Terms and Conditions of Receivables Purchase Agreement
The following terms and conditions (the “Conditions”) apply to any purchase of receivables between (a) MIR Lux Capital S.à r.l., a limited liability company (société à responsabilité limitée) established under Luxembourg laws, having the status of an unregulated securitisation company (société de titrisation) subject to the Securitisation Law and having its office at 16, rue Eugène Ruppert, L-2453, Luxembourg, Grand-Duché de Luxembourg, registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés) under registration number B273437 (the “Securitisation Company”) acting for its Marketplace Compartment (the “Purchaser”) through Frupro Ldt., a limited liability company (private limited company) established under English law having its office at 34-36 Church Street, Tewkesbury, England, GL20 5SN, United Kingdom of Great Britain and Northern Ireland, registered with the commercial register (company house) of Tewkesbury under registration number 12142605 (the “Marketplace”) as intermediary (Bote) for the Purchaser; and (b) any seller of goods and services that has been validly onboarded on the Marketplace with the consent of the Purchaser (the “Seller”).
Purchaser and Seller are hereinafter individually referred to as “Party” and collectively as the “Parties”. Further definitions are found in Schedule 1 (Definitions).
2.1 By entering into a Sale Contract on the Marketplace platform, the Buyer owes to the Seller (a) the purchase price for the Goods; (b) the Marketplace Fee; and (c) the Purchaser Fee, forming the Receivable (“Fees”).
2.2 The Seller offers such Receivables for purchase and assignment (“Offer”) to the Purchaser.
2.3 Any Offer pursuant to Condition 2.2 shall constitute:
(a) an offer by the Seller to sell and assign title to the offered Receivables to the Purchaser, which shall be irrevocable until the end of the relevant Purchase Date;
(b) the Buyer information that shall contain the Buyer’s name, the Buyer’s street name and number, Buyer’s postcode, Buyer’s town (“Buyer Information”); and
(c) a representation by the Seller that the representations and warranties set out in Condition 11 (Representations and Warranties) of these Conditions are true and correct as of each Offer Date.
2.4 The Purchaser is entitled at any time to demand any information from the Seller reasonably necessary to verify the accuracy of the representations and warranties in Condition 11 (Representations and Warranties) of these Conditions with respect to the Offer.
2.5 The Offer pursuant to Condition 2.2 shall constitute an offer of the Seller to assign and transfer to the Purchaser all its rights, title and interest in respect of each Receivable referred to in the relevant Offer. Such offer shall be communicated via the Marketplace and the Seller hereby represents and warrants that all Buyer Information it supplies to the Marketplace is true, accurate and complete.
3. Acceptance and Assignment or Transfer of Title
3.1 The Purchaser accepts the Offer made on the Offer Date during the term of the Receivables Purchase Agreement in relation to any Receivables at latest at the relevant Purchase Date, if:
(a) the representations and warranties set out in Condition 11 (Representations and Warranties) are true in relation to each Receivable offered for purchase as of the relevant Purchase Date;
(b) the Offer meets the requirements of Condition 2 (Offer);
(c) the Receivables are Eligible Receivables,
provided always that, if any of the circumstances referred to above are not met to any extent, then (whether or not the Purchaser is aware of the breach of such conditions) this shall affect neither the validity of the purchase nor the Purchaser‘s title to the relevant Purchased Receivables nor any remedy the Purchaser may have for such breach whether under these Conditions or at law.
3.2 The Seller hereby waives the requirement to receive the acceptance pursuant to Section 151 of the BGB.
3.3 The purchase (Kauf) and assignment (Abtretung) of the Eligible Receivables shall become effective and all rights shall pass to the Purchaser upon payment by the Purchaser of the Purchase Price in accordance with clause 5.2 below. The Purchaser hereby accepts any such assignment.
3.4 Insofar as the title to any Receivable is not transferred to the Purchaser for any reason, the Seller shall upon receipt of the Purchase Prices take all actions necessary to perfect the transfer of title. However, if and to the extent that an existing Receivable is not assigned and transferred for whatever reason, such Receivable will be held on a fiduciary basis (treuhänderisch) for account and on behalf of the Purchaser by the Seller.
3.5 If not already notified by the Marketplace or the Purchaser in the name of the Seller, who are authorised to do so, the Seller promptly notifies the Buyers and other relevant debtors of the assignment of the Receivable. The Buyers are thereby requested to pay the principal amount of the Receivable to the bank account of the Purchaser as shall be specified by the Marketplace. The Purchaser shall be entitled to notify the assignment to the Buyers by other methods which the Purchaser deems to be appropriate and is hereby irrevocably authorised by the Seller to give such notification in the name of the Seller.
3.6 The Seller shall indemnify the Purchaser against any loss, cost or expense resulting from the Buyer paying directly to the Seller or incurred by the Purchaser as a result of any revocation or purported revocation of an Offer.
4. Retention and Transfer of Title to the Goods
4.1 Seller is obliged to agree in the Sale Contract with the Buyer that the title of ownership to the Goods shall only be transferred upon full payment of the purchase price under the Sale Contract (Retention of Title) in fulfilment of the requirements of section 449 of the BGB (Eigentumvorbehalt) by agreeing to the provision as outlined in Schedule 2 (Retention of Title Provision) into the terms and conditions of the Sale Contract.
4.2 Subject to payment by the Purchaser of the Fees less the Purchaser Fee to the Seller via the Marketplace, the Seller shall transfer the title of ownership to the Good and all rights arising from the provision in the Sale Contract as outlined in Schedule 2 (Retention of Title Provision) to the Purchaser by (a) the agreement to a legal relationship by which the Purchaser obtains indirect possession, if the Seller is in possession of the thing (Besitzkonstitut); or (b) assigning to the Purchaser the claim to delivery (Herausgabeanspruch) of the Good, if the Buyer or another third party is in possession of the Good in fulfilment of sections 930, 929 of the BGB or sections 931, 929 of the BGB, as applicable.
4.3 Upon full payment of the purchase price under the Sale Contract to the Purchaser, the Buyer fulfils the condition precedent to the transfer of title of ownership to the Good, so that the transfer of title of ownership to the Good to the Purchaser becomes ineffective and the Buyer holds the title of ownership to the Good as set out in section 161 para. 1 of the BGB.
5. Purchase Price
5.1 Subject to these Conditions, the purchase price for any Receivable shall be equal to the purchase price for the good or service arising from a Sale Contract between the Seller and the respective Buyer (the “Purchase Price”).
5.2 The Purchase Price for any Offer which has been accepted by the Purchaser pursuant to Condition 3 (Acceptance and Assignment or Transfer of Title) hereof shall be paid by the Purchaser as of the relevant Purchase Date to the bank account as specified by the Seller to the Purchaser via the Marketplace..
5.3 Any payments to be made under or in connection with the Receivables Purchase Agreement are to be made in the relevant currency, free and clear from any taxes, charges, fees, costs and expenses for the recipient thereof by the due date thereof with same calendar day value and into the bank account specified by the Seller.
6. Repurchase Obligation
6.1 Upon becoming aware of the fact that a Purchased Receivable has been in breach of the Eligibility Criteria at the Offer Date, the Purchaser may offer the Seller to repurchase and to reassign the respective Purchased Receivable. The Seller shall repurchase those Purchased Receivables with effect as of the immediately following Offer Date against payment of a repurchase price which is equal to the Purchase Price for such Receivable.
6.2 If the repurchase of a Purchased Receivable pursuant to Condition 6.1 is not possible due to the fact that such Purchased Receivable never existed or ceased to exist or that the transfer thereof violates a statutory prohibition pursuant to Section 134 of the Civil Code (Bürgerliches Gesetzbuch) or becomes invalid from an insolvency perspective, the Seller shall indemnify the Purchaser in an amount equal to the Purchase Price of such Purchased Receivable.
7. Reporting and Provision of Information
The Seller hereby agrees that it shall provide, at its own cost and upon the Purchaser‘s request, all information and shall issue and deliver all appropriate papers and documents and conduct all actions in due course which the Purchaser reasonably demands in order to achieve or defend the assignment of the Receivables or to enable the Purchaser to exercise or enforce its rights acquired under the Receivables Purchase Agreement against third parties, in each case subject to and in accordance with applicable Secrecy Rules.
8.1 Without prejudice to any rights arising under applicable law, the Seller hereby agrees to indemnify the Purchaser, its directors, agents, officers, employees and the persons acting on its behalf against any expenses (Aufwendungen), liability, claims, losses and damages (particularly any costs, expenses and outlays, including any reasonable attorneys’ fees) as well as any taxes incurred thereon, in the event such liabilities or damages are caused (adäquat kausal) by the entry into the Receivables Purchase Agreement or the actions or transactions contemplated therein.
8.2 In particular, the Seller shall indemnify the Purchaser and any such other person against any liability, losses and damages arising from:
(a) reliance on any information, representations, warranties or reports which the Seller, or any officer thereof, has issued under the Receivables Purchase Agreement or in relation hereto or which are derived therefrom and which were false, incorrect or incomplete at the time issued or deemed to be issued;
(b) the failure by the Seller to comply with any applicable laws, ordinances or other legal provisions or agreements which relate to the Receivables Purchase Agreement;
(c) any disclosure of information in relation to the Buyers by the Seller to the Purchaser or the transfer of any contracts, records and all other related documents to the Purchaser; and
(d) any dispute, claim, exercise of the right to withdrawal (including, for the avoidance of doubt, revocation), offset or defence (other than discharge in bankruptcy of any Buyer) of any Buyer to the payment of a Receivable, including, without limitation, a defence based on such Receivable not being a legal, valid and binding obligation of any Buyer enforceable against it in accordance with its terms or the failure by the Seller to perform any obligations relating to the relevant Sale Contract, or the failure to perform any obligations related to any applicable laws, rules or regulations in respect thereof.
8.3 The Seller shall bear all losses, costs and expenses which the Purchaser incurs due to the Receivables not being sold or transferred or only being sold and transferred following the taking of additional measures.
8.4 The Purchaser shall notify the Seller in the event that the Purchaser becomes aware of any circumstances which could lead to any claim under Conditions 8.1, 8.2 or 8.3 above. The Seller shall be entitled to take any measures in or out of court in order to defend claims or obtain indemnity claims against third parties.
8.5 The Seller shall not be obliged to indemnify the Purchaser, its directors, agents, officers and employees and the persons acting on its behalf in the event the liability incurred by the Purchaser or such persons due to the gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz) or breach of contract of the Purchaser or such persons or. In the event that the liability is due to any gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz) of both (a) the Purchaser, its directors, agents, officers, employees and the persons acting on its behalf and (b) the Seller, the relevant persons shall be liable in proportion to their respective share in such gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz).
9. Appointment of the Servicer
9.1 The servicing and collection of the Purchased Receivables shall be carried out by a servicer (“Servicer”) following the appointment by the Purchaser in accordance with the Master Services Agreement.
9.2 The Servicer shall be appointed to service and collect the Purchased Receivables in accordance with the Master Services Agreement and shall be authorised (bevollmächtigt) and empowered (ermächtigt), until revocation or other termination of such rights in accordance with the Master Services Agreement, to collect, issue invoices and enforce the Purchased Receivables in the name and on behalf of the Purchaser, in each case in accordance with the terms of the Master Services Agreement.
10. Luxembourg Securitisation Law
10.1 Pursuant to the Securitisation Law, the articles of incorporation of the Securitisation Company authorise its board of managers to create one or more independent parts of the estate (each part referred to as a “Compartment”) distinguishable from remaining parts of the Purchaser’s estate by the nature of assets or liabilities relating to such Compartment. The assets and liabilities of a Compartment are exclusively available to satisfy the rights of the creditors whose claims have arisen at the creating, operation or liquidation of such Compartment.
10.2 The Parties (other than the Purchaser) acknowledge and accept that:
(a) the Securitisation Company is subject to the Securitisation Law;
(b) the Securitisation Company has created the Purchaser to which all assets, rights and claims relating to these Terms and Conditions of the Receivables Purchase Agreement are transferred and allocated from time to time, as applicable;
(c) the assets of Purchaser are exclusively available to satisfy the rights of investors in relation to the Purchaser and the rights of creditors whose claims have arisen in connection with the creation, the operation or the liquidation of the Purchaser;
(d) the Parties (other than the Purchaser) have only recourse, in compliance with the limited recourse clause of these Terms and Conditions of the Receivables Purchase Agreement, to those assets of the Securitisation Company that are allocated to the Purchaser only;
(e) these Terms and Conditions are made by the Securitisation Company acting solely on behalf of the Purchaser and therefore that all references to the Purchaser made in these Terms and Conditions shall be read as reference to the Securitisation Company acting on behalf of the Purchaser or to the assets allocated to the Purchaser and not as reference to the Securitisation Company as such; and
(f) once all assets allocated to the Purchaser have been realised, any claims than outstanding will expire and no Party shall any longer be entitled to take any further steps against the Securitisation Company to satisfy their claims.
11. Representations and Warranties
The Seller hereby represents and warrants to the Purchaser and Marketplace in the form of an independent guarantee (selbstständiges Garantieversprechen) that:
(a) The Seller is duly organised and validly existing under the laws of the country of the principal place of its business and has all corporate power and all governmental approvals which are necessary in order to conduct its business.
(b) The execution, delivery and performance by it of the Receivables Purchase Agreement and the transactions contemplated hereby are within its corporate powers, have been duly authorised by all necessary corporate action, require no action by or in respect of, or filing recording or enrolling with, any governmental body, agency court official or other authority, and do not contravene, or constitute a default under, any provision of applicable law or regulation or of its articles of association (Satzung) or of any agreement, judgement, injunction, order, decree or other instrument binding upon it.
(c) The Receivables Purchase Agreement constitutes legally valid, binding and enforceable obligations of the Seller enforceable against the Seller in accordance with its terms. The Seller has undertaken all actions, obtained all approvals and fulfilled all other conditions in order to conclude the Receivables Purchase Agreement, to safeguard the rights and to fulfil their respective duties arising herefrom.
(d) The Seller has not taken any action nor is the Seller aware of any measures having been taken or initiated by third parties to commence Insolvency Proceedings or any other proceedings directed towards the liquidation or reorganisation of the Seller or which could lead to the appointment of a receiver, trustee in bankruptcy, sequestrator or any other person entrusted with such duties in relation to the Seller‘s assets.
(e) No judicial or similar proceedings are pending, initiated or threatened against the Seller which could have a material effect on the maintenance of its business operations or its financial position and thus the proper performance of the Receivables Purchase Agreement.
(f) The Seller is neither over indebted (überschuldet), nor unable to pay its debts when they fall due (zahlungsunfähig), nor in a stoppage of payment situation, nor in a situation of threatened inability to pay (drohende Zahlungsunfähigkeit). The Seller enters into the Receivables Purchase Agreement for its own commercial benefit without the intention to prejudice its creditors.
(g) All information (including any information contained in the Offer) furnished by the Seller to the Purchaser is, or if hereafter furnished by the Seller to the Purchaser, will be true and accurate in every material respect and will not contain any material error or omission, on the date of its disclosure.
(h) The Seller shall be able to provide the Records related to the Receivables Purchase Agreement to the Purchaser at a reasonable time, after the Purchaser has requested them from the Seller.
(i) On the relevant Purchase Date, any Receivable offered for purchase is an Eligible Receivable.
(j) All Sale Contracts are legally valid, binding and enforceable and the Receivables originated thereunder are assignable.
(k) Upon the payment of the Purchase Prices on the Purchase Date hereunder the Purchaser will acquire the ownership of each Purchased Receivable assigned on the Purchase Date contemplated in the relevant Sale Contract free.
(l) Neither the Purchased Receivables nor the claim for payment is collateralised by a security interest or is evidenced by a security, such as a registered or bearer bond.
(m) The Seller has not opted for value added tax on the Purchased Receivables.
(n) The Seller is not a related (nahestehende) party in the meaning of Section 1 para 2 of AStG to the Purchaser.
The following obligations shall apply during the term of the Receivables Purchase Agreement:
(a) The Seller shall do all things necessary in order to remain a corporation duly organised and validly existing under the laws of the principal place of its business and maintain all requisite authority to conduct its.
(b) The Seller shall comply in all respects which could be regarded as material in the context of the transactions contemplated by the Receivables Purchase Agreement, with all laws, rules, regulations, orders, writs, judgements, injunctions, decrees or awards to which it may be subject.
(c) The Seller shall provide Records as reasonably required by the Purchaser for each Purchased Receivable for the purposes of identifying, in particular, at any time, the amounts which have been paid by or to any Buyer, which are to be paid by or to any Buyer, the source of payments which are paid to the Seller and the balance outstanding with respect to each Buyer. The Seller shall mark in its Records each Purchased Receivable as sold and assigned to the Purchaser.
(d) In relation to the Purchased Receivables, and in relation to each of its representations, warranties, covenants and other obligations under the Receivables Purchase Agreement the Seller shall apply the due care which the Seller exercises in its own affairs but at least the care of a prudent business man (Sorgfalt eines ordentlichen Kaufmannes).
(e) The Seller shall promptly provide the Purchaser with any information which prejudices the existence of any Sale Contract. The Seller shall immediately notify the Purchaser if (i) a Buyer exercises legally effective a right of revocation (Widerrufsrecht) under a Sale Contract; or (ii) if third parties levy execution upon the assigned claims of the Purchaser, the Purchased Receivables; or (iii) if the Purchased Receivables are materially prejudiced or jeopardised by any other events.
(f) The Seller shall, at its own expense, in a timely manner fully perform and comply with all provisions, covenants and other promises required to be observed by it under the Sale Contracts related to the Purchased Receivables as if interests in such Purchased Receivables had not been assigned and sold hereunder and the Seller shall as soon as is reasonable notify the Purchaser and the Servicer if third parties make claims or exercise (or purport to exercise) rights regarding the Purchased Receivables.
(g) All amounts paid to the Purchaser shall be made free of all withholding taxes or other taxes including but not limited to value added tax.
(h) The Seller may not undertake any material modifications in the nature of its business, otherwise than in accordance with the Receivables Purchase Agreement.
(i) Except as otherwise provided herein, the Seller shall not sell, assign or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to any Purchased Receivables, any Goods as subject of any Purchased Receivable or related Sale Contract, or assign any right to receive income in respect thereof or attempt, purport or agree to do any of the foregoing. Further, the Seller shall not create or allow to exist any counterclaims, rights of set off or other defences of the Buyers with respect to the obligation of the Buyers to make payment other than such counterclaims, rights of setoff or other defences of the Buyers existing or arising under statutory law and relating to deposits held by a Buyer on a current account with the Seller.
13. Taxes and Increased Costs
13.1 The Seller shall pay any stamp duty, registration and other similar taxes to which the Receivables Purchase Agreement or any judgement given in connection therewith may be subject at any time after the date of the Receivables Purchase Agreement.
13.2 All payments to be made by the Seller to the Purchaser shall be made free and clear of and without deduction for or on account of any tax. In the event the Seller is obliged to render a payment with any deduction or withholding for or on account of tax, the Seller shall reimburse the Purchaser in an amount corresponding to such deduction or retention so that the net amount paid to the Purchaser corresponds to the amount to which the Purchaser would have been entitled had the deduction or retention not been made.
13.3 Any demand which the Purchaser makes pursuant to Condition 13.1 above must specify the details of the claim for reimbursement (including, where relevant, any necessary supporting documentation) and be duly signed by an authorised officer of the Purchaser.
13.4 The Purchaser shall immediately inform the Seller if the Purchaser becomes aware of any circumstances which could reasonably be expected to lead to a claim on the part of the Purchaser under this Condition 13 (Taxes and Increased Costs).
14. Corporate Liability
The obligations in these Conditions are corporate obligations of the Purchaser. No personal liability shall attach to or be incurred by any shareholder, member, equity holder, officer, agent, employee or director of the Purchaser in his capacity as such, under or by reason of any of the obligations, covenants or agreements of the Purchaser under or in connection with these Conditions or implied therefrom and any and all personal liability of every such shareholder, member, equity holder, officer, agent, employee or director for breaches by the Purchaser of any such obligations, covenants or agreements, either at law or by statute or constitution, is hereby expressly waived by each Party.
15. Limited Recourse and Non-Petition
15.1 The parties accept that all of the Seller’s rights and claims out of and in connection with these Conditions and the Receivables Purchase Agreement are limited to the assets of the Purchaser. Once all assets of the Securitisation Company allocable to the Purchaser (the “Compartment Assets”) have been realised and distributed, the Securitisation Company shall not be obliged to make any further payments to the Parties.
15.2 If the Compartment Assets are insufficient to satisfy in full the Parties’ claims with respect to the Purchaser, any further liability of the Purchaser or the Securitisation Company shall be excluded and the Parties shall not be entitled to assert any further claims against the Purchaser or the Securitisation Company. These assets are proceeds are considered “insufficient to satisfy in full” if, upon satisfaction of any higher raking senior obligations the Purchaser may have, no further Compartment Assets are available and no further proceeds can be obtained by the Purchaser to satisfy outstanding claims of the Parties. In such a case, the claim to full repayment is lost. The Parties shall in particular have no recourse or claim to other assets of the Securitisation Company, including assets of other Compartments or general assets of the Securitisation Company not attributable to the Purchaser.
15.3 The Parties undertake not to open or initiate or join any person in initiating any court proceedings against the Securitisation Company or the Purchaser in connection with claims under these Conditions and the Receivables Purchase Agreement, which lead or could lead to the opening of any insolvency proceedings or of similar proceedings aimed at liquidating the Securitisation Company or the Purchaser or any other collective or reorganisation proceedings against them, appointing a liquidator or receiver or seizing or enforcing any of the assets of the Purchaser, including the assets of other Compartments or general assets of the Securitisation Company not allocated to the Purchaser. However, this clause 15.3 shall not restrict the Parties ability to take action against the Purchaser which will not result in the institution or potential institution of insolvency or similar proceedings relating to Securitisation Company´s or Purchaser´s winding-up, the appointment of a receiver in insolvency, any attachment of the Purchaser´s assets or execution upon the Purchaser´s assets, provided that such steps are always limited to Compartment Assets.
15.4 This Clause 15 shall continue to be effective after the termination or expiry of these Conditions and the Receivables Purchase Agreement and/or any related transaction documentation.
15.5 For the avoidance of doubt no recourse under any obligation, covenant, or agreement of the Purchaser contained in these Conditions shall be had against any shareholder, officer, agent or director of the Purchaser as such, by the enforcement of any obligation (including, for the avoidance of doubt, any obligation arising from false representations under these Conditions (other than by wilful default or gross negligence)) or by any proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is a corporate obligation of the Purchaser and no liability shall attach to or be incurred by the shareholders, officers, agents or directors of the Purchaser as such, or any of them, under or by reason of any of the obligations, covenants or agreements of the Purchaser contained in these Conditions, or implied therefrom, and that any and all personal liability for breaches by the Purchaser of any of such obligations, covenants or agreements, either at law or by statute or constitution, of every such shareholder, officer, agent or director is hereby expressly waived by the other parties hereto as a condition of and consideration for the execution of the Receivables Purchase Agreement.
16. Waiver of offsetting
The Seller waives, including in the event of insolvency, all rights of retention and offsetting against claims of the Purchaser, except for any rights of retention and offsetting that are based on undisputed or finally adjudicated claims. Any statutory exclusion of a right of retention or offsetting of the Purchaser shall not be affected.
17. Data Protection
17.1 In connection with the Receivables Purchase Agreement, the Parties will process and share with each other certain personal data (in particular names of signatories of the Receivables Purchase Agreement and related contact details of employees and representatives of the Seller and Buyer (email, physical address, phone number), together “Relevant Personal Data”).
17.2 The Parties act as independent data controllers within the meaning of the GDPR when processing Relevant Personal Data.
17.3 Each Party shall comply with the GDPR, local data protection legislation implementing the GDPR, and any equivalent legislation, or legislation dealing with the same subject matter, anywhere in the world; each as applicable to a Party and each as amended, consolidated or replaced from time to time (together, “Data Protection Laws”).
17.4 The Seller warrants that that the Relevant Personal Data have been collected, processed and transferred in accordance with Data Protection Laws, in particular that all necessary notices and consents and lawful bases are in place to enable lawful transfer of the Relevant Personal Data to, and processing of the Relevant Personal Data by, the Purchaser and the Servicer in connection with the performance of the Receivables Purchase Agreement.
17.5 The Seller shall ensure in relation to the respective data subject that the prerequisites under Data Protection Laws for the respective collection, processing and use of personal data exist and, where applicable, that existing rights of the data subjects are observed, including: The Seller shall provide clear and sufficient information to the data subjects, in accordance with Art. 12-14 GDPR, of the processing of Relevant Personal Data by the Parties in connection with the Receivables Purchase Agreement and other information as is required by Data Protection Laws. For such purpose, the Seller shall in particular provide the data subjects with the information contained in Schedule 4(Processing of Personal Data in connection with the Transaction Based Lending Payment Option) about the Purchaser’s and the Servicer‘s processing activities (e.g. by incorporation the information contained in Schedule 4 (Processing of Personal Data in connection with the Transaction Based Lending Payment Option) in its own data privacy notice which is issued to the relevant data subjects).
17.6 The Seller shall not, whether through action or omission, place the Purchaser or the Servicer in breach of any Data Protection Laws.
17.7 The Seller shall:
(a) without undue delay inform the Purchaser and the Servicer about the receipt of any data subject requests in relation to the processing of the Relevant Personal Data under the Receivables Purchase Agreement;
(b) provide to the Purchaser and the Servicer reasonable information, co-operation and assistance in relation to the handling of data subject requests by the Purchaser and/or the Servicer; and
(c) without undue delay notify the Purchaser and the Servicer in writing if it becomes aware of any personal data breach, or receive any written communication from a data subject (or person claiming to be a data subject) or data protection authority alleging (or indicating an intention to investigate an allegation of) breach of the Data Protection Laws in respect of Relevant Personal Data processed by or on behalf of the Purchaser in connection with the Receivables Purchase Agreement and provide, at its own cost, to the Purchaser and the Servicer reasonable information, co-operation and assistance in relation to any such personal data breach.
17.8 The Seller shall indemnify the Purchaser and/or the Servicer against any loss, cost or expense incurred by the Purchaser as a result of any breach by the Seller and/or the Servicer of any obligation under this Clause 17 (Data Protection).
18.1 Unless terminated earlier under the terms of the Receivables Purchase Agreement, the right of the Seller to offer Receivables for purchase and assignment and the obligation of the Purchaser to purchase Receivables in accordance with the Receivables Purchase Agreement shall expire at the end of the term of the Receivables Purchase Agreement.
18.2 The Receivables Purchase Agreement will be terminated if the Cooperation Agreement between the Marketplace and the Purchaser is terminated.
18.3 The Receivables Purchase Agreement may be terminated at the end of each calendar year with three (3) months prior notice. The right to terminate this Agreement for good cause (Kündigung aus wichtigem Grund) without observing any notice period shall remain unaffected. Including but without limitation, the following shall constitute good cause:
(a) any Party fails to make a payment due and payable under the Receivables Purchase Agreement at the place and in the currency as specified in these Conditions and to make good the non-performance (if based on a technical failure or an administrative error) within ten (10) Business Days from the due date; or
(b) any Party does not meet any of its material obligations resulting from the Receivables Purchase Agreement and, provided such failure to comply is capable of remedy, such failure to comply continues to exist for more than ten (10) Business Days from the dispatch of a written notice by any of the other Parties requiring that the breach be remedied and indicating that remedy period; or
(c) any Party is unable to meet its payment obligations, or commences negotiations with one or several of its creditors in order to adjust or defer its liabilities, or if any Party is unable to pay its debts as they fall due for the purpose of any applicable law; or
(d) a requisition, receivership, attachment or execution in a total amount of more than EUR 1,000,000 in relation to any Party’s assets has occurred, except if bona fide and reasonable action is taken against such proceedings; or
(e) any Party ceases or threatens to cease to carry on its business activities; or
(f) any approval required to enable any Party to perform any of its respective obligations under the Receivables Purchase Agreement is modified or revoked or is no longer effective; or
(g) any Party announces that it is not willing to meet any of its respective obligations under the Receivables Purchase Agreement, or if the Receivables Purchase Agreement becomes invalid or unenforceable unless, if capable of remedy, such invalidity or unenforceability is remedied within ten (10) Business Days from the dispatch of a written notice by the other Parties requiring that such invalidity or unenforceability be remedied; or
(h) there is any change in legislation or interpretation thereof that could, in the reasonable opinion of the Parties, materially impair any of the Receivables Purchase Agreements; or
(i) an Insolvency Event occurs with respect to any Party; or
(j) there is a material change in the tax treatment of any Party in connection with the payments made under this Agreement; or
(k) any material representation or material statement made or deemed to be made by any Party in the Receivables Purchase Agreement or any other document delivered by (or on behalf of) any Party under or in connection with the Receivables Purchase Agreement is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, unless, if capable of remedy, the circumstances giving rise to the misrepresentation are remedied within ten (10) Business Days from the earlier of (i) the dispatch of a written notice by any Party requiring that such circumstances be remedied and (ii) the respective Party becoming aware of such misrepresentation,
provided that, for all of the above, each Party shall only be entitled to exercise the respective termination right as long as the respective event is continuing and in no event later than 4 (four) weeks following the date upon which the respective Party became aware of the circumstances giving rise to the termination right.
18.4 For the avoidance of doubt and without limitation to other rights and obligations of the Parties which, by their nature or operation of law, remain effective upon the termination of the Receivables Purchase Agreement, upon its termination, the Receivables Purchase Agreement shall continue to apply in its entirety and constitute obligations of each of the parties hereto with respect to the Purchased Receivables purchased before such termination. Without prejudice to the foregoing, upon termination of the Receivables Purchase Agreement, Conditions 8 (Indemnity), 9 (Appointment of the Servicer), 13 (Taxes and Increased Costs), 15 (Limited Recourse and Non Petition) of these Conditions shall continue to apply and constitute obligations of each of the parties hereto.
19.1 The Seller shall not be entitled to assign, to transfer or to dispose of all or any part of its rights or obligations or both under the Receivables Purchase Agreement.
19.2 The Parties agree that should at any time, any provisions of the Receivables Purchase Agreement be or become void (nichtig), invalid or due to any reason ineffective (unwirksam) this will indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining provisions and the Receivables Purchase Agreement will remain valid and effective, save for the void, invalid or ineffective provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties’ intent to uphold the Receivables Purchase Agreement even without the void, invalid or ineffective provisions.
19.3 The void, invalid or ineffective provision shall be replaced by such valid and effective provision that in legal and economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of the Receivables Purchase Agreement if they had considered the point at the time of conclusion of the Receivables Purchase Agreement.
19.4 These Conditions and the Receivables Purchase Agreement are governed by and construed in accordance with the laws of the Federal Republic of Germany.
19.5 The place of jurisdiction for the parties hereto for disputes arising under or in connection with the Receivables Purchase Agreement (including all disputes with regard to non-contractual rights and obligations arising under or in connection with the Receivables Purchase Agreement) shall be Berlin, Federal Republic of Germany. The Purchaser shall, however, also be entitled to take legal action against the Seller before any other competent court of law having jurisdiction over the Seller or any of its assets.
- “Adverse Claim” means any ownership interest, lien, security interest, charge or encumbrance, or other right or claim in, over or on any person‘s assets or properties in favour of any other person.
- “Affiliate” has the meaning given to it in Schedule 3 (Eligibility Criteria).
- “AktG” means the German Stock Corporation Act (Aktiengesetz).
- “AStG” means the German Foreign Tax Act (Außensteuergesetz).
- “BDSG” means the German Federal Data Protection Act (Bundesdatenschutzgesetz)
- „BGB“ means the German Civil Code (Bürgerliches Gesetzbuch).
- “Business Day” means any calendar day on which all relevant parts of the Trans-European Automated Real-Time Gross Settlement Express Transfer System 2 or any successor system thereto (TARGET2) are operating to effect payments in Euro.
- “Buyer” means a buyer of goods or services sold by the Seller and party to the respective Sale Contract.
- “Buyer Information” has the meaning given to it in Condition 2 (Offer).
- “Collection” means each cash collection made or due to be made in respect of a Purchased Receivable received by the Purchaser from the respective Buyer, in each case which is irrevocable and final (provided that any direct debit (Lastschrifteinzug) shall constitute an Collection irrespective of any subsequent valid return thereof (Lastschriftrückbelastung)).
- “Compartment” has the meaning given to it in Condition 9 (Luxemburg Securitisation Law).
- „Cooperation Agreement“ means the agreement setting out the cooperation between the Marketplace and the Purchaser.
- “Data Protection Laws” has the meaning given to it in Condition 17.1 (Data Protection).
- “Eligibility Criteria” has the meaning given to it in Schedule 3 (Eligibility Criteria) to these Conditions.
- “Eligible Receivable” means any Receivable which meets the Eligibility Criteria.
- “EUR” or “Euro” means the lawful currency of the member states of the European Union that have adopted the single currency.
- “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) of the European Parliament and of the Council of 27 April 2016.
- “Good” means the good sold by the Seller to the Buyer under a Sale Contract.
- “Insolvency Proceedings” means any legal proceedings for the winding up, dissolution, court protection, examinership, reorganisation, liquidation, saisie, desastre, bankruptcy or insolvency or for the appointment of an administrator, or manager, administrative receiver, trustee, liquidator, examiner, sequestrator or similar officer in respect of any revenues or assets.
- “Internal Risk Policy” means the internal risk policy as set out in Schedule 4 (Internal Risk Policy) of the Master Services Agreement.
- “KYC Checks” has the meaning given to in Schedule 3 (Eligibility Criteria).
“Marketplace Fee” means a fee for the Marketplace services in an amount as set up and as specified by the Marketplace.
“Master Services Agreement” means the agreement between the Servicer and the Purchaser as recipient/beneficiary of the services provided thereunder, including in particular the enforcement of claims against the Buyers.
- “Notes” means the notes issued by the Purchaser to facilitate the payment options for Buyers from Sellers.
- “Offer” has the meaning given to it in Condition 2.1 (Offer).
- “Offer Date” means any Business Day.
- “Purchase Date” means the Business Day immediately following an Offer Date.
- “Purchase Price” has the meaning given to it in Condition 5.1 (Purchase Price).
- “Purchased Receivable” means each Receivable purchased by the Purchaser from the Seller on each Purchase Date during the term of the Receivables Purchase Agreement.
- “Purchaser Fee” means a fee for the purchase of each Receivable in an amount as specified by the Purchaser to the Marketplace and communicated by the Marketplace to the Seller at the Offer Date.
- “Receivable” means the receivable and its Related Rights arising from a Sale Contract between Sellers and Buyers; plus the Marketplace Fee for the purchase of the respective receivable; plus the Purchaser Fee for the purchase of the respective receivable owed by the Buyer to the Seller, to be purchased by the Purchaser from the Seller.
- “Receivables Purchase Agreement” means any agreement to purchase Eligible Receivables pursuant to these Conditions.
- “Records” means with respect to any Purchased Receivable and the related Buyers all contracts, correspondence, files, notes of dealings and other documents, books, books of accounts, registers, records and other information regardless of how stored.
- “Related Rights” means, in relation to a Sale Contract, all ancillary rights in relation to such Sale Contract, including (without limitation):
- any indemnity claims (for breach of representations and warranties or otherwise), whether the relevant indemnity request has been already submitted or not, towards the Seller under the Receivables Purchase Agreement;
- the benefit of (including, without limitation, the rights as the insured person under and as notations of interest on, and returns of premium and proceeds of claims under) insurance and assurance policies deposited, charged, obtained, or held in connection with the relevant Sale Contract;
- any other right or remedy in favour of, obtained or held by a Seller in connection with the Sale Contract.
- “Relevant Personal Data” has the meaning given to it in Condition 17.1(Data Protection).
- “Sale Contract” means any sale contract (Kaufvertrag) entered into between the Seller and any Buyer.
- “Sanctioned Receivable” means any Receivable (a) which as a result of the ownership of which the Purchaser would breach applicable Sanctions; and/or (b) under which the relevant Buyer is subject of Sanctions.
- “Sanctions” means economic, financial or trade sanctions, embargoes or restrictive measures enacted, imposed, administered or enforced from time to time by (i) the Security Council of the United Nations, (ii) the European Union and Germany.
- “Secrecy Rules” means collectively, the provisions of the BDSG and the provisions of the GDPR, as such rules are binding the relevant Party with respect to the Receivables from time to time.
- “Securitisation Law” shall mean the Luxembourg law dated 22 March 2004 on securitisation undertakings, as amended.
- Seller” has the meaning given to it in Condition 1 (Scope).
- “Servicer” has the meaning given to in Condition 9.1 (Appointment of the Servicer).
Retention of Title Provision
- Comprehensive Retention of Title (Eigentumsvorbehalt)
The following agreed retention of title (Eigentumsvorbehalt) serves to secure all respectively existing current and future claims of the Seller against the Buyer arising from the Sale Contract (“Secured Claims”).
The Goods shall remain the property of the Seller until full payment of all Secured Claims. The Goods as well as the goods replacing them in accordance with the following provisions shall hereinafter be referred to as “Reserved Goods”.
The Buyer shall store the Reserved Goods free of charge for the Seller.
The Buyer shall be entitled to process (verarbeiten) and sell the Reserved Goods in the ordinary course of business until such time as the Realisation Event occurs. Pledges and transfers of ownership by way of security are not permitted.
If the Reserved Goods are processed by the Buyer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer (Hersteller) and that the Seller shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (Bruchteilseigentum) of the newly created item in the ratio of the value of the Reserved Goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Buyer shall already now transfer its future ownership or – in the above ratio – co-ownership (Bruchteilseigentum) of the newly created item to the Seller as security. If the Reserved Goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that the Seller or the Buyer acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership (Bruchteilseigentum) of the uniform item in the ratio specified in this Clause 1.5.
In the event of resale of the Reserved Goods, the Buyer hereby assigns to the Seller by way of security the claim against the purchaser arising therefrom – in the event of co-ownership (Bruchteilseigentum) of the Seller in the reserved goods, in proportion to the co-ownership (Bruchteilseigentum) share. The same shall apply to other claims which replace the Reserved Goods or otherwise arise with regard to the Reserved Goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller authorises the Buyer subject to revocation to collect the claims assigned to the Seller in its own name. The Seller may revoke this collection authorisation only if the Realisation Event occurs.
If third parties seize the Reserved Goods, in particular by way of attachment, the Buyer shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for such costs.
The Seller shall release the Reserved Goods as well as the items or claims replacing them insofar as their value exceeds the amount of the Secured Claims by more than 50%. The choice of the items to be released thereafter shall lie with the Seller.
If the Seller withdraws from the Sale Contract in the event of a breach of the Sale Contract by the Buyer – in particular default of payment – (“Realisation Event”) the Seller shall be entitled to demand the return of the Retained Goods.
To be eligible for acquisition by the Purchaser pursuant to this Receivables Purchase Agreement prior to the respective Purchase Date during the term of this Receivables Purchase Agreement, any Receivable must meet the following criteria (“Eligibility Criteria”):
- was originated in the ordinary course of business of the Seller under a contract of sale of goods or services and is based on the applicable general terms and conditions of business of the Seller which are compliant with the laws of one of the member states of the European Union;
- is a Receivable, the due date for payment of which falls up to ninety (90) calendar days from the date of its origination;
- is denominated and payable in Euro;
- is a Receivable in respect of which the Sale Contract under which it arises has not been terminated;
- exists and constitutes legally valid, binding and enforceable obligations of the respective Buyer;
- is not a delinquent or defaulted receivable nor is it disputed by the relevant Buyer.
- is not subject to any executed right of revocation (ausgeübter Widerruf), set-off or counter-claim (other than potential set-off rights and counter-claims resulting from claims of the relevant Buyer in connection with handling fees (Bearbeitungsgebühren) or warranty claims of the Buyers and no other right of objection, irrespective of whether the Purchaser knew or could have known of the existence of objections, defences or counter-rights;
- is a Receivable which may be segregated and identified at any time for purposes of ownership in the electronic files of the Seller and such electronic files and the relating software is able to provide the information to be included in the offer with respect to such Receivables pursuant to this Receivables Purchase Agreement;
- is a claim which can be transferred by way of assignment without the consent of the related Buyer and which shall be validly transferred, to the Purchaser in the manner contemplated by this Receivables Purchase Agreement;
- is a Receivable to which the Seller is fully entitled, free of any rights of any third party, over which the Seller may freely dispose and in respect of which the Purchaser will, upon acceptance of the Offer for the purchase of such Receivable as contemplated in this Receivables Purchase Agreement, acquire the title unencumbered by any counterclaim, set-off right, other objection and Adverse Claims (other than those of the Buyer under the related Sale Contract); in particular, such Receivable has not been assigned to any third party for refinancing and has been documented in a set of documents which designates the acquisition costs thereof;
- is a Receivable which has been created in compliance with all applicable laws, rules, regulations and legislations and all required consents, approvals and authorisations have been obtained in respect thereof and neither the Seller nor the Buyer are in violation of any such law, rule or regulation;
- is subject to the laws of one of the member states of the European Union;
- is a Receivable the assignment of which does not violate any law or agreements to which the Seller is bound, and following the assignment of the Receivable, such Receivable shall not be available to the creditors of the Seller on the occasion of any insolvency of the Seller;
- is a Receivable the purchase of which, together with any other Receivables to be purchased on the same Purchase Date and (as relevant) all Purchased Receivables, does not exceed the Maximum Purchase Amount on the Purchase Date on which it is purchased;
- is due from a Buyer who is not insolvent or bankrupt (zahlungsunfähig, including imminent inability to pay its debts (drohende Zahlungsunfähigkeit)) or over-indebted (überschuldet) and against whom no proceedings for the commencement of insolvency proceedings are pending in any jurisdiction;
- is not due from a Buyer who is an employee, officer or an Affiliate to the Seller, whereby “Affiliate” shall mean any related enterprise and in particular any affiliated enterprise (verbundenes Unternehmen) within the meaning of Section 15 of the AktG;
- is not a Sanctioned Receivable;
- is due from a Buyer the identity of which was subject to KYC checks by the Purchaser at the point of entering into the Sale Contract (the “KYC Checks”); or
- is not rejected by the Purchaser due to the Internal Risk Policy.
Processing of Personal Data in connection with the Transaction Based Lending Payment Option
- Processing Details and Legal Bases:
When the transaction based lending payment option offered by MIR Lux Capital S.à r.l., (“MIR Lux”) is used, the Marketplace will share certain personal data with MIR Lux, including names, email, physical address, phone number as well as other relevant contact details of representatives and other employees of the Seller and the Buyer. When buyers opt for the transaction based lending payment option, the underlying payment claims will be assigned to MIR Lux. MIR Lux processes such personal data in connection with providing the transaction based lending payment option as an independent controller, including for the purpose of (i) collecting and enforcing payment claims based on its connected legitimate interests pursuant to Art. 6(1)(f) GDPR, and (ii) carrying out KYC checks based on its statutory obligations to carry out identity checks pursuant to Art. 6(1)(c) GDPR as well as based on its legitimate interests pursuant to Art. 6(1)(f) GDPR. MIR Lux has further engaged Finmid GmbH (“Finmid”) with the collection of payment claims. For such purpose, the data categories as specified above will also be shared with Finmid. Finmid will process such data in order to provide its collection services to MIR Lux based on its legitimate interests pursuant to Art. 6(1)(f) GDPR based on its interest to fulfil its contractual obligations towards MIR Lux as an independent controller.
- Name and Contact Details of MIR Lux and Finmid:
- MIR Lux Capital S.à r.l., 16, rue Eugène Ruppert, L-2453, Luxembourg, Grand-Duché de Luxembourg, to the attention of the Managing Directors Federico Papandrea and Agnieszka Szczepankiewicz
- Finmid GmbH, c/o WeWork, Stresemannstraße 123, 10963 Berlin, email@example.com
- Duration of Processing:
MIR Lux and Finmid process and store the personal data only as long as they are needed in connection with a lawful purpose. Both then erase the personal data immediately, unless they still need these data until expiry of the statutory period of limitation for purposes of evidence in civil claims or due to statutory duties of storage in accordance to Art. 6 (1) (c) and (f) DSGVO.
- Transmission of Personal Data to Data Recipients:
MIR Lux and Finmid will engage service providers in the data processing. These include in particular Finmid as a KYC service provider on behalf of MIR Lux, IT service providers which maintain MIR Lux’s and Finmid’s systems, and consultancy firms. To the extent, MIR Lux or Finmid pass personal data on to service providers, the personal data may only be used for performance of their tasks.
- Transmission of personal data to third countries:
Some service provider are partly located in so-called third countries (outside the European Union or the European Economic Area) or process personal data there, i.e. countries whose level of data protection does not correspond to that of the European Union. MIR Lux and Finmid may transfer the personal data to such third countries. Where this is the case and the European Commission has not issued an adequacy decision (Art. 45 GDPR) for these countries, MIR Lux and Finmid have taken appropriate precautions to ensure an adequate level of data protection for any data transfers. These include, among others, the standard contractual clauses of the European Union or binding internal data protection regulations. Where this is not possible, MIR Lux and Finmid base the transfer of personal data on exceptions to Art. 49 GDPR in particular the data subject’s expressed consent or the necessity of the transfer for the performance of the contract or for the implementation of pre-contractual measures.
If a third country transfer is provided for and there is no adequacy decision or suitable guarantees, it is possible and there is a risk that authorities in the respective third country (e.g. intelligence services) may gain access to the transferred data in order to collect and analyse it, and that enforceability of the personal data subject rights cannot be guaranteed.
- Data Subjects Rights:
Each data subject is entitled to withdraw its consent (Art. 6 (1) (a) GDPR), to object to the processing of its personal data (Art. 21 GDPR), to information about its personal data processed (Art. 15 GDPR), to rectify its personal data stored that is incorrect (Art. 16 GDPR), to erasure of its personal data (Art. 17 GDPR), to restrict the processing of its personal data (Art. 18 GDPR), to data portability of its personal data (Art. 20 GDPR) and to lodge a complaint with a supervisory authority (Art. 77 GDPR).
Each data subject also has the right to object to the processing of its personal data where MIR Lux or Finmid are relying on a legitimate interests (Art. 6 (1) (f) GDPR) and there is something about the particular situation which makes the respective data subject want to object to processing on this ground as the data subject feels it impacts its fundamental rights and freedoms. If applicable, the data subject also has the right to object where MIR Lux and Finmid are processing its personal data for direct marketing purposes. In some cases, MIR Lux and Finmid may demonstrate that they have compelling legitimate reasons to process the respective information which overrides the data subject’s rights and freedoms. To exercise the data subject rights described here, the data subject can contact MIR Lux and Finmid at any time using the contact details above.