murabaha Contract, as well as your related rights and obligations under these Service Terms and Security Documents in relation to that Murabaha Contract, on the next Payment Date in return for another Investor assuming identical rights and obligations under a new Murabaha Contract with the relevant Buyer and paying to you the outstanding Murabaha Price accrued but not paid as at the date of novation.
Where any Murabaha Contract that you offer to novate under Clause 6.8 (“Prior Murabaha Contract”) matches the criteria of any Offer made by an Investor with sufficient funds under Clause 4 (“New Investor”), you (as “the Outgoing Investor”) hereby accept such Offer and agree to the novation of the Prior Murabaha Contract on the next Payment Date, such that:
- your rights and obligations under the Prior Murabaha Contract (as well as your related rights and obligations in these Service Terms and the Security Documents) are cancelled;
- the New Investor assumes identical rights and obligations under a new Murabaha Contract to the rights and obligations of the Outgoing Investor under the Prior Murabaha Contract, with the Buyer’s consent under Clause 5.10(a) (“New Murabaha Contract”);
- the New Murabaha Contract replaces the Prior Murabaha Contract;
- the New Investor pays the outstanding Murabaha Price to the Outgoing Investor as a result of us recording a debit for the amount of the outstanding Murabaha Price from the Nester Account of the New Investor and a credit for that amount to your Nester Account, less the amount of the outstanding Murabaha Fee payable under Clause 11.3; and
- we record the details of the novation in the Nester Account of the Buyer and each of the relevant Investors.
Following each novation pursuant to Clauses 6.8 and 6.9 of these Service Terms:
- The Outgoing Investor shall remain liable for, and indemnifies and holds harmless the New Investor from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with the Prior Murabaha Contract; and
- The New Investor shall be and remain liable for, and indemnifies and holds harmless the Outgoing Investor from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with the New Investor’s Murabaha Contract with the relevant Buyer.
7. Your money
Money in your IFISA Account and your Payment Account(s) will be held separately from the IFISA Manager and Payment Service Provider’s own money in accordance and they will exercise due skill, care and diligence in the selection, appointment and periodic review of any credit institution or bank where your money is deposited and for the arrangements for holding your money, but neither we nor they shall be otherwise responsible for any acts, omissions or default of any such credit institution or bank.
Transfers into your Payment Account(s) and/or your IFISA Account must be made by electronic transfer from your Nominated Payment Account. Withdrawals from your Payment Account(s) and/or your IFISA Account will only be made to your Nominated Payment Account.
You authorise Nester to instruct the Payment Agent or Payment Service Provider to transfer any money it holds for you in the Payment Account(s) and/or the IFISA Manager to transfer any money that it holds for you in the IFISA Account to a replacement payment service provider or IFISA manager (as the case may be) without seeking your express instruction to do so, provided the new payment service provider or IFISA manager has the appropriate regulatory permissions.
No interest is payable on money held in your Payment Account(s) or IFISA Account and no fees are charged in respect of establishing the accounts.
By accepting these Service Terms, you appoint the IFISA Manager to hold any monies paid into your IFISA Account, including funds deposited by you to fund Murabaha Contracts and any money paid to you by Buyers.
The IFISA Manager will treat you as its client and will treat money in your IFISA Account as “Client Money”, which will be held in an approved bank account in accordance with the FCA's client money rules. The IFISA Manager will use reasonable skill and care for the selection, use and monitoring of any approved bank with which Client Money is held, but will not be liable for their acts or their insolvency.
Any Client Money will be held in a pooled account and will not be separately identifiable from Client Money of other clients of the IFISA Manager or its associates on the relevant bank’s books and records. Accordingly, should the IFISA Manager default on its obligations to its clients, any shortfall in Client Money held by the relevant bank may be shared pro-rata among all clients whose money is held in the pooled client money account.
If a bank with which the IFISA Manager holds Client Money fails (including the appointment of a liquidator, receiver, administrator, or trustee in bankruptcy, or any equivalent), this will constitute a secondary pooling event under the FCA Rules, which may result in a shortfall in the funds held for you. The maximum compensation available from the Financial Services Compensation Scheme (FSCS) in respect of money held in a bank account is £85,000.
In the event of our insolvency, the IFISA Manager will continue to hold your money, but will not facilitate the funding of any new loans. The IFISA Manager will notify you of changes to reporting requirements in such an event.
In the event of the IFISA Manager’s insolvency, we will attempt to find an alternative services provider to enable the Services to continue to be delivered.
If we or the IFISA Manager become insolvent and owe you money in respect of the regulated services we have provided to you at the time of our insolvency, you may be entitled to compensation from the FSCS, up to a maximum of £85,000. For more information you can contact the FSCS in writing at 7th Floor, Lloyds Chambers, Portsoken Street, London, E1 8BN by telephone on 0800 678 1100, by email to firstname.lastname@example.org or by going to www.fscs.org.uk.
If a Client Money balance remains unclaimed and there has been no movement on the balance for a period of at least six years (ignoring any payments or receipts of charges, interest or similar items), provided the IFISA Manager has taken reasonable steps to trace the client and return the balance, the IFISA Manager may cease to treat the money as Client Money and pay the Client Money to a registered charity of the IFISA Manager's choice.
You hereby authorise Nester to instruct the Payment Service Provider, Payment Agent and/or IFISA Manager to deduct and pay from your Payment Account or your IFISA Account to your Nominated Payment Account or the relevant Buyer’s or other Investor’s Payment Account (or as otherwise stipulated in the Murabaha Contract) the funds that are due and payable to that Buyer or Investor, as the case may be, under or in relation to any relevant Murabaha Contract, net of any amounts payable to us or any third party, which you hereby authorise us to instruct the Payment Service Provider, Payment Agent or IFISA Manager to deduct and pay to us or the relevant third party, as the case may be.
8. Opening a Nester IFISA
If you apply for a Nester IFISA, the IFISA Manager undertakes to:
- treat you as its client;
- receive payments in respect of your Murabaha Contracts and credit those payments to your IFISA Account; and
- exercise, or facilitate the exercise of, your rights in respect of any Murabaha Contracts held in your Nester IFISA if necessary,and you appoint the IFISA Manager as your agent to do anything required on your behalf to enable it to fulfil those undertakings.
In normal circumstances, the IFISA Manager does not charge any fees to you for opening and operating your IFISA Account, however if we do not pay fees due to the IFISA Manager and you require the continued provision of the ISA management services, you agree to pay the IFISA Manager’s fees and charges and consent to the IFISA Manager deducting amounts from your IFISA Account for the purposes of paying such fees.
The management of your IFISA Account will be subject to the means the Individual Savings Account Regulations 1998 (as amended or replaced from time to time) (the “ISA Regulations”).
Any changes made by HMRC to the ISA Regulations that affect these Service Terms will apply as soon as they come into effect.
The IFISA Manager will notify you, if by reason of any failure to satisfy the provisions of the ISA Regulations, all or part of your IFISA has or will become invalid. If the failure can be corrected, the IFISA Manager will repair your IFISA.
You may subscribe to a Nester IFISA in any tax year (i.e. period starting on 6 April of one year and ending 5 April of the following year) for which you are either resident and ordinarily resident in the United Kingdom; or, although non-resident in the United Kingdom, perform duties of a Crown employee which are treated as being performed in the United Kingdom, or are the spouse or civil partner of such a person.
You must inform the IFISA Manager immediately if you are no longer a UK resident or cease to perform duties of a Crown employee which are treated as being performed in the United Kingdom, or cease to be the spouse or civil partner of such a person.
When you open an IFISA Account, the IFISA Manager will ask you to make a declaration. Making this declaration will allow you to subscribe for a Nester IFISA in the tax year that you make the declaration and for each subsequent tax year, provided you make a subscription to your Nester IFISA every tax year. If you do not make a subscription to your Nester IFISA one year, then when you next want to subscribe to your Nester IFISA you will have to make a new declaration.
You must inform the IFISA Manager if any declarations or confirmations you have made about your eligibility to hold a Nester IFISA no longer apply.
In accordance with the ISA Regulations, you are not eligible to apply if you have already subscribed to another IFISA in the same tax year, or if you have already subscribed the maximum available allowance to a Cash ISA and/or Stocks and Shares ISA, in the same tax year as you are applying for this Nester IFISA. These restrictions do not apply if you are:
- transferring an existing IFISA from another ISA provider to the Nester IFISA (in circumstances where this is permitted under the ISA Regulations), or
- where you have already subscribed the maximum allowance to a cash and/or stocks and shares ISA and this is transferred to this Nester IFISA.
All subscriptions to your Nester IFISA must be in cash. You can transfer cash held in your Payment Account to your IFISA Account, but you cannot transfer Murabaha Contracts which have already been funded.
If funds are subscribed into your IFISA Account which exceed the amount prescribed in the ISA Regulations, then the excess subscription will be transferred to your Payment Account.
Your Nester IFISA will be flexible as defined in the ISA Regulations. This flexibility means cash which is withdrawn can be replaced, in whole or part, within the same tax year and this will not affect your ISA subscription limit for that year.
If you have any questions, doubts or issues relating to ISAs or your eligibility to hold a Nester IFISA, you should consult the HMRC website (https://www.gov.uk/government/organisations/hm-revenue-customs) or contact them directly.
Any notifications to the IFISA Manager should be made by emailing Nester at ISAsupport@nester.com, who will then pass on your communication to the IFISA Manager. Similarly, any communications to you from the IFISA Manager will be made through Nester.
9. Transfers in and out of your Nester IFISA
You may transfer money into your Nester IFISA from an existing ISA with another provider, in cash only. An online transfer-in form will need to be completed and then the IFISA Manager will make a transfer authority form available for you to approve and sign. The IFISA Manager can then arrange for the funds to be transferred from your existing ISA provider in accordance with your instructions.
The transfer-in process will begin on the date on the transfer authority form or the date you stipulate for the IFISA Manager to begin the transfer process, whichever is later. The IFISA Manager will then send your request for the transfer to your existing ISA Provider within five business days of receiving your transfer authority form.
You may transfer any cash in your current year’s ISA subscriptions in whole, and/or you can transfer previous years subscriptions in whole or in part (together with interest) to another ISA provider in accordance with the ISA Regulations and these conditions. You will need to contact your other ISA provider to arrange the transfer and you can choose the date funds are transferred, subject to the IFISA Manager being allowed a reasonable period to implement it.
10. CANCELLATION OR CLOSURE OF YOUR IFISA ACCOUNT
You have the right to cancel your Nester IFISA within 14 calendar days of the date your IFISA Account is opened. You can do this by emailing ISAsupport@nester.com or by phoning 0203 983 0707.
If your Nester IFISA is cancelled, unless you provide us and the IFISA Manager with specific instructions, we will transfer any Murabaha Contracts recorded in your Nester IFISA to your Nester Account and the IFISA Manager will transfer any money credited to your IFISA Account to your Payment Account and you will lose the tax benefits associated with an IFISA.
After the 14-day cancellation period, you can choose to close your Nester IFISA at any time, provided you only have cash in the IFISA Account. If you do not arrange with another ISA provider to transfer the money in your IFISA Account to them, you will not be able to subscribe to another IFISA with another ISA provider in the same tax year.
The IFISA Manager may close your Nester IFISA with immediate written notice to you if directed to do so by HM Revenue & Customs. You agree to reimburse the IFISA Manager for any administrative fees, charges from HMRC or any tax authority incurred as a result of your failure to comply with ISA Regulations.
If the IFISA Manager or you close your Nester IFISA and do not receive alternative transfer instructions from you within 1 month of trying to contact you, any Murabaha Contracts recorded in your Nester IFISA will be transferred to your Nester Account and money credited to your IFISA Account will be transferred to your Payment Account.
If the IFISA Manager receives notification of your death, the IFISA Manager will suspend all transactions and investments in your Nester IFISA. ISA tax exemptions will no longer apply from the date of death, and any gains that arise after the date of death will not be exempt from tax.
Your Nester IFISA will be valued for probate as at the date of death and dealt with as instructed by your executors. The IFISA Manager may require a grant of probate or letters of administration before releasing any money in your IFISA Account to your executors.
The IFISA Manager will support the setting up of a Nester IFISA based on Additional Permitted Subscriptions for your spouse.
If the IFISA Manager receives notification of your bankruptcy, the IFISA Manager will close your Nester IFISA and any Murabaha Contracts recorded in your Nester IFISA will be transferred to your Nester Account and money credited to your IFISA Account will be transferred to your Payment Account. In the event of your bankruptcy, ISA tax exemptions will no longer apply from the date on which a trustee is appointed.
As a Buyer, in addition to the amounts payable under Clause 5.6 and under the terms of your Murabaha Contracts, you may be required to pay to us the following fees, which will be set out in your Murabaha Contract and (in total) your Murabaha Contracts Summary:
- Arrangement Fee, due upon entry into the Murabaha Contracts and deducted in accordance with Clause 6.1(b);
- Operating Fee, paid monthly by you as a proportion of each repayment due under the Murabaha Contracts;
- Monitoring Fee, if applicable to your Murabaha Contract and paid monthly by you; and
- Exit Fee, in respect of the final repayment of the Outstanding Amount under the Murabaha Contracts, which will be added to the final redemption balance due upon maturity.
In addition, if we incur any other fees or charges as a result of providing the Services to you (for example, disputed transaction fees, bank fees or charges or payment processing charges) then we will notify you of those fees and charges seek reimbursement of those fees and charges from you.
As a Buyer, you hereby authorise us, and we undertake, to instruct the Payment Agent to deduct and pay from your Payment Account or your IFISA Account (as relevant) to our own funds account any amounts that are due and payable to us under this Clause 11.
We may waive or offer discounts on any of our fees to any person at any time in our sole and absolute discretion.
We may change any of our fee rates from time to time to reflect legitimate cost increases or reductions in operating the Service. We will give you at least 30 days’ notice of any change in our fees in accordance with Clause 19. Any such changes in fees will only affect Offers, Finance Requests, Murabaha Contracts and Security Documents made on and after the date on which the change is stated to take effect.
All Fees are exclusive of any applicable Value Added Tax or other taxes, for which the person paying the relevant Fee shall be liable.
12. Representations and Warranties
By agreeing to the terms of these Service Terms, you represent and warrant to us that:
- all Information you provide to us and/or the Security Trustee is true and accurate in all respects;
- you are entering into these Service Terms, each Murabaha Contract and any Security Document(s) as principal and not on behalf of any third party;
- execution, delivery and performance of these Service Terms, each Murabaha Contract and any Security Document(s) will not violate any Applicable Law or other agreement by which you or the grantor is bound or by which any of your or their assets are affected;
- you will not send funds to your Payment Account or your IFISA Account other than by using the payment methods specified by us and you will not request that funds be sent from either of those accounts other than to your Nominated Payment Account; and
- you will not use the Information posted on the Service for any purpose other than for the purposes of exercising your rights or performing your obligations under these Service Terms.
13. Client Content
You represent, warrant and undertake that none of the Information you post on the Service (“Client Content”) will infringe the rights of any third party, including intellectual property rights, privacy, publicity or other personal or proprietary rights; or will contain libellous, defamatory or otherwise unlawful material. In addition, you undertake not to:
- use the Service to:
- harvest or collect email addresses or other financial, personal or contact Information of other Clients by electronic or other means for the purposes of sending unsolicited communications or inviting any person to invest outside the Service;
- to create a database (electronic or otherwise) that includes material downloaded or otherwise obtained from the Service otherwise than for your own personal records (and except where expressly permitted by these Service Terms);
- to transmit or re-circulate any material obtained from the Service to any third party except where expressly permitted by these Service Terms;
- use the Service in any unlawful manner or in any other manner that could damage, disable, overload or impair the Service or the servers on which it is hosted;
- use automated scripts to collect Information from or otherwise interact with the Service;
- upload, post, publish, display, transmit, share, store or otherwise make available on the Service any content that we may deem:
- to be misleading, harmful, threatening, unlawful, libellous, defamatory, infringing of any intellectual property rights, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; and/or
- to contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or
- to be unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; and/or
- to be the private Information of any third party, including, without limitation, addresses, phone numbers, email addresses, National Insurance numbers or other identifiers, credit card numbers and/or debit card numbers; and/or
- to be an attempt to promote or market any goods or services for your own financial benefit;
- register on the Service more than once or on behalf of an individual other than yourself, or on behalf of any entity without that entity’s prior written authorisation;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, your financial employment or personal circumstances or your affiliation with any person or entity;
- use or attempt to use another’s account, service or system without authorization from us, or create a false identity in relation to the Service;
- solicit personal Information from anyone under 18 or solicit passwords or personally identifying Information for commercial or unlawful purposes; or
- use the Service in such a way so as to remove the copyright or trade mark notice(s) from any copies of any material made in accordance with these Service Terms.
You are solely responsible for your Client Content. You may not post, transmit, or share Client Content on the Service or otherwise that you did not create or that you do not have permission to display, publish or post. You understand and agree that we may, but are not obligated to, review the Service and may delete or remove (without notice) any Client Content in our sole and absolute discretion, for any reason or no reason. You are solely responsible at your own cost and expense for creating backup copies and replacing any Client Content.
When you post your Client Content, you authorize and direct us to make such copies of it as we consider necessary in order to facilitate the publication, display and storage of the Client Content in relation to the Service. By posting Client Content to any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to us and to the Security Trustee an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Client Content for any purpose on or in connection with the Service or the promotion of it, to prepare derivative works of, or incorporate into other works, such Client Content, and to grant and authorize sublicenses of the foregoing. You may remove your Client Content from the Service at any time, subject to the other provisions of these Service Terms. If you choose to remove your Client Content, the license granted above will automatically expire, however you acknowledge that we and/or the Security Trustee may retain archived copies of your Client Content.
You indemnify and hold each other Client, us, the Security Trustee, our subsidiaries and affiliates, and each of our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees and expenses, and all registration fees and duties, arising out of or in connection with any of your Client Content, your listing of any Finance Requests or other use of the Service, your conduct in connection with the Service or with other Clients, the preparation of Security Documents and other documentation and registration of the Security Documents at The Land Registry and Companies House as necessary, and any breach by you or any grantor of any security under any Security Document or of these Service Terms or of any Applicable Law or violation of the rights of any third party.
14. Links and Information on the Service
Each year, we will publish an “outcomes statement” on our website, which will include:
- the expected and actual default rate of all Deals we have facilitated, by risk category; and
- a summary of the assumptions that we have used in determining future default rates.
The default rate concerns the number of all successful Finance Requests (“Deals”) where the Buyer is past the contractual payment date in the Murabaha Contracts related to each Deal by more than 180 days.
We welcome ‘links’ to the home page of the Service, but not ‘deep linking’ by which we mean that you may not include a link to any page of the Service that is not the home page. You must not display the contents of the Service (or any page from it) or allow it to be displayed surrounded or framed or otherwise surrounded by material not originating from us without our prior written consent.
The Information provided via the Service is intended solely for use by persons and organisations that meet the eligibility criteria set out above. The Service is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to Applicable Law.
15. Liability and Indemnities
You shall be liable to us, to the IFISA Manager and to the Security Trustee for any loss or damage suffered by us, the IFISA Manager and/or the Security Trustee as a directly foreseeable result of your breach of these Service Terms or any other agreement between you and us, the IFISA Manager and/or the Security Trustee, or for your negligence or wilful misconduct.
The Buyer indemnifies us and the Security Trustee against any cost (including legal fees and expenses), loss or liability incurred by it as a result of:
- investigating any event which it reasonably believes is the cause of, or likely to cause, an Event of Default; or
- acting or relying on any notice, request or instruction by the Buyer which it reasonably believes to be genuine, correct and appropriately authorised.
We, the IFISA Manager and the Security Trustee shall only be liable to you for any loss or damage which results as a directly foreseeable result of our, the IFISA Manager or the Security Trustee’s breach of these Service Terms, negligence or wilful misconduct.
Our liability to you and the Security Trustee’s liability to you in respect of any Finance Request, Murabaha Contract or Security Documents shall be limited to the amount paid by you in relation to any such Finance Request, Murabaha Contract or Security Documents, as the case may be.
Subject to Clause 15.6 and except to the extent prohibited by Applicable Law, neither we nor the IFISA Manager, nor the Security Trustee will be liable for any indirect, incidental, special, punitive or consequential damages, loss of business, loss of profits, loss or corruption of data, loss of goodwill or reputation caused by any act or omission by us, the IFISA Manager or by the Security Trustee under these Service Terms.
Nothing in these Service Terms shall limit our, the IFISA Manager’s, the Security Trustee’s or your liability for personal injury or death, or for any other liability which may not be excluded by Applicable Law, or any duty or liability owed under FSMA or FCA Rules, and in the event of any conflict between the terms of this Agreement and FSMA or FCA Rules then FSMA or FCA Rules (as the case may be) will prevail.
No party shall be liable for any failure or delay in the performance of any obligation under these Service Terms (except any payment obligation) by reason of any cause beyond that party’s reasonable control.
Subject to the provisions of these Service Terms, neither we nor the Security Trustee are responsible for third party content downloaded to or from the Service, or any Client Content.
We and the Security Trustee may terminate these Service Terms by notice in writing to you at any time in the event that:
- you are in material breach of any term of these Service Terms; and/or
- you breach any term of any Murabaha Contract to which you are a party or of any Security Document entered into in relation to any such Murabaha Contract; and/or
- we suspect or the Security Trustee suspects that you have used the Service, or intend to use the Service, for the purpose of an illegal activity; and/or
- you are acting as a Buyer and:
- a merger, share exchange or similar transaction occurs in which the holder(s) of a majority of the outstanding equity securities in you or your ultimate direct or indirect parent corporation or holding company immediately prior to such transaction hold less than a majority of the outstanding equity securities of the surviving or successor corporation immediately following the closing of such transaction; and/or
- you sell, assign or transfer all or substantially all of your assets or those of your ultimate direct or indirect parent corporation or holding company;
- There has been at least 18 months inactivity on your Nester Account.
- We make a change to these Service Terms and you are not satisfied under Clause 16.6.
You may terminate these Service Terms by written notice to us at email@example.com or by calling to tell us on 0203 983 0707, provided you have no Murabaha Contracts or Offers outstanding, or Finance Requests open to Offers, at the time of your request.
On termination of these Service Terms, you hereby authorise us to instruct the Payment Agent and/or the IFISA Manager to send any funds held in your Payment Account and/or your IFISA Account to your Nominated Payment Account, or by cheque to your last known place of residence.
Following termination of these Service Terms, we will provide you with limited access to the Service and your Nester Account for a period of 7 days to download any of your Client Content or Information relating to investments, purchases or contributions made by you via the Service. Upon the expiry of that 7 day period, your access to your Nester Account and the Service and the Service will be terminated and we will have no obligation to store or provide you with access to any Information relating to your activity on the Service or the Service.
If you want to make a complaint about us, the IFISA Manager and/or the Security Trustee you can email firstname.lastname@example.org, with brief details of your complaint and your account number. We will refer complaints relating to the IFISA Manager to it on your behalf.
Our staff will acknowledge your complaint by email within two Business Days and will send you a copy of our complaints handling procedure, along with an explanatory leaflet regarding your ability to refer your complaint to the Financial Ombudsman Service if you are an eligible complainant. We will then investigate your complaint.
We have eight weeks after receiving a complaint to send you a final response or a response which explains why we are not in a position to resolve the complaint and indicates when we will make further contact. We will however, aim to respond to you as soon as possible within the eight week timeframe.
Complaints by individuals about our regulated activities that cannot be settled within eight weeks of the date on which the complaint is made may ultimately be referred to the Financial Ombudsman Service whose details we will provide to you at that time. As an individual you may also have the right to make such a complaint directly to the Financial Ombudsman Service.
You are solely responsible for your interactions with other Clients. We reserve the right, but have no obligation, to monitor disputes between you and other Clients.
Except as otherwise expressly provided in these Service Terms, any communication in writing may be given by post to the last known postal address that we hold for you or you hold for us and the Security Trustee, or email to the email address last notified by you to us or by us to you.
- by post will be treated as received by you three Business Days after posting; and
- by email they will be treated as received immediately upon sending, provided there is no notice of non-transmission or non-receipt.
We and the Security Trustee may also (where allowed to do so by Applicable Law) communicate with you by posting Information in your Nester Account or on the Service, in which case the Information will be treated as received by you when it is posted by us or the Security Trustee.
Any communication given to us or the Security Trustee shall be deemed to have been received only on actual receipt by us or, as the case may be, the Security Trustee.
19. Amendments to these Service Terms
Subject to the provisions of Clause 11 (Fees), we may amend these Service Terms by giving you notice via the Service and your Nester Account.
We will only make changes to these Service Terms:
- where we consider that a change will make these Service Terms clearer and no less favourable to you; or
- to implement changes required by Applicable Law
- to conform with any legal, regulatory, FCA Rule, HMRC Rule or code of practice requirements or industry guidance;
- to reflect any decision or recommendation by a court or the Financial Ombudsman Service;
- to allow for the introduction of new or improved systems or products, methods of operation, services or facilities; or
- to reflect changes in the cost of providing our services to you, including any direct costs we are required to pay to others; or
- to make them clearer or more favourable to you.
Subject to Clause 19.4, where we make a change to any terms in these Service Terms which may be to your disadvantage, we will give you at least 14 days written notice. Otherwise we will give you written notice within 30 days of making the change.
Where we have to make a change immediately or we are unable to give you the period of notice set out at Clause 19.3 above (for example because of a change in law or regulation that takes immediate effect), then we will always take reasonable steps to inform you of such changes as soon as possible.
The most up-to date versions of these Service Terms are always available on our website at www.nester.com.
If you are not satisfied with a change, you will be entitled to terminate your Nester Account under Clause 16. By continuing to use your Nester Account after any changes are made to these Service Terms, you agree to accept and be bound by such changes.
If you do not understand or have any queries in relation to a change that we have made to these Service Terms, please do not hesitate to contact us by emailing email@example.com
Neither we nor the Security Trustee shall be obliged to disclose to you any Information, consider or to take into account any Information or other matters which come(s) to our or to the Security Trustee’s notice or the notice of any of our or the Security Trustee’s employees, directors, agents, sub-contractors or associates:
- but does not come to the actual notice of the person dealing with you; and
- where such disclosure, consideration or taking into account would, or we or the Security Trustee reasonably believe that it would, be a breach of any duty of fidelity or confidentiality owed to any other person.
We, the Security Trustee and you shall keep confidential and will not disclose to any third party any Information that is marked or otherwise indicated as being confidential, except Information that any of us is bound to disclose under Applicable Law or by order or request of any regulatory authority or by a court of law, or to our respective professional advisers for the purposes contemplated in these Service Terms, or in ours and the Security Trustee’s cases, where disclosure is necessary to exercise any of our or the Security Trustee’s rights or perform any of our or the Security Trustee’s obligations under these Service Terms or the Security Documents.
These Service Terms are supplied in English and all communications between all or any of us (including any communications or documentation passing between all or any of us before entering into any contract) will be in English.
These Service Terms are governed by English law and the courts of England and Wales will have exclusive jurisdiction to settle any disputes that may arise in relation thereto, although we and the Security Trustee retain the right to bring proceedings against you for a breach of these Service Terms in your country of residence or any other relevant country.
Nothing in these Service Terms are intended to confer any benefit on any person who is not a party to these Service Terms, and no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms, save that the Collections Agency, the Security Trustee, the IFISA Manager, an administrative receiver, a receiver and/or manager of any or all of the Buyer's assets appointed under the Security Documents each has the right under the Contracts (Rights of Third Parties) Act 1999 to enforce each Murabaha Contract, the Security Documents and any provisions of these Service Terms which relate to them and shall be party to these Service Terms in respect of the specific provisions that relate to them.
If any part of these Service Terms is found to be illegal, invalid or unenforceable by any court of competent jurisdiction or regulatory authority, the remainder shall continue in full force and effect.
No single or partial exercise, or failure or delay in exercising any right, power or remedy by either you or us or the Security Trustee shall constitute a waiver by us or the Security Trustee of, or preclude any further exercise of, that or any right, power or remedy arising under these Service Terms or otherwise.
The provisions of these Service Terms are personal to you and you shall not be entitled to assign, novate or transfer any of your rights or obligations under these Service Terms, except to the extent that you are an Investor who is novating a Murabaha Contract under Clause 6.8.
We and/or the Security Trustee may assign our respective rights and obligations under these Service Terms.
The records kept by us and the Security Trustee in the Service shall be conclusive of the facts and matters they purport to record except where there is an obvious mistake.