General Conditions of Service Delivery
Article 1. Preamble
Le site web accessible à l’adresse www.finexkap.com (ci-après dénommé « le site ») est la propriété de la société Finexkap SAS, une société par actions simplifiée de droit français dont le siège social est situé 92 rue du Faubourg Saint-Antoine, 75012 Paris, immatriculée au Registre du Commerce et des Sociétés de Paris sous le numéro 788 592 889, au capital social de 661 397 €, et dont le numéro TVA intracommunautaire est FR89 788 592 889 (ci-après dénommée « Finexkap »).
The site is a platform offering the possibility to companies, having a B to B activity and meeting the financial and extra-financial criteria set by Finexkap and periodically checked by it, to access, from their customer account, to solutions for refinancing their trade receivables proposed by the management company Finexkap AM.
Les opérations de cession de créances commerciales sont réalisées dans le cadre d’un mandat confié à Finexkap par Finexkap AM SAS, société par actions simplifiée de droit français dont le siège social est situé 92 rue du Faubourg Saint-Antoine, 75012 Paris, immatriculée au Registre du Commerce et des Sociétés de Paris sous le numéro 802 023 432, au capital social de 4 701 000 €, et dont le numéro TVA intracommunautaire est FR 52 802 023 432 (ci-après dénommée « Finexkap AM »). Finexkap AM est une société de gestion de portefeuille agréée par l’Autorité des marchés financiers sous le numéro GP-14000044 (https://www.amf-france.org).
The sale of trade receivables is therefore proposed and carried out in the name and on behalf of Finexkap AM, more specifically refinancing vehicles that Finexkap AM is in charge of managing.
All the information accessible on the website is presented in French.
The customer acknowledges that the use of his personal space on the site requires the respect of all the instructions for use defined within the present document and ensures that they are respected.
The client acknowledges that he has all the technical skills required to access and use this site normally and to access and use his personal space.
The customer declares that he has full legal capacity to enter into commitments under these general terms and conditions of services and that he has given the natural person carrying out the operations of assignment of receivables online the necessary authority. The customer can only benefit from the services offered to him on this site subject to his acceptance of these general conditions of service provision.
The client declares having obtained from Finexkap all the necessary information about the services offered and adheres without reserve to the present general conditions of service provision.
The customer acknowledges and accepts that the acceptance of these terms and conditions does not require a handwritten signature and that the electronic acceptance is proof that the customer has read and taken note of these terms and conditions and that it constitutes acceptance of these terms and conditions.
Article 2. Definitions
- «seller»: means the customer who assigns his claims to the transferee;
- «transferee»: securitization mutual fund or securitization company represented by the management company Finexkap AM, whose role is to acquire receivables and ensure their financing;
- «customer»: generally speaking, any natural or legal person legitimately connected to the personal space;
- «access code»: password and identifier intended to identify the customer with regard to the operations he carries out in his personal space.
- «dashboard»: a dashboard of financing operations in the process of validation or in progress, as well as the history of past operations, which the client can access in his personal space;
- «debtor»: means a legal entity that is a customer of the assignor and on which the assignor has issued an invoice(s), to which the receivables subject to assignment on the www.finexkap.com platform correspond(s);
- «personal space»: environment accessible via the Internet to the customer holder of an account who has chosen to benefit from the services offered by Finexkap and whose access is authorized by the latter;
- «SEPA mandate»: a new single form replacing the direct debit authorisation and authorising a creditor to debit his debtor's account;
- «website»: electronic platform accessible at www.finexkap.com and published by Finexkap;
- « société de gestion » : Finexkap AM SAS, société par actions simplifiée de droit français dont le siège social est situé 92 rue du Faubourg Saint-Antoine, 75012 Paris, immatriculée au Registre du Commerce et des Sociétés de Paris sous le numéro 802 023 432, au capital social de 4 701 000 €, et dont le numéro TVA intracommunautaire est FR 52 802 023 432. Finexkap AM est une société de gestion de portefeuille agréée par l’Autorité des marchés financiers sous le numéro GP-14000044;
Article 3. Object
1. The purpose of these general conditions is to define the conditions of access and use by the customer of the services offered by Finexkap and accessible from the personal space.
Article 4. Documents and statements
2. The contractual documents and declarations binding on the customer are all the documents, declarations and guarantees which the customer has provided for each assignment of claims on the site, and in particular these General Terms and Conditions for the Provision of Services, the Framework Agreement for the Assignment of Receivables, the SEPA Mandate and the Assignment of Receivables Schedules.
Article 5. Enforceability
3. The present general terms and conditions of services are opposable to the client as soon as they are accepted by the latter when registering in the personal space of the site.
4. In all cases, on the date of the first use of the space by the client, the general conditions are deemed read and applicable.
5. Finexkap reserves the right to make any changes to these conditions that it deems necessary and useful.
6. The present conditions are opposable during the whole duration of the use of the personal space and until new general conditions replace the present ones.
7. Finexkap undertakes to communicate to the client the new general conditions of service provision.
8. Any use of the personal space by the customer after the modifications of the general terms and conditions implies acceptance by the customer of the new general terms and conditions.
9. The general conditions appearing online on the site prevail over any printed version of previous date.
10. The customer may at any time renounce to use the services offered and the personal space but remains responsible for any previous use.
Article 6. Access to personal space
6.1 Terms and Conditions
11. The customer is informed that the site and the personal space are provided on the basis of a "state of the art" service and accessible according to their availability, 24 hours a day and 7 days a week, except in cases of force majeure, computer difficulties, difficulties related to telecommunications networks or other technical difficulties.
12. In case of interruption or impossibility to use the personal space, the customer can always contact the customer service of the Finexkap company for information, by email at firstname.lastname@example.org.
13. The access to the site and the subscription to the personal space are free of charge, excluding the price charged by the Internet access providers and excluding the cost of telephone communications which are billed directly by the operators to the users.
14. Finexkap reserves the right, without prior notice or compensation, to temporarily or permanently close the client's personal space or access to a service in order to carry out an update, modifications or changes in operational methods, servers and hours of accessibility, without this list being exhaustive. Finexkap will make every effort to notify users and customers in advance.
15. Finexkap reserves the right to complete or modify, at any time, its remote services and personal space according to the evolution of technology.
16. It is the responsibility of the customer to ensure the possibilities of evolution of the computer and transmission means at his disposal so that these means can adapt to the evolution of the personal space and the remote services offered by Finexkap.
17. Finexkap cannot be held responsible for the impossibility to access the site and the personal space.
18. The subscription to the personal space requires that the customer has a subscription to the internet taken out with an access provider of his choice.
6.2 Creating a customer account
19. The creation of an account on the personal space requires that the user has previously met the eligibility criteria of Finexkap.
20. To do so, the customer, or one of Finexkap's partners, must enter his Siren number on the eligibility request screen of his company.
21. Eligibility to the services provided by Finexkap is conditioned by the respect of the following three cumulative criteria:
- to be a validly constituted legal entity ;
- - not being the subject of collective proceedings;
- - having an inter-company activity;
- meet the financial and extra-financial criteria set by Finexkap and periodically audited by it.
22. In the event that the eligibility test proves negative, the procedure for creating a customer account is interrupted. The user can leave his contact information in order to be contacted by the customer service.
23. In the event that the eligibility test is positive, the procedure for creating a customer account continues.
24. When entering the form to create an account, the customer is asked to enter valid information, choose a password and provide an email address. This e-mail address must be confirmed by the customer before any request for financing that he may make on the site.
25. It is the customer's responsibility to ensure that he alone has access to the e-mail containing the confirmation link for his customer account.
26. The client is then invited to answer a set of questions and download documents by following the process proposed on the website.
27. The purpose of this information is to ensure the identity of the user and that of the legal representative, in the event that the user creating the account is not the legal representative of the company concerned.
28. The personal space is accessible by the customer after creating his account.
29. The services provided by Finexkap are accessible by the client after confirmation by the client of the information provided.
30. After validation by the customer of the information provided during the creation of his account, the account becomes active.
6.3 Access codes
31. Access to the personal area is only possible after identification of the customer by means of his e-mail address and password.
32. As soon as his access codes have been recognised, the customer benefits from secure access.
33. If the customer forgets his password, he can request it via an active link on the identification page.
34. The customer has the possibility to change his password at any time via an active link available in his personal space.
35. The customer is solely responsible for the preservation and confidentiality of his password and, consequently, for the consequences of involuntary disclosure to anyone.
36. Any use of the personal space using the password assigned to the client is presumed to emanate exclusively from the client.
37. No operation can be carried out without these access codes.
38. The access codes are personal and confidential.
39. The customer has the obligation to notify Finexkap without delay of any compromise of the confidentiality of his password or any use by a third party of which he is aware.
40. The customer can neutralize at any time the functions related to the use of the access codes by simply calling the customer service during opening hours and days or via the website.
41. The restoration of the functions concerned can be obtained by contacting Finexkap's customer service.
42. As from the reception of the deactivation request, Finexkap will proceed within two (2) working days at the latest to the deletion of the password allowing the access to the personal space.
43. A new password will then be communicated to the customer by sending an e-mail.
6.4 Suspension of the customer account
44. The client is informed that tests to confirm the continued eligibility for services provided by Finexkap are performed daily.
45. If, at any time, all or part of the criteria are no longer met, the client is informed and accepts that his account will be suspended until all criteria are met again.
46. Subject to the provisions of the Article Termination of the client account, the suspension of the client account does not result in the termination of the client account so that if the client can no longer make a new request for assignment of receivables during this period, the client nevertheless continues to have access to the dashboard to view and manage transactions concluded prior to the suspension.
6.5 Termination of the customer account
6.5.1 By the customer
47. The customer can make a request for termination of his personal space at any time, without any cost other than those related to the transmission of his request, and without any reason, and this by e-mail to the contact address on the site.
48. Finexkap reserves the right to refuse a request for termination with regard to past but not completed assignment of receivables, in particular in cases where assigned receivables are still alive or in the process of collection from their debtors.
6.5.2 By Finexkap
49. Finexkap reserves the right to terminate the client's account, without the client being able to claim any compensation of any kind whatsoever, in the following cases:
- the client has not respected the present general conditions and this despite the sending to the client of an email, eight (8) working days before the account closure, asking him to comply with the present general conditions ;
- the client account has remained inactive or suspended for more than six (6) consecutive months;
- the customer has communicated a non-compliant invoice on the site;
- the representations and warranties of the client have been found to be false or inaccurate;
- the customer is subject to judicial liquidation or receivership proceedings.
50. The customer whose account has been terminated by Finexkap can no longer request the creation of an account after this termination, except in the case where this termination was made following a suspension or non-use of the account for more than six (6) consecutive months.
6.6 Notifications to the customer
51. For security reasons, the customer is informed that certain notifications will necessarily be sent by SMS and/or email, as the case may be. In particular, the identifiers enabling him/her to sign online will be sent to him/her by SMS.
6.7 Modification of account settings
52. At any time, the customer can modify the parameters of his account from his personal space, it being specified however that certain parameters, in particular his mobile phone number, the email address attached to his account or any document proving the identity of the customer or his representatives, will have to be the subject of a request to the customer service.
Article 7. Assignment for assignment deed
7.1 Terms and Conditions
53. Once the customer has registered, he has the possibility, directly from his personal space, to have access to the financing solutions for his trade receivables proposed by Finexkap in the name and on behalf of Finexkap AM.
54. To do so, the customer must then communicate to Finexkap all the information, documents, authorizations, declarations and guarantees that are requested from him.
55. In order to improve the processing of his request by Finexkap, the customer could also be invited to provide additional information and documents to refine the credit analysis.
56. The customer undertakes to provide Finexkap, in a timely manner, all information, documents, authorizations, declarations and guarantees of any nature that could be requested from him/her in the framework of the credit analysis process. All information, documents, authorizations, declarations and guarantees communicated by the customer are deemed to be accurate and in conformity and not to have undergone any modification or alteration in relation to the state in which they are provided to Finexkap.
57. In order to be potentially eligible for the services provided by Finexkap, the claims must:
- - be issued against debtors meeting the financial and extra-financial criteria set by the Finexkap company and periodically audited by it;
- - not be overdue;
- - contain the mandatory information required by French law;
- - be certain, liquid and payable;
- - not have been previously transferred to a third party or given as a guarantee;
- - not have undergone any modification since the issue of the corresponding invoices, so that all the information contained in the original invoices remains valid;
- - in the event that they are the subject of credit-insurance or another guarantee, have been waived by the customer of this credit-insurance or guarantee following the assignment of the corresponding receivables;
- - be non-contentious, not liable to credit notes, rebates or price reductions of any kind;
- not be subject to any exception allowing the debtors concerned to invoke a right to settle the amount of the corresponding claims by offsetting them against one or more claims that the customer may owe to them.
58. Upon receipt of all the information, documents, authorizations, declarations and guarantees from the customer by Finexkap and provided that the proposed invoices comply with the above-mentioned criteria, Finexkap studies the customer's request and informs him, by e-mail and by notification on his personal space, of the acceptance or refusal of Finexkap AM to acquire all or part of the claims submitted to it.
59. If so, the customer is thus notified that an offer of assignment of claims from Finexkap AM is available on his personal space and awaiting its acceptance.
60. It is nevertheless specified that the offer of assignment is subject to the approval of the credit insurer with which Finexkap AM has taken out a credit insurance policy; this approval can only be obtained after the acceptance of the offer by the customer.
61. Upon receipt of this offer, the customer has a period of 24 hours to expressly indicate its acceptance or refusal. From his personal space, the customer will be able to proceed with his due diligence by validating on a summary screen the offer made to him.
62. In case of validation, the customer must sign electronically:
- - a mandate appointing Finexkap AM as the assignor's representative for the purpose of signing, in his name and on his behalf, the assignment of receivables form;
- - in the case of the first request for assignment of receivables, the framework agreement for assignment of receivables and the SEPA mandate designating Finexkap AM as the beneficiary of the direct debit in accordance with the provisions of the framework agreement for assignment.
63. After obtaining the approval of the credit insurer, Finexkap AM signs the assignment form, in its capacity as the assignee's management company as well as the assignor's agent, and places a copy on the customer's personal space.
64. At any time, including after the assignment, Finexkap AM shall be entitled to ask the customer for any information reasonably necessary for the management and the collection or for the good management of the credit insurance contract taken out by Finexkap AM. The customer undertakes to provide any information thus requested as soon as possible.
65. The customer has access on his personal space to the framework contract for assignment of receivables, the SEPA mandate, the assignment slips and any other document he has signed.
7.2 Payment of services by the client
66. The assignment offer submitted by Finexkap AM prior to each assignment of receivables will contain the following information :
- list of eligible assignment deed ;
- - sale fee;
- - price fee;
- - holdback.
67. Consequently, acceptance of the assignment offer by the customer implies agreement on the amount of the assignment commission and the amount of the retention.
68. After each assignment of claims, the customer will have available to him on his personal space a receipt stating the total amount of the assigned claims, the retention, the assignment commission and the assignment price.
69. If it appears, after it has been delivered, that any information, document, authorization, declaration or guarantee provided to Finexkap in the name and on behalf of Finexkap AM is inaccurate or is no longer valid, the customer undertakes to inform the customer service as soon as possible and at the latest within five (5) working days after he has been made aware of it.
Article 8. Security
70. The site and, more particularly, the personal space is an automated data processing system. Any fraudulent access to the latter is prohibited and punishable by law.
71. Finexkap makes its best efforts, in accordance with the rules of art, to secure the personal space in view of the complexity of the Internet. It cannot guarantee absolute security.
72. The client declares to accept the characteristics and limitations of Internet.
73. He acknowledges that he is aware of the nature of the Internet network, and in particular, its technical performance and response times for consulting, querying or transferring information data.
74. The customer must inform the Finexkap company of any failure of his personal space.
75. The customer is aware that the data circulating on the Internet are not necessarily protected, in particular against possible misappropriation.
76. The customer agrees to take all appropriate measures to protect his own data and/ or software from contamination by possible viruses on the Internet network.
Article 9. Technical assistance
77. Finexkap provides the customer with a customer service department able to answer all the information necessary for the use of the services offered.
78. The customer can reach the customer service by e-mail at email@example.com.
Article 10. Responsibility
79. The customer agrees to use the personal space and information to which he would have access only under the conditions defined by Finexkap.
80. The customer agrees not to disturb the use that other customers could make of the site and not to access the personal spaces of third parties.
81. The customer agrees not to commit any act that could jeopardize the computer security of Finexkap or other customers.
82. The customer agrees not to interfere or interrupt the normal operation of the personal space.
83. The customer will not be able to make Finexkap responsible for any delay in the information that will be given to him.
84. The customer agrees to indemnify Finexkap, its affiliates and their respective directors, employees and other agents, in case of complaint, action, lawsuit, condemnation of the latter resulting from the customer's non-compliance with the terms and conditions.
85. The customer undertakes to notify Finexkap of any change in the parameters of his account as well as any information provided during the use of the site and acknowledges that failing this, the customer will remain solely responsible for the consequences of any nature whatsoever that may result.
86. Given the diversity of data sources concerning the client, the modalities of their consultation and the delays for their transmission, Finexkap will do its utmost to guarantee the general quality of the information disseminated and its relevance.
87. Finexkap will make every effort to carry out the operations that are incumbent upon it concerning the personal space in accordance with the rules of art.
88. Finexkap cannot be responsible for the quality of the service, the service being offered "as is".
89. Finexkap cannot be held responsible for any disturbance in the use of the personal space.
90. Finexkap cannot be held responsible in case of temporary or total unavailability of all or part of the access to the personal space, of a difficulty related to the response time, and generally speaking, of any performance defect.
91. Finexkap cannot be held responsible for any breach of computer security, which may cause damage to customers' computer equipment and data.
92. Finexkap cannot be held responsible in case of fraudulent or abusive use or due to a voluntary or involuntary disclosure to anyone of the access codes entrusted to the customer.
93. Except in case of proven fault or negligence of Finexkap, Finexkap cannot be held responsible for any breach of confidentiality of the customer's personal data resulting from his access codes by a third party.
94. Finexkap cannot be held responsible for the violation of the present terms and conditions by another user and/or customer.
95. Finexkap's responsibility cannot be engaged in case of direct or indirect damages resulting from the use of the services offered.
96. Finexkap cannot be held responsible for the infringement of the rights of users and/or customers in general.
Article 11. Intellectual Property
97. The present general conditions do not imply any transfer of any kind of intellectual property rights on the elements belonging to Finexkap to the benefit of the client.
98. The content of the site, the general structure as well as the software, texts, images animated or not, photographs, its know-how and all other elements composing the site are the exclusive property of Finexkap, or third parties who have granted them a license.
99. The client is prohibited from modifying, copying, reproducing, downloading, broadcasting, transmitting, commercially exploiting and/or distributing in any way whatsoever the services, the pages of the site, or the computer codes of the elements composing the services and the site.
100. Any reproduction and / or representation, in whole or in part, of any of these rights, without the express permission of Finexkap, is prohibited and would constitute an infringement likely to engage the civil and criminal liability of the counterfeiter.
101. Consequently, the customer is prohibited from any action and any act likely to infringe directly or not the intellectual property rights of Finexkap.
102. Finexkap confers to the customer a right of private, non-collective and non-exclusive use on the content of the site. This right of use includes the right to reproduce for storage for the purpose of representation on a single-user screen and reproduction for printing on paper. Any networking, any redistribution, in any form, even partial, is therefore prohibited. This right is personal, it is reserved for the exclusive use of the user. It is not transferable in any way.
103. The customer therefore undertakes to:
- - download the content of the site on his computer only for personal use and limited in time;
- - print on paper the downloaded pages of the site only on condition that the said copies are strictly limited to personal use.
104. The same applies to any databases appearing on the site that are protected by the articles of the Intellectual Property Code.
105. The distinctive signs of Finexkap and its partners, such as domain names, trademarks, names and logos appearing on the site are protected by the Code of Intellectual Property.
106. Any total or partial reproduction of these distinctive signs made from elements of the site without the express permission of Finexkap is therefore prohibited, within the meaning of the Code of Intellectual Property.
Article 12. Hyperlinks
107. Finexkap reserves the right to set up hyperlinks on the site giving access to web pages other than those of the site.
108. The hyperlinks set up within the framework of the site towards other resources present on the Internet network, and in particular towards Finexkap's partners, have been the subject of a prior, written and express authorization.
109. Customers are formally informed that the sites to which they can access through hypertext links do not belong to Finexkap.
110. Finexkap is not responsible for the access by the customers via the hypertext links set up within the framework of the site towards other resources present on the Internet network, nor for the content of the information provided on these sites as part of the activation of the hyperlink.
111. The customer cannot set up a hyperlink towards the site without the express and prior authorization of Finexkap.
112. Under no circumstances may this authorization be qualified as an implicit affiliation agreement.
113. In any case, the hypertext links to the site must be removed at the first request of Finexkap.
Article 13. Personal data
114. In accordance with the law of January 6, 1978 relating to data processing, data files and liberties, Finexkap, as data controller, implements a personal data processing having as main purposes :
- - management access and operation of the service;
- - management and follow-up of the customer, user and prospect relationship;
- - the proposal by the assignee of solutions for the assignment of receivables;
- - to put the customer in contact with the assignee;
- - analysis, reporting and statistics; and
- - commercial prospecting.
115. Finexkap is in compliance with the regulations on Information Technology and Freedom.
116. The customer certifies that it is also in compliance with the regulations on Data Processing and Liberties; Finexkap's responsibility can in no way be sought in this regard.
117. The creation of a customer account and access to the personal space requires the communication by the customer of personal data.
118. The client undertakes to communicate only fair and lawful information.
119. He will keep Finexkap informed of any change in this information.
120. Mandatory data collected via the forms on the site are marked with an asterisk. In the absence of response or if the information provided is erroneous, Finexkap will not be able to process the request made to it.
121. The data are intended for Finexkap's authorized services to its respective subcontractors and partners, or in a general way to third party companies offering solutions that may be of interest to the user.
122. In addition, some of the data collected may be communicated to commercial and contractual partners for the purposes of investigation, analysis and commercial prospecting.
123. In accordance with the provisions of the law of January 6, 1978, the customer has a right of access, query, and correction which allows him, if necessary, to have his personal data corrected, completed, updated, locked or deleted if they are inaccurate, incomplete, ambiguous, outdated or whose collection, use, communication or storage is prohibited.
124. The customer also has the right to oppose the processing of his data for legitimate reasons and the right to oppose the use of his data for commercial prospecting purposes.
125. The customer has the right to object, free of charge, to the use of his data for such purposes.
126. These rights may be exercised by e-mail accompanied by a copy of a signed identity document by contacting firstname.lastname@example.org or by clicking here https://www.finexkap.com/contact. https://www.finexkap.com/contact.
127. Furthermore, Finexkap informs its customers' debtors that it collects personal data concerning them and that, in application of the regulations, they also have the rights conferred on them by the law of 6 January 1978.
128. The customer is obliged to respect the provisions of the law relating to data processing, files and liberties, the violation of which is punishable by criminal sanctions.
129. In particular, he must refrain, with regard to the personal information to which he has or could have access, from any collection, any misuse in a general manner, any act likely to infringe the privacy or reputation of individuals.
Article 14. Convention on evidence
130. The acceptance of the general terms and conditions and any contractual document by electronic means shall have the same evidential value between the parties as the agreement on paper.
131. The computerized registers kept in the computer systems will be kept under reasonable conditions of security and will be considered as evidence of the communications between the parties.
132. The archiving of contractual documents shall be carried out on a reliable and durable medium that can be produced as evidence.
Article 15. Traceability
133. During a visit to the site, cookies or cookies may be installed in the customer's terminal.
Article 16. Good faith
135. The parties agree to perform their obligations in good faith.
Article 17. Sincerity
136. The parties declare the sincerity of these undertakings.
137. As such, they declare that they have no information to their knowledge which, had it been communicated, would have altered the consent of the other Party.
Article 18. Titles
138. In the event of difficulties of interpretation resulting from a contradiction between any of the headings appearing at the beginning of the clauses and any of the clauses, the headings shall be declared non-existent.
Article 19. Nullity
139. If one or more stipulations of the present general conditions are held to be invalid or declared as such in application of a law, a regulation or following a final decision of a competent court, the other stipulations shall retain their full force and scope.
Article 20 - Entirety
140. The present general conditions express the entirety of the obligations of the parties.
141. No general or specific condition appearing in the documents sent or delivered by the parties may be incorporated into the present contract.
Article 21. Applicable law and competent jurisdiction
142. The present contract is governed by French law.
143. This is so for the substantive rules and the rules of form, notwithstanding the places of performance of the substantive or accessory obligations.
144. In the event of a dispute arising in connection with the interpretation or execution of these general conditions, express jurisdiction is attributed to the Commercial Court of Paris, notwithstanding plurality of defendants or appeal in warranty, even for emergency proceedings or for precautionary proceedings, in summary proceedings or by petition.