GENERAL TERMS AND CONDITIONS OF MONEYSQ LOAN TRANSACTIONS
(“General Terms and Conditions”)
PARTIES
1. The Borrower (the “Borrower”); and
2. Moneysq Limited, whose registered office and other details are set out in the Electronic Record (the “Lender”).
PRELIMINARY :
1. The Lender is a money lender licensed under the MLO.
2. The Borrower has applied to the Lender for the grant of a loan through the Platform (as defined below).
3. If the Lender agrees to grant the Loan (as defined below) to the Borrower, it will be subject to the terms and conditions hereinafter mentioned.
AGREEMENT :
1. Definitions
1.1.The following words shall have the following meanings unless the context requires otherwise:
“communication” means a letter, notice, request, demand or other communication between the Lender and the Borrower or any other person.
“Electronic Record” means the electronic record containing details of the parties to the Loan Agreement and the Loan, generated or to be generated by the Platform and signed or otherwise accepted or to be signed or otherwise accepted electronically by the Borrower to signify his agreement to and acceptance of the terms and conditions of the Loan Agreement.
“Event of Default” means any of the events or circumstances set out in paragraphs (a) to (i) (inclusive) of Clause 8.1.
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.
“Liabilities” means all sums, whether of principal, interest, fees, costs or other amounts, owed and/or payable by the Borrower to the Lender from time to time.
“Loan” means the amount advanced or to be advanced by the Lender to the Borrower set out in the Electronic Record or as otherwise determined by the Lender or the principal amount outstanding under the Loan Agreement from time to time, as the context requires.
“Loan Agreement” means, collectively:
1) the Electronic Record;
2) the summary of the MLO provisions (the “Summary”) required to be issued to Borrowers pursuant to the MLO;
3) the Personal Information Collection Statement (“PICS”) issued by Moneysq Limited to its customers and clients relating, amongst other things, to its use of their personal data;
4) these General Terms and Conditions; and
5) any other agreements and documents which the Lender requires the Borrower to accept as a condition of the Lender advancing the Loan.
“MLO” means the Money Lenders Ordinance (Cap.163).
“Platform” means the online application system on the Moneysq Limited website(www.moneysq.com) through which the Borrower has applied for a Loan.
“working day” means a day (other than a Saturday or Sunday) on which commercial banks are open for general business in Hong Kong.
1.2. Construction of General Terms and Conditions
(a) Headings are for convenience only and shall be ignored in construing these General Terms and Conditions.
(b) References to Clauses and paragraphs are, unless indicated to the contrary, references to Clauses and paragraphs in these General Terms and Conditions.
(c) References to any statute, ordinance or law shall be construed as a reference to such statute, ordinance or law as re-enacted, amended, modified or extended from time to time.
(d) Reference to these General Terms and Conditions or any deed, instrument or agreement shall be construed as a reference to the same as amended, modified, extended, varied, supplemented or novated from time to time.
(e) References to the “Lender”, the “Borrower” and any other person shall include their permitted assignees or transferees, or their executors, personal representatives and successors (as the case may be).
(f) The singular shall include the plural and vice versa and any gender shall include the other genders (and each of them).
(g) If the Borrower constitutes more than one person (i) the liabilities of such persons in respect of every covenant, representation and other obligation under the Loan Agreement shall be joint and several, (ii) references to the Borrower shall be construed as references to all and/or any one or more of those persons, (iii) the Lender may release or discharge any one or more persons constituting the Borrower from liability or compound with, accept compositions from, or make any other arrangement with, any of them without affecting the Lender's rights against the remaining persons, and (iv) any communication to any one person constituting the Borrower will be deemed effective communication to all such persons.
2. The Loan
2.1. The Lender shall confirm its willingness to make available the Loan on the terms of the Loan Agreement by its issuance of the Electronic Record. Once the Lender has issued the Electronic Record and the Borrower has confirmed its acceptance of all the terms of the Loan Agreement by signing the Electronic Record electronically, the Lender shall make the Loan available to the Borrower on the terms of the Loan Agreement.
2.2. The Borrower agrees that the amount of the Loan is or will be more particularly described in the Electronic Record.
2.3. The Loan is subject to the terms and conditions of the Loan Agreement.
3. Term
3.1. The term of the Loan is or will be more particularly described in the Electronic Record.
4. Payments
4.1. The Liabilities shall be repaid and paid (as the context requires) by the Borrower to the Lender without deduction on or before the repayment date set out in the Electronic Record.
4.2. The Borrower hereby agrees that any payment received by the Lender shall be applied to settle such sums or items under the Loan Agreement due to the Lender in such order as the Lender shall see fit at its sole and absolute discretion. This provision shall apply to any payment received by the Lender at any time, whether during the currency or after termination of the Loan Agreement, or whether before or after any Court judgment.
4.3. All payments by the Borrower are to be made in accordance with the Lender's directions in Hong Kong Dollars by not later than 4 p.m. (Hong Kong time) by credit to the Lender's account (details of which will be provided by the Lender to the Borrower) or such other account or by such other means as the Lender may designate, in immediately available funds without set-off or counterclaim and free and clear and without any deduction or withholding for any taxes, duties or any other charges whatsoever.
4.4. If the Borrower is for any reason obliged to make any deduction or withholding for taxes, duties or other charges from any payment, he will pay such additional amounts to the Lender as will ensure that the Lender receives the amount it would have received but for such deduction or withholding.
4.5. Any payment to be made by the Borrower or which is otherwise due on a non-working day shall instead be due on the next working day.
4.6. The Borrower may prepay all Liabilities in full prior to the repayment date set out or to be set out in the Electronic Record by giving to the Lender written notice of his intention to do so. A written notice from the Borrower indicating an intention to prepay Liabilities shall be irrevocable and oblige the Borrower to prepay in accordance with the notice.
5. Dates of the making of the Loan Agreement and of the Loan
5.1. The dates of the making of the Loan Agreement and of the making of the Loan are or will be respectively set out in the Electronic Record.
6. Interest
6.1. The Borrower shall pay the Lender interest on the Loan at the rate stated or to be stated in the Electronic Record.
6.2. Interest on the Loan shall accrue and be paid at the times stated or to be stated in the Electronic Record.
7. Representation and Warranties
7.1. The Borrower represents and warrants as follows:-
(a) He has full capacity and power to enter into and perform his obligations under the Loan Agreement and the Loan Agreement constitutes his legal, valid and binding obligations, subject to the principle that equitable remedies may be granted or refused at the discretion of a court and the limitations on enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors.
(b) He is not in breach of or in default under any agreement to which he is a party or which is binding on him or any of his assets to an extent or in a manner which might have an adverse effect on his financial condition.
(c) Execution of the Loan Agreement does not and will not constitute an Event of Default or breach of any existing law or regulation or of the terms of any security, contract, undertaking or restriction binding on him.
(d) No event or circumstance has occurred or exists which constitutes (or with the giving of notice or lapse of time or both would constitute) an Event of Default.
(e) No litigation, arbitration or proceeding is taking place, pending, or to the Borrower’s knowledge, threatened against him or any of his assets which may have an adverse effect on his financial condition.
(f) All information supplied by the Borrower to the Lender in connection with the Loan Agreement and his use of the Loan, and all information provided by the Borrower to the Lender in the application for the Loan through the Platform or otherwise, is true, complete and accurate in all aspects and the Borrower is not aware of any facts or circumstances that have not been disclosed to the Lender and which might, if disclosed, adversely affect the decision of a person considering whether or not to provide any credit to the Borrower.
8. Events of Default
8.1. The Borrower agrees that the Lender may demand repayment and payment (as the case may be) by the Borrower of all or any part of the Liabilities if any of the following events or circumstances occurs or arises by giving written notice to the Borrower, giving the Borrower not less than seven (7) days to pay the relevant Liabilities and shall pay the Lender the relevant Liabilities in accordance with the notice. If the Borrower shall fail and/or refuse to pay the relevant Liabilities within the period prescribed in the Lender’s aforesaid notice, the Lender shall be entitled to take such legal and other action against the Borrower for the immediate recovery of the Liabilities as it may deem appropriate:-
(a) the Borrower does not pay, when due, any Liabilities or any other amounts due at the place at and in the currency in which it is or they are expressed to be payable under the Loan Agreement;
(b) the Borrower does not comply with any provision of the Loan Agreement (other than that referred to in paragraph (a) of Clause 8.1);
(c) any representation, warranty, undertaking or statement made or deemed to be made by the Borrower in his application for the Loan, the Loan Agreement or any other document delivered by or on behalf of the Borrower under or in connection with the Loan Agreement is or proves to have been incorrect or misleading in any material respect when made or deemed to be made;
(d) the Borrower is or is presumed or deemed to be unable or admits inability to pay his debts as they fall due, suspends making payments on any of his debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of his creditors (excluding the Lender in its capacity as such) with a view to rescheduling any of his indebtedness;
(e) any action, legal proceedings or other procedure or step is taken in relation to (i) the suspension of payments, a moratorium of any indebtedness, bankruptcy, dissolution, administration, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower; (ii) a composition or arrangement with any creditor of the Borrower, or an assignment for the benefit of creditors generally of the Borrower or a class of such creditors; (iii) the appointment of a trustee in bankruptcy or liquidator, receiver, administrator, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of the Borrower or any of its assets; or (iv) enforcement of any security over any assets of the Borrower, or any analogous procedure or step is taken in any jurisdiction;
(f) The Borrower’s death or failure in performing or complying with, or his / her breach of, any term and condition of the Loan Agreement and / or of documents relating to the security or the guarantee;
(g) it is or becomes unlawful for the Borrower to perform any of his obligations under the Loan Agreement;
(h) the Borrower repudiates the Loan Agreement or evidences an intention to repudiate the Loan Agreement; or
(i) the Borrower does any act or omits to do any act or any situation occurs which, in the reasonable opinion of the Lender, might materially and adversely affect the Borrower’s ability to perform his obligations under the Loan Agreement.
8.2. The Borrower shall pay interest on any Liabilities that it fails to pay on their due date for payment or in accordance with a demand by the Lender under Clause 8.1 at the interest rate specified in the Electronic Record from the date the relevant Liabilities fell due or on the date they were demanded to be paid up until the date of actual payment, whether before or after any judgment.
8.3. The Borrower agrees that, if the Lender applies to the court for the repayment of the principal and/or interests, the amount payable to the Lender shall still be calculated at the interest rate specified in the Electronic Record, whether before or after the delivery of the judgment. In order to avoid doubt, the Borrower hereby declares his/her agreement that the aforesaid obligation of interest payment is independent and shall not be consolidated with court decisions. In other words, after the court has made a decision, the interest rate of the payable amount shall still be calculated at the interest rate specified in the Electronic Record until all the outstanding balance and / or amount payable to the Lender is repaid.
8.4. If the Borrower defaults in repayment upon the due date of any instalment, the Lender shall be entitled to take legal action to pursue for the outstanding instalment and interests, etc. In addition, if the Borrower defaults in repayment upon the due date of any amount payable under the Loan Agreement, whether it is the principal or interests, the Borrower shall pay an interest on that outstanding balance at the interest rate specified in the Electronic Record from the date of default until that outstanding balance is fully repaid.
8.5. The Borrower shall on demand indemnify the Lender against any cost, loss or liability sustained or incurred by it as a result of:
(a) the making of a demand under Clause 8.1; or
(b) having to exercise and enforce or attempting to exercise or enforce any rights under the Loan Agreement.
9. Communications
9.1. Any communication given or made under the terms of the Loan Agreement must be in writing and shall be given or made to or upon the parties by hand, mail, facsimile or email or via the Platform in the manner provided for by the Lender and shall be addressed to the appropriate party at its address, facsimile number or email address set out in the Electronic Record or to such other address by such other method (including a communication via the Platform) as such party may from time to time designate to the other party in writing.
9.2. Any communication given or made under the Loan Agreement shall be deemed to have been received (i) forty-eight (48) hours after the mailing thereof, if sent by post, (ii) in the case of an email or facsimile, one working day after the date of dispatch thereof and (iii) in the case of a communication via the Platform, on the working day following the sending of the communication.
10. No Waiver
10.1. No time allowed or indulgence granted by the Lender to the Borrower in respect of the performance by the Borrower of any of the terms of the Loan Agreement shall constitute a waiver of the same unless such obligation is expressly waived in writing by the Lender and no waiver of any obligation of the Borrower under the Loan Agreement shall prevent the subsequent enforcement of the relative provision in respect of any subsequent event or the enforcement of any of the other terms of the Loan Agreement.
11. Severance
11.1. Any provision of the Loan Agreement prohibited by or rendered unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from the Loan Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of the Loan Agreement. Where, however, the provisions of any such applicable law may be waived, they are hereby waived by the parties to the full extent permitted by such law to the end that the Loan Agreement shall be valid and binding agreement enforceable in accordance with its terms.
12. Amendment
12.1. The Loan Agreement shall not be amended, supplemented or modified except by written instrument signed by the parties hereto.
13. Assignments
13.1. The Borrower shall not be entitled to assign or transfer all or any of his rights, benefits, obligations and liabilities under the Loan Agreement.
13.2. The Lender may at any time assign or transfer all or any of its rights, benefits, and obligations under the Loan Agreement and the Borrower agrees to execute such documents and do all such acts and things as the Lender may require to give full effect to such assignments or transfers.
13.3. The Borrower agrees that the Lender may disclose from time to time any information relating to the Borrower or the Borrower's transactional relationship with the Lender (including details of the Loan and the Loan Agreement and any information disclosed pursuant to Clause 16) to any actual, potential or proposed assignee, transferee or novatee of, or successor to, the Lender's rights and/or obligations in relation to the Loan Agreement and any agents and/or professional advisers of assignee, transferee, novatee or successor.
14. Costs
14.1. The legal costs and expenses for the preparation signing of the Loan Agreement shall be borne by the Lender.
14.2. If the Borrower fails to perform any obligation of the Loan Agreement, the Lender shall be entitled to take any legal action against the Borrower, and the Borrower shall be fully responsible for all the legal costs (on full indemnity basis);
14.3. Borrower understand(s) and agree(s) that the Lender may employ third party collection agencies to collect overdue amounts owed by me/us. I/We shall indemnify the Lender in respect of all reasonable legal charges, collection agent charges and any other expenses incurred in connection with the Lender’s efforts to obtain payment of any money owing in respect of the Loan from me/us and or otherwise enforce this Agreement.
15. Waiver
15.1. Any failure or delay by the Lender to exercise or enforce its rights under the Loan Agreement shall not be deemed to be a waiver of any such right. Any defective exercise of such a right shall not preclude any other or further exercise of that right, or the exercise of any other rights under the Loan Agreement.
16. “KYC”
16.1. The Borrower shall promptly upon the request of the Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Lender in order for the Lender or any prospective new Lender to conduct any "know your customer" or other similar procedures under applicable laws and regulations.
17. Governing Law
17.1. The Loan Agreement was negotiated and completed in Hong Kong and shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong.
18. Third Party Rights
18.1. No person other than the Lender and the Borrower will have any right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) to enforce or enjoy the benefit of any of the terms and conditions set out in the Loan Agreement.
19. Online Signing
19.1. The Loan will not be advanced to the Borrower unless and until all the following conditions are satisfied:-
(a) the Borrower has signed the Loan Agreement online using the Platform and in accordance with the instructions provided by the Lender;
(b) the Lender has approved the granting of the Loan;
(c) the Borrower has acknowledged receipt of the Loan Agreement, including these General Terms and Conditions and indicated his acknowledgement by clicking the confirmation button on the confirmation/execution webpage of the Platform or any other method to indicate acknowledgement/completes the handwritten signature procedure and inputs his signature onto the Platform; and
(d) the Lender has confirmed via the Platform or in any other manner it chooses that it has received the acknowledgement from the Borrower referred to in paragraph (c).
Should there be any inconsistencies between the English and Chinese versions, the English version shall prevail.
