DivideBuy is duly authorised to carry on limited permission lending under the Financial Services and Markets Act 2000; and
DivideBuy and the Retailer wish to set out the Terms and Conditions on which the Retailer shall supply services to Customers which are to be paid for by way of a Credit Agreement.
IT IS HEREBY AGREED as follows:
DEFINITIONS AND INTERPRETATION
The following words and expressions shall have the following meanings:
|“Agreed Purpose”||means the introduction by the Retailer to DivideBuy of individuals wishing to enter into a Credit Agreement for the purchase of a Product from DivideBuy, with such purchase being fulfilled by the Retailer.|
|“Application Form”||means the application form signed by the Retailer on [insert date].|
|“Business Day”||means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|“Charges”||means the subsidy, commissions and other sums payable by the Retailer as set out in the Payment Terms in the Order Form to this Agreement.|
|“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.|
|“Credit Agreement”||means an unregulated credit agreement entered into between the Customer and DivideBuy once a sale has been processed through the DivideBuy Website.|
|“Customer”||means any person who orders Services from the Retailer under the terms of a Credit Agreement|
|“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 Personnel”||any director, employee, agent or subcontractor of DivideBuy or any person connected with the retailer (as defined by section 252 of the Companies Act 2006).|
|“FCA”||means the Financial Conduct Authority or any successor regulatory body.|
|“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 DivideBuy to the Retailer from time to time which serve to advertise the option to order the Services from the Retailer under the terms of a Credit Agreement with DivideBuy.|
|“Order”||Means any order for the Services placed by a Customer with the Retailer under the terms of a Credit Agreement with DivideBuy.|
|“Party or Parties”||means a party or parties to this Agreement.|
|“Public Company”||means a company whose shares are traded freely on a stock exchange.|
|“Processing Fee”||means the cost for DivideBuy to send payments to the Retailer’s account.|
|“Retailer”||means RETAILER NAME|
|“Retailer Personnel”||has the meaning given to it in clause 6.3.|
|“DivideBuy Website”||means the DivideBuy website located at retailerwebsite.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 Services.|
|“Services”||means the Retailer’s services that are included on the Retailer’s website and subject to this Agreement.|
|“Shared Personal Data”||the personal data which is shared between the Retailer and DivideBuy, as particularised in the Order Form of this Agreement.|
|“Tier”||is the term given to distinguish between the different types of retailer depending on the number of employees the retailer employs.|
|“Terms and Conditions of Sale”||means the Retailer’s terms and conditions of sale in respect of the Services which shall apply to Orders and shall be included in the DivideBuy Website.|
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.
The summary and headings are for convenience only and shall not affect the interpretation of any provision of this Agreement.
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).
Any reference to “day”, “month” or “year” shall mean calendar day, calendar month and calendar year.
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.
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.
The words “subsidiary” and “holding company” have the meanings given to them by section 1159 of the Companies Act 2006.
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.
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.
The Order Form forms 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 Order Form.
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.
BASIS OF AGREEMENT
This Agreement constitutes the basis of the agreement between DivideBuy and the Retailer and comprises the Order Form and the Terms and Conditions.
Where there is any inconsistency between the Order Form and the Terms and Conditions, then the order of precedence shall be: (1) the Order Form; and (2) these Terms and Conditions.
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 DivideBuy and the Retailer with respect to the subject matter contained herein.
In the event that this Agreement requires the Retailer to access the DivideBuy Website for purposes connected with this Agreement, any use thereof shall be subject to the Terms and Conditions for use of the DivideBuy Website located at retailerwebiste.dividebuy.co.uk/full-terms-conditions as amended from time-to-time.
Nothing in this Agreement shall grant the Retailer authority to grant or amend business on behalf of DivideBuy, commit DivideBuy by contract or otherwise, or impose any obligation or liability on DivideBuy, alter any document or Credit Agreement, negotiate or settle any claim on behalf of DivideBuy, or give credit or effect instalments in the name of DivideBuy.
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, DivideBuy or the placing of any business.
Each request for credit will be accepted or declined by DivideBuy at its sole discretion.
DivideBuy will use its reasonable endeavours to provide the following services:
provision of Credit Agreements to Customers (at rates agreed with Customers from time to time); and
online support to the Retailer, including installation of API, white label/custom branded platform, telephone order system, and full online integration.
DivideBuy shall throughout the Term of this Agreement maintain, update and secure the DivideBuy Website in accordance with good industry practice.
DivideBuy warrants, represents and undertakes that:
it has full capacity and authority to enter into and to perform this Agreement;
this Agreement is executed by a duly authorised representative of DivideBuy;
there are no actions, suits or proceedings or regulatory investigations pending or, to its knowledge, threatened against or affecting DivideBuy before any court or administrative body or arbitration tribunal that might affect its ability to meet and carry out its obligations under this Agreement;
once duly executed, this Agreement will constitute its legal, valid and binding obligations; and
it will execute all documents and do all such acts as the Retailer may require to give effect to the Retailer’s obligations under this Agreement, including in respect of Intellectual Property in relation to clause 11, below.
The Retailer warrants that:
it has the right to sell the Services;
the Services shall comply in all material respects with their most recent published specification and/or description;
the Services shall comply with all implied terms of the Consumer Rights Act 2015;
all services provided to DivideBuy and/or a Customer under or in connection with this Agreement shall be provided with the levels of care, skill and diligence reasonably to be expected of an established, competent and experienced provider of the Retailer’s Services and in accordance with current best practice in the Retailer’s industry;
all personnel engaged by the Retailer under or in connection with this Agreement have the necessary skills, expertise and diligence to undertake such work;
it will use all reasonable endeavours to ensure that it meets the Customer’s requirements for the times and dates of delivery of the Services at all times;
it will process Personal Data provided to it by DivideBuy in compliance with the Data Protection Legislation.
The Retailer agrees and acknowledges that DivideBuy is under no obligation to provide credit to any Customer.
If the Retailer is in Tier 3 or Tier 4 it shall not permit any member of the Retailer Personnel (as defined below) to enter into a Credit Agreement. For the purposes of this clause 6.3, Retailer Personnel shall be:
any director, employee, agent or subcontractor of the Retailer; or
any person connected with the retailer (as defined by section 252 of the Companies Act 2006).
The Retailer warrants, represents and undertakes that:
it has full capacity and authority to enter into and to perform this Agreement;
this Agreement is executed by a duly authorised representative of the Retailer;
here are no actions, suits or proceedings or regulatory investigations pending or, to its knowledge, threatened against or affecting the Retailer before any court or administrative body or arbitration tribunal that might affect its ability to meet and carry out its obligations under this Agreement;
once duly executed, this Agreement will constitute its legal, valid and binding obligations; and
it will execute all documents and do all such acts as DivideBuy may require to give effect to DivideBuy’s obligations under this Agreement, including in respect of Intellectual Property in relation to clause 11, below.
The Retailer agrees to include on its website and at the point of order such DivideBuy Customer terms and conditions and other notices as DivideBuy may from time to time request.
The Retailer agrees to include digital banners promoting the services provided by DivideBuy on its website in a position visible to Customers visiting the Retailer’s home page, category pages and individual product pages, in the form and manner reasonably requested by DivideBuy from time to time.
The Retailer agrees that DivideBuy will be the exclusive provider of interest free credit to the Retailer’s customers, provided that this exclusivity may be waived for certain providers with approval in writing by DivideBuy, from time to time.
The Retailer shall make available to Customers on its website any such information as DivideBuy may reasonably request, including a copy of the terms of a Credit Agreement as amended by DivideBuy from time to time.
The Retailer shall display the Marketing Materials in accordance with any reasonable instructions of DivideBuy from time to time.
TERMS OF PAYMENT AND REVIEW
In respect of each Order placed by a Customer pursuant to a Credit Agreement, DivideBuy shall reimburse the Price as set out in the Order Form of this Agreement and such payment shall be made by DivideBuy to the Retailer.
The payment for Services by DivideBuy provided in accordance with this Agreement shall be payable in accordance with the Payment Option stated in the Order Form of this Agreement and shall also be subject to clause 7.3.
DivideBuy reserves the right to require Retailers to provide evidence proving that the Services have been completed and to withhold payment until it has received such evidence as it considers satisfactory.
The Price is inclusive of any VAT chargeable by the Retailer in connection with the supply of Services pursuant to the Order. For the avoidance of doubt, DivideBuy shall not be liable in respect of any VAT charge in connection with an Order, whether payable at the time of the Order or at a later date.
At the end of each month during the Term of this Agreement, DivideBuy shall raise an invoice in respect of the Aggregate Processing Fees for Orders and an Access Fee and the Retailer shall make the payment in accordance with the Payment Terms in the Order Form of this Agreement.
In the event that a Customer cancels its Order for Services or the delivery of the Services is otherwise not completed in accordance with the terms of the Credit Agreement or the Terms and Conditions of Sale (a “Customer Cancellation”), the Retailer indemnifies and keeps indemnified DivideBuy, and shall pay to DivideBuy within 7 days (a) of receipt by the Retailer of cancelled Services or (b) of written demand from DivideBuy, (whichever is the earlier), or DivideBuy shall deduct from the sums owing to the Retailer, at its discretion, an amount equal to sums paid by DivideBuy to the Retailer in respect of the Order or which is subsequently rescinded or cancelled.
In addition, and without prejudice to the foregoing, the Retailer shall pay to DivideBuy within 7 days of written demand from DivideBuy, or DivideBuy shall deduct from the sums owing to the Retailer, at its discretion, an amount equal to:
any sums paid to the Retailer in error;
any sums paid to the Retailer under this Agreement where the Retailer has failed to comply with the terms and provisions of this Agreement;
any sums paid to the Retailer, its directors, officers and/or employees who have acted fraudulently; and
sums paid under a Credit Agreement in respect of which a connected person of the Retailer applied for it.
In the event that the number of Customer Cancellations exceeds the Customer Cancellation Limit, DivideBuy may charge the Administration Fee in respect of all Customer Cancellations during that calendar month. For the avoidance of doubt, where a Customer Cancellation relates to a single Order comprising multiple Services, the Administration Fee will be charged once in respect of the Order regardless of the number of Services cancelled.
At the end of each month during the Term of this Agreement, DivideBuy shall raise an invoice in respect of the aggregate amount of Administration Fees due for that month.
The Retailer shall pay all Administration Fees due under this Agreement by way of direct debit within 14 days of the date of any invoice raised under this Agreement.
Both Parties acknowledge that the Customers have the right to withdraw from their respective Credit Agreements without reason within 14 days. Upon cancellation of an Order, clause 7.6 of this Agreement shall apply.
Save as otherwise required by law all payments under this Agreement shall be made in pounds sterling unless the Parties otherwise agree in writing.
DivideBuy reserves the right to conduct an Annual Review in accordance with the Order Form of the Agreement.
Following the Initial Term of this Agreement, this Agreement shall automatically renew on each anniversary of the Commencement Date as a 12-month contract unless written notice is given by either Party in accordance with clause 8.2 of this Agreement.
Subject to clause 8.3, either Party shall be entitled to terminate this Agreement by written notice of no less than 3 months’ notice provided that such notice may only be effective on an Anniversary of the Commencement Date.
Either Party may terminate this Agreement immediately:
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;
in the event that the other Party 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; or
there is a change of control of the other Party, unless the majority of such Party’s shares are traded publicly on a stock exchange, in which case this clause 7.3.3 shall not apply.
DivideBuy may terminate or suspend this Agreement immediately in the event that they, in their sole discretion, consider that to maintain the relationship with the Retailer would adversely affect either: (i) the Customer(s); or (ii) DivideBuy’s business.
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.
For the purposes of this clause 8:
“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;
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
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).
The Retailer must notify DivideBuy immediately and in writing:
of any change in its business address;
in respect of Retailers in Tiers 3 and 4 only, of all changes in the ownership, directors, partners or controllers of the Retailer particularly where a shareholding of 15% or more is involved, and, with the exception of Public Companies, of all changes in the name or trading name of the Retailer and any material change in capital structure;
if any owner, partner, director or controller of the Retailer is or becomes convicted of any criminal offence;
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; and
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.
In connection with this Agreement, the Retailer has provided DivideBuy with a completed Application Form and, in submitting this Application Form, the Retailer hereby expressly authorises, to the extent legally permitted, DivideBuy to obtain access to all such bank, employment and other records as DivideBuy may deem necessary to verify the information provided in the Application Form.
The Retailer hereby represents and warrants to DivideBuy that:
The information given in the Application Form to DivideBuy is true and complete in all material respects; and
The Retailer shall immediately inform DivideBuy of any material changes to the information supplied in the Application Form.
DivideBuy reserves the right to require the Retailer to provide such information as DivideBuy reasonably requires, subject to applicable legislation.
DivideBuy warrants that it is authorised by the FCA to conduct consumer credit business from the date of this Agreement.
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 DivideBuy and the Retailer.
Subject to the provisions in respect of termination in clause 8 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.
All Intellectual Property Rights in any books and documents and computer software and hardware belonging to DivideBuy and/or held on behalf of DivideBuy and/or relating to business conducted under this Agreement or for and on behalf of DivideBuy and in the possession of the Retailer shall at all reasonable times be available to DivideBuy and its duly authorised representatives for inspection and audit.
If this Agreement is terminated or notice of termination is given, all such intellectual property as listed in clause 11.1 above must be delivered to DivideBuy by the Retailer forthwith.
DivideBuy 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.
The Retailer grants Rematch Credit a non-exclusive, royalty free licence to reproduce, adapt or otherwise make use of its name, trademarks, designs or Services imagery for the Term of this Agreement in any format but always in accordance with an agreed Promotional Plan.
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.
Except to the extent set out in this clause 12, or where disclosure is expressly permitted elsewhere in this Agreement, each Party shall:
treat the other Party’s Confidential Information and Intellectual Property as confidential; and
not disclose the other Party’s Confidential Information to any other person without the owner’s prior written consent.
Clause 12.1 shall not apply to the extent that:
such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or
such information was obtained from a third party without obligation of confidentiality; or
such information was already in the public domain at the time of disclosure otherwise than through a breach of this Agreement; or
such information was independently developed without access to the other party’s Confidential Information.
The Parties may only disclose each other’s Confidential Information to its Personnel who need to know the information. Each Party shall ensure that such its Personnel are aware of, and comply with, these confidentiality obligations.
The Parties shall not, and shall procure that each of their Personnel do not, use any of the other Party’s Confidential Information received otherwise than for the purposes of this Agreement.
The Retailer undertakes (except as may be required by law or in order to instruct professional advisers in connection with this Agreement) not to:
disclose or permit disclosure of any details of this Agreement to the news media or any third party; or
disclose that the DivideBuy is a customer or client of the Retailer; or
use DivideBuy’s name or brand in any promotion or marketing or announcement without the prior written consent of DivideBuy.
Nothing in this clause 12 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.
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.
Each Party shall (and shall ensure that any subcontractors shall):
comply with their respective obligations under the Data Protection Legislation;
process the Shared Personal Data on the basis of one of the lawful grounds listed in the Data Protection Legislation; and
obtain all permissions and consents necessary to disclose the Shared Personal Data to the other Party.
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.
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.
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.
Where a prospective Customer is refused interest free credit by DivideBuy, it shall ensure that their personal data is deleted or anonymised within six months from the date on which the refusal is issued.
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.
The Retailer shall indemnify DivideBuy 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:
any breach of the warranty or warranties contained in clause 6;
the Retailer’s breach or negligent performance or non-performance of this Agreement;
any claim made by a Customer in connection with an alleged failure to provide Services that comply with the terms of the Consumer Rights Act 2015 or that comply with their most recent published specification and/or description, to deliver the Services in a timely manner, provide support for the Services or any other undertaking by the Retailer in relation to the supply, use or replacement of Services.
any claim made against DivideBuy by a third party arising out of or in connection with the supply of the Services, 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;
any claim made against DivideBuy by a third party for death, personal injury or damage to property arising out of or in connection with defective Services;
any breach of the obligations listed in clause 13, or of the Data Protection Legislation;
any liability arising as a result of section 75 of the Consumer Credit Act 1974.
The indemnity in clause 14.1 shall not apply to the extent that a claim under it results from negligence or wilful misconduct by DivideBuy.
If any third party makes a claim against, or notifies an intention to make a claim against DivideBuy which may reasonably be considered as likely to give rise to a liability under the indemnity in this clause 14 (“Relevant Claim”), DivideBuy shall:
as soon as reasonably practicable give written notice of that matter to the Retailer, specifying in reasonable detail the nature of the Relevant Claim;
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);
give the Retailer and its professional advisers reasonable access to the premises and personnel of DivideBuy and to any relevant assets, accounts, documents and records within the power or control of DivideBuy 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; and
subject to the Retailer indemnifying DivideBuy to DivideBuy’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.
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.
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 under this Agreement.
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: (i) prior to such Force Majeure; and (ii) to the extent not affected by the Force Majeure, prior to termination, shall continue to subsist.
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.
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).
Each Party will notify the other immediately on receipt of any complaint from a Customer relating to the business subject to this Agreement.
CONFLICTS OF INTEREST
The Parties will adopt and/or maintain procedures to ensure that each has in place arrangements for the identification and management of any conflicts of interest that may arise in relation to the business subject to this Agreement.
LIMITATION OF LIABILITY
Subject to clause 19.2, the maximum liability of DivideBuy and its group companies under and in respect of any breach of this Agreement in any contract year shall not exceed an amount equivalent to the total Commission payable by the Retailer in the same period.
Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence; fraud; and/or fraudulent misrepresentation.
RIGHTS OF THIRD PARTIES
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.
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.
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.|
|If sent before 4.00 pm on a Business Day, that Business Day, otherwise on the next Business Day following the day on which the email was sent.|
For the purposes of clause 21.2, 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.
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.
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.
SUCCESSORS AND ASSIGNS
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.
With the prior written consent of DivideBuy (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 DivideBuy against any loss or damage suffered by DivideBuy arising from any act or omission of such agent or sub-contractors.
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.
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.
WAIVER AND REMEDIES
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.
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.
DivideBuy shall be entitled but not obliged at any time or times to set off any liability of the Retailer to DivideBuy against any liability of DivideBuy 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 DivideBuy of its rights under this clause shall be without prejudice to any other rights or remedies available to DivideBuy under this Agreement or otherwise.
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.
Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same Agreement.
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.
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.
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.
GOVERNING LAW AND JURISDICTION
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.
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 and such rules are deemed to be incorporated by reference into this clause.