Investor Agreement — Effective June 2015 to July 2015
Effective 3 June 2015 to 23 July 2015
This document sets out the terms on which a person (whether an individual or a corporate entity) (you or your) agrees to use the service provided by Harmoney Limited (Harmoney) to lend money (through the Trustee as bare trustee) on a peer-to-peer basis to other persons.
By accepting these terms, an agreement is formed between you, Harmoney, and the Trustee.
1. This agreement sets out the terms on which you are able to access and use the Service. If there is any inconsistency between these terms and any other terms set out on the Website, these terms will prevail (except as expressly contemplated by these terms).
2. You acknowledge that Harmoney provides the Service under a licence which Harmoney holds pursuant to the FMCA.
3. In providing the Service, Harmoney will (and will procure that its Related Companies who provide any aspects of the Service will):
(a) exercise the care, diligence, and skill that a prudent licensee for the Service would exercise in the same circumstances; and
(b) if any aspect of the Service is contracted out, take all reasonable steps to:
(i) ensure that those functions are performed in the same manner, and are subject to the same duties and restrictions, as if Harmoney were performing them directly; and
(ii) monitor the performance of those functions.
Registration as an Investor
4. In order to access and use the Service, you must register as an Investor by completing the Investor Application. Harmoney reserves the right not to register any person as an Investor if that person has not completed the registration process to Harmoney’s satisfaction or does not meet Harmoney’s eligibility criteria.
5. Harmoney’s eligibility criteria for registering as an Investor are:
(a) you must satisfy Harmoney's "know your customer" requirements (as determined by Harmoney at its discretion from time to time); and
(b) in addition, if you are an individual you must:
(i) be a New Zealand resident, which Harmoney will verify through you having a New Zealand residential address and a bank account with a registered New Zealand bank; and
(ii) be 18 years of age or older when you register.
6. Harmoney may terminate your registration as an Investor at any time at its absolute discretion by notice to you.
7. Harmoney may suspend your registration as an Investor at any time by notice to you if Harmoney reasonably believes that you are not complying with the terms of this agreement or are otherwise not using the Service for its intended purpose.
8. You may terminate your registration as an Investor at any time by notifying Harmoney through the Website or via 0800 HARMONEY or email@example.com.
9. If your registration is terminated or suspended, this agreement will continue to apply in respect of any Loan Contracts and Loans to which you are a party when the termination or suspension takes effect.
10. Subject to clause 9, this agreement will apply to you for so long as you are registered as an Investor.
11. Every Loan you fund through the Service will be made by the Trustee (acting through Harmoney as its agent). The Trustee will then hold that Loan on a bare trust for the benefit of yourself and every other Participating Investor in accordance with clause 15.
12. The process through which Loans will be made is as follows:
(a) All amounts you want to invest through the Service will be credited to the Investor Account (which is a trust account operated by Harmoney, as set out in clause 36).
(b) When you place an Order to invest in a particular Loan Listing, and that Order is filled, the amount you invest will be transferred from the Investor Account to the Advance Account. All other amounts invested by other Investors who participate in funding that Loan will similarly be transferred from the Investor Account to the Advance Account. In this way, all funding provided by the Participating Investors for that particular Loan will be aggregated in the Advance Account.
(c) The Loan will be made to the relevant Borrower via the Trustee. This will occur by Harmoney (at the Trustee's direction) deducting the Platform Fee from the Loan Amount deposited in the Advance Account, and transferring the balance of the Loan Amount to the Borrower's nominated account.
13. You appoint the Trustee as trustee in respect of your interests in the Advance Account, every Loan Contract relating to a Loan in which you Participate, every such Loan, and the Collection Account, all on and subject to the terms of this agreement. The Trustee accepts this appointment.
14. You direct and authorise the Trustee:
(a) if any Loan Listing in respect of which you have placed an Order is Fully Funded, to:
(i) enter into the relevant Loan Contract; and
(ii) apply funds held for you in the Advance Account equivalent to the Order Amount towards Settling that Loan,
by way of investing those funds in the Loan for your benefit; and
(b) to appoint Harmoney as its agent as provided in clauses 23 and 24.
15. The Trustee confirms, and the parties agree, that the Trustee holds:
(a) the Advance Account on trust for the benefit of all Investors whose funds have been transferred from the Investor Account to the Advance Account in respect of Loans that have not yet been Settled, in accordance with those Investors' respective interests;
(b) every Loan Contract relating to a Loan, and every such Loan, on a separate trust for the benefit of the Investors who will or do Participate in that Loan, in accordance with their respective Participations; and
(c) the Collections Account on trust for the benefit of all Investors who are beneficially entitled to any payments (including Loan Repayments) received or recovered from Borrowers under Loans that have been paid into the Collections Account and that have not yet transferred to the Investor Account (net of deductions allowed by this agreement), in accordance with those Investors' respective interests,
in each case on and subject to the terms of this agreement.
16. The Trustee further confirms, and the parties agree, that the Trustee has no power to invest, pay, or otherwise apply, any funds or property the Trustee holds for your benefit under clause 15 without your express direction or as provided in this agreement.
17. The Trustee will account to you for your share (in accordance with your Participation) of all amounts which are received by or on behalf of the Trustee from the Borrower under a Loan in which you Participate, subject to deductions permitted under this agreement.
18. You acknowledge that the Trustee acts as trustee in respect of the Service. You agree that you are not entitled (whether alone or together with any other Participating Investors) to:
(a) give the Trustee a direction that is inconsistent with this agreement;
(b) call for the transfer of all or any share of any Loan in which you Participate or the relevant Loan Contract to (or as directed by) you;
(c) terminate the trust of any such Loan and Loan Contract; or
(d) discharge or replace the Trustee, or appoint any person as trustee of such trust in addition to the Trustee.
19. Harmoney will pay the Trustee such remuneration and fees as Harmoney and the Trustee may from time to time agree for the Trustee's trustee services under this agreement. You are not liable to pay the Trustee any remuneration or fees.
20. Harmoney can in its discretion replace the Trustee. Any such change will not affect your rights and obligations under this agreement or in respect of any funds or property held on trust for you. The replacement Trustee will have the same rights and obligations as the Trustee it replaces, without further action being necessary.
21. Harmoney will provide the Service as set out in this agreement.
22. Harmoney will provide the Service as principal for its own benefit, subject to clauses 13, 23, 24, and 36.
23. Harmoney will act as the Trustee's agent in:
(a) opening and transacting the Advance Account;
(b) concluding all Borrower Agreements on the Trustee's behalf (in addition to entering into the Borrower Agreements as principal);
(c) concluding all Loan Contracts;
(d) advancing all Loans, including by Settling them;
(e) administering all Loans (including without limitation by providing all disclosure statements required to be given under the CCCFA, by providing the Collection Services, and by amending any Loan Contracts under clause 64);
(f) opening and transacting the Collections Account;
(g) performing the Trustee's duties and exercising the Trustee's powers under clauses 28 to 30; and
(h) transferring funds held for you in the Collections Account (after deductions permitted by this agreement) to the Investor Account for your benefit,
as provided in, and subject to the terms of, this agreement.
24. The Trustee (which each Investor confirms) appoints Harmoney as the Trustee's agent to do all things referred to in clause 23, and all other things which are (or which Harmoney considers) reasonably incidental to them. Harmoney accepts this appointment.
25. The fees to which Harmoney is entitled for acting as the Trustee's agent are set out in clause 52. Harmoney is not entitled to any other fees from Investors (through the Trustee) for providing the Service.
26. Harmoney may subcontract or delegate any of its duties or authorities under this agreement, to the extent permitted by law. Harmoney will be liable for any default by the subcontractor or delegate (subject to the limitations on Harmoney's liability provided in this agreement).
27. If a Harmoney Servicer Default occurs, a back-up servicer will be appointed to carry out the role of Harmoney under this agreement (on terms that the back-up servicer will be paid reasonable fees for doing so). Any such appointment will not affect your rights and obligations under this agreement or in respect of any Loan or Loan Contract. The appointed back-up servicer from time to time will have the same rights as Harmoney did, without further action being necessary.
Taxation and Returns
28. When you register as an Investor:
(a) you must notify Harmoney (acting on behalf of the Trustee) whether you are an NZ Tax Resident or a Non-NZ Tax Resident;
(b) if you are an NZ Tax Resident, you must provide to Harmoney:
(i) your IRD number;
(ii) a copy of your RWT Exemption Certificate (if applicable);
(iii) the rate at which RWT should be withheld from interest payments accruing for your benefit under a Loan; and
(iv) such other tax-related information as Harmoney requests; and
(c) if you are a Non-NZ Tax Resident, you must provide to Harmoney:
(i) the country in which you are resident for income tax purposes; and
(ii) such other tax-related information as Harmoney requests.
29. If you are a Non-NZ Tax Resident, the Trustee (acting on behalf of the relevant Borrower, and through Harmoney) will deduct NRWT from interest paid for your benefit under the Loan. However, if the AIL regime is utilised in respect of your Participation in the Loan:
(a) NRWT will not be deducted from the interest paid for your benefit under the Loan; and
(i) the Trustee (acting on behalf of the Borrower, and through Harmoney) will pay the AIL levied in relation to that interest; and
(ii) the share of the interest the Trustee holds for your benefit will be reduced by an amount equal to that AIL.
30. If you are an NZ Tax Resident and you do not provide Harmoney with a copy of your RWT Exemption Certificate (if appropriate), the Trustee (acting on behalf of the Borrower, and through Harmoney)) will deduct RWT from interest paid for your benefit under the Loan, at the rate you notified to Harmoney under clause 28(b) (or at such higher rate as the law may require). If you do not provide Harmoney with your IRD number (as required under clause 28(b)(i)) or your RWT rate (as required under clause 28(b)(iii)), you will automatically have RWT deducted at the maximum rate (currently 33%).
31. You acknowledge and agree as follows:
(a) Harmoney, the Trustee, and the Borrower do not have to reimburse you for any amount that is deducted or withheld, whether under clause 29 or 30 or any legal requirement, from any interest paid for your benefit. References in this agreement to amounts being paid to you are to be read accordingly.
(b) If Harmoney, the Trustee, or the Borrower becomes liable to make any payment of, or on account of, tax in respect of any Loan (including any AIL payment), you will indemnify them in respect of that liability.
(c) References on the Website to interest rates and rates of return are expressed as gross returns, before deduction of any fees or without any withholding or deductions, unless otherwise specified.
32. You acknowledge and agree that a Borrower is entitled to prepay all of its Loan early, without penalty, provided that all interest, fees, and charges payable under the Loan Contract accrued to the date of prepayment are also paid. You accept that such early prepayment will affect your returns under the Loan. You further accept and agree that your returns may be affected if the Loan Contract is varied under clause 64.
Retail Investors and Wholesale Investors
33. This agreement applies to both Retail Investors and Wholesale Investors, where:
(a) a Wholesale Investor is an Investor whom Harmoney has agreed to treat as a Wholesale Investor for the purposes of the Service; and
(b) a Retail Investor is an Investor who is not a Wholesale Investor.
References in this agreement to an "Investor" are references to both a Wholesale Investor and a Retail Investor, except as set out in clauses 34 and 35.
34. Harmoney reserves the right to designate a Wholesale Investor as a Retail Investor at any time. This designation will not affect any Loan or Loan Contract in which that Investor has Participated before the designation took effect.
35. A Wholesale Investor:
(a) will be entitled to fund (through the Trustee) entire Loans; and
(b) will be randomly allocated entire Loans to fund by Harmoney from the pool of Loans available to be funded, and will not be entitled to select any specific Loans (but can select investment criteria within which entire Loans will be randomly allocated by Harmoney to that Wholesale Investor),
and will otherwise have the same rights and obligations of an Investor under this agreement.
36. Harmoney will maintain an Investor Account, which it will hold on trust for the benefit of Investors whose funds have been deposited into that account (to the extent that their funds have not yet been transferred out of that account). Harmoney will not make any payments from funds that are held for you in the Investor Account without your express direction or as otherwise expressly set out in this agreement.
37. You acknowledge and agree as follows:
(a) When you place an Order, the amount of that Order will be "locked" in the Investor Account until the earlier of:
(i) that Order being accepted (through the relevant Loan being Fully Funded, and a Loan Contract being concluded as set out in clause 48); and
(ii) the expiry of the Listing Period.
During this period, you will not be able to use the amount of your Order for any other Order or to withdraw that amount from the Investor Account.
(b) If your Order is accepted, and the relevant Loan is funded:
(i) Harmoney is authorised to deduct your Order Amount from the Investor Account, and to transfer it to the Advance Account for your benefit;
(ii) the Trustee (through Harmoney) will enter into the Loan Contract; and apply your Order Amount to fund Settlement.
(c) If the Trustee or Harmoney (as its agent) receives any Loan Repayments and other amounts payable by the Borrower to the Trustee, those payments will be credited to the Collections Account, where it will be held on trust for you and each other Participating Investor in proportion to your and their respective Participations. The relevant Investor Fees and any Actual Collection Costs owed to Harmoney and any withholdings or deductions on account of RWT, NRWT or AIL will then be deducted from those amounts. Following this, your share of the balance will be paid to the Investor Account for your benefit.
(d) You may at any time request Harmoney to transfer any unallocated cleared funds that are held in the Investor Account for your benefit, from the Investor Account to your Nominated Account. Harmoney will action the transfer within 1 Business Day. You may change your Nominated Account by notice to Harmoney.
38. An Order is a legally binding offer by you to lend (through the Trustee) to the relevant Borrower the Order Amount, on the terms set out in the relevant Loan Listing and otherwise as set out in this agreement.
39. You may place an Order on a Loan Listing at any time, provided that you have sufficient unallocated cleared funds held for you in the Investor Account at that time. Each of your Orders must be expressed in multiples of $25, and you must state the aggregate amount you want to invest in that Loan Listing.
40. Once you have placed an Order, you cannot withdraw it. Your Order will remain open for acceptance for the Listing Period. You will be notified by Harmoney if your Order is accepted.
41. You may not be successful with your Order, or may be only partially successful with your Order, regardless of what the unfunded balance of the relevant Loan is shown to be on the Website when you submit your Order.
42. If you select the "Self Directed" option on the Website, you will be able to select the Loans on which you wish to bid, and the amount you wish to invest in that Loan. You will be required to confirm your Order before it is placed in the marketplace on the Website.
43. If you select the "Quick Invest" option on the Website, you will be asked to confirm the target interest rate that you wish to achieve with your investments and the amount you want to invest. Harmoney will then automatically place Orders to invest that amount in Loans which meet the investment criteria you select.
44. When you set a "Quick Invest" instruction:
(a) you are authorising Harmoney to make a one-time deduction from the funds held to your benefit in the Investor Account in accordance with that instruction;
(b) Harmoney will place Orders up to the amount you specify, and therefore that entire amount may be "locked" pending acceptance or otherwise of those Orders;
(c) Harmoney will place only one Order of $25 for every Loan which meets your investment criteria;
(d) Harmoney's ability to place Orders which comply with your investment instruction will depend on the availability of Loans on the Website at the relevant time (and therefore not all of the amount you specify to be invested may actually be invested at any time); and
(e) if there are insufficient funds held to your benefit in the Investor Account, your instruction will not be carried out by Harmoney.
45. If you select the "Auto Invest" option on the Website, you will be asked to confirm the target interest rate that you wish to achieve with your investments. Harmoney will then automatically place Orders to invest in Loans which meet the investment criteria you select.
46. When you have set an "Auto Invest" instruction:
(a) you are authorising Harmoney to make deductions from the funds held for you in the Investor Account, up to the available funds, in accordance with that instruction;
(b) you may turn off that instruction at any time, but any Orders which have already been placed by Harmoney for your benefit pursuant to that instruction cannot be cancelled or reversed;
(c) Harmoney will place Orders up to the then current balance of available funds held for you in the Investor Account, and therefore the entire balance of those funds may be "locked" pending acceptance or otherwise of those Orders;
(d) any money which is paid into the Investor Account for your benefit, including the proceeds of Loan Repayments, may be immediately reinvested, and may not be available to you to withdraw from the Investor Account;
(e) Harmoney's ability to place Orders which comply with your investment instructions will depend on the availability of Loans on the Website at the relevant time, and therefore not all of the available funds held for you in the Investment Account may actually be invested at any time; and
(f) if there are insufficient funds held for you in the Investor Account, your instruction will not be carried out by Harmoney.
47. If sufficient Orders are placed during the Listing Period to Fully Fund a proposed Loan, Harmoney will notify the Borrower of that fact and (acting as the Trustee's agent) provide the relevant Loan Disclosure to the Borrower. For the purposes of this agreement, the Loan Disclosure will be treated as provided to the Borrower on the day on which it is emailed to the Borrower, or otherwise sent to the Borrower by electronic communication (within the meaning of section 35 of the CCCFA).
48. Immediately after Harmoney has provided the Loan Disclosure to the Borrower, a Loan Contract will come into existence under which the Trustee (who will be the lender of the Loan) will agree to advance the total Loan Amount to the Borrower. The Loan Contract will be on the form set out on the Website when the Loan Listing for the Loan was placed.
49. In respect of any Loan in which you Participate, you acknowledge and agree as follows:
(a) Your interests in that Loan and the related Loan Contract are legally held on trust for your benefit by the Trustee, on the terms set out in this agreement.
(b) Your interests in that Loan and the related Loan Contract cannot be dealt with except as may be permitted in the Secondary Market.
(c) You will be entitled to receive your share (in accordance with your Participation) of any Loan Repayments actually received, together with any fees paid by the Borrower to which you are entitled, after deduction and payment to Harmoney of the relevant Investor Fees and any Actual Collection Costs, and after deduction and payment over of any withholdings or deductions on account of RWT, NRWT, or AIL.
(d) You cannot personally pursue the Borrower if the Borrower defaults on any of its obligations under the Loan Contract.
(e) You will not be provided with any information which would enable you to identify the Borrower (unless required by law or to enable you to comply with your obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (or equivalent legislation in other countries).
(f) You do not have any contractual relationship with other Participating Investors (whether in the nature of partnership, joint venture, or otherwise) by virtue of Participating in the same Loan.
(g) You and the other Participating Investors beneficially co-own the Loan as owners in common (in accordance with your respective Participations), and not as joint owners. Accordingly, if you die, your interest in the Loan will be an asset in your estate; it will not devolve on the surviving Participating Investors.
50. A Borrower will be required to provide a direct debit authorisation for all Loan Repayments and other amounts payable by the Borrower in respect of a Loan, including any fees payable by the Borrower to Harmoney. Harmoney will be entitled to process additional direct debit payments to cover any fees payable by the Borrower to Harmoney.
51. Harmoney will (itself or through a third party) provide collection and enforcement services (collectively, Collection Services) in respect of all Loans, as the Trustee's agent. The Collection Services will include:
(a) monitoring all amounts payable under each Loan Contract;
(b) taking appropriate steps to contact the Borrower for payment arrears; and
(c) taking appropriate recovery action where there is a payment default.
52. Subject to clause 53, Harmoney is entitled to the following fees (collectively, Investor Fees) in respect of each Loan for providing such collection and enforcement services:
(a) Service Fee: Harmoney will be paid a fee (Service Fee) for performing the Collection Services. The Service Fee will be equal to a fixed percentage (as set out on the Website from time to time) of all amounts (other than dishonour fees, overdue fees, and Actual Collection Costs, if applicable) recovered under the Loan.
(b) Collections Fee: If a Borrower is in arrears of a payment obligation under the Loan, Harmoney will (while continuing to be paid the Service Fee) also be paid an amount (Collections Fee) equal to all overdue fees and dishonour fees it collects or recovers under the Loan.
53. The Investor Fees and Actual Collection Costs in respect of a Loan are payable as follows:
(a) The Actual Collection Costs are payable as a deduction from the enforcement costs recovered under the Loan Contract. Neither you nor the Trustee will be obliged to pay any Actual Collection Costs, except out of the enforcement costs actually recovered.
(b) The Collections Fee is payable as a deduction from the overdue fees and dishonour fees recovered under the Loan. Neither you nor the Trustee will be obliged to pay the Collections Fee to Harmoney, except out of the overdue fees and dishonour fees actually recovered.
(c) The Service Fee is payable as a deduction from the Loan Repayments and any other amounts actually recovered under the relevant Loan (not being enforcement costs and expenses, overdue fees, or dishonour fees). If any Loan Repayments or such other amounts are not recovered:
(i) each Investor will receive a pro-rata proportion of any Loan Repayments or such other amounts actually recovered (after deduction of any withholdings or deductions on account of RWT, NRWT, or AIL, and of Harmoney’s Service Fees in respect of that Loan); and
(ii) neither you nor the Trustee will be obliged to pay any Service Fees to Harmoney, except on the Loan Repayments and such other amounts actually recovered.
(d) All deductions of the Actual Collection Costs, Collections Fee, and Service Fee will be made from the Collections Account.
(e) All sums received or recovered from a Borrower under a Loan will be appropriated as Harmoney determines, and otherwise in the following order:
(i) first, to any enforcement costs, overdue fees, and dishonour fees then owing (and pro rata as between these amounts); and
(ii) secondly, to interest then due and owing; and
(iii) lastly, as to any balance then remaining, to the principal outstanding and to any other amounts owed to the Trustee under the Loan.
54. You acknowledge and agree that you have no right or ability to carry out any of the Collection Services in respect of your Participation, any Loan in which you Participate, or any Loan Contract related to such Loan.
55. Harmoney (or its Related Company) may provide a Secondary Market through the Website, which will enable Investors to offer their Participations for sale on the Website from time to time. You will need to agree to any terms which Harmoney (or the Related Company) specifies in order to use any Secondary Market.
56. You warrant to Harmoney that:
(a) all information you provide to Harmoney is true, accurate, and complete, and there is no information which has not been provided which would affect Harmoney’s decision to register you as an Investor; and
(b) you will provide Harmoney with updated information in respect of your Investor Application if any of your circumstances change in a material respect.
Liability of Harmoney and the Trustee
57. Neither Harmoney nor the Trustee will have any liability for any failure to provide the Service, or otherwise to comply with this agreement, if the failure or non-compliance is caused by events beyond its reasonable control.
58. The parties acknowledge and agree, in respect of Harmoney, each Related Company of Harmoney, and the Trustee, and their respective employees, directors, officers, agents and contractors (together, relevant persons) and to the fullest extent permitted by law, that:
(a) none of the relevant persons will have any liability in respect of:
(i) any failure to provide the Service, or otherwise to comply with this agreement, if the failure or non-compliance is caused by events beyond its reasonable control; or
(ii) any failure by a Borrower to repay all or any amounts which are owing by that Borrower under a Loan Contract;
(b) any liability of any relevant person will be limited to the amounts actually received by Harmoney which are payable to you, less all deductions from such amounts which are authorised by this agreement (and in aggregate no more than that amount can be recovered from all relevant persons),
provided that nothing in this clause 58 or this agreement (except for clause 59) limits any rights you may have under the Consumer Guarantees Act 1993.
This clause 58 is for the benefit of, and is enforceable by, each relevant person, in terms of the Contracts (Privity) Act 1986.
59. If you are in trade, and you acquire the Service in trade, all parties agree that:
(a) the provisions of the Consumer Guarantees Act 1993; and
(b) sections 9, 12A, and 13 of the Fair Trading Act 1986,
will not apply to this agreement.
60. You acknowledge that you do not rely on Harmoney’s skill or judgment as to the suitability or otherwise of the Service for your specific needs, in terms of providing a service through which you can seek to fund loans.
61. You acknowledge that the Website may not be available at all times and that neither Harmoney nor the Trustee will have any liability for any loss of profit or opportunity (however described) arising from any inability to access the Website at any time.
62. Subject to clause 63(b), Harmoney may modify this agreement, and the way in which it provides the Service, at any time by notice on the Website. You should check the notices section of the Website regularly. Any such modifications will apply from the date stated on the Website (amendment date).
63. Harmoney may:
(a) modify any of the fees charged in connection with the Service (including the Platform Fee, Service Fees, and Collections Fees) at any time; and
(b) introduce any new types of Investor Fees in connection with the Service, with effect from the time specified on the Website; provided that a new type of Investor Fee will apply in respect of a Loan only if:
(i) the Loan Listing for the Loan was placed on the Website after that new type of Investor Fee came into effect; or
(ii) introducing the new type of Investor Fee is considered necessary as a result of a legal or regulatory development (including as a result of any legislative change or in the interpretation or application of any legislation).
Any new type of Investor Fees will be charged at Harmoney's prevailing rate (as specified on the Website), and payable as a deduction from amounts actually recovered under the relevant Loan. Neither you nor the Trustee will be obliged to pay any such Investor Fee except out of the amounts actually recovered.
64. You acknowledge and agree that the Loan Contract may be varied as the Trustee (acting through Harmoney) in its discretion considers fit, including without limitation if the Trustee or Harmoney considers that:
(a) the Borrower is suffering or will suffer unforeseen hardship (including as contemplated by subpart 2.8 of the CCCFA); or
(b) a responsible lender would otherwise agree to such variation.
Such variation may be in respect of the term of the Loan, the calculation, amount, or time for payment of any amount, or any other matter.
65. Harmoney may provide you with communications in relation to the provision of the Service, including notices and disclosures, by mail or in an electronic form, including by email.
66. You must provide notices to Harmoney by mail (posted to its registered address) or by email to the email address below.
67. If you have any questions about the Service or the terms of this agreement, please contact Harmoney as follows:
Phone: 0800 HARMONEY
68. Each of Harmoney and the Trustee is a member of the Financial Services Complaints Limited dispute resolution scheme. You may refer any dispute as to the provision of the Service to that dispute resolution service, details of which are available at http://www.fscl.org.nz/.
69. The entries made in the accounts maintained by Harmoney (as principal or as the Trustee's agent, as the case may be) are, in the absence of manifest error, conclusive evidence of the matters to which they relate.
70. You may not transfer or assign any of your rights or obligations under this agreement or in relation to any Participation, Loan, or any Loan Contract without Harmoney's prior written consent (which consent may be withheld at Harmoney’s absolute discretion). This clause 70 will not apply to any sale of a Participation utilising the Secondary Market.
71. This agreement and every trust arising under it are governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters arising under or in connection with this agreement (including in connection with any Loan Contract or Loan made under it) and every such trust.
72. In this agreement:
Actual Collection Costs in respect of a Loan means all costs, expenses, and liabilities actually incurred by Harmoney in enforcing and recovering any amounts owing under that Loan (including without limitation all legal costs);
Advance Account means the bank account operated by Harmoney on behalf of the Trustee into which funds are transferred by Harmoney from the Investor Account when an Order is accepted, and from which Harmoney (as agent for the Trustee) transfers funds to the relevant Borrower’s nominated account at Settlement;
AIL means the approved issuer levy payable under part 6B of the Stamp and Cheque Duties Act 1971;
Borrower means a person who has registered as a Borrower with Harmoney;
Borrower Agreement means the agreement entered into by a Borrower with Harmoney and the Trustee in relation to the provision of the Service by Harmoney to that Borrower;
Business Day means a day other than a Saturday, Sunday or statutory public holiday in New Zealand;
CCCFA means the Credit Contracts and Consumer Finance Act 2003;
Collections Account means the bank account operated by Harmoney on behalf of the Trustee:
(a) into which Loan Repayments and other amounts payable by Borrowers for the benefit of Investors are paid; and
(b) from which any tax deductions or withholdings on interest comprised in Loan Repayments (including any NRWT and AIL) are deducted and paid over to Inland Revenue, the Investor Fees and any Actual Collection Costs are paid to Harmoney, and the balance is repaid to the Investor Account for the benefit of the relevant Investors;
Collections Fees has the meaning given to that term in clause 52;
Collection Services means the services described in clause 51;
Credit Checks means the credit checks carried out by Harmoney on a Borrower, either itself or through a Related Company or a third party credit reporting agency;
Credit Grade means Harmoney’s proprietary credit grade attributed to a Borrower, which Harmoney generates based on information provided by a Borrower and otherwise obtains in respect of that Borrower (including through Credit Checks), details of which are set out on the Website;
FMCA means the Financial Markets Conduct Act 2013;
Fully Funded in relation to a Loan Listing or a Loan means that Harmoney has received sufficient Orders from Investors to fund the full amount of:
(a) the proposed Loan Amount; or
(b) any lesser amount the Borrower agreed to accept,
as specified in the relevant Loan Listing;
Harmoney Servicer Default means:
(a) the appointment of a liquidator to Harmoney; or
(b) Harmoney ceasing to hold a licence for the Service under the FMCA for a period of 5 Business Days;
Interest Rate means the annual interest rate (expressed as a percentage rate per annum) which is set by Harmoney in respect of a Loan Listing, which will be calculated daily on the outstanding amount of the Loan on the basis of a 365-day year and will be payable monthly in arrears by the Borrower (or compounded if not paid);
Investor means, as the context requires:
(a) a person who has registered as an Investor with Harmoney; or
(b) in relation to a Loan, a Participating Investor;
Investor Account means a trust account held by Harmoney for the benefit of all Investors whose funds have been deposited into that account for the purpose of investment or reinvestment in Participations or pending repayment to their Nominated Accounts, in accordance with their respective interests;
Investor Agreement means the agreement entered into by an Investor with Harmoney and the Trustee in relation to the provision of the Services by Harmoney to that Investor;
Investor Application means the application to become an Investor, set out on the Website or provided by Harmoney for you to complete and return to Harmoney;
Investor Fees has the meaning given to that term in clause 52, and includes any new types of Investor Fees introduced under clause 63(b);
Listing Period means the period from the date on which a Loan Listing is first listed on the Website to the earlier of 14 days from that date and the date on which the Loan which is the subject of that Loan Listing is Fully Funded;
Loan means the Loan Amount lent by one or more Investors (through the Trustee as trustee) to a Borrower, using the Service, and where applicable, includes the amount of all compounded or capitalised interest;
Loan Amount means, as the context requires:
(a) the amount that a Borrower wishes to borrow (inclusive of the amount of the Platform Fee payable on the Loan), as set out in the relevant Loan Listing; or
(b) the total amount of the Loan at Settlement (inclusive of the amount of the Platform Fee), as set out in the Loan Disclosure;
Loan Contract in relation to a Loan means the contract under which that Loan is made, as described in clause 48;
Loan Disclosure means, in respect of a Loan, the initial disclosure required under the CCCFA for that Loan;
Loan Listing means a listing on the Website which is placed by a Borrower and accepted by Harmoney, and which sets out the details of a Loan which the Borrower wishes to be funded;
Loan Repayments means, as the context requires:
(a) the monthly payments of principal and interest which will be payable by the Borrower in respect of the Loan Amount specified in a Loan Listing; or
(b) the monthly payments of principal and interest which are payable by the Borrower on a Loan which has Settled;
Nominated Account means the New Zealand bank account which is nominated by an Investor from time to time as the account into which funds held for the benefit of that Investor may be transferred from the Investor Account by Harmoney;
Non-NZ Tax Resident means an Investor who is not an NZ Tax Resident;
NRWT means non-resident withholding tax imposed under the NRWT rules in the Income Tax Act 2007;
NZ Tax Resident means an Investor who is: (i) resident in New Zealand under the Income Tax Act 2007; (ii) is engaged in business in New Zealand through a fixed establishment in New Zealand; or (iii) both;
Order means an offer by an Investor to participate in funding a Loan (or an offer by a Wholesale Investor to fund an entire Loan, where applicable), based on that Borrower’s Loan Listing;
Order Amount means the amount of an Order;
Participating Investor in relation to a Loan means an Investor who participated in providing funds to the Trustee to make that Loan; and in relation to an entire Loan funded by a Wholesale Investor includes that Wholesale Investor and each transferee of any share in that Wholesale Investor's beneficial interest in that Loan; and "Participate" has a corresponding meaning;
Participation means in relation to a Loan, a beneficial interest in that Loan comprising a principal amount of $25 together with the right to repayment from that Loan of that amount and all unpaid interest on that amount calculated at the relevant Interest Rate applicable to that Loan, together with all other rights and obligations of the Investor in respect of that Loan as set out in the relevant Investor Agreement and the beneficial rights of the Investor in the relevant Loan Contract for that beneficial interest (provided that a Wholesale Investor who funds an entire Loan shall be deemed to have invested in a series of beneficial interests in the Loan, each comprising a principal amount of $25, and each of which constitutes a "Participation");
Platform Fee means the fee owed by the Borrower to Harmoney in respect of a Loan which Settles;
Related Company has the meaning given to that term in section 2(3) of the Companies Act 1993;
RWT means resident withholding tax imposed under the RWT rules in the Income Tax Act 2007;
RWT Exemption Certificate has the meaning in section YA 1 of the Income Tax Act 2007;
Secondary Market means a market operated by Harmoney or a Related Company of Harmoney through the Website which enables Investors to sell their Participations;
Service means the peer-to-peer lending service which Harmoney provides through the Website;
Service Fees has the meaning given to that term in clause 52;
Settlement in relation to a Loan means:
(a) Harmoney arranging for the collection of funds from all Investors who have had their Orders on the relevant Loan Listing accepted, and (as directed by the Trustee) deducting the applicable Platform Fee for Harmoney's own account, and transferring the balance of the Loan Amount to the Borrower's nominated account (all via the Advance Account); and
(b) the time at which the above transfer occurs;
and Settle and Settled have corresponding meanings;
Trustee means the entity which is appointed by Harmoney from time to time to hold Loans on trust for the benefit of Investors; and
Website means the website at www.harmoney.com, or such other website as Harmoney may from time to time operate to provide the Service.
73. In this agreement:
(a) headings are inserted for ease of reference only, and do not affect the interpretation of this agreement;
(b) references to the singular include the plural and vice versa;
(c) references to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
(d) where the Investor consists of more than one person, the terms of this agreement bind each of them jointly and severally;
(e) reference to a party includes its permitted assignee or transferee; and any reference to the Trustee or to Harmoney includes any entity appointed to replace it under clause 20 or clause 27 (as applicable);
(f) reference to the "liability" of a person include references to its liability under any cause of action, whether in contract, tort, or equity or under any enactment;
(g) references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time and in any form, whether on paper or in an electronic form; and
(h) a reference to any legislation is a reference to that legislation as amended or replaced from time to time, and includes any regulations or legislative instrument made under it.