Retailer Terms and Conditions

 

WHEREAS: 

(A) Rematch Credit Limited is duly authorised to carry on limited permission lending under the Financial Services
and Markets Act 2000; and Rematch Credit Limited and the Retailer wish to set out the Terms and Conditions on which the Retailer shall place its products with Rematch Credit Limited. 

IT IS HEREBY AGREED as follows:

1.

DEFINITIONS AND INTERPRETATION

1.1

The following words and expressions shall have the following meanings: 

 

 “Agreement”

means this agreement, the Procedural Guide and the Business Schedule. 

 

“Agreed Purpose”

means the introduction by the Retailer to Rematch Credit Limited of individuals wishing to enter into a Credit Agreement for the purchase of a Product from the Retailer.

 

“Applicable Law”

means the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Product from time to time. 

 

“Application Form”

means the application form for the supply of services by Rematch Credit Limited signed by the Retailer on Date. 

 

“Business Day”

means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. 

 

“Business Schedule”

means any document issued from time to time by Rematch Credit Limited to the Retailer providing details of any payments of whatever nature to be received by, or made to, either party during the Term of this Agreement. 

 

“Charges”

means the subsidy, commissions and other sums payable by the Retailer as set out in clause 5.

 

“Confidential Information”

means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of either Party, for the time being regarded as confidential, and trade secrets including, without limitation, technical data and know-how relating to the business of either Party. 

 

“Commencement Date”

means the date of this Agreement. 

 

“Credit Agreement”

means an agreement entered into between the Customer and Rematch Credit Limited once a sale has been processed through the Rematch Credit Limited Website. 

 

“Customer”

means any person who purchases Products from the Retailer by means of credit extended to them by Rematch Credit Limited. 

 

“Data Protection Legislation”

all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016 (EU) 2016/679, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the Electronic Communications Data Protection Directive (2002/58/EC), together with all codes of practice and other guidance on the foregoing issued by the Information commissioner’s Office, all as amended, updated or re-enacted from time to time.

 

DivideBuy

means the trading name of Rematch Credit Limited. 

 

“FCA”

means the Financial Conduct Authority or any successor regulatory body. 

 

“Initial notice”

means notice given by Rematch Credit Limited to the Retailer of intention of a revision of charges under this Agreement.

 

“Intellectual Property Rights”

means all vested, contingent and future intellectual property rights including but not limited to patents, goodwill, reputation, rights in confidential information, copyright, trade marks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, know-how, trade secrets, inventions, get-up, database rights, domain names in each case whether registered or unregistered, and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world, whether now known or in the future created. 

 

“Marketing Materials”

means any banners, logos, text or other advertising or promotional materials provided by Rematch Credit Limited to the Retailer from time to time which serve to advertise the provision of credit to Customers by Rematch Credit Limited in order to purchase Products from the Retailer.

 

“Outlets”

means the Retailer’s outlets (including without limitations distance selling and e-commence facilities) from time to time.

 

“Party or Parties”

means a party or parties to this Agreement. 

 

“Plug In”

means the link from the Retailer website to the Rematch Credit Limited website. 

 

“Products”

means the Retailer’s Products that are included on the retailer’s website and subject to this Agreement. 

 

“Procedural Guide”

means any document issued from time to time by Rematch Credit Limited to the Retailer providing details of the practices and procedures, which the Retailer is required to follow during the Term of this Agreement. 

 

“Retailer”

means Greg Rowe Limited

 

“Retailer Personnel”

has the meaning given to it in clause 4.3.

 

“Rematch Credit Limited” 

means Rematch Credit Limited. 

 

“Rematch Credit Limited Website”

means the Rematch Credit Limited website located at companyname.dividebuy.co.uk platform and databases, data contained therein and all intellectual property as well as all databases kept by either party for the purposes of this Agreement. 

 

“Retailer’s Website”

means the retailer’s website upon which it advertises and sells the Products. 

 

“Services”

means the services to be provided by the Retailer under this contract’.

 

“Shared Personal Data”

the personal data which is shared between the Retailer and Rematch Credit Limited, as particularised in schedule 1.

 

“Term of this Agreement”

means the period commencing on the Commencement Date and continuing in force unless and until terminated in accordance with its terms. 

 

“Terms and Conditions of Sale”

means Retailer’s terms and conditions of sale in respect of the Products which shall apply to Orders and shall also apply to resales by Rematch Credit Limited for its sales to the Customers and shall be included in the Rematch Credit Limited Website.

 

“Territory”

means the United Kingdom. 

1.2.

Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal personality. References to the word “include” or “including” are to be construed without limitation. 

1.3. 

In the event of any conflict between any of the terms of this Agreement, Procedural Guide and the Business Schedule, the terms of the documents will have the following order of priority 

1.3.1. This Agreement; 

1.3.2. The Procedural Guide; 

1.3.3. The Business Schedule. 

1.4.

The summary and headings are for convenience only and shall not affect the interpretation of any provision of this Agreement.

1.5.

References to any enactment shall include references to any statutory modification or re-enactment thereof or to any regulation or order made under such enactment as amended or replaced from time to time (or under such a modification or re-enactment).

1.6.

Any reference to “writing” or “written” includes faxes but does not include writing on the screen of a visual display unit, telexes or
e-mail. 

1.7.

References to times of the day are to London time and references to a day are to a period of 24 hours running from midnight. 

1.8.

The words “subsidiary” and “holding company” have the meanings given to them by section 1159 of the Companies Act 2006. 

1.9. 

Any reference to a person being an “associate” of another shall be interpreted in accordance with section 435 of the Insolvency Act 1986, and a person shall be regarded as “connected” or “associated” with any person which is an associate of his and with any company of which any director is an associate of his.  

1.10.

Any reference to a document being “in the agreed form” means a document in a form agreed by the Parties and initialled by, or on behalf of, each of them for the purpose of identification as such. 

1.11.

The Schedules and Background form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the Schedules and Background. 

1.12.

The terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in the Data Protection Legislation.

2.

SCOPE

2.1.

This Agreement sets out the rights and obligations of the Parties only in respect of the matters specifically addressed in it and shall apply to the conduct of any business which has been or maybe transacted between the Parties relating to business on or after the date of this Agreement. The terms of this Agreement supersede the terms of any other business agreement already in place between Rematch Credit Limited and the Retailer. 

2.2.

In the event that this Agreement requires the Retailer to access the Rematch Credit Limited Website for purposes connected with this Agreement, any use thereof shall be subject to the Terms and Conditions for use of the Rematch Credit Limited Website located at companyname.dividebuy.co.uk/full-terms-conditions as amended from time-to-time. 

2.3.

Nothing in this Agreement shall grant the Retailer authority to grant or amend business on behalf of Rematch Credit Limited, commit Rematch Credit Limited by contract or otherwise, or impose any obligation or liability on Rematch Credit Limited, alter any document or credit agreement, negotiate or settle any claim on behalf of Rematch Credit Limited, or give credit or effect instalments in the name of Rematch Credit Limited. 

2.4.

Nothing in this Agreement shall override the duty owed by the Retailer to its customers to place the interests of its customers before all other considerations nor shall this Agreement override any legal or regulatory requirements (whether obligatory or advisory), which may apply to the Retailer, Rematch Credit Limited or the placing of any business.

2.5.

Each proposal for business will be accepted or declined by Rematch Credit Limited at its sole discretion. The Retailer is under no obligation to offer any proposal for business to Rematch Credit Limited. 

3.

CHARGES

3.1.

Rematch Credit Limited reserves the right to vary the terms of this Agreement at any time in writing to the Retailer on 1 months’ notice. 

3.2. 

Rematch Credit Limited may periodically review the Charges as set out in Clause 5 throughout the duration of this Agreement. They may also be reviewed at any time if any costs incurred by Rematch Credit Limited have been increased in a manner which in the reasonable opinion of Rematch Credit Limited makes it unprofitable to continue to purchase products from the Retailer.

3.3. 

Any proposed variation to the Charges, and its effective date (which shall not be a date which is earlier than the date which is 1 calendar month after the date of the Initial Notice), shall promptly be communicated by Rematch Credit Limited to the Retailer by formal notice which shall give not less than 1 calendar month notice of the intended review (an Initial Notice). 

4. 

WARRANTIES 

4.1. 

The Retailer warrants that:
4.1.1. The Retailer will exercise at all times in the performance of the Services and of its obligations under 
this Agreement, the levels of care, skill and diligence reasonably to be expected of an established,
competent and experienced provider of the Retailer’s Products and in accordance with current 
best practice in the Retailer’s business;

4.1.2. the Products shall comply in all material respects with their most recent published specification; 

4.1.3. all services provided to Rematch Credit Limited and/or a Customer under this Agreement shall be 
provided with reasonable care and skill and that all personnel engaged to provide such services 
have the necessary skills, expertise and diligence to undertake such work; 

4.1.4. it will use all reasonable endeavours to ensure that it meets the Customer’s requirements for the times 
and dates of delivery of the Products and services at all times; 

4.1.5. it will process Personal Data provided to it by Rematch Credit Limited in compliance with the Data Protection Legislation.

4.2.

The Retailer agrees and acknowledges that Rematch Credit Limited is under no obligation to provide a minimum amount of sales through the Rematch Credit Limited Website.

4.3.

The Retailer shall not permit any member of the retailer Personnel (as defined below) to conclude enter into a Credit Agreement. For the purposes of this clause 4.3, Retailer Personnel shall be:

4.3.1.    any director, employee, agent or subcontractor of the Retailer; or

4.3.2.    any person connected with the retailer (as defined by section 252 of the Companies Act 2006).

4.4.

Rematch Credit Limited will use its reasonable endeavours to provide the service under this Agreement with all due skill and care. 

4.5.

Rematch Credit Limited shall throughout the Term maintain, update and secure the Rematch Credit Limited Website in accordance with best industry practice.

4.6.

Each party warrants, represents and undertakes that: 

4.6.1. it has full capacity and authority to enter into and to perform this Agreement; 

4.6.2. this Agreement is executed by a duly authorised representative of that party; 

4.6.3. there are no actions, suits or proceedings or regulatory investigations pending or, to that Party’s
knowledge, threatened against or affecting that Party before any court or administrative body or
arbitration tribunal that might affect the ability of that Party to meet and carry out its obligations under
this Agreement;

4.7.

once duly executed, this Agreement will constitute its legal, valid and binding obligations; and

4.8.

it will execute all documents and do all such acts as the other Party may require to perfect the assignment of any Intellectual Property Rights. 

5. 

TERMS OF PAYMENT 

5.1.

Rematch Credit Limited will deduct, from every order pursuant to a Credit Agreement, before payment is made to the Retailer: 

5.1.1. Rate amount of 12.5% (+ VAT)
5.1.2.
£1 processing fee per order (+ VAT)

5.1.3. £30 per month access fee (+ VAT) (chargeable from month 1)

5.1.4. Any reasonable additional fees which Rematch Credit Limited may in its absolute discretion impose from time to time.

5.2. 

Rematch Credit Limited will pay all orders from a day’s trading in bulk to the Retailer within 7 Business Days. 

5.3. 

In the event that the Customer should return the Products to the Retailer in accordance with the terms of the Credit Agreement or the Terms and Conditions of Sale, the Retailer shall pay to Rematch Credit Limited within 7 days (a) of receipt by the Retailer of returned Products or (b) of written demand from Rematch Credit Limited, (whichever is the earlier), or Rematch Credit Limited shall deduct from the sums owing to the Retailer, at its discretion, an amount equal to: 

5.3.1. sums paid to it pursuant to this Agreement or the relevant Credit Agreement which is subsequently rescinded or cancelled; 

5.3.2. any sums paid to the Retailer in error;

5.3.3. any sums paid to the Retailer under this Agreement where the Retailer has failed to comply with the terms and provisions of this Agreement; 

5.3.4. any sums paid to the Retailer, its directors, officers and/or employees who have acted fraudulently; 

5.3.5. sums paid under a Credit Agreement in respect of which a connected person of the Retailer applied for it. 

5.4.

Both parties acknowledge that under Regulation 13 of The Consumer Credit (EU Directive) Regulations 2010, SI 2010/1010, a Customer has a right to withdraw from a Credit Agreement without reason within 14 days, and in the event of such withdrawal, the purchased Products shall be returned to the Retailer and any Charges shall also be repaid to Rematch Credit Limited within 10 Business Days from the date upon which the Products were returned. 

5.5.

Save as otherwise required by law all payments under this Agreement shall be made in pounds sterling unless the Parties otherwise agree.

5.6.

Rematch Credit Limited will issue a self-billing invoice to act a sales invoice for the retailer on fulfilment of an order. This will consist of the total order value, minus the rate amount stated in clause 5.1. 

Eg – An order value of £100 and a rate amount of 10% + VAT: £100 – £12 = £88 (total payable to retailer)

6. 

TERMINATION

6.1.

This Agreement shall automatically renew as a 12-month contract unless written notice is given before the intended termination date to the other party in accordance with clause 6.2 of this Agreement. 

6.2.

Either Party shall be entitled to terminate this Agreement, giving no less than 20 Business Days by written notice before the intended termination date to the other party by reason of convenience. 

6.3. 

In the event that the Retailer elects to terminate this Agreement, any time after the first six months from the effective start of this Agreement, it shall pay to Rematch Credit Limited all reasonable costs incurred by Rematch Credit Limited in connection with the termination, including but not limited to the removal of the Plug In from the Retailer’s Website, within 20 Business Days following termination. 

6.4.

Either party may terminate this Agreement immediately: 

6.4.1. if that other party commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 30 days after receipt of a written notice giving full particulars of the  breach and requiring it to be remedied; or 

6.4.2. in the event that the other is involved in legal proceedings concerning its solvency, or ceases or  threatens to cease trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into  liquidation, whether compulsory or voluntary, other than for the purposes of a solvent amalgamation or  reconstruction, or makes any arrangement with its creditors or an administration order is made or  documents are filed with a court of competent jurisdiction for the appointment of an administrator of the  other party or notice of intention to appoint an administrator is given by the other party or its directors or  by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act  1986) or the other party has a receiver or administrative receiver or manager appointed over all or any  part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the  Insolvency Act 1986 or any analogous event occurs in any jurisdiction. 

6.5.

Rematch Credit Limited shall be entitled to terminate this Agreement immediately on 1 months’ notice in writing to the Retailer in the event that the Retailer at any time undergoes a change of control. 

6.6. 

The expiry or termination of this Agreement (for whatever reason) shall not terminate any provision or obligation which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the parties to this Agreement.

6.7. 

For the purposes of this clause: 

6.7.1. “control” means direct or indirect beneficial ownership of [50%] [or more] of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of the person concerned;

6.7.2. examples of material breaches include the infringement of the other party’s Intellectual Property Rights  (including by unauthorised copying) and delay in making any payment for more than 30 days; and 

6.7.3. a breach shall be considered capable of remedy if the obligation in question can be performed in all respects other than as to the time of performance (provided that time of performance is not and has not become of the essence). 

7.

 INFORMATION

7.1. 

The Retailer must notify Rematch Credit Limited immediately and in writing: 

7.1.1. of any change in its business address; 

7.1.2. of all changes in the ownership, directors, partners or controllers of the Retailer particularly where a shareholding of 15% or more is involved, and of all changes in the name or trading name of the Retailer and any material change in capital structure; 

7.1.3. if any owner, partner, director or controller of the Retailer: is or becomes convicted of any criminal offence; or 

7.1.4. if there is any material change in the cover afforded by the Retailer’s insurance or if it cannot comply with the minimum level required by any applicable statutory enactment or regulation as amended from time to time;

7.1.5. of any other material change in its circumstances including but not limited to its ownership, capital structure or financial situation which may affect its capacity to carry out its obligations under this Agreement.

7.2.

In connection with this Agreement, the Retailer has provided Rematch Credit Limited with a completed Application Form and, in submitting this Application Form, the Retailer hereby expressly authorises, to the extent legally permitted, Rematch Credit Limited to obtain access to all such bank, employment and other records as Rematch Credit Limited may deem necessary to verify the information provided in the Application Form. 

7.3.

The Retailer hereby represents and warrants to Rematch Credit Limited that: 

7.3.1. The information given in the Application Form to Rematch Credit Limited is true and complete in all material respects; and 

7.3.2. The Intermediary shall immediately inform Rematch Credit Limited of any material changes to the information supplied in the Application Form. 

7.4. 

Rematch Credit Limited reserves the right to require the Retailer to provide such information as Rematch Credit Limited reasonably requires, subject to applicable legislation. 

7.5.

The Retailer shall make available to Customers on its website any such information as Rematch Credit Limited may reasonably request, including a copy of the terms of a Credit Agreement as amended by Rematch Credit Limited from time to time.

7.6.

The Retailer shall display the marketing Materials in accordance with any reasonable instructions of Rematch Credit Limited from time to time.

8.

COMPLIANCE

8.1.

Rematch Credit Limited warrants that it is authorised to conduct consumer credit business from the date of this Agreement. 

8.2.

Each Party is responsible for compliance with all their respective legal, licensing and regulatory requirements including industry codes of practice (whether imposed under any law or by the FCA or otherwise) applicable to the business which takes place between Rematch Credit Limited and the Retailer. 

8.3.

Subject to the provisions in respect of termination in clause 6 of this Agreement, where one Party’s compliance with its respective legal, licensing and regulatory requirements including industry codes of practice necessarily requires assistance and/or information from the other Party, that other Party shall use reasonable endeavours to provide such assistance and/or information to the requesting Party as is reasonable in the circumstances. 

9.

REMATCH PROPERTY

9.1. 

All Intellectual Property Rights in any books and documents and computer software and hardware belonging to Rematch Credit Limited and/or held on behalf of Rematch Credit Limited and/or relating to business conducted under this Agreement or for and on behalf of Rematch Credit Limited and in the possession of the Retailer shall at all reasonable times be available to Rematch Credit Limited and its duly authorised representatives for inspection and audit. 

9.2.

If this Agreement is terminated or notice of termination is given, all such intellectual property as listed in clause 9.1 above must be delivered to Rematch Credit Limited by the Retailer forthwith.

9.3

Rematch Credit Limited grants to the Retailer a non-exclusive, royalty free licence to use the Marketing Materials for the Term of this Agreement for the purposes set out in this Agreement.

9.4

The Retailer grants Rematch Credit a non-exclusive, royalty free licence to reproduce, adapt or otherwise make use of its name, trade marks, designs or Product photographs for the Term of this Agreement in any format and on any medium for the purposes of advertising or promoting interest-free credit or the rematch Credit Limited brand.

9.5.

Save as otherwise provided in this Agreement, the Parties shall not use or make use of any of the other Party’s Intellectual Property, name, trademarks, service marks or logos without first obtaining the written consent and approval of the other Party. 

10.

CONFIDENTIALITY

10.1.

Except to the extent set out in this clause 10, or where disclosure is expressly permitted elsewhere in this Agreement, each party shall: 

10.1.1. treat the other party’s Confidential Information and Intellectual Property as confidential;
and 

10.1.2. not disclose the other party’s Confidential Information to any other person without the
owner’s prior written consent. 

10.2.

Clause 10.1 shall not apply to the extent that: 

10.2.1. such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or 

10.2.2. such information was obtained from a third party without obligation of confidentiality; or 

10.2.3. such information was already in the public domain at the time of disclosure otherwise than through a breach of this Agreement; or 

10.2.4. such information was independently developed without access to the other party’s Confidential Information. 

10.3. 

The Retailer may only disclose Rematch Credit Limited’s Confidential Information to the Retailer’s personnel who are directly involved in the provision of the Services and who need to know the information. The Retailer shall ensure that such Retailer’s personnel are aware of, and comply with, these confidentiality obligations. 

10.4. 

The Retailer shall not, and shall procure that the Retailer’s personnel do not, use any of Rematch Credit Limited’s Confidential Information received otherwise than for the purposes of this Agreement. 

10.5.

The Retailer undertakes (except as may be required by law or in order to instruct professional advisers in connection with this Agreement) not to:
10.5.1. disclose or permit disclosure of any details of this Agreement to the news media or any third party; or 

10.5.2. disclose that the Rematch Credit Limited is a customer or client of the Retailer; or 

10.5.3. use Rematch Credit Limited’s name or brand in any promotion or marketing or announcement without the prior written consent of Rematch Credit Limited. 

10.6.

Nothing in this clause 10 shall prevent either party from using any techniques, ideas or know-how gained during the performance of this Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other party’s Confidential Information or an infringement of rights in Intellectual Property. 

11.

DATA PROTECTION

11.1.

The parties agree that each of them acts as a data controller in respect of the Shared personal Data, and shall process it for the Agreed Purpose, and shall not process it in a way which is incompatible with the Agreed Purpose.

11.2.

Each party shall (and shall ensure that any subcontractors shall):

11.2.1. comply with their respective obligations under the Data Protection Legislation;

11.2.2. process the Shared Personal Data on the basis of one of the lawful grounds listed in the Data       Protection Legislation; and

11.2.3. obtain all permissions and consents necessary to disclose the Shared Personal Data to the other party.

11.3.

Each party shall ensure that (to the extent of its reasonable knowledge and belief) the personal data it discloses to the other party is accurate.

11.4.

Each party shall, in respect of Shared Personal Data, ensure that their privacy notices are clear and provide sufficient information to Customers and any other effected data subjects for them to understand what of their personal data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the other party, or a description of the type of organisation that will receive the personal data.

11.5

The parties acknowledge that the Data Protection Legislation grants data subjects certain rights over their personal data, and that the responsibility for complying with such a request falls to the party who receives it in respect of the personal data they hold about the relevant data subject. The parties agree to provide reasonable assistance (at the cost of the party requesting it) as is necessary to each other to enable them to comply with any requests made by a data subject.

11.6

Where a perspective Customer is refused interest free credit by Rematch Credit Limited, it shall ensure that their personal data is deleted within 12 months from the date on which the refusal is issued.

11.7

Taking into account the latest standards of security measures, the costs of implementation and the nature, scope, context and purposes of the data sharing, as well as the risk to the rights and freedoms of natural persons, each party shall implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk.

12.

INDEMNITY 

12.1. 

The Retailer shall indemnify Rematch Credit Limited against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) arising out of or in connection with: 

12.1.1. any breach of the warranty or warranties contained in clause 4; 

12.1.2. the Retailer’s breach or negligent performance or non-performance of this Agreement;

12.1.3. Any claim made by a customer of the Retailer in connection with the Retailer’s failure to provide   Products of satisfactory quality, deliver the Products in a timely manner, provide support for the Products or any other undertaking by the Retailer in relation to the supply, use, repair or replacement of Products. 

12.1.4. any claim made against Rematch Credit Limited by a third party arising out of or in connection with the supply of the Products, to the extent that such claim arises out of breach, negligent performance or failure or delay in performance of this Agreement by the Retailer, its employees, agents or subcontractors; 

12.1.5. any claim made against Rematch Credit Limited by a third party for death, personal injury or damage to property arising out of or in connection with defective Products. 

12.1.6. any breach of the obligations listed in clause 11, or of the Data Protection Legislation.

12.2. 

This indemnity shall not cover the Retailer to the extent that a claim under it results from negligence or wilful misconduct by Rematch Credit Limited. 

12.3.

Rematch Credit Limited shall indemnify the Retailer against all liabilities, costs, expenses, damages and losses incurred in connection with: 

12.3.1. Any breach (including negligent breach) by us of this Agreement; and 

12.3.2. Any breach of the Data Protection Act or any other data protection legislation in force from time to time. 

12.4.

If any third party makes a claim against, or notifies an intention to make a claim against Rematch Credit Limited which may reasonably be considered as likely to give rise to a liability under this indemnity (“Relevant Claim”), Rematch Credit Limited shall: 

12.4.1. as soon as reasonably practicable give written notice of that matter to the Retailer, specifying in reasonable detail the nature of the Relevant Claim; 

12.4.2. not make any admission of liability, agreement or compromise in relation to the Relevant Claim without the prior written consent of the Retailer (such consent not to be unreasonably withheld or delayed); 

12.4.3. give the Retailer and its professional advisers reasonable access to the premises and personnel of Rematch Credit Limited and to any relevant assets, accounts, documents and records within the power or control of Rematch Credit Limited so as to enable the Retailer and its professional advisers to examine such premises, assets, accounts, documents and records, and to take copies at their own expense for the purpose of assessing the merits of the Relevant Claim; 

12.4.4. subject to the Retailer indemnifying Rematch Credit Limited to Rematch Credit Limited’s reasonable satisfaction against any liability, costs, damages or expenses which may be incurred, take such action as the Retailer may reasonably request to avoid, dispute, resist, compromise or defend the relevant claim.

13.

FORCE MAJEURE

13.1.

In this Agreement, “Force Majeure” shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to circumstances beyond the reasonable control of the party so prevented including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party), act of God, government actions, war, riot, hostilities (whether war be declared or not), armed conflict, terrorist attack, terrorist activity, nuclear, chemical or biological contamination, sonic boom, civil commotion, invasion, revolution malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, power failure, breakdown of plant or machinery, fire, flood, storm, disease, epidemic, default of suppliers or sub-contractors, difficulties or increased expense in obtaining raw materials, labour, fuel, parts or machinery, or import or export regulations or embargoes. 

13.2. 

If either Party is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that party shall immediately serve notice in writing on the other Party specifying the nature and extent of the circumstances giving rise to Force Majeure, and shall subject to service of such notice have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for that Party, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations. 

13.3.

If either Party is prevented from performance of its obligations for a continuous period in excess of 3 months, the other Party may terminate this Agreement immediately on service of written notice upon the Party so prevented, in which case neither Party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist. 

13.4. 

The Party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall use reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the Agreement may be performed despite the continuance of the Force Majeure event.

 

14.

NO PARTNERSHIP/AGENCY

14.1.

Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15.

COMPLAINTS

15.1.

Each Party will notify the other immediately on receipt of any complaint from Customer relating to the business subject to this Agreement. 

16.

CONFLICTS OF INTEREST

16.1.

The Parties will adopt and/or maintain procedures to ensure that each has in arrangements for the identification and management of any conflicts of interest that may arise in relation to the business subject to this Agreement. 

17.

ARBITRATION 

17.1.

Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this clause. 

18. 

RIGHTS OF THIRD PARTIES

18.1. 

No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a Party to this Agreement.

19.

NOTICES

19.1.

A notice given to a Party under or in connection with this Agreement shall be in writing and sent to the Party at the address or e-mail address given in this Agreement or as otherwise notified in writing to the other Party. 

19.2.

The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time: 

Delivery Method

Deemed Delivery Date and Time

Delivery by hand. 

At the time the notice is left at the company address.

Pre-paid first class recorded delivery post or other next Business Day delivery service.

9:00am on the second Business Day after posting or at the time recorded by the delivery service if any. 

E-mail with request for a read receipt.

At the time the read receipt is sent. 

19.3. 

For the purposes of clause 19.2, if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00am on the day when business next starts in England and Wales.

19.4.

For the purposes of clause 19.2, any e-mail sent without an included request for a read receipt shall be deemed not to be a valid notice under this Agreement. 

19.5.

For the avoidance of doubt, this clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

20.

ASSIGNMENT

20.1.

Neither Party shall without the prior written consent of the other Party (such consent not to be unreasonably conditioned, withheld or delayed) assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement. 

21.

SUCCESSORS AND ASSIGNS

21.1.

This Agreement shall be binding upon and ensure to the benefit of, the Parties to this Agreement and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees. 

22.

SUB-CONTRACTING

22.1.

With the prior written consent of Rematch Credit Limited (such consent not to be unreasonably withheld or delayed) the Retailer may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Retailer shall remain liable for such performance and shall indemnify Rematch Credit Limited against any loss or damage suffered by Rematch Credit Limited arising from any act or omission of such agent or sub-contractors. 

23.

THIRD PARTY RIGHTS

23.1.

Unless the right of enforcement is expressly granted, it is not intended that a third party should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

24.

ENTIRE AGREEMENT

24.1. 

This Agreement, and the documents referred to in it, constitute the whole and only Agreement and understanding between the Parties relating to its subject matter and supersedes and extinguishes any drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, between the parties in connection with the subject matter of this Agreement whether existing prior to or at the same time as this Agreement. 

24.2.

The rights under this Agreement of Rematch Credit Limited and of any person who has rights under this Agreement by virtue of the Third Party Rights Act 1999 are independent, cumulative and without prejudice to all other rights available to it whether as a matter of common law, statute, custom or otherwise. 

24.3.

Nothing in this Agreement shall be read or construed as excluding any liability or remedy as a result of fraud. 

24.4. 

Each of the Parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. The only remedy available to it for breach of a warranty shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

25.

WAIVER AND REMEDIES

25.1.

No waiver by any Party of any breach or non-fulfilment by any other Party of any provisions of this Agreement shall be deemed to be a waiver of any subsequent or other breach of that or any other provision and no failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver of that right or remedy. No single or partial exercise of any such right, power or remedy shall preclude or impair any other or further exercise of it or the exercise of any other right, power or remedy provided by law or under this Agreement. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement will not prevent a Party from subsequently requiring compliance with the waived obligation. 

25.2.

Any waiver of any right, power or remedy under this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. Unless otherwise expressly stated, any waiver shall be effective only in the instance and only for the purpose for which it is given. 

27.

SET-OFF

27.1.

Rematch Credit Limited shall be entitled but not obliged at any time or times to set off any liability of the Retailer to Rematch Credit Limited against any liability of Rematch Credit Limited to Retailer (in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by Rematch Credit Limited of its rights under this clause shall be without prejudice to any other rights or remedies available to Rematch Credit Limited under this Agreement or otherwise. 

28.

COUNTERPARTS

28.1.

This Agreement may be executed in any number of counterparts and by the Parties on different counterparts but shall not be effective until each Party has executed at least one counterpart. 

28.2.

Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same Agreement. 

29. 

SEVERANCE

29.1.

Each of the provisions of this Agreement is severable. If any provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or enforceability in that jurisdiction of the remaining provisions of this Agreement shall not in any way be affected or impaired by it. 

29.2.

Each of the provisions of this Agreement is severable. If any provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modifications as may be necessary to make it valid. 

29.3.

The Parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision. The obligations of the Parties under any illegal, invalid or unenforceable provision of this Agreement shall be suspended while an attempt at such substitution is made. 

30.

GOVERNING LAW AND JURISDICTION

30.1. 

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. 

30.2. 

Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any claim or matter or the settle any dispute which may arise out of or in connection with this Agreement. 

31. 

CHARGES

31.1.

Rematch Credit Limited will deduct Commission of 12.5% (+ VAT) from the total price of every order made pursuant to a Credit Agreement. 

31.2. 

Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any claim or matter or the settle any dispute which may arise out of or in connection with this Agreement. 

 

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