Investors general conditions
1. General provisions
1.1. These General Terms and Conditions of Investment (the "GTC") set out all existing and future contractual relationships between Enky (the trading name used by Enky srl, whose registered office is at 231 Avenue Louise, 1050 Brussels, registered with the ECB under number 0719.458.502) (hereinafter referred to as "Enky" or "We") and any registered person wishing to invest (the "Investor" or "You") by way of a loan (financing) with Enky to enable Enky to develop its activities and to enable You to receive an income from the financing that You grant to Us.
1.2. In the General Terms and Conditions, the terms listed below in bold and their conjugated forms have the following meanings, unless these terms and conditions state otherwise:
"Investor", "You" or "Your" means a natural or legal person who wishes to invest a capital amount as part of a loan made to Enky in consideration for the issue of Term Bonds, which will be redeemable at maturity;
"Schedule" means the mutually agreed term or period of time after which the Investor expects to be repaid by Enky ;
"Capital": means the proportion of the amount that will be repaid by Enky to the Investor and which corresponds to the nominal amount lent by the Investor;
"Agreement" means the reciprocally binding agreement which incorporates these Terms and Conditions and is entered into between the Investor and Enky for the Investment ;
Enky", "We", "Us" or "Our" means Enky Srl;
"Company" means any institutional or organisational unit (whether operating as a natural or legal person) that evolves according to a project set out in a strategy or in policies and action plans with the aim of producing and supplying goods or services to third parties;
"Force Majeure" means any unexpected event beyond the reasonable control of a party, including, but not limited to, acts of God, war, floods, industrial disputes, strikes, lock-outs of sub-contractors, riots, civil disturbances, wilful damage, explosions, terrorism, governmental action and similar events;
"Contractual Interest" means for Enky the cost of the financing provided by the Investor and for the Investor it corresponds to the gain made by making the funds available to Enky;
"Late payment interest" means interest charged to cover the risk, loss and damage resulting from any delay in payment;
"Loan" means the amount that the Investor is prepared to invest by making funds available to Enky to enable Enky to carry out its own projects, as described in advance by Enky;
"Services": refers to Enky's activities, i.e. the purchase, manufacture, rental, management, maintenance and storage of Movables by Enky directly or via a platform;
"Website" or "Platform" or "Application" means www.Enky.com and any other websites and applications that may be developed by Enky;
"Amortisation table": refers to the table sent by Enky for information purposes and containing the monthly amortisation of the financing, which is taken into account for the calculation of the investment according to the effective duration of the loan;
2. Contractual terms and conditions
2.1. In order to be able to invest with Enky, You must meet the agreed contractual conditions, namely:
- Be a natural or legal person with the economic capacity and ability to lend funds. We also draw your attention to the fact that if You carry out a regular economic activity or if the investments that You make with Enky or third parties become regular, You may be considered to be a company (within the meaning of economic law) or to be carrying out a commercial activity, which presupposes that You are validly authorised to do so, that You have the required access to the profession in Your country of establishment and that You bear any tax consequences.
- Be registered under your true identity and have provided your identity as well as that of your representative and, if You are a company, the true address of your company's registered office as well as that of its representative if your activity is carried out as a company.
- Have submitted your registration details and identity card and/or passport number.
- Have provided a telephone number where You can be reached.
- Have provided your full bank account number.
- Hold a valid electronic means of payment for the duration of the membership.
- Have accepted these General Terms and Conditions of Investment ("GTC").
2.2. You declare that, prior to accessing and using the service, you have received all the information and technical details that you require.
2.3. You may not use the Services without first having read and accepted these terms and conditions when you register. Enky reserves the right to accept or refuse, without cause and at its sole discretion, any registration and to suspend and/or terminate access to the account of any Investor who fails to comply with these GTC.
2.4. These GTC express the entire agreement between the parties. The GTC alone will be binding upon and enforceable against the Parties unless otherwise agreed in writing with Enky.
2.5. You are responsible for correctly completing the registration form on the Enky site by filling in the fields with complete and accurate data. In the event of an incomplete or erroneous declaration, the Investor's account may be closed, ipso jure, without prior notice or formality, and the Investor agrees to hold Enky harmless for any consequences that may arise from this incomplete or erroneous declaration.
2.6. During the registration process, You will be asked to validate the general terms and conditions and to send Us the following supporting documents via the Enky Application:
- A copy of both sides of a valid form of identification (e.g. identity card, passport) of the non-trading individual, of the individual company registering on our platform or of the beneficial owners of the legal entity company;
- Information relating to your bank card or bank accounts;
- If You are a company, full details of Your business and Your company;
2.7. All the supporting documents that You provide to Us must be valid at the time of Your engagement and for the entire duration of Your membership of Enky's Services. In the event of changes, you undertake to notify us.
2.8. By subscribing to the Services offered by Enky, You acknowledge that You have read the General Terms and Conditions and agree to abide by them. You also accept that these Terms and Conditions may be unilaterally modified subsequent to your registration for the purposes of the Services offered by Enky.
2.9. Once your membership has been validated, You may complete your profile with information about Yourself. In this respect, You warrant that You hold all rights necessary for the use of this information and/or images in the context of Your profile and grant Enky a right of use, reproduction and representation in the context of Your use and the provision of the Enky Application as well as in the context of any action to promote the Services used by Enky (by Internet, television and/or on paper). This authorisation is valid for the duration of your membership of Enky and applies to elements subject to intellectual property rights as well as those relating to the protection of your private life and your right to your image (or that of the legal entity you represent).
3. Information notice and right of withdrawal
3.1. Prior to the conclusion of the loan agreement, Enky has provided the Investor with an information memorandum which complies with the requirements of the FSMA and which informs each Investor about Enky's business and plans.
3.2. As an Investor, you have a cooling-off period of 14 calendar days during which you may, at any time, withdraw from your investment commitment without having to justify yourself and without penalty.
3.3. This cooling-off period begins on the day you subscribe on the Site, i.e. as soon as you click on the "Confirm Loan" button.To make a valid withdrawal within the 14 calendar day period, you must send an e-mail to the following address admin@enky.com or to the following postal address: Avenue Louise 231, 1150 Brussels, Belgium (if necessary by registered post) stating your wish to withdraw from the loan.
4. Purpose of the loan:
The financing granted by the Investor to Enky is intended to enable Enky to develop its furniture purchasing, rental and leasing activities, as well as Enky's projects related to its corporate purpose.
In order to inform the Investor about the investments, Enky presents to the Investor the projects in which the loaned funds can be invested. However, the presentation is only indicative and may be modified by Enky according to the company's needs. The funds invested may also be used to develop Enky's business.
5. Duration of loan:
The financing granted by the Investor to ENKY is for a period which depends on the Investor's choice and which is between 6 and 84 months from the date on which the funds are actually made available to ENKY.
The date on which the funds are made available to Enky corresponds to the issue and signature of a loan agreement by the investor (at the same time as these General Terms and Conditions are validated).
The term of the loan is defined in the credit agreement, by mutual agreement, based on the agreed parameters, including the interest rate.
The full amount of the financing granted by the Investor to ENKY, in principal and interest, must be repaid to the Investor at the latest at the end of the financing period, in accordance with the amortisation schedule communicated to the Investor, after deduction of the withholding tax (for which the Investor instructs Enky to deduct the withholding tax).
The loan may not be repaid early unless Enky decides to do so. In this case, Enky will owe the Investor an amount corresponding to the nominal amount of the loan plus the interest due, plus an indemnity corresponding to 6 months' interest.
6. Amount, terms and frequency of repayments:
6.1. The Investor provides Enky with an amount of financing which Enky can then use as it sees fit. This amount plus interest (after deduction of any withholding tax) is then repaid by Enky to the Investor at the end of the credit period.
6.2. Throughout the term of the loan, the Investor is entitled to the payment of advances against the total repayment due at the end of the contract. Repayment advances are paid monthly.
Consequently, ENKY undertakes to pay the Investor each quarter the amount set out in the amortisation schedule presented when the Agreement was concluded;
6.3. The withholding tax legally due on interest repaid by ENKY will be deducted in advance by the latter.
6.4. Except with the explicit and prior agreement of ENKY, there shall be no early repayment of the loan. If early repayment is not possible, 50% of the unpaid interest is payable.
7. Loan guarantees and counterparties :
7.1. Unless special conditions are agreed, in return for the financing, the investor is granted an optional assignment of receivables and a subrogation clause.
7.2.To guarantee repayment of the sums owed by Enky, the investor receives the benefit of a potential assignment of receivables up to the nominal amount of the loan.
Where applicable, in the event of non-payment of a single repayment instalment, 8 days after the deadline set (except in cases of force majeure or agreement between the parties), the Investor may send Enky a notice requesting to know the identity of the tenant guaranteeing its financing and the status of its contract. Enky must respond within 8 days, and once Enky has provided the information, the Investor is entitled to exercise its rights in respect of the assignment of the debt and may notify the lessee (the assigned debtor) so that the rental instalments on the assigned contract can be paid to the lessee as repayment of the loan granted to Enky.
7.3. In the event of the insolvency or competition of Enky, the Investor will have the right to know the full details of the tenant concerned by the Project carried out by Enky thanks to the financing and the Investor may subrogate the Investor to act on its behalf, in place and stead of Enky, with Enky's tenants.
8. Interest rate :
8.1. In accordance with the contract, the interest rate payable to the Investor expressed on an annual basis is a percentage (depending on the amount, the date of conclusion, the profile, the duration of the loan) which is defined in the contract concluded between Enky and the Investor.
8.2. This is a gross interest rate, before withholding tax (which Enky is authorised to deduct in advance).
8.3. The percentage of withholding tax depends in particular on the Investor's place of residence. For this reason, the Investor is obliged to provide correct information as well as any changes to his/her contact details. The Investor will bear the harmful consequences of a failure to provide initial information or a failure to provide information during the term of the contract.
8.4. By accepting the GTC and subscribing, the Investor has declared that they are sufficiently informed as to the amount of interest and the rate of interest that will result from the execution of the loan.
9. Information on the risks associated with the loan :
9.1. Offering a loan involves a degree of risk on the part of the Investor with regard to the full repayment of the amount invested in capital and interest, since such full repayment depends on Enky's solvency and its ability to repay for the period necessary to pay the monthly instalments required to repay the loan, as well as the risks associated with the rentals offered by Enky.
9.2. There is a risk that the Investor may not recover all or part of the capital or interest in the event of Enky's default.
9.3. By accepting the GTC, the Investor declares that he has been duly informed of these risks and accepts them.
10. Information note
10.1. By signing and validating online, the Investor declares and confirms that they have received an Information Memorandum as well as all the information required to confirm their informed consent to the contract concluded with Enky.
10.2. The Investor also declares that they are aware of the risks involved in taking out the loan and accepts the consequences thereof. The investor waives the right to complain about the way in which the loan was arranged.
10.3. Lastly, the investor undertakes to ensure that the loan complies with the investor's business and legal and regulatory obligations, without Enky being held liable in any way.
11. KYC (Know your customer) policy
11.1. In accordance with the due diligence obligations towards financial partners imposed by the various legislative transpositions of European Parliament and Council Directives 2018/843 of 30 May 2018 and 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing as well as Directives 2009/138/EC and 2013/36/EU.
11.2. Your membership will only be validated once your identity has been verified via the Enky Application. If you fail to take part in this identity
verification and/or if Enky is unable to verify your identity, your membership will be suspended and will only be validated after validation of your identity by any other means proposed by Enky.
11.3. As long as the identity of you, your person, your company and/or your beneficial owners has not been verified, it is impossible to use the Services offered by Enky. Enky reserves the right to suspend and/or terminate access to the Services in the event that You provide false information. You also undertake to provide all supporting documents required by Enky, on first request.
11.4. You confirm that you have given full information about yourself, your legal entity and/or your company and You undertake to communicate any changes concerning yourself so as to enable Enky to adapt Your profile.
11.5. You are also aware that Enky is entitled to verify its customers' compliance with the anti-money laundering rules and may be required to report to CETIF if required by law or by Enky's anti-money laundering policy.
12. Investor Default
12.1. If, for any reason whatsoever, You owe Enky sums of money, whether due to non-payment, seizure or financial blocking by a payment organisation, any unpaid sum generates the obligation for You to pay late payment interest of 8% and conventional compensation of 10% of the unpaid sums, within 8 days of the missed payment deadline.
12.2. In the event of a seizure of the Investor's assets, including the Investor's receivables, Enky shall be entitled to account to You for administrative and legal costs in connection with the seizure.
12.3. In addition, We are authorised to set off sums owed to Enky.
12.4. In the event of bankruptcy, Enky is free to apply in writing for the continuation or termination of the Contract.
13. Protection of personal data
13.1. Enky undertakes to ensure that the confidentiality of the personal data that You transmit is respected and only uses this personal data within a legal framework.
13.2. In its dealings with the Investor, Enky may process, on its own behalf, personal data of the Investor, which data (i) was communicated to it by the latter at the time of registration or (ii) subsequently via the Enky Application.
13.3. Data that must be provided to Enky is identified as such when the Investor registers.
13.4. Except upon request or with the express consent of the Investor and in strict compliance with the Investor's instructions, Enky will not process any personal data other than as described in this Article.
13.5. Your data is collected by Enky (i) for the purpose of using the Enky Application and in connection with investments; (ii) to keep You informed of the latest news about Enky, in particular via push notifications within the Enky Application, by email or by SMS; (iii) for the distribution of advertising content via the Enky Application; and (iv) for any other use which improves the operation of the Enky Application and/or any other service provided by Enky.
13.6. You agree, in order to manage your account and provide our Services, that We will retain this information for the duration of your use of the Enky Application and for a period of two (2) years from the termination of the account, for whatever reason. At the end of this period, all personal data allowing the identification of the Investor concerned is deleted, with the exception of data whose retention is necessary for Enky to be able to fulfil its legal obligations (e.g., billing data, identification of content authors, provision of warranty).
13.7. In the context of a transaction involving a piece of furniture, Enky may retain data relating to the Investor for a period extending beyond the closure of the Investor's personal account, in particular in order to comply with its obligations relating to the collection of payments by Enky and/or to enable the provision of evidence for the duration of the legal statute of limitations.
13.8. You have the right to access, rectify and/or delete any personal data we hold about you. To exercise any of these rights, the Investor simply needs to use the account management tool offered to You, or write to the following address privacy@enky.com indicating his/her surname, first name and email address. Investors may access and update their personal data at any time, or delete their account and the personal information attached to it using their login and password.
13.9. In certain specific circumstances, Enky may disclose your personal data when required to do so by the judicial authorities.
13.10. Your personal data, in particular email addresses, will not be leased, sold, exchanged or shared with other service providers unless you have expressly agreed to receive promotional offers from other companies that may be of interest to you.
13.11. If You wish to modify Your personal data or if You no longer wish to receive information from "Enky", You may do so by writing to Us at the following address: privacy@enky.com
14. Liability
14.1. In general, Enky's activities create only obligations of means on our part, to the express exclusion of any obligation of result.
14.2. Furthermore, Enky cannot be held responsible for having removed or made impossible access to content published on the platform that is clearly illegal.
14.3. In any event, Enky's liability is expressly limited to compensation for direct damage resulting solely from our gross negligence and wilful misconduct or that of one of our employees. Our liability is expressly excluded in the event of serious unintentional misconduct and slight misconduct(s), even if repeated, without this list being limitative.
14.4. Indirect damage is therefore expressly excluded. In particular, any loss or deterioration of data, loss of profit, loss of customers, etc. is considered to be indirect damage.
14.5. Enky declines all responsibility in the event of damage to persons, property or the product being sold.
14.6. The Investor must carry out the formalities for tax declarations and find out about tax rates and risks that may result from the operations and investments that they carry out. Enky accepts no responsibility for the tax classification of Income or for the allocation of such Income by the Investor to their business. By adhering to these conditions, you confirm that you take full responsibility for them and assume all resulting tax declarations.
15. Intellectual property
By subscribing, the Investor undertakes not to copy or use without Enky's authorisation the Enky concept or any confidential data or data essential to the operation of the platform.
The Investor also acknowledges that Enky is the owner of all intellectual property rights relating to the text, graphics, sound, video, software or any other elements making up the Enky platform, including the trade name The Website constitutes a work over which Enky alone owns the intellectual property rights.
The User undertakes not to infringe Enky's intellectual property rights. No functionality of the Site, and in particular the printing, downloading
or emailing functions, may be used by the User with the object or effect of infringing the intellectual property rights attached to the Site and its component parts.
16. Modification of the General Terms and Conditions
Any changes to the General Terms and Conditions, as well as to furniture sales prices and any other fees, will be posted on the Enky website.
By purchasing a product from Enky, You acknowledge that You have read the current prices and the General Terms and Conditions applicable at that time and accept them.
The most recent version of the GTC supersedes all previous versions.
17. Miscellaneous provisions
If one of the clauses of these GTC is found to be null and/or abusive, the Contract will remain applicable in all its provisions other than those found to be null or abusive if it can survive without these clauses.
For the performance of the present contract, the Parties agree to elect domicile under the following conditions;
- For Enky, at the address of its registered office as indicated in the legal notice;
- For the Investor, at the address given at the time of registration;
18. Applicable law - Disputes
The contract between Enky and the Investor is presumed to be concluded in Brussels.
The GTC are governed by Belgian law.
Any dispute that is not settled amicably in the first instance will be governed by Belgian law and will be subject to the exclusive jurisdiction of the Brussels courts ruling in French.
Computerised registers will be kept in Enky's computer systems under reasonable security conditions and will be considered as proof of
exchanges, orders and payments made on the Enky Application or by email.