SÍGUENOS EN
PEERBERRY COMUNIDAD
Part I
ASSIGNMENT AGREEMENT
BASIC TERMS AND CONDITIONS
Part II
ASSIGNMENT AGREEMENT
GENERAL TERMS AND CONDITIONS
1. Definitions
| Agreement | This assignment agreement (Part I and Part II together) concluded among the Loan Originator, the Partner, AV Marketplace and the Assignee with all of its appendices and amendments, pursuant to which the Partner (the Assignor) transfers the Claim arising from the Loan Agreement to the User (the Assignee). |
| Assignee | The User who has concluded this Agreement and purchased the Claim from the Partner, thereby taking over the Claim from the Assignor. |
| Assignment Fee | The remuneration for the transfer of the Claim agreed between the Assignee and the Assignor and established in the Basic terms and conditions of the Assignment Agreement. |
| AV Marketplace | SIA “AV Marketplace”, a limited liability company registered and existing under the laws of the Republic of Latvia, unified registration No. 40203073653, maintaining and administrating the i-Platform, and fulfilling other responsibilities specified in the Terms and Conditions of the i-Platform and the Agreement. |
| Basic Terms and Conditions | Part I of the Agreement. |
| Borrower | A private individual with whom the Loan Originator has concluded the Loan Agreement. |
| Borrower’s Payment | Payment of the principal amount of the Loan, Interest and contractual fees and/or penalties (if applicable) arising from the Loan Agreement that are due from the Borrower to the Partner. |
| Business Day | An officially determined business day (8:00 – 17:00 CET; 9:00 –18:00 by Europe/Riga Time Zone) of the Republic of Latvia, except for Saturdays, Sundays and public holidays. |
| Claim | A Partner’s claim or a part thereof towards the Borrower, arising from the Loan Agreement. The Claim can consist of the Loan principal, Interest, and other ancillary claims in full or partial amount, complying with the rights of the Partner to establish exceptions pursuant to the provisions of Section 1806 of the Civil Law of the Republic of Latvia. The Claim is assigned without the contractual penalty and other ancillary claims not specified in this Agreement, as well as, without reregistration of security interest incorporated in the Collateral in the name of the Assignee (if any). Detailed amount and composition of the Claim is established in this Agreement. |
| Currency used in the Loan Agreement | The currency specified in the Basic Terms and Conditions that is the currency for settlements according to the Loan Agreement. |
| Exchange Rate | The currency exchange rate from the Currency used in the Loan Agreement to the currency of the Assignment Fee fixed by a mutual agreement of the Partner, the Loan Originator and AV Marketplace before the conclusion of this Agreement. Currency exchange provisions are used only in case if the Currency used in the Loan Agreement and currency of the Assignment Fee differs. |
| General Terms and Conditions | Part II of the Agreement. |
| i-Platform | AV Marketplace web site and a set of related services, that are provided within the domain’s www.peerberry.com technological framework, and which enable Users to use that information technology services in all possible ways to perform activities allowed by the regulations of the i-Platform. |
| Interest | Remuneration for the use of the Loan expressed as interest per annum, specified in the Basic Terms and Conditions of the Agreement. Interest is a part of the Claim and is being paid by the Borrower according to the Loan Agreement. The term “Interest” also refers to the late interest fee that will be calculated and paid for each day of delay of repayment of the Loan by the Borrower. |
| Loan | A principal amount of the credit that has been issued to the Borrower pursuant to the Loan Agreement and is due, or a part thereof, which the Borrower shall repay to the Loan Originator and which AV Marketplace channels in favour of the Assignee. |
| Loan Agreement | A credit agreement (loan agreement, lease or other type of contract) that is concluded between the Loan Originator and the Borrower. |
| Loan Originator |
[Title, registration number], which is the loan originator and assignor of the Claim to the Partner, which subsequently participates under this Agreement as the assignor and manager of the Claim before the Assignee and fulfils other responsibilities stipulated by the Terms and Conditions of the i-Platform. |
| Parties | The Loan Originator, the Partner, AV Marketplace and the Assignee. |
| Partner | [Title, registration number], which is acting under this Agreement as the Assignor of the Claim to the Assignee and managing the Assignee’s Claim, as well as fulfilling other responsibilities stipulated by the Terms and Conditions of the i-Platform and the Agreement. The Partner acquired the Claim from the Loan Originator and has all required authorizations of the Loan Originator to the further transfer of the Claim to the Assignee |
| Partner’s Account | A special virtual account established in the AV Marketplace system which shall be used for the settlement of accounts for the acquisition of the Claim. The Partner’s Account is not the Virtual Account for the purpose of the Agreement. |
| Price List | The effective price (Assignee payables) list of AV Marketplace services published within the i-Platform, which is an integral part of the User Agreement. |
| Service Fee | A fee payable by the User to AV Marketplace for marketing and processing Claims according to the provisions of the User Agreement and/or the Agreement. The Service Fee is indicated on the Price List. |
| Terms and Conditions of the i-Platform | General terms and conditions for the use of the i-Platform effective at the respective moment. |
| User | A natural person or a legal entity registered on the i-Platform as its user, including the Assignor and the Assignee, having the legal capacity to incurring liabilities on its own behalf and acquiring rights. |
| User Agreement | Mutually reached consensus between the Parties on the use of the i-Platform according to the User Agreement, which incorporates a set of general terms and conditions that are applicable to all transactions entered into by the User within the i-Platform. The User Agreement shall be confirmed by the User electronically when creating the User Profile. |
| User Profile | User’s personal site within the i-Platform, which is automatically created by AV Marketplace after the User registers within the i-Platform and is constantly available to the User after the process of the verification within the i-Platform by entering the User’s e-mail address and password to the i-Platform system. |
| Virtual Account | An electronic account created for each unique User in connection with the User’s Profile within the i-Platform in order to record all transactions and settlements that could be performed according to the User Agreement of the i-Platform, this Agreement and the Loan Agreement. |
2. Subject of the Agreement
2.1. The Agreement is concluded by and between the Assignee, the Loan Originator as the primary assignor, the Partner as the secondary assignor and AV Marketplace as the representative of the Loan Originator and the Partner and host of the i-Platform. The Loan Originator and the Partner enter into the present Agreement by its representative AV Marketplace. A detailed disaggregation of the rights and the duties of the Loan Originator, the Partner and AV Marketplace respectively is provided in Section 5 of the General Terms and Conditions.
2.2. Under this Agreement, the Loan Originator acknowledges and guarantees that it has transferred all claims arising from the Loan Agreement, part of which is being assigned to the Assignee under this Agreement, to the Partner prior to conclusion of this Agreement. All claims arising from the Loan Agreement were transferred to the Partner to its full extent under the applicable laws. The Partner exercises all rights and obligations of the creditor under the Loan Agreement. The Loan Originator confirms that the Partner is the sole owner of the whole Claim arising from the Loan Agreement and shall dispose of it as it deems appropriate.
2.3. The Partner shall transfer (assign) to the Assignee the Claim against the Borrower arising from the Loan Agreement pursuant to the Agreement for the Assignment. Fee specified in the Agreement. If applicable, before signing of this Agreement the Partner converts the principal amount of the Claim from the Currency used in the Loan Agreement to the currency of the Assignment Fee based on the Exchange Rate.
2.4. The Claim is the aggregate of the claims of the Partner arising out of the Loan Agreement specified in the Basic Terms and Conditions. The Claim involves the claim of the Partner for the Interest in the amount specified in the Basic Terms and Conditions which might not be the entire claim of the Partner arising out of the Loan Agreement for the payment of the Interest. The Partner reserves its claim rights towards the Borrower for the payment of the Interest, as well as other claims to the extent that such claim is not transferred (assigned) to the Assignee or another User.
2.5. The Loan Originator shall acknowledge that the Loan specified in the Loan Agreement has been issued to the Borrower. The Assignee shall not assume or bear any responsibilities or obligations to the Borrower by the Agreement.
2.6. The Claim shall be transferred from the Partner to the Assignee at the moment when the Assignee has fully paid the Assignment Fee to the Partner in the manner prescribed in Clause 4.2 of the General Terms and Conditions. The Interest, which is calculated to the Borrower and still outstanding at the moment of assignment shall not be transferred from the Partner to the Assignee by the assignment of the Claim. For the avoidance of doubt, only the Interest calculated as from the moment of the assignment of the Claim shall be transferred from the Partner to the Assignee.
2.7. The Assignee confirms and understands that the Claim might not contain all creditor’s claims against the Borrower arising out of the Loan Agreement, the Assignee might not become the only creditor of the Borrower pursuant to the Loan Agreement, and in this situation AV Marketplace, the Partner and the Loan Originator, pursuant to the Terms and Conditions of the i-Platform and provisions of the Agreement, shall manage the Claim together with the claims of other i-Platform Users against the Borrower arising from the Loan Agreement, if such claims exist. The Loan Originator does not manage the Claim as it is prescribed in the Agreement and does not act as a fiduciary agent of the Assignee. The Assignee confirms and understands that the Claim transferred to the Assignee does not have priority against claims of other creditors of the Borrower (including the Partner) arising from the Loan Agreement. Any funds received from the Borrower shall be distributed between the creditors pursuant to the Loan Agreement considering the principle of proportionality.
2.8. AV Marketplace shall ensure a possibility for the Assignee to familiarize itself on the i-Platform with the translation of a sample loan agreement pursuant whereof the Loan Agreement was concluded. The translation of a sample loan agreement is attached to this Agreement as Appendix 1
3. Conclusion of the Agreement
3.1. The Assignee confirms that it has familiarized itself with the Terms and Conditions of the i-Platform and the terms and conditions of the Agreement, understands the rights and obligations arising therefrom and confirms that the terms and conditions thereof conform to the will of the Assignee.
3.2. The Assignee has confirmed its consent to conclude the Agreement on the i-Platform. The Agreement between the Parties shall be considered as concluded and come into effect at the moment when the Assignee confirms the Agreement in its User Profile pursuant to the procedure specified in the Terms and Conditions of the i-Platform. The Assignee may familiarize itself with the fact of the conclusion of the Agreement and the concluded Agreement in the User Profile at any moment.
3.3. The Assignee shall acknowledge that during the conclusion of the Agreement it has the necessary legal capacity and is not under the influence of alcohol, drugs, psychotropic, toxic or other intoxicating substances.
4. Assignment Fee and Settlement Procedure
4.1. The Assignee shall pay to the Partner the Assignment Fee mutually agreed with and specified in the Basic Terms and Conditions for the assignment of the Claim specified in the Agreement.
4.2. The Assignee shall pay the Assignment Fee to the Partner immediately after the Assignee has confirmed the terms and conditions of the Agreement pursuant to the procedure specified in the Terms and Conditions of the i-Platform. The Assignee’s payment is made by transferring the virtual money equivalent to the Assignment Fee from the Assignee’s Virtual Account to the Partner’s Account without actual payment of monetary funds. The purchase of the Claim made by the Assignee after the confirmation of the terms and conditions of the Agreement becomes binding to the Assignee, and AV Marketplace shall immediately withdraw the virtual money equivalent to the Assignment Fee from the Assignee’s Virtual Account. The Claim shall be considered as transferred to the Assignee once the virtual money equivalent to the Assignment Fee is withdrawn from the Assignee’s Virtual Account.
4.3. AV Marketplace after the withdrawal of the funds specified in Clause 4.2 of the General Terms and Conditions from the Virtual Account of the Assignee shall transfer equivalent amount of virtual money to the Partner’s Account.
4.4. By confirmation of the terms and conditions of the Agreement the Assignee shall authorize AV Marketplace to transfer the virtual money equivalent to the Assignment Fee from the Assignee’s Virtual Account to the Partner’s Account pursuant to the terms and conditions of the Agreement.
4.5. The obligation to pay monetary funds shall be considered fulfilled at the moment when the payment amount is transferred into the bank account of the payment recipient, except as otherwise expressly provided in this Agreement. The payment obligation of virtual money shall be fulfilled at the moment when the payment of virtual money is transferred into the Virtual Account of the payment recipient or the Partner’s Account, if the payment recipient is the Partner.
5. Division of Rights and Obligations between the Loan Originator, the Partner and AV Marketplace
5.1. For the avoidance of disagreement the Parties represent and acknowledge that:
5.1.1. AV Marketplace, as the representative of the Partner, shall act on behalf of the Partner pursuant to the cooperation agreement concluded by and between the Partner and AV Marketplace by carrying out the following activities:
5.1.1.1. enter into the Agreement and transfer (assign) the Claim in accordance with the provisions of the Agreement;
5.1.1.2. provide the representations referred to in Clauses 6.5, 9.2, 9.3, 12.1, 12.2 and 12.3 of the General Terms and Conditions;
5.1.1.3. provide the Assignee with an opportunity to review the translation of a sample loan agreement on the i-Platform based on which the Loan Agreement is concluded;
5.1.1.4. in case the buyback obligations of the Loan Originator are exercised, pay the buyback price of the Claim to the Assignee.
5.1.2. AV Marketplace, as the representative of the Loan Originator, shall act on behalf of the Loan Originator pursuant to the cooperation agreement concluded by and between the Loan Originator and AV Marketplace by carrying out the following activities:
5.1.2.1. enter into the Agreement;
5.1.2.2. provide the representations referred to in Clauses 2.2, 2.5, 6.5, 12.1, and 12.3 of the General Terms and Conditions;
5.1.3. AV Marketplace independently, as the host of the i-Platform, shall act on its own behalf upon carrying out the following activities:
5.1.3.1. perform writing off of the virtual money equivalent to the Assignment Fee from the Assignee’s Virtual Account and transfer it to the Partner’s Account;
5.1.3.2. distribute the funds received from the Partner among the creditors, that hold claims against the Borrower at the time of the receipt of the respective Borrower’s Payment, and transfer the virtual money equivalent thereto to the Assignee’s Virtual Account;
5.1.3.3. withhold the Service Fee and other payments (if any) from the Assignee according to the Price List;
5.1.3.4. provide the representations referred to in Clauses 12.1, 12.2. and 12.3 of the General Terms and Conditions;
5.1.3.5. withdraw from the Agreement in cases set forth in Clauses 13.1 or 13.2 of the General Terms and Conditions.
5.1.4. The Partner shall act independently, without involving AV Marketplace as the representative/fiduciary, on its own behalf, upon performing the following activities:
5.1.4.1. make amendments to or enter into additional agreements to the Loan Agreement in line with the provisions of Clause 6.7 of the General Terms and Conditions;
5.1.4.2. manage the Claim on behalf of the Assignee;
5.1.4.3. unilaterally withdraw from the Agreement in cases set forth in Clause 13.1 of the General Terms and Conditions.
5.1.5. The Loan Originator shall act independently, without involving AV Marketplace as the representative/ fiduciary, on its own behalf, upon performing the following activities:
5.1.5.1. settle all issues related to the repayment of the Loan and fulfilment of the Loan Agreement according to the interests of the Assignee;
5.1.5.2. follow the segregation principle in respect of the Claim in accordance with Clause 6.5 of the General Terms and Conditions;
5.1.5.3. divide all funds received under the Loan Agreement and gained from claims recovery between the Partner, on the one part, and other creditors, who hold claims towards the Borrower at the time of receipt of the Borrower’s Payment, on the other part;
5.1.5.4. exercise the buyback obligations pursuant to Section 10 of the General Terms and Conditions;
5.1.5.5. exercise the re-purchase rights or obligations pursuant to Section 11 of the General Terms and Conditions;
5.1.5.6. in case the re-purchase rights or obligations of the Loan Originator are exercised, pay the re-purchase price of the Claim to the Assignee.
6. Assignee’s Authorization to the Partner
6.1. Once the Claim has been transferred from the Partner to the Assignee pursuant to Clause 2.6 of the General Terms and Conditions, the Assignee as the principal shall irrevocably authorize the Partner as the fiduciary agent to manage the Claim in the interests of the Assignee but in its own name, as well as to use the rights, power and freedom of action on behalf of the Assignee assigned to it pursuant to the Agreement. After conclusion of the Agreement the Partner shall continue fulfilling the obligations arising from the Loan Agreement and in respect of the Borrower act as the lender (fiduciary).
6.2. The Assignee as the principal shall give the legal power to the Partner as the fiduciary agent to manage the Claim, which the Partner shall exercise in its own name, but in the interests of the Assignee.
6.3. The Partner shall manage the Claim until the repayment of the Claim in full amount, acting as the fiduciary agent of the Assignee pursuant to the provisions of the Civil Law of the Republic of Latvia. Only the relationship of the Partner as the fiduciary agent and the Assignee as the principal exists between the Partner and the Assignee.
6.4. The Assignee by confirming the Agreement authorizes the Partner to handle all matters related to the repayment of the Loan and performance of the Loan Agreement. Upon exercising the authority granted by the Assignee in this clause the Partner undertakes to act in the interests of the Assignee with due diligence.
6.5. The Partner and the Loan Originator shall take all reasonable actions to ensure that the Assignee’s Claim is not treated as the Partner’s or the Loan Originator’s property and any pledge rights, prohibitions or other encumbrances in favor of the Partner and the Loan Originator, its creditors or administrators would not be attributed to it. The Partner and the Loan Originator shall perform all reasonable actions to ensure that the Assignee’s Claim is free of the third party claims against the Partner and the Loan Originator, and an arrest is not placed thereupon. The Partner and the Loan Originator in their record-keeping systems shall apply a segregation principle in respect of the Claim, showing it in and in case the Claim is assigned without the buyback obligations of the Loan Originator, show it in the Partner’s and the Loan Originator’s off-balance sheet and keep it separately from the Partner’s and Loan Originator’s assets.
6.6. The authority of the Partner included herein is issued with the right of re-authorization and is in force for the entire duration of the Agreement. The Partner has the right to act, using its employees and authorized representatives. The Partner shall be entitled to and the Assignee irrevocably authorizes the Partner to delegate the debt collection arising from the Loan Agreement to any third party at the Partner’s discretion.
6.7. The Assignee is aware of and consents that during the validity period of the Agreement the Partner is entitled to introduce modifications or enter into additional agreements to the Loan Agreement without obtaining prior approval of the Assignee, on the condition that such modifications or additional agreements will not result in any changes of the payments from the Borrower arising from the Loan Agreement or extension/postponement of the due dates, except changes of monthly payment date initiated by the Borrower. If any new laws are passed or current ones are amended after the conclusion of the Agreement, or the government or municipal authorities have passed a decision under which the Partner has an obligation to introduce modifications to the Loan Agreement resulting in any changes of the payments from the Borrower arising from the Loan Agreement or extension/postponement of the due dates, the Assignee agrees that the Partner makes such modifications without obtaining prior approval of the Assignee. The Partner undertakes to notify AV Marketplace about such modifications being introduced at least 10 (ten) Business Days prior to their effective date, whereas AV Marketplace shall notify the Assignee within 10 (ten) Business Days from receiving such Partner’s notice and the Assignee shall recognize it as binding.
6.8. The Assignee shall unilaterally undertake not to recall the authorization to the Partner included in the Agreement.
6.9. The Assignee shall comply with the obligations specified in Clause 12.1 of the General Terms and Conditions not to contact the Borrower on the fact of the assignment of the Claim and not contact the Borrower directly even in case if the Assignee fully or partially recalls the authorization included in the Agreement.
7. Assignee’s Authorization to AV Marketplace
7.1. With this Agreement the Assignee irrevocably and unconditionally authorizes AV Marketplace:
7.1.1. to enter into the guarantee agreement on behalf of the Assignee with the guarantor at AV Marketplace discretion on terms and conditions at AV Marketplace discretion, as well as to establish any other collateral securing performance of the Loan Originator’s and the Partner’s obligations arising from this Agreement;
7.1.2. without a prior coordination with the Assignee to make amendments or sign supplement agreements to collateral documents created as per Clause 7.1.1 of General Terms and Conditions;
7.1.3. enforce security created for the benefit of the Assignee and handle all matters related to the performance of out-of-court actions for collection of claims and enforcement of security in the name of the Assignee and for the benefit of the Assignee with all rights provided by law to the claimant, respondent, third party or victim, including the rights to make settlements, recognize claims or waive them fully or partially, make changes to the subject of the claim, bring a counterclaim, appeal the court judgments or decisions pursuant to appeal or cassation procedure, submit the case to the court of arbitration, receive the execution documents, submit them for recovery and receive the property or cash awarded to the Assignee or waive the right to receive this property or cash, terminate the execution proceedings and sign any documents in respect of aforementioned. The Assignee shall pay the commission (if any) to AV Marketplace for the performance of the activities specified in this clause pursuant to the Price List. AV Marketplace by using the authority granted by the Assignee in this clause has unlimited right to resolve what actions should be taken in case of the Loan Originator’s, Partner’s or guarantor’s default; however, AV Marketplace has undertaken to act in the interests of the Assignee with due care at all times;
7.1.4. in case of insolvency of the Loan Originator or the Partner or default by the Loan Originator or the Partner according to the cooperation agreement made by and among the Loan Originator, the Partner and AV Marketplace, to take over the management of the Claim as per this Agreement from the Partner and recall authorization of the Assignee to the Partner. After AV Marketplace has taken over the management of the Claim from the Partner, AV Marketplace shall be entitled to and the Assignee irrevocably authorizes AV Marketplace to transfer the management of the Claim to any third party at AV Marketplace’s discretion. AV Marketplace or, in case of transfer of the management of the Claim by AV Marketplace to a third party, such third party shall be regarded as the Partner as per this Agreement as from the moment AV Marketplace has informed the Partner on taking over the management of the Claim or AV Marketplace has transferred the management of the Claim to third party.
7.2. In case of insolvency of the Loan Originator or the Partner or default by the Loan Originator or the Partner according to the cooperation agreement made by and among the Loan Originator, the Partner and AV Marketplace the Assignee irrevocably authorizes AV Marketplace as a fiduciary at its sole discretion to inform the Borrower on the assignment of the Claim on behalf of the Assignee and demand the Borrower to continue to make all payments arising from the Claim to AV Marketplace or, in case of transfer of the management of the Claim by AV Marketplace to a third party, third party as a fiduciary of the Assignee. The Assignee authorizes AV Marketplace to submit notifications to the Borrower on the assignment of the Claim.
7.3. With this Agreement the Assignee irrevocably authorizes AV Marketplace as a fiduciary of the Assignee to demand and collect from the Partner late payment interest in favour of the Assignee according to the cooperation agreement made by and among the Loan Originator, the Partner and AV Marketplace, if the Loan Originator or the Partner fails to pay any amounts received from the Borrower payable by any of them to the Assignee under the Agreement or the cooperation agreement on its due date.
7.4. The authority of AV Marketplace included herein is issued with the right of re-authorization and is in force for the entire duration of the Agreement. AV Marketplace or, in case of transfer of the management of the Claim by AV Marketplace to a third party, third party has the right to act, using its employees and authorized representatives.
7.5. The Assignee shall unilaterally undertake not to recall the authorization to AV Marketplace included in the Agreement.
8. Payments of the Borrower
8.1. The Borrower shall make the Borrower’s Payments to the Loan Originator pursuant to the Loan Agreement and the schedule attached thereto. The Loan Originator shall immediately transfer all received Borrower’s Payments to the Partner. The repayment date of the Loan specified in the Basic Terms and Conditions is for informative purposes only and conforms to the term specified in the Loan Agreement. The Loan Originator, the Partner and AV Marketplace are not responsible for the failure by the Borrower to comply with the repayment date of the Loan or the payment date of the Interest.
8.2. Upon the receipt of the Borrower’s Payments from the Borrower, including the case where the Borrower makes an early repayment, fully or partially and the case where the Borrower performs only partial Borrower’s Payment, the Loan Originator shall immediately transfer them to the Partner. Upon the receipt of the Borrower’s Payments from the Loan Originator the Partner shall retain from all received funds any applicable taxes (if any), and part of the Interest due to the Partner which is calculated from the difference between the interest rate specified in the Loan Agreement and the interest rate specified in the Basic Terms and Conditions, as well as the share due to the Partner of the Loan, which is not assigned to other creditors, and the remaining share of the Interest pursuant to the interest rate specified in the Basic Terms and Conditions due to the Partner for the Loan not further assigned to other creditors, while the balance shall be converted by the Partner from the Currency used in the Loan Agreement, to the currency of the Assignment Fee based on the Exchange Rate (if applicable) and after conversion the converted amount shall be transferred to AV Marketplace for subsequent distribution among the creditors. For the sake of clarity, the Partner shall retain the funds in the same proportion to the portion taken by the Partner’s claims in all creditor’s claims against the Borrower arising out of the Loan Agreement at that time. The calculation of the amount subject to the transfer to AV Marketplace as per this clause is performed by AV Marketplace based on the information provided by the Loan Originator. Immediately after receipt of the Borrower’s Payment the Loan Originator shall inform AV Marketplace on the amount of the received Borrower’s Payment and the amount of any applicable taxes, whereas AV Marketplace shall calculate the balance subject to transfer to AV Marketplace according to this clause and shall inform the Partner respectively. The Parties agree that the balance subject to transfer to AV Marketplace according to this clause can be settled from the funds payable by AV Marketplace to the Partner according to the cooperation agreement made by and among AV Marketplace, the Partner and the Loan Originator and in such case the balance shall be deemed received by AV Marketplace from the Partner as of the settlement date.
8.3. After AV Marketplace has received the relevant share of the Borrower’s Payments from the Partner, AV Marketplace shall proportionally as per participation distribute it among all creditors having claims arising from the Loan Agreement against the Borrower, including the Assignee as follows:
8.3.1. the received Loan repayment shall be divided proportionally to the amount of the claim of each creditor against the Borrower;
8.3.2. the received Interest arising from the respective claim of each creditor against the Borrower is paid to the User having the respective claim. The share of the Interest due to the Loan Originator which is calculated from the difference between the interest rate specified in the Loan Agreement and the interest rate specified in the Basic Terms and Conditions shall be deducted before AV Marketplace effects the distribution referred to in Clause 8.3 of the General Terms and Conditions;
8.3.3. if one or several claims arising from the Loan Agreement in the scope whereof the Borrower has made the Borrower’s Payment have been assigned in favor of another creditor from the moment of the receipt of the previous Borrower’s Payment until the receipt of the last Borrower’s Payment and the Interest arising from the respective claim of the creditor against the Borrower pursuant to the procedure specified in Clause 8.3.2 of the General Terms and Conditions are divided among the previous creditor and the Assignee as the new creditor, taking into account the number of the days between the receipt of the previous and last Borrower’s Payment and how long the respective Claim has been in the possession of the respective creditor.
8.4. The Parties understand and agree that for the execution of the Partner’s obligation to transfer the relevant share of the Borrower’s Payment to AV Marketplace for further distribution among all creditors immediately after its receipt, AV Marketplace or a third party designated by AV Marketplace is entitled to provide a credit facility up to the established credit limit to the Partner.
8.5. Immediately after the distribution of the received funds according to Clause 8.3 of the General Terms and Conditions AV Marketplace shall transfer the virtual money equivalent to the respective amount to the Virtual Account of the Assignee and withhold the virtual money equivalent to the Service Fee and other payments (if any) pursuant to the Price List from the Assignee’s Virtual Account.
8.6. The Assignee shall pay the Service Fee to AV Marketplace for the services of AV Marketplace rendered in the i-Platform according to the Price List or the Service Fee individually established by the Assignee and AV Marketplace, as well as other payments stipulated in the Price List, if applicable.
8.7. The Assignee is informed and agrees to the fact that a year consists of 360 days and every month consists of 30 days for the purpose of calculation of the Interest (and statutory late payment interest) and other ancillary claims, as well as the amounts to be paid based on the Agreement.
8.8. The Partner is entitled to calculate the contractual penalty in the amount and under procedure set out in the Loan Agreement if the Borrower delays the repayment of the Loan Amount and the payment of Interest.
8.9. The Assignee undertakes not to bring any claims against the Loan Originator, Partner, AV Marketplace or the Borrower concerning full or partial early repayment of Loan based on the lost profit and any other losses in this respect.
9. Default of the Borrower
9.1. The Loan Originator, the Partner and AV Marketplace shall not be responsible for the default of the Borrower including late payments.
9.2. The Assignee by confirming to the Agreement authorizes the Partner to handle in the event of the failure or inadequate fulfillment of the Borrower’s obligations arising from the Loan Agreement all matters related to the restructuring of the Claim, termination of the Loan Agreement, execution of a new loan agreement, performance of out-of-court actions for collection of claims and any other actions in the name of the Partner (fiduciary agent), but in the interests of the Assignee (principal) related to the recovery of the Claim with all the rights provided by law to the claimant, defendant, third party or injured party, including the rights to make settlements, recognize claims or waive them fully or partially, make changes to the subject of the claim, bring a counterclaim, appeal the court judgments or decisions pursuant to appeal or cassation procedure, submit the case to the court of arbitration, receive the execution documents, submit them for recovery and receive the property or cash awarded to the Assignee or waive the right to receive this property or cash, terminate the execution proceedings and sign any documents in respect of aforementioned. The Assignee shall pay the commission (if any) to the Partner for the performance of the activities specified in this clause pursuant to the price list effective at the respective moment. Upon exercising the authority granted by the Assignee in this clause the Partner has full discretion to choose which action to take in case of the default of the Borrower, however, the Partner undertakes to act in the interests of the Assignee with a due care. If requested by the Partner, the Assignee shall issue the Partner an additional power of attorney to carry out the Partner’s rights under this Section as long as the need arises without additional conditions for granting it.
9.3. The Assignee understands the default risk of the Borrower as the result of which the Assignee may fail to recover the Claim in full amount. The Partner shall perform all necessary and allowed actions to facilitate timely and full recovery of the Claim without an involvement of the Assignee. In the event of the Borrower’s default the Loan Originator, the Partner and AV Marketplace shall not assume responsibility for the security of the Claim, and the Partner does not have an obligation to repay to the Assignee its paid Assignment Fee or any part thereof, unless the Parties have agreed otherwise in a written form.
10. Buyback of the Claim
10.1. If provided in the Basic Terms and Conditions, the Loan Originator shall be obliged to unilaterally exercise its buyback obligations if the Borrower delays the payments arising from the Loan Agreement by more than 60 (sixty) days.
10.2. The Loan Originator has the obligation in case the Borrower delays any payments arising from the Loan Agreement by more than 60 (sixty) days, if provided in the Basic Terms and Conditions, to unilaterally exercise the buyback obligations by paying a buyback price to the Assignee. The Loan Originator hereby authorizes AV Marketplace, in case if the Loan Originator’s obligation to exercise its buyback obligations have occurred, to write off from the Loan Originator’s Account and transfer the virtual money equivalent to the buyback price to the Virtual Account of the Assignee immediately, without obtaining prior separate order from the Loan Originator. The Claim shall be considered as returned to the Loan Originator from the moment of the payment of the virtual money equivalent to the buyback price in the Virtual Account of the Assignee. The Assignee shall not make any complaints or claims against the Loan Originator in respect of the exercise of the buyback obligations due to lost profit and any other damages in this respect.
10.3. The Parties by concluding the Agreement agree on significant components of the agreement on buyback of the Claim. Terms and conditions of the agreement on buyback of the Claim are included in the terms and conditions of the Agreement, the conclusion of a separate agreement on buyback of the Claim is therefore not necessary. As of the time of the payment of the buyback price referred to in Clause 10.4 of the General Terms and Conditions by the Loan Originator the agreement on buyback of the Claim shall be considered concluded, except as otherwise expressly provided in the Agreement.
10.4. In case the Loan Originator exercises the buyback obligations, the buyback price of the Claim paid by the Loan Originator to the Assignee for the buyback is equal to the total amount of the remaining principal amount of the Claim the Assignee holds and accumulated and outstanding Interest of the Claim the Assignee holds specified in the i-Platform in euros (EUR) as at the time of exercising the buyback obligations, except as otherwise expressly provided in the Agreement.
10.5. Buyback price forms a full, final and overall payment to the Assignee for the re-transfer of the Claim and any other related rights or liabilities and advantages, and it shall not be increased or reduced, and includes all applicable taxes and dues of the Republic of Latvia (existing and any subsequent) in respect of the Buyback price, the payment whereof is a responsibility of the Assignee only.
11. Re-purchase of the Claim
11.1. By conclusion of the Agreement the Loan Originator is provided with the re-purchase rights and obligations to the Claim, whereas the Assignee shall undertake to sell back the Claim to the Loan Originator, if the Loan Originator exercises its re-purchase rights or obligations. The Assignee has the right to sell the Claim only to another i-Platform User, AV Marketplace or Partner. If the Assignee sells the Claim to another i-Platform User or AV Marketplace, it shall take place together with the re-purchase rights and obligations of the Loan Originator on the Claim arising from the Agreement. If the Assignee, within the scope of the i-Platform, sells the Claim further to another User or AV Marketplace, the re-purchase rights and obligations of the Loan Originator included in the Agreement and the re-transfer obligation of the Assignee become binding to the new acquirer of the Claim.
11.2. The Loan Originator has the right, but not an obligation to exercise its re-purchase rights at any time and at the sole discretion of the Loan Originator, except as otherwise expressly provided in the Agreement.
11.3. The Loan Originator has the obligation in case this Agreement is terminated as per Clause 13.1 or 13.2 of the General Terms and Conditions or in case of insolvency of the Loan Originator or default by the Loan Originator according to the cooperation agreement concluded by and among the Loan Originator, the Partner and AV Marketplace to unilaterally exercise the re-purchase rights and obligations on the Claim assigned to the Assignee by the Agreement by paying a re-purchase price to the Assignee.
11.4. The Loan Originator hereby authorizes AV Marketplace, in case if the Loan Originator’s obligation to exercise its re-purchase rights and obligations has occurred, to write off from the Loan Originator’s Account and transfer the virtual money equivalent to the re-purchase price to the Virtual Account of the Assignee immediately, without obtaining prior separate order from the Loan Originator. In case the Loan Originator wishes to exercise its re-purchase rights, by a separate order the Loan Originator shall authorize AV Marketplace to write off from the Loan Originator’s Account and transfer the virtual money equivalent to the re-purchase price to Virtual Account of the Assignee. The Claim shall be considered as returned to the Loan Originator from the moment of the payment of the virtual money equivalent to the re-purchase price in the Virtual Account of the Assignee. The Assignee shall not make any complaints against the Loan Originator in respect of the exercise of the re-purchase rights and obligations due to lost profit and any other damages in this respect.
11.5. The Parties by concluding the Agreement agree on significant components of the agreement on re-purchase of the Claim. Terms and conditions of the agreement on re-purchase of the Claim are included in the terms and conditions of the Agreement, the conclusion of a separate agreement on re-purchase of the Claim is therefore not necessary. As of the time of payment of the re-purchase price referred to in Clause 11.6 of the General Terms and Conditions by the Loan Originator the agreement on re-purchase of the Claim shall be considered concluded.
11.6. In case the Loan Originator exercises the re-purchase rights or obligations, the re-purchase price of the Claim paid by the Loan Originator to the Assignee for re-purchase is calculated as the buyback price as per Clause 10.4 of the General Terms and Conditions, except as otherwise expressly provided in the Agreement.
11.7. Re-purchase price forms a full, final and overall payment to the Assignee for the re-transfer of the Claim and any other related rights and advantages, and it shall not be increased or reduced, and includes all applicable taxes and dues of the Republic of Latvia (existing and any subsequent) in respect of the re-purchase price, the payment whereof is a responsibility of the Assignee only.
12. Personal Data and Communication with the Borrower
12.1. The Parties shall not inform the Borrower on the fact of the assignment of the Claim, except as provided in this Agreement. The Parties shall not make any complaints against each other in this regard.
12.2. The Assignee understands and is informed that the Loan Originator, the Partner and AV Marketplace have an obligation to ensure the confidentiality of the Borrower’s personal data, therefore the Loan Originator, the Partner and AV Marketplace in the scope of the Agreement upon the Assignee’s request shall disclose only information of limited content to the Assignee about the Borrower.
12.3. The Loan Originator, the Partner and AV Marketplace shall not disclose to the Assignee the name, last name, business name, personal ID number, registration number, phone number, e-mail address, photo of the Borrower or its representatives and other confidential information. The Assignee shall not request the Loan Originator, the Partner and/or AV Marketplace to disclose such confidential information about the Borrower, as well as shall not bring any claims against the Loan Originator, the Partner, AV Marketplace and/or the Borrower in this regard.
12.4. The Assignee during the validity period of the Agreement shall not contact the Borrower directly in respect of the concluded Agreement and the assigned Claim, including, the Assignee shall not visit the Borrower at its place of residence or business location, nor communicate with it using any messenger applications or social media, nor request from the Borrower any payments without the mediation of the Partner, nor make any claims against the Borrower and not initiate any claims in court or a court of arbitration against the Borrower.
12.5. The Assignee understands and is informed that AV Marketplace, the Partner and the Loan Originator are not obliged to disclose to the Assignee the information and/or documents related to the debt collection proceedings against the Borrower. The Assignee shall not make any complaints against AV Marketplace, the Partner, the Loan Originator and the Borrower in this regard.
12.6. The Assignee is committed not to make any actions that may adversely affect the rights of the AV Marketplace, the Partner, the Loan Originator, especially statements on the exemption of the Borrower in terms of transfer the Claim arising from the Loan Agreement to the User.
13. Termination of the Agreement
13.1. AV Marketplace and the Partner, together and each individually, are entitled to terminate the Agreement without a prior notice, if:
13.1.1. AV Marketplace pursuant to the Terms and Conditions of the i-Platform has limited the Assignee’s rights to use the i-Platform and/or terminated the i-Platform User Agreement concluded with the Assignee and deleted the User Profile;
13.1.2. the Assignee fails to comply with the terms and conditions of the Agreement or the Terms and Conditions of the i-Platform;
13.1.3. AV Marketplace has suspicions on the identity of the Assignee, and AV Marketplace has not been able to contact the Assignee to confirm the content of the transaction;
13.1.4. the instruction of the Assignee is unclear and distorted due to interruption in communication, and this state persists for a long time;
13.1.5. the Assignee has fully or partially recalled the authorization included in the Agreement or the Terms and Conditions of the i-Platform.
13.2. On and at any time after the occurrence of an event of default of the Partner (as defined under the cooperation agreement entered into by and among AV Marketplace, the Loan Originator and the Partner) AV Marketplace has the right to unilaterally terminate the Agreement at any time during the validity period of the Agreement, by sending a notice to the Assignee’s e-mail, and to the Loan Originator and the Partner at the registered address, at least 10 (ten) Business Days in advance.
13.3. In the event specified in Clause 13.1 or 13.2 of the General Terms and Conditions the Agreement shall be considered terminated as of the moment, when AV Marketplace and/or the Partner has informed the other Parties on its termination. The Claim shall be considered as returned to the Loan Originator from the moment of the termination of the Agreement. In case of premature termination of the Agreement, the Loan Originator shall exercise its re-purchase rights and obligations and pay to the Virtual Account of the Assignee the virtual money equivalent to the remaining principal amount of the Claim and accumulated and outstanding Interest specified in the i-Platform as at the date of termination of the Agreement.
13.4. If the Loan Originator has exercised the buyback obligation or the re-purchase rights or obligations, the Agreement shall be considered terminated as of the moment when the Loan Originator has paid the buyback or the re-purchase price for the Claim to the Assignee and it was deposited into the Virtual Account of the Assignee.
14. Other Terms and Conditions
14.1. The Agreement consists of the Basic Terms and Conditions and the General Terms and Conditions. If the Basic Terms and Conditions contradict with the General Terms and Conditions, the Basic Terms and Conditions shall prevail.
14.2. The nullity of the whole or part of any provision of the Agreement does not affect the validity of other provisions. Should any agreementual provision or its part not be valid, effective or feasible, for whatever reason, the Parties shall undertake any legally admissible means to organize one’s rights, responsibilities, and other interests in order to execute the agreementual goals in other, consistent with the law, and feasible way which is the closest to the economic goal approved by the Parties upon the conclusion of Agreement.
14.3. If the representation of the numbers in words in the text of the Agreement differs from the representation in numbers, the representation of the numbers in words shall prevail.
14.4. The Terms and Conditions of the i-Platform become effective at the moment of the conclusion of the Agreement and being an integral part thereof shall be used in the matters not discussed in the Agreement. If the Terms and Conditions of the i-Platform contradict with the Agreement, the Agreement shall prevail.
14.5. The laws and regulations of the Republic of Latvia shall govern the legal relations arising from the Agreement.
14.6. Any disputes among the Parties in relation to the Agreement shall be resolved in the Riga City Pardaugava Court of the Republic of Latvia as the court of first instance pursuant to the effective laws and regulations of the Republic of Latvia.
14.7. The Agreement is drafted in the English language.
