MASTER SERVICES AGREEMENT
BETWEEN
1. THE FINANCER; and
2. Raqamyah Crowdfunding, a Closed Joint Stock company incorporated under the laws of the Kingdom of Saudi Arabia, with Commercial Registration number 1010449309 and having its registered Head Office at 3252 Prince Mohammad Abdulaziz Road, Al Dugaother Commercial Center number 2, Second Floor, Olaya, Riyadh 12241-6055, Kingdom of Saudi Arabia ( Raqamyah).
BACKGROUND
1. Raqamyah provides an online peer-to-peer lending service platform (the Platform ) through which eligible participants can lend money (the Financers ) to eligible third party borrowers (the Financees ).
2. The Financer intends to register itself as a lender on the Platform after accepting Raqamyah's terms and conditions for Financers as stated herein, which are to be read in conjunction with Raqamyah's General Terms and Conditions, FAQ's and Privacy Policy (collectively the Terms ).
3. Raqamyah shall provide certain services to the Financer (upon its registration on the Platform and acceptance of this Agreement and the Terms) and the Financer agrees to lend money through the Platform to Financees in accordance with the terms and conditions of this Agreement.
TERMS AGREED
1. DEFINITIONS AND INTERPRETATION
1. The following terms have the meanings indicated below:
'Automatic Financing' has the meaning given to such term in Clause a);
'Collection Agent' has the meaning given to such term in Clause 14.2;
'Financees' has the meaning given to such term in Recital A;
'Financers' has the meaning given to such term in Recital A;
'Financer Account' means the online account that the Financer will open with Raqamyah (upon its successful registration as a lender) through which the Financer will carry out all transactions on the Platform;
'Guarantor' means a person who is acting as a guarantor for the obligations of a Financee pursuant to the Murabaha Agreement;
'Individual Financer' has the meaning given to such term in paragraph a) of Clause 3.2;
'Institutional Financer' has the meaning given to such term in paragraph 0 of Clause 3.2;
'Intermediary Services' has the meaning given to such term in Clause 10.2;
'Management Fee' has the meaning given to such term in Clause 11.1;
'Manual Financing' has the meaning given to such term in Clause b);
'Matching' refers to the process of matching a Financee with one or more Financers through the execution of a Murabaha Agreement by a Financer and the terms 'Match' , 'Matches' 'Or' 'Matched' shall be construed accordingly;
'Murabaha Agreement' financerTerm.Financers Terms conditions discription21 1
'Omnibus Account' means a segregated omnibus bank account with a Saudi bank licensed by SAMA which will be used to facilitate the transfer of funds between the Financers and the Financees and vice versa in order for the parties to transact through the Platform;
'Platform' has the meaning given to such term in Recital A;
'Qualified Individual Financer' has the meaning given to such term in paragraph 0 of Clause 3.2;
'Security Agent' means a third-party security agent that may be appointed by Raqamyah to hold any security provided by a Financee;
'Services' has the meaning given to such term in Clause 10.1;
'Terms' has the meaning given to such term in Recital B; and
' Website' means the Raqamyah website www.raqamyah.com
2. The headings in this Agreement are for convenience only and shall not affect its interpretation.
3. Each of the schedules shall have effect as if set out in this Agreement.
4. References to any statute or statutory provision include a reference to that statute or statutory provision as amended, consolidated or replaced from time to time (whether before or after the date of this Agreement) and include any subordinate legislation made under the relevant statute or statutory provision.
5. Words in the singular include the plural and vice versa and words importing any gender include every gender.
6. References to times of day are, unless the context requires otherwise, to KSA time and references to a day are to a period of 24 hours running from midnight on the previous day.
7. References to day, month, year and any other references in time shall be construed by reference to the Gregorian calendar.
8. References to persons include individuals, firms, sole proprietorships, partnerships, limited liability partnerships, companies, bodies corporate, corporations, unincorporated associations, governments, authorities, agencies and trusts (in each case, whether or not having separate legal personality) wherever situated and references to an individual or natural person include his estate and personal representatives.
9. Any phrase introduced by the term )including, include, in particular or any similar expression( shall be construed as illustrative and shall not limit the sense of the words preceding that term.
2. SCOPE OF THE CONTRACT
1. This Agreement and the Terms constitute the entire terms and conditions under which the Financer agrees to be engaged in peer-to-peer lending through the Platform.
3. REGISTRATION OF FINANCER
1. The Financer shall create an account and register itself on the Platform. The Financer acknowledges and agrees that it will be on-boarded as a Financer subject to fulfilling all the eligibility conditions of the Terms and providing Raqamyah with all the relevant information and documents as and when requested.
2. In order to register, a Financer must classify as:
1. An individual Financer who must:
1. (i) be a natural person;
2. (ii) be aged eighteen (18) years or over;
3. (iii) provide his/her current and valid National Identification Card details (as a Saudi Arabian national) or Iqama (Resident identity, as a foreign national); and
4. (iv) provide his/her national address details (the 'Individual Financer').
The Individual Financer hereby agrees that Raqamyah shall access the Yakeen service to validate his/her National Identification Card or Iqama (Resident Identity); or
2. A qualified individual Financer who must:
1. (i) be a natural person;
2. (ii) be aged twenty-one (21) years or over;
3. (iii) provide his/her National Identification Card details (as a Saudi Arabian national) or his/her Iqama (Resident Identity, as a foreign national); and
4. (iv) fulfil at least one of the following criteria (by signing a declaration on the Website stating the same) (the 'Qualified Individual Financer'):
1. (A) own net assets with a value not less than three (3) Million Saudi Riyals;
2. (B) work or have worked for at least three (3) years in the financial sector in a position related to finance or investment;
3. (C) hold a professional certificate in finance or investment is approved by an internationally or national recognized establishment; or
4. (D) have an annual income that is not less than six hundred thousand Saudi Riyals (SAR600,000) in the two most recent years. The Individual Financer hereby agrees that Raqamyah shall access the Yakeen service to validate his/her National Identification Card or Iqama (Resident Identity); or
3. An institutional Financer who must be:
1.(i) an entity licensed by the Saudi Central Bank or any other GCC or recognized foreign Central Bank; or
2.(ii) an entity or an investment fund licensed by the Saudi Capital Market Authority or any other GCC or foreign recognised regualtor; or
3.(iii) a legal entity incorporated under the laws of the Kingdom of Saudi Arabia or GCC or foreign recognised authority ; or
4.(iv) a governmental or semi-governmental office or entity of the Kingdom of Saudi Arabia (the 'Institutional Financer'). An Institutional Financer must provide:
1. (A) its current and valid Commercial Registration certificate issued by the Ministry of Commerce (if applicable); and
2. (B) a copy of the power of attorney or the authorisation letter appointing its authorised representative unless
3. (C) such authorised representative has been specifically appointed in a board or shareholders' resolution permitting the Institutional Financer to carry out the necessary Platform activities; or
4. (D) such authorised representative has the existing authority under the Institutional Financer's articles of association to carry out the necessary Platform activities.
The Institutional Financer hereby agrees that Raqamyah shall access the Thiqah service to validate its Commercial Registration certificate (if applicable).
3. Raqamyah shall not carry out any independent inquiries to verify that any corporate authority or authorisation, licence or registration, information and documentation provided pursuant to Clause 3.2 is correct, true, up to date and in place. The Financer is obliged to immediately provide Raqamyah with any changes to the information and documentation provided.
4. Raqamyah shall carry out 'know your customer' procedures and checks pursuant to its internal requirements and in accordance with the applicable laws of the Kingdom of Saudi Arabia. Raqamyah may request the Financer to provide additional documentation for 'know your customer' checks and any failure to provide such documentation shall result in the application of potential Financer being rejected, with such decision being final and binding.
5. The eligibility criteria listed in Clause 3.2 is non-exhaustive and Raqamyah reserves the right to amend the eligibility criteria at any time on its Website, without any notification to the Financer. Raqamyah further reserves the right to accept or reject any Financer application at its sole discretion, even if the Financer satisfies the eligibility criteria. All decisions made by Raqamyah shall be final and binding and shall not be subject to appeal.
6. The Financer must furnish Raqamyah with all information and documents that Raqamyah may reasonably request from time to time and in relation to the Financer's financial condition or business, in order to enable Raqamyah to fulfil its legal obligations and to ensure the proper operation of Platform.
7. Raqamyah shall have the right, acting in its sole discretion, to waive the requirement for any document that must be provided by an Institutional Financer, without prejudice to its right to request these or additional documents at any time.
4. CREATING A FINANCER ACCOUNT
1. Upon the provision by the Financer of the relevant documentation matching its eligibility criteria and satisfying Raqaymah's 'know your customer' checks and Anti-Money Laundering and Counter-Terrorism Financing procedures, Raqamyah shall within three (3) business days notify the Financer by email or SMS if its application to become a Financer is successful. If the application is successful, Raqamyah shall provide the Financer with a unique IBAN number for its Finance Account. The Financer must use this IBAN number for all transactions it carried out on the platform.
2. The Financer is prohibited from using its Financer Account to make any transfer to third parties or accept any transfer from third parties without Raqamyah's prior written approval. The Financer must immediately notify Raqamyah if it suspects that a third party has accessed the Financer Account or if it suspects a security breach has occurred.
3. Raqamyah reserves the right not to comply with the Financer's instructions and to suspend the Financer's Account if it suspects a security breach, any illegal or fraudulent activity in connection with the Financer Account or the unauthorised use of the Financer Account.
4. Raqamyah reserves the right to suspend the Financer Account if the Financer has not updated any information provided to Raqamyah in connection with creating the Financer Account. In the event Raqamyah requests for updated information and if the Financer does not respond to such queries the Financer Account shall be suspended. During the period of suspension the Financer shall only be able to request withdrawals and will not be permitted to carry out any financing activities. The Financer Account will be activated once the required documentation has been provided to Raqamyah.
5. The Financer shall use the Financer Account to credit funds to the Omnibus Account by means of wire transfer. Cash deposits into the Omnibus Account will not be permitted.
6. Upon Raqamyah receiving funds in the Omnibus Account, the Financer may engage in financing. Any applicable fees in connection with the financing may be deducted from time to time from the balance of the funds held on behalf of the Financer. Such funds shall be held on behalf of the Financer until they are withdrawn by the Financer, applied towards any applicable fees or transferred to a Financee.
7. Upon the allocation of any of the Financer's funds to a specific finance request, the Financer must wait until the finance request is fully repaid by the Financee as Raqamyah does not offer a secondary market option.
5. FINANCER REPRESENTATIONS AND WARRANTIES
1. The Financer represents and warrants that:
1. it has read, understood and agreed to be bound by this Agreement and the Terms, as they may be amended from time to time. Raqamyah has the right to amend this Agreement and the Terms at any time, (whether to reflect any changes in laws and regulations or to change its existing services due to changes in technology and systems) without any notification to or consent from the Financers. By continuing to access and use the Platform after any amendments to this Agreement or the Terms the Financer accepts and agrees to be bound by the amendments;
2. if it any time does not agree with any amendments made by Raqamyah to this Agreement or the Terms it may close its Financer Account by contacting Raqamyah by email at contactus@raqamyah.com. or by telephone at +920004032
3. all information that it has provided to Raqmyah in connection with its application to become a Financer is accurate, true and up to date;
4. as an Institutional Financer, the person acting on its behalf is duly authorised to act and shall remain authorised to act on its behalf. Furthermore, such authorised representative shall have the necessary authority to enter into this Agreement on behalf of the Institutional Financer and the Institutional Financer has the authority to enter into this Agreement. Raqamyah shall not be liable in any way whatsoever as a result of the actions of any authorised representative who does not have the due authority to enter into this Agreement on behalf of an Institutional Financer; and
5. as an Institutional Financer, it has a permanent place of business.
6. RISK ACKNOWLEDGEMENT
1. The Financer acknowledges and confirms that:
1. it has carefully read and considered the risks involved in financing through the Platform and that it has assessed that it has the appropriate risk appetite to undertake the transactions contemplated herein.
2. by accepting the provisions of this Agreement and the Terms it is engaging in peer-to-peer lending and that at no time will the Financer be deemed to be financing Raqamyah.
3. it understands the risks associated with peer-to-peer lending and may lose all its money or part thereof if a Financee with whom the Financer has been Matched defaults on repayments and Raqamyah has no liability for any such loss.
4. that it has made its own independent decision to become a Financer on the Platform and to be Matched to Financees and that has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Raqamyah, which is not set out in this Agreement and the Terms.
5. it will not be paid any repayment of its funds until a finance request has been repaid in full by the relevant Financee. The Financer's liquidity shall be affected during the duration of the relevant Murabaha Agreement unless there is an early repayment or a default by the Financees.
6. the provision by Raqamyah of the Services and the Intermediary Services (each as defined below) is not intended to constitute or be construed as advice, recommendations or a guarantee by Raqamyah as to the creditworthiness of any Financee, the amount of repayments the Financer might receive, or the likelihood of payment defaults that may occur, in relation to any Murabaha Agreement.
7. Raqamyah is neither licensed nor authorised to grant financing advice. No information contained on the Platform or on the Website constitutes or shall be construed to constitute financing advice, investment advice or a recommendation to any Financer to lend money.
7. FINANCING PROCESS
1. A Financer can use the Platform to provide financing to Financees in the following two ways:
1. Automatic Financing This type of financing uses a tool called Automatic Financing to automatically select the Financee that Financers are willing to finance based on pre-selected criteria. Financers can select their own custom mix based on the following:,
1. maximum amount for each finance request;
2. sector(s) that the Financer wants to finance; and
3. risk grades that the Financer wants to finance.
A Financer that chooses to use the automated tool function acknowledges and agrees that its funds shall be automatically allocated to different finance requests from different Financees based on the pre-selected criteria the Financer has set up. If the Financer uses the automated financing tool and sets it criteria to be automatically Matched to Financees it can stop using the automated tool at any time by switching it off.
1. Manual Financing: is the process whereby the Financer manually selects Financees that it may be interested in financing by using the Raqamyah search tool and bidding for funding such Financees through Raqamyah's online bidding on the Website. Financers can browse available finance requests and compare finance requests details such as score, finance request purpose, finance request type, duration, profit rate, and Financee information. The funding process for every finance request is open for up to thirty (30) days, and the funding period will close once it is fully committed. Orders are made on a first come first serve basis.
2. In accordance with its acceptance of the Terms and this Agreement, the Financer shall be entitled to select whether it chooses to provide financing through Automatic Financing or Manual Financing.
3. Financers will be able to monitor the following when using the Platform:
1. the amount financed;
2. earned profits;
3. receivable profits;
4. the amount received;
5. the annual specialised commission rate;
6. the funded finance requests;
7. the transaction history;
8. the status of financed amounts;
9. the repayment schedule;
10. the detailed profile of each Financee; and
11. the portfolio composition.
4. It is the Financer's sole decision whether or not to provide finance to Financees on the Platform. Raqamyah is not authorised to grant any financing advice. No information contained on the Platform or on the Website constitutes or shall be construed to constitute financing advice, investment advice or a recommendation to finance money.
5. The Financer confirms that it has sought independent financial, legal, Zakat, tax or other professional advice prior to financing through the Platform.
6. Once a Financer has made a financing bid, whether by means of Automated Financing or Manual Financing, it shall have two days to withdraw its financing bid. All financing bids, whether by means of Automated Financing or Manual Financing, shall be binding on the Financer once the funding period for a particular transaction is closed and such bid may not be revoked by the Financer for any reason whatsoever.
7. In the event a finance amount requested by any Financee is not fully covered by the closing of thirty (30) days period, Raqamyah reserves the right to further extend the bidding period for an additional thirty (30) days. If after the additional period, the finance amount requested is still not covered in full by all the bids received from the Financers, then Raqamyah shall close the funding period and return the funds provided by each of the Financers in relation to such finance request.
8. Upon repayment by the Financee into the Omnibus Account, Raqamyah shall, by wire transfer, transfer the Financer's portion of the repayment into the Financer's Account.
8. FUNDING LIMITS
Depending upon the classification of the Financer in accordance with the eligibility criteria set out in the Terms, the Financer will be limited to transferring the following amounts in any one calendar year:
1. Individual Financer – maximum amount that may be transferred annually to Raqamyah is SAR 200,000 and the maximum exposure to one finance request is SAR 50,000 and shall not exceed 25% of the finance amount requested
2. Qualified Individual Financer – no restrictions.
3. Institutional Financer – no restrictions.
9. OMNIBUS ACCOUNT
1. The Financer agrees and acknowledges that all funds provided by it shall be held in the Omnibus Account.
2. The Financer further acknowledges and agrees that Raqamyah will hold all the funds provided by all Financers in the same Omnibus Account and that all the Financers' funds will be co-mingled.
3. Raqamyah shall act as agent in relation to such Omnibus Account and in its capacity as an agent it represents and warrants:
1. the funds received from the Financer will be co-mingled with other funds received from other Financers but shall not be co-mingled with funds belonging to Raqamyah; and
2. in the event of Raqamyah's insolvency, winding up or any other bankruptcy event, the funds received from the Financer shall be separate to and segregated from the funds belonging to Raqamyah and only the Raqamyah funds shall be subject to the distribution rules contained in the bankruptcy rules and regulations of the Kingdom of Saudi Arabia.
4. Withdrawals of funds from the Omnibus Account are permitted provided that all fees in connection with a particular financing have been paid in full. Raqamyah has the authority to suspend or place limitations the Omnibus Account from time to time if this is necessary to comply with any legal or regulatory requirements.
5. The Omnibus Account shall not accrue any interest or profit to be paid to the Financer.
10. SERVICES
1. Raqamyah shall provide the following services (the 'Services') to the Financer:
1. operate and manage the Platform and the Website;
2. Match Financers with the Financees;
3. facilitate the Murabaha financing transactions between Financers and the Financees; and
4. perform Intermediary Services (as defined below) as Financing Agent in relation to the Murabaha transactions.
2. Raqamyah shall provide or arrange for the provision of the following intermediary services (the 'Intermediary Services'):
1. assessing the creditworthiness of Financees;
2. preparing the Murabaha Agreement for Financers and Financees and acting as Financing Agent in relation thereto;
3. providing Financees with the necessary pre-contractual, contractual and post-contractual documentation and information;
4. collecting and distributing payments due to the Financer and received by Raqamyah from Financees (and Guarantors if any) through the use of the Omnibus Account; and
5. entering into an Omnibus Protocol Agreement with Saudi Banks.
The Financer hereby authorises Raqamyah to act as its agent in respect of the Intermediary Services.
1. The provision of Services by Raqamyah (and specifically the Intermediary Services (including the credit assessment of Financees) is not intended to constitute or be construed as advice, recommendation or a guarantee by Raqamyah as to the:
1. creditworthiness of any Financee;
amount of repayments that the Financer may receive; or
likelihood of payment defaults that may occur, in relation to any Murabaha Agreement.
11. FEES
1. For the provision of the Intermediary Services, Raqamyah shall charge a management fee which shall be calculated at two percent (2%) per annum on outstanding financed amounts (the 'Management Fee'). For the avoidance of doubt, Raqamyah shall not charge any fees for creating a Financer Account.
2. In the event Raqamyah incurs any further reasonable expenses in the provision of the Intermediary Services, it shall notify the Financer in writing and the Financer shall reimburse Raqamyah for such expenses. To facilitate such reimbursement, the Financer hereby expressly authorises Raqamyah to access and withdraw such amount from the Financer Account, or otherwise recover such expenses from any payments due to the Financer or request payment directly from the Financer in relation to such expense
3. Raqamyah reserves all its rights to change or waive any applicable Management Fee from time to time at its sole discretion.
12. PROVISION OF SECURITY AND APPOINTMENT OF SECURITY AGENT
1. If any form of security has been created by a Financee or a Guarantor, their obligations to the Financer under the Murabaha Agreement and the Guarantee will be secured by that security.
2. Raqamyah reserves the right to enter into an agreement with a Security Agent to hold any security on behalf of the Financer in relation to any Murabaha Agreement and Guarantee. Raqamyah shall authorise the Security Agent to exercise the rights, powers, authorities and discretions specifically granted to the Security Agent under any separate security agreement. The Security Agent's authorities are purely administrative and shall be governed by the security agreement, this Agreement and applicable laws. If there is any inconsistency between the security agreement and this Agreement, this Agreement shall prevail.
3. The Security Agent is entitled to rely on any representation, notice or document believed by it to be authorised, genuine, correct and may rely on any statement made by a director, authorised person or employee of any person regarding any matters which may reasonably be assumed to be within their knowledge or power to verify. The Security Agent shall have the discretion to exercise all of its rights and authorities and it shall have no liability save for any action caused by its own negligence or misconduct.
4. The Financer agrees, accepts and acknowledges that:
1. it is not entitled to take any action to enforce any security against the Financee or the Guarantor directly and it hereby authorises Raqamyah to take all actions necessary in relation to any enforcement through the Security Agent.
2. the existence of security does not mean that a Financee or a Guarantor shall fully fulfill its repayment obligations under a Murabaha Agreement or a Guarantee and does not constitute a guarantee of full repayment by the Financee or the Guarantor.
3. the enforceability of any security is subject to the normal risks and limitations under applicable law and that the proceeds received following enforcement may not be sufficient to discharge all of the obligations owed by the Financee and any Guarantor to the Financer. There may be other creditors of the Financee and the Guarantor that have claims that may be recovered in priority to those of the Security Agent acting on the Financer's behalf.
4. the Security Agent shall not be liable for any loss suffered by the Financer unless the loss is caused by the Security Agent's negligence or misconduct.
5. If a Financee or a Guarantor fail to fulfill any repayment obligation when due or if an event of default occurs under the Murabaha Agreement, the Security Agent shall be entitled to enforce the security. A default notice shall be sent to the Financee and the Guarantor together with a demand for repayment of the amounts due and any applicable fees and costs.
6. If the security becomes enforceable, the Security Agent shall enforce the security in accordance with the security agreement in the interests of the Financer and shall be entitled to make the distributions in accordance with the security agreement, this Agreement and the Terms.
7. Following the enforcement of security, any amounts received or recovered by the Security Agent shall be applied in the following order of priority:
1. towards payment or reimbursement of all costs, expenses, losses or liabilities incurred by the Security Agent;
2. payments of all amounts due to the Financer in accordance with this Agreement, the Terms and the relevant Murabaha Agreement; and
3. payment of any surplus amounts to the Financee, the Guarantor or any other person entitled to receive the same under applicable law.
13. DEFAULT BY A FINANCE
1. If the Financee defaults or misses a repayment under the relevant Murabaha Agreement, Raqamyah shall take administrative steps to attempt to recover the payment which may include discussions with the Financee and/or restructuring the finance request in order to attempt to recover the outstanding sums due from them, as Raqamyah deems in the best interests of the Financer as a whole. Raqamyah may also recover its reasonable costs and expenses as a priority from any amounts recovered from the Financee in this manner.
2. In the event a Financee faces a temporary economic issue such as a liquidity issue or a decrease in sales revenue or an unforeseen event, it may default on its repayment obligations under the relevant Murabaha Agreement and the Financer hereby authorises Raqamyah to determine on its behalf whether to agree to a request from the Financee to restructure the finance request by:
1. reducing repayment amounts by extending the repayment period and increasing the number of repayments; or
2. suspending or reducing repayment amounts during a given period and then increasing the amount of the monthly instalments.
3. The Financer agrees and acknowledges that the restructuring of a finance request does not guarantee that the Financee will meet its future repayment obligations and it may still be necessary to appoint a Collection Agent.
14. APPOINTMENT OF COLLECTION AGENT
1.In the event Raqamyah are unable to recover the amounts outstanding in accordance with Clause 13 above or through the enforcement of any security pursuant to Clause 12, the Financer hereby authorises Raqamyah to take the necessary administrative and legal steps acting on its behalf and acting in its best interests. The Financer permits Raqamyah to deduct all legal and administrative costs and expenses (including reasonable legal expenses) incurred in taking any such action, from the amounts recovered pursuant to this Clause 14.
2. The Financer hereby authorises Raqamyah to appoint a third party collection agent (the 'Collection Agent') to collect and recover any outstanding sums due under the Murabaha Agreement on the Financer's behalf if it deems necessary in the event of any default on the repayment of any finance request that the Financer has provided. Raqamyah shall keep the Financer duly informed of all actions taken by the Collection Agent including the progress of all efforts and actions taken to collect missed payments and recover outstanding sums, the status of which the Financer will be able to view through the Financer Account.
3. The Financer agrees that the Collection Agent shall be authorised to take all actions as are reasonable to protect the rights of the Financer, which may include enforcing guarantees, corporate or personal promissory notes and other forms of security as provided by the Financees and taking any other remedy or action as may be available from time to time in accordance with the applicable law.
4. The Collection Agent may charge a collection fee which shall be payable by the Financee and which shall be deducted from the overall amount which the Collection Agent is seeking to collect and recover from the Financee. For the avoidance of doubt the collection fee shall be deducted as a priority over any distributions to be made to the Financer. The legal and administrative costs and expenses of the Collection Agent shall also be deducted from all amounts claimed from the Financee. The Collection Agent may deduct any amount that represents market practice of the amount claimed and recovered from the Financee, and the remainder of such amount that shall be distributed to the Financer.
5. In the event that court proceedings are required, Raqamyah shall have the right to request the Financer to provide a power of attorney for litigation purposes (if required) and the Financer hereby undertakes to comply with this request.
6. The Financer agrees and accepts that:
1. Raqamyah cannot guarantee that any court proceedings taken on the Financer's behalf shall be successful;
2. there is a risk that any court proceedings may result in the Financer paying damages;
3. there may be other creditors of the Financee with claims that may be recovered in priority to the Financer's claim.
4. only Raqamyah, the Security Agent or the Collection Agent can engage with the Financee and any Guarantor to recover outstanding sums on the Financer's behalf. The Financer is not permitted to undertake any individual action in this regard or to engage with the Financee or the Guarantor unless Raqamyah agrees otherwise in writing.
15. CESSATION OF BUSINESS BY RAQAMYAH
1. In the event Raqamyah plans to cease its operations for any reason it shall inform the Financer through the Website and to ensure minimal impact and disruption to the Financer. Raqamyah shall continue its operations for a further three (3) months (which may be extended for another three (3) month period). All available balances from the Financer in the Omnibus Account shall be reimbursed to the bank account registered on the platform. A statement of outstanding payments and a repayment schedule shall be emailed to the Financer within ten (10) business days.
2. During the period prescribed in Clause 15.1, Raqamyah may:
1. sell the Financer's financed amount portfolio to a bank or a financial institution licensed by SAMA in order to refund all outstanding financed amounts due to the Financer; or
2. seek early repayment of the outstanding financed amounts and assist the Financee in having the outstanding financed amounts refinanced in the event that the Financee is not able to achieve the early repayment of the financed amount.
In the event Raqamyah is unable to achieve either of the above, it shall appoint a Collection Agent to recover the outstanding financed amounts. All outstanding financed amounts shall continue to be valid, legally binding and enforceable and shall continue to be collected as they fall due. All payments shall continue to be made to the Collection Agent who shall, after the deduction of the Collection Fee, make regular repayments to the Financer.
1. Should Raqamyah appoint a Collection Agent pursuant to Clause 15.2, it shall inform the Financer of the situation and of all actions taken to preserve the Financer's rights and to ensure the repayment of the principal and profit amounts due to the Financer under each relevant Murabaha Agreement Contract.
16. EXCLUSION AND LIABILITY AND INDEMNITY
1. Raqamyah makes no representations and gives no warranties as to the ability of any Financee to fulfill their repayment obligations in relation to any type of funding method and Raqamyah shall not be liable for the failure of any Financee to fulfill their repayment obligations. The Financer agrees and acknowledges that it is providing funding to any Financee at its own risk.
2. Where a particular Financee has provided a personal guarantee from an individual shareholder or a director therein, the Financer accepts that the enforceability of such personal guarantee is subject to any qualifications or reservations under applicable law and that Raqamyah is not under any obligation to ensure that the issuer of such personal guarantee is of sound mind and has the capacity to enter into such personal guarantee. Such personal guarantee can be open to challenges and the Financer accepts that the personal guarantor or a third-party may challenge such personal guarantee on the basis of capacity.
3. The Financer hereby agrees to defend, indemnify and hold harmless Raqamyah, its subsidiaries, affiliates, officers, directors, agents, employees, representatives, successors and assigns from and against any and all actions, claims, suits, demands, judgments, losses, costs, expenses, regulatory fines and damages (including legal fees and expenses), arising out of:
1. any breach by the Financer of this Agreement, the Terms or any Murabaha Agreement; and/or
2. any third-party claims arising out of any breach by the Financer of this Agreement, the Terms or any Murabaha Agreement; and/or
3. any failure to comply with applicable law.
4. This Clause 16 shall survive the termination or expiry of this Agreement, the Terms and any Murabaha Agreement for any reason whatsoever.
17. TERM AND TERMINATION
1. This Agreement shall become effective upon the Financer accepting all the provisions of this Agreement and the Terms and shall remain in force unless terminated by either Raqamyah or the Financer in accordance with this Clause 17.1.
2. The Financer may terminate this Agreement by notifying Raqamyah at any time if it no longer wishes to be a Financer provided that, at the time of termination it has:
1. no Murabaha Agreement in force;
2. no outstanding amounts in its Financer Account; and
3. no amounts owing and payable to Raqamyah or the Security Agent (as applicable).
Upon notification, Raqamyah shall promptly close the Financer's Account.
3. In the event the Financer wishes to close its Financer Account but at the time of termination:
1. it is a party to a Murabaha Agreement which is in force; or
2. it has funds which are allocated for financing to Financees; or
3. it still owe amounts to Raqamyah or the Security Agent,
then the Financer must either:
1. wait for the underlying finance requests to be repaid in full; or
2. pay any owed amounts to Raqamyah or the Security Agent (as applicable).
Once either the finance requests have been repaid in full or the Financer has paid any amounts owed to Raqamyah or the Security Agent (as applicable), all the funds in the Financer Account shall be fully available for withdrawal and the Financer may transfer such funds to its nominated bank account. Raqamyah shall then close the Financer Account.
4. Raqamyah may close the Financer Account at any time by giving the Financer fifteen (15) business days' prior notice if:
1. the Financer breaches any term of this Agreement, the Terms or the Privacy Policy;
2. the Financer ceases to be an eligible Financer because it ceases to satisfy the eligibility criteria laid out in the Terms;
3. the Financer does not comply with Raqamyah's reasonable requests for information;
4. Raqamyah suspects that the Financer has been involved in fraud, money laundering or other criminal activities or Raqamyah discovers that any information provided to it is false, misleading or materially incorrect;
5. the Financer uses the Platform for a purpose for which it was not intended;
6. the Financer undertakes direct action to contact or engage directly with a Financee to recover outstanding payments; or
7. the Financer Account is not funded for a period of six (6) months from the date on which the Financer has created a Financer Account.
5. The Financer hereby authorises Raqamyah, upon receipt of the notice pursuant to Clause 17.4, to:
1. transfer any outstanding Murabaha Agreement to another financer in order to recover the principal amount that the Financer has financed under such outstanding Murabaha Agreement;
2. remit any funds remaining to which the Financer is entitled to, to its nominated bank account after deduction of amounts owed to Raqamyah or the Security Agent (as applicable),
and then close the Financer Account.
6. Raqamyah may also terminate this Agreement pursuant to Clause 15.
18. NOTICES
1. The Platform is an online service and all documents and notices to be sent by Raqamyah to the Financer shall be delivered through the Website or through the email address the Financer has registered with Raqamyah.
2. All instructions and notices to be sent by the Financer to Raqamyah, (including any notice in accordance with Clause 17.2) shall only be binding provided they are delivered through the Website or are delivered by email to .contactus@raqamyah.com.
19. GOVERNING LAW AND JURISDICTION
1. This Agreement shall be governed by and construed in accordance with the laws of the Kingdom of Saudi Arabia.
2. All disputes and/or claims arising out of or in connection with this Agreement shall be referred to and finally resolved by and subject to the exclusive jurisdiction of the competent courts of the Kingdom of Saudi Arabia.
20. MISCELLANEOUS
1. Regulatory Oversight: The Platform is subject to a SAMA Fintech Sandbox application and shall operate under the SAMA Fintech Sandbox regulatory environment.
2. Complaints: In the event the Financer has a complaint, it should promptly write to Raqamyah providing clear details of the complaint. The Financer should send the complaint by e-mail to contactus@raqamyah.com. Raqamyah will endeavour to acknowledge the complaint within five days of receiving it and will endeavour to provide a response to the complaint within fifteen days of receiving it.
3. Severability: If any provision of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the validity and enforceability of the remaining provisions shall not be affected.
4. Remedies: Raqamyah's rights under this Agreement, the Terms and the Privacy Policy are cumulative and not exclusive of any further rights and remedies that are provided under applicable law. Delay in the exercise of any of Raqamyah's rights whether under this Agreement, the Terms, the Privacy Policy, or under applicable law, shall not operate as a waiver of such rights.
5. Assignment: Raqamyah and the Security Agent (if applicable) may assign or transfer all or part of their respective rights and obligations under this Agreement, the Terms or the security agreement to any third-party and are permitted to exercise any of their rights through a third-party service provider. The Financer is not permitted to assign or transfer any of its rights and obligations under this Agreement, the Terms and the Privacy Policy.
6. Entire Agreement: The following documents constitute the entire agreement between Raqamyah and the Financer:
1. this Agreement;
2. the Terms; and
3. any amendments or supplements to any of the foregoing from time to time.
In the event of any conflict between the terms of any of the foregoing documents, they shall have the same order of priority in which they appear above subject to any amendments referred to in paragraph (c) above.
7. Acceptance by Financer: Before registering, the Financer must read this Agreement and the Terms. If the Financer does not agree or does not wish to comply with the provisions of this Agreement or the Terms, then it should not proceed to register as a Financer