General Terms of Mondu UK Ltd. on the Purchase and Assignment of Receivables (RPA GTC)

Preamble

Mondu UK Ltd. (“Mondu UK“) provides factoring services to online business merchants (each a “Merchant“) enabling the Merchants to offer their business customers (each a “Customer“) payment methods which split or postpone purchase price payments for online purchases, works and services (each a “Mondu Payment Method“). Mondu GmbH (“Mondu DE“) operates an online platform which provides the technical solution facilitating the sale and assignment of the receivables generated by the Merchants through offering their Customers Mondu Payment Methods for their online purchase or service contracts (“Customer Contracts“) to Mondu UK.

The present General Terms of Mondu UK on the Purchase and Assignment of Receivables (“RPA GTC“) apply to Merchants having their domicile in the United Kingdom.

Customers may select a Mondu Payment Method as a payment method for the purchase price payment or other payment under a Customer Contract. Having selected a Mondu Payment Method as payment method, Customers can choose between either an installment payment or a payment postponement option for their payments under the Customer Contracts (each a “Payment Receivable“).

The installment payment option lets Customers split their payments under a Customer Contract into installments. The payment postponement option lets Customers postpone their payments due under the respective Customer Contracts.
When choosing an installment payment or a payment postponement option, Customers shall provide Mondu DE with certain information. After the provided information has been verified, Customers and Merchants will conclude a payment agreement (“Payment Agreement“). For the conclusion of Payment Agreements with its Customers, Merchants use the respective current template provided by Mondu UK to Merchants as amended from time to time (“Payment Agreement Template“). Payment Agreements between Merchants and Customers will be concluded in the Merchant checkout process as described in the platform service agreement concluded separately between Merchants and Mondu DE (“Platform Service Agreement“).

Merchants will offer to sell 100 % of the receivables under the Payment Agreements to Mondu UK. Therefore, Merchants will inform Mondu DE in detail and at regular intervals of the individual Payment Receivables accrued that are being offered to Mondu UK for purchase. As agreed separately between Mondu DE and each Merchant, Mondu DE will draw up Receivables Lists (as defined below) on this basis, which are sent to Mondu UK. Mondu DE will include Payment Receivables into the Receivables List which meet certain criteria that have been agreed between Mondu UK and Merchants as set out in Annex 1 (“Eligibility Criteria“)

Receipt of the Receivables List by Mondu UK will be regarded as an offer by Merchants to Mondu UK to sell the Payment Receivables included in the Receivables List to Mondu UK. In this context, Mondu DE acts as messenger for the Merchant and submits the Merchant’s offer to Mondu UK as further set out below.

Mondu UK will purchase all Payment Receivables offered by Merchants if these Payment Receivables fulfil the Eligibility Criteria.

For the purpose of these RPA GTC, “Business Day” means every day (except Saturdays and Sundays) on which commercial banks are open for business in London, England.

1. Sale and Purchase

1.1

As from the date of conclusion of the Recourse Factoring Framework Agreement between Merchant and Mondu UK, Merchant sells and Mondu UK purchases on a regular basis Payment Receivables (including independent and dependent rights incidental to each relevant Payment Agreement) in line with the procedure as set out under this section 1. An individual purchase agreement is concluded for the acquisition of each Payment Receivable on the basis of the present RPA GTC (“Individual Purchase Agreement“).

1.2

The receivables amount communicated by Merchant to Mondu UK via Mondu DE shall be authoritative in determining the nominal value of the Payment Receivables to be sold (“Nominal Value“). Hence, Merchant and Mondu UK agree that the Nominal Value of each Payment Receivable to be sold is always equivalent to the amount of Merchant’s receivable under the respective Payment Agreement (quality agreement).

1.3

Offers by Merchant for the sale of Payment Receivables will be made to Mondu UK on a regular basis by Merchant sending certain information (“Receivables Information“) to Mondu DE. Mondu DE and Merchant will agree or have agreed on details of such information separately, in particular on the content of the information to be provided and on the frequency and the format in which the Payment Receivables Information will be submitted to Mondu DE. Based on the Payment Receivables Information, Mondu DE will prepare and send a list of receivables (“Receivables List“) to Mondu UK. Receipt of the Receivables List by Mondu UK will be regarded as Merchant’s offer (“Offer“) to enter into Individual Purchase Agreements with Mondu UK with regard to the Payment Receivables contained in the Receivables List. In this context, Mondu DE will act as a messenger for the relevant Merchant with regard to the individual Offers. The details, particularly the interval and the way of sending the Receivables Lists will be agreed by Mondu DE and Mondu UK separately.

1.4

Upon receipt of the Receivables List by Mondu UK, Mondu UK accepts the Offer and purchases from Merchant the Payment Receivables contained in the Receivables Lists by paying the Purchase Price by 24:00 hrs on the Business Day following receipt of the respective Receivables List by Mondu UK (“Cut-off Time“) and under the condition precedent that Mondu UK has not revoked the purchase with regard to that Payment Receivable prior to payment of the Purchase Price (as defined below) for the respective Payment Receivable. The Parties acknowledge and understand that Mondu UK shall in particular have the right to revoke the purchase with regard to certain Payment Receivable, if facts exist that indicate that the underlying Customer Contract is connected to a criminal act, the Merchant or its beneficial owner(s) have not fulfilled their identification and/or verifications obligations or there are new facts raising doubts regarding their identification and/or verification. For the avoidance of doubt, if and to the extent Mondu UK pays the Purchase Price by or prior to the Cut-Off Time, the Payment Receivables Offer will be regarded as accepted for purchase by Mondu UK.

1.5

Mondu DE will act as a messenger for Merchant in accordance with section 13.1 below and in this context has the right to accept declarations on Merchant’s behalf.

2 Assignment

2.1

Upon conclusion of an Individual Purchase Agreement, Merchant assigns to Mondu UK the Payment Receivables sold under this Individual Purchase Agreement. Merchant undertakes to notify the Customer about the transfer of the Payment Receivable to Mondu UK upon shipment of the goods, delivery of the intangible asset or provision of the service in full. In this regard, the Merchant agrees to fully cooperate with Mondu UK and follow its instructions.

2.2

Upon conclusion of an Individual Purchase Agreement, Merchant assigns to Mondu UK all such claims of Merchant directed towards obtaining the purchase price under the respective Customer Contract. Section 8.1.14 remains unaffected.

2.3

Mondu UK hereby accepts the assignments under this section 2.

2.4

From conclusion of the Individual Purchase Agreement and concomitant assignment, Mondu UK will be entitled to all claims and rights under and in connection with the Payment Receivables. Mondu UK shall particularly be entitled to receive payments made by Customers to Merchant with respect to any of the sold and assigned Payment Receivables. Merchant will immediately forward any such incoming payments to Mondu UK.

2.5

For the avoidance of doubt, Customers shall make any payments due under a Payment Agreement to the third party determined in the respective Payment Agreement.

3 Purchase Price

3.1

The amount of the respective purchase price in the Individual Purchase Agreement is equivalent to 100 % of the Nominal Value of the respective Payment Receivables less (i) a Merchant discount rate in the respective amount proposed in each Receivables List (“Discount Rate“, the resulting amount “Discount Rate Amount“) and (ii) the statutory VAT due thereon (if any) (“Purchase Price“).

3.2

Payment of the Purchase Price by Mondu UK is to be made by the Cut-off Time at the latest.

3.3

Mondu UK shall (i) provide Merchant with a monthly summary invoice with respect to the services provided comprising the Discount Rate Amount and the VAT due thereon (if any) for each Individual Purchase Agreement and (ii) pay the respective VAT applicable on the Discount Rate Amount (if any) directly to the competent tax authorities in accordance with the applicable statutory provisions.

3.4

Merchant and Mondu UK assume that the Purchase Price is exempt from VAT. Should this assumption prove to be false, Merchant bears the VAT.

4 Payment Default and Reassignment

4.1

Upon conclusion of an Individual Purchase Agreement, Mondu UK reassigns to Merchant the Defaulted Receivables (as defined below) under the following conditions precedent (“Reassignment“):

4.1.1

a Customer does not settle its Payment Receivables within the payment term as agreed in the respective Payment Agree-ment (“Payment Default“; the relevant Payment Receivables “Defaulted Receivables“);

4.1.2

Mondu UK or Mondu DE as messenger for the Respective Receivable Holder (as defined in section 14.1 below) have sub-mitted a respective declaration;

4.1.3

Merchant has repaid the Purchase Price received from Mondu UK for the Defaulted Receivables according to section 5.1 sentence 3; and

4.1.4

Merchant has paid the Discount Rate Amount.

4.2

Merchant hereby accepts the assignments under section 4.1.

4.3

The rescission following a Reassignment shall otherwise be governed by sections 5.1, 5.2 and 5.4.

5 Rescission

5.1

In case of a partial or full rescission of a Payment Agreement (e.g. due to withdrawal from, or a goodwill cancellation of, a Customer Contract) or in case of a Reassignment, the respective Individual Purchase Agreement shall likewise be rescinded and will be changed to an obligation of restitution which means that goods and/or services and payments received are to be returned. In case of a rescission, Merchant shall immediately (i) repay the Purchase Price received from Mondu UK for the relevant Payment Receivables that Customers have not yet fulfilled and (ii) pay the Discount Rate Amount. For the avoidance of doubt, also in case of a rescission the Discount Rate Amount is calculated based on the original Nominal Value regardless of any Refund Claims (as defined below) and becomes due for payment in full also in case Customers have already fulfilled the Payment Agreement in full.

5.2

For the avoidance of doubt, the right to set-off against any future payment claims between Merchant and Mondu UK remains unaffected. In addition, Mondu UK is entitled to net claims that it and/or third parties have against Merchant with claims that Merchant has against Mondu UK, to the extent that Merchant is released from the respective third party claim (netting).

5.3

In case of a rescission as set out under section 5.1 above and subject to the condition precedent (i) of repayment of the Purchase Price received from Mondu UK for the relevant Payment Receivables in accordance with section 5.1 second sentence above and (ii) payment of the Discount Rate Amount, Mondu UK reassigns to Merchant the respective Payment Receivables. Merchant hereby accepts such an assignment.

5.4

In case of an assignment of rights and duties with respect to the Individual Purchase Agreement by way of contract assumption as set out under section 14 below to a third party by Mondu UK, the above assignment duties will apply to such third party. In the event of contract assumption as set out under section 14 below to a third party by Mondu UK, Merchant has no right to claim rescission vis-à-vis Mondu UK. The economic risk of a rescission, in particular additional organisational efforts, is borne solely by Merchant. In return, Mondu UK shall assign to Merchant all repayment/ reimbursement claims from and in connection with the respective Payment Receivable; Merchant shall accept such assignment.

6. Netting of Refunds

6.1

In the event of partial or full rescissions, Merchant is the obligor of Refund Claims (as defined in section 6.2 below). Merchant accepts that (i) Refund Claims will be paid by Transferee (as defined in section 14.1 below) directly to Customer with debt-relieving effect in favour of Merchant and that (ii) Merchant shall reimburse Transferee for all payments on Refund Claims (“Repayment Claim“). Section 5.2 sentence 2 shall apply accordingly. In so far as a netting scenario is given, Transferee is entitled, via Mondu DE as a messenger, to net Merchant’s Purchase Price claims pursuant to section 3 with any Repayment Claims of Transferee by way of a unilateral declaration to Merchant.

6.2

“Refund Claim” is an existing Purchase Price repayment claim of Customer resulting from all of the following steps (i) conclusion of a Customer Contract between Merchant and Customer, (ii) shipment or provision of the purchased goods, works or services to Customer, (iii) payment of the agreed Purchase Price by Customer, (iv) effective partial or complete withdrawal from the Customer Contract by Customer, and (v) confirmation of the partial or complete cancellation of the Customer Contract by Merchant.

7. Del Credere Risk

The default risk of purchased Payment Receivables due to subsequent payment default by the respective Customer (del credere risk) will be borne by Merchant (recourse factoring).

8. Merchant’s Liability

8.1

Merchant guarantees upon (i) conclusion of the Recourse Factoring Framework Agreement, (ii) conclusion of each Individual Purchase Agreement and (iii) upon each assignment of Payment Receivables to Mondu UK under the present RPA GTC that

8.1.1

Merchant is a businessman;

8.1.2

Customers are not consumers, i.e., Customers are persons acting in the context of a profession or occupation;

8.1.3

the transaction underlying the Individual Purchase Agreement is a commercial transaction for Merchant and the Customer;

8.1.4

the Payment Receivables are not claims from an ongoing current account that is managed by the Merchant for the respective Customer;

8.1.5

there is no reason to file for bankruptcy proceeding against Merchant (insolvency, imminent insolvency and/ or overindebtedness);

8.1.6

Merchant meets all its obligations arising from and in connection with taxes, including VAT (if any), and, in particular, discharges, taxes timely, correctly and fully;

8.1.7

Customer Contracts and Payment Agreements are subject to the laws of England and Wales and were validly concluded in accordance with the laws of England and Wales;

8.1.8

Customer Contracts as mentioned in section 8.1.7 above are not subject to a secret reservation or a lack of seriousness and are not simulated transactions;

8.1.9

Customer Contracts as mentioned in section 8.1.7 cannot be cancelled by unilateral notice (e.g. contestation);

8.1.10

Merchant fulfils Customers claims in case of a rescission according to section 5 above;

8.1.11

no party to any Payment Agreement is an affiliate of the Merchant or otherwise closely connected with the Merchant;

8.1.12

Merchant is the sole legal and commercial owner of the Payment Receivables and is in no way restricted in its right to transfer any of the Payment Receivables;

8.1.13

Merchant has not and will not otherwise dispose of the respective Payment Receivables prior to assignment to Mondu UK, and has not granted and will not grant any third party any rights on or to the Payment Receivables;

8.1.14

no (extended) retentions of title exist in the context of the Payment Receivables and Merchant did not assign, pledge to third parties or otherwise dispose of any Payment Receivables;

8.1.15

Merchant has duly paid its business partners, in particular its suppliers;

8.1.16

the Payment Receivables are free from any encumbrances and, in particular, not subject to litigation or out-of-court disputes;

8.1.17

all Payment Receivables are subject to the provisions set out in the respective Payment Agreements (to be) concluded between Merchant and Customer as set out in the Payment Agreement Template;

8.1.18

Payment Receivables that have been offered by Merchant have been validly established and Customers affected by these Payment Receivables do not have any rights under a Customer Contract to refuse or reduce payment of the respective Payment Receivables or to meet payment obligations by means of set-off, other than the rights referred to in section 5.1. In the case of Receivables resulting from contracts for work and labor, the Merchant warrants that the work has been accepted by the Customer prior to the Offer (as defined in section 1.3);

8.1.19

the amount of the Payment Receivables communicated by Merchant to Mondu UK via Mondu DE through the relevant Receivables List is exactly equivalent to the amount of the Nominal Value of the Payment Receivables due under the respective Payment Agreement;

8.1.20

in case of any shipment of goods under a Customer Contract, (i) the shipping address and the invoice address are identical, unless Mondu DE agreed to a different shipping address at the time of the conclusion of the Payment Agreement, (ii) the Merchant has provided the Customer with the option of tracking the shipment and (iii) in the event of suspected fraud and corresponding information to the Merchant by Mondu DE, the Merchant has requested the transport company to stop the shipping of goods that has not yet taken place;

8.1.21

Merchant informs Mondu DE immediately about any disputes between Merchant and Customer resulting from complaints of Customers regarding the delivered goods or services under a Customer Contract (“Disputes“); and

8.1.22

Merchant complies with all data protection regulations.

8.2

Merchant shall indemnify Mondu UK upon first request against any third-party claims arising from and in connection with the Payment Receivables, including, but not limited to, all claims for damages and compensation and guarantee claims in relation to the goods sold and services provided by Merchant. The obligation to indemnify pursuant to this section 8.2 also covers legal costs and fees incurred by Mondu UK in case of any litigation or out-of-court disputes in relation to any Payment Receivable. This includes, in particular, the fees of any lawyers hired by Mondu UK which are chosen at Mondu UK’s discretion and remunerated in accordance with customary hourly fee rates.

8.3

Where a guarantee given under section 8.1 has been infringed, Mondu UK particularly has the right to rescind the relevant Individual Purchase Agreement in text form. Section 5 shall apply accordingly.

9 Liability of Mondu NL

9.1

Subject to section 9.2 and except in case of wilful misconduct and gross negligence as well as in the case of injury to life, limb or health, any liability of Mondu UK is excluded.

9.2

For the avoidance of doubt, the liability exclusion in section 9.1 shall not apply in the event that Mondu UK violates its obligation to pay the Purchase Price as Mondu UK’s essential contractual obligation (section 3.2 above).

10 No Assignment and/or Set-Off by Merchant

10.1

Any rights and duties from Merchant under and in connection with the agreements with Mondu UK, in particular the Recourse Factoring Framework Agreement, cannot, wholly or partially be assigned, pledged and/or otherwise transferred by Merchant to third parties, without the prior written consent of Mondu UK.

10.2

Any set-off and/ or assertion of rights of retention and/ or rights to refuse performance to Mondu UK is excluded unless the set-off and/ or right of retention and/ or right to refuse performance is based on claims which are undisputed or res judicata.

11 Data Exchange

11.1

Mondu UK and Mondu DE will exchange data obtained in the context of Recourse Factoring Framework Agreement, Customer Contract and/or Payment Agreement conclusion. Merchant explicitly agrees to the exchange of such data. This data exchange constitutes a genuine contract for the benefit of third parties for Mondu DE with the consequence that Mondu DE may derive own claims from this section 11.1.

11.2

Any collection, processing and use of personal data shall be carried out in compliance with the latest version of Mondu UK’s privacy policy accessible at Mondu UK’s website.

12 Costs

Except as otherwise agreed, each party will bear its own costs and expenditures in connection with the preparation, negotiation and performance of the Recourse Factoring Framework Agreement, including fees, costs and expenditures of their advisors.

13 Notices and Declarations

13.1

In the cases where Mondu DE is acting as a messenger for Merchant, Mondu DE has the right to accept declarations on Merchant’s behalf as well as to submit declarations in connection with Payment Receivables.

13.2

All legal declarations and notices in connection with the Recourse Factoring Framework Agreement must be in writing unless notarisation or another form is mandatory by law. Communication via email to the email addresses set out in section 4 of the Recourse Factoring Framework Agreement will be sufficient to comply with the written form requirement, provided such email is received by the other party.

14 Contract Transfer to Third Party

14.1

Mondu UK has the right to sell and assign the acquired Payment Receivables to a third party. Subsequently, Mondu UK will notify the debtor of the sale and/or assignment. Furthermore, Mondu UK has the right to transfer all rights and duties arising under and in connection with the Individual Purchase Agreements to the party by way of contract transfer. Merchant hereby cooperates, to the extent applicable in advance, with any transfer of contract (contractsovername) by Mondu UK and undertakes to cooperate fully in any potential sale, assignment, or transfer as set out in this section 14.1. After a contract transfer in accordance with this section 14.1 by Mondu UK to the third party (“Transferee“), a possible rescission of an Individual Purchase Agreement takes place in accordance with sections 5 and 6.

14.2

Merchant explicitly agrees to the provisions of section 14.1 above.

15 Term and Termination

15.1

The Recourse Factoring Framework Agreement will become effective upon execution by both parties and is being concluded for an indefinite term.

15.2

The Recourse Factoring Framework Agreement can be terminated with a notice period of one calendar month to the end of a calendar quarter. In case of a termination of the Platform Service Agreement, the parties may terminate the Recourse Factoring Framework Agreement with immediate effect.

15.3

For the avoidance of doubt, any termination refers to the Recourse Factoring Framework Agreement only and not to the Individual Purchase Agreements which cannot be terminated, i.e. any Payment Receivables already sold and assigned will remain unaffected by any termination of the Recourse Factoring Framework Agreement.

16. Final Provisions

16.1

Any amendments of and addenda to the Recourse Factoring Framework Agreement must be in writing unless the law prescribes a stricter form. The written form requirement may only be waived in a written agreement.

16.2

There are no verbal ancillary agreements.

16.3

Amendments to the present RPA GTC will be proposed to Merchant in text form no later than four weeks prior to their proposed effective date (“Amendment Effective Date“) (each such proposal an “Amendment Proposal“). Where Merchant agreed on an electronic communication channel with Mondu UK within the scope of the business relationship, the amendments may also be proposed via this channel.

The Amendment Proposal shall become effective on Amendment Effective Date if Merchant has not rejected the Amendment Proposal in writing no later than one day prior to the Amendment Effective Date. If Merchant has effectively rejected the Amendment Proposal, Mondu UK may terminate the Recourse Factoring Framework Agreement with immediate effect. Section 14.3 above applies accordingly to termination pursuant to this section 16.3.

16.4

Should individual terms of the Recourse Factoring Framework Agreement and/or the RPA GTC (collectively “Agreements“) or a term to be incorporated in either of these be or become wholly or partially invalid or infeasible or should the Agreements have an unplanned legal gap this will not affect the validity of the remaining terms of the Agreements. The invalid or infeasible term or legal gap are to be replaced by the parties by an adequate term which comes legally as close as possible to what the parties intended or would have intended in accordance with the nature and purpose of the Agreements had they considered the item upon conclusion of the Agreements or upon subsequent incorporation of the term. This will also apply where the invalidity of a term is based on a standard unit of performance or time (deadline or date); in such cases a legally admissible unit of performance and time (deadline or date) which comes as close as possible to what was originally intended will replace the agreed unit.

16.5

To the extent permissible by applicable law, Mondu UK is entitled to assign or otherwise transfer its rights under the Recourse Factoring Framework Agreement, in whole or in part, to a third party without the Merchant’s prior written consent, provided that the third party agrees in writing to be bound by these RPA GTC. The Merchant is only entitled to assign or otherwise transfer its rights and obligations under the Recourse Factoring Framework Agreement with the prior written consent of Mondu UK.

16.6

The present RPA GTC as well as any Recourse Factoring Framework Agreement and each Individual Purchase Agreement concluded on the basis of the present RPA GTC are subject to the laws of England and Wales excluding the law of conflicts and the UN Sales Convention.

16.7

To the extent permitted by law, the exclusive place of jurisdiction for all disputes (i) arising from or in connection with the Recourse Factoring Framework Agreement, (ii) the present RPA GTC and (iii) any Individual Purchase Agreement is London, England.

Annex 1 – Eligibility Criteria

Criteria
Conclusion of Customer Contract between Merchant and Customer
No Restricted Goods/ no Restricted Services/ no Restricted Industry
No sanctioned Customers
Item shipped within 90 days of invoice date, service rendered or work accepted by Customer (respectively)
The Payment Receivable are not due at the point of offer for sale by the Merchant
Proper use of Payment Agreement, i.e., template for Instalment Payments or template for Payment Postponements
Positive up-to-date Merchant KYC/ AML check
Aggregate Nominal Value of Payment Receivables to be sold ≤£ 750k

For the purpose of this Annex 1 – Eligibility Criteria, the following terms have the following meaning:

“Restricted Industry” means either of prostitution, adult entertainment and eroticism, narcotics, drugs and drug paraphernalia, explosives and fireworks, child labor and forced labor, gambling, casinos, gemstones and precious metals, production and/or trading in endangered species, weapons and defense industry, network marketing, multi-level marketing, prohibited goods and services, those involving a significant adverse environmental impact, those involving the provision of military services which are not being provided by a government or regular force, those involving products that infringe the intellectual property of others, including (but not limited to) counterfeit goods and illegally copied software, money laundering, terrorism financing, corruption, bribery, tax evasion, fraud and/ or industries of a similar kind;

“Restricted Goods” means any goods emanating from any Restricted Industry, and

“Restricted Services” means either any services relating to any Restricted Industries, illegal or sanctioned services, adult services, dating and matchmaking services, legal services, deceptive or predatory services and/ or services of a similar kind.