User Agreement

LAST UPDATED: 24 AUGUST 2018

General Terms Relating To All Users Of The Orchard Website And/Or Platform.

Users of the Site and the Platform should, in particular, be aware of and read the disclosures and disclaimers set out in Clause 3 of these General Terms.

1. Introduction

1.1 These General Terms apply to all users of the Site and/or the Platform.

1.2 These General Terms, all applicable Addendums from time to time, and the Privacy Policy (together the “Agreement”) constitute our agreement with you as a user of the Platform and govern the use of the Site and the service provided through the Platform by any person whose application to use the Platform we approve (“you”, “your”).

1.3 These General Terms and the Privacy Policy will come into effect between you and Orchard upon you confirming electronically on the Site that you agree to the terms of this Agreement, or otherwise by using the Site. Each Addendum will come into effect as and when they become applicable to you from time to time in accordance with their terms. This Agreement shall continue thereafter unless and until it is terminated in accordance with the provisions of Clause 10 of these General Terms.

1.4 These General Terms are supplemented by Addendums which apply depending on how you are investing or borrowing. Each Addendum describes the circumstances in which they are applicable to you, and therefore you should review each one to ensure that you are aware of when an Addendum applies to you.

These General Terms apply to all users of the Platform.

The Addendum entitled “RPA Addendum” applies to:
(a) all RPA Investors (being, in summary, persons investing via a Receivables Participation Agreement on or before 9th May 2017); and
(b) all RPA Borrowers who borrow via the Receivables Participation Agreement structure,

in addition to these General Terms, as further described in the RPA Addendum. The RPA Addendum is not relevant to persons investing via a Receivables Participation Agreement after 9th May 2017, who should refer instead to the terms of the relevant CIMA and Receivables Participation Agreement relating to their particular investment.

The Addendum entitled “Broker Addendum” applies to all users of the Site and/or the Platform that are Brokers, in addition to these General Terms, as further described in the Broker Addendum.

The Addendum entitled “Local Country Specific Addendum” provides country-specific terms which apply to you in addition to (and prevailing over) these General Terms if you are an RPA Investor or RPA Borrower established or otherwise resident outside of England and Wales. These country specific terms amend various provisions of this Agreement in order to allow for the law of your jurisdiction.

Where there is any conflict between these General Terms and any Addendum, the provisions of the relevant Addendum shall take precedence to the extent necessary to resolve such conflict.

Users of the Site and the Platform should, in particular, be aware of and read the disclosures and disclaimers set out in Clause 3 of these General Terms.

2. Definitions

2.1 In this Agreement, the following capitalized terms shall have the following meanings:

“Access Codes” means your username and password for your User AccountM

“Addendum” means those additional terms set out on the Site which are applicable to you and binding on you depending on your status, as further described in those Addendums

“Ancillary Documents” means any documentation which you may enter into from time to time in respect of investments, lending or borrowing on the Platform (or in respect of borrowing in respect of the Receivables Participation Agreement model, with RPA Sellers off the Platform), including any relevant Receivables Participation Agreements, RPA Loan Agreements, RPA Security Documents and any other related agreements

“Applicable Law” means all laws, regulations, rules and regulatory guidance which may be applicable from time to time

“Business Day” a day (other than a Saturday or a Sunday) on which commercial banks are open for general business in London

“CIMA” means the collective investment management agreement entered into between Funds Management Ltd, an RPA Seller and the RPA Investor.

“Confidential Information” has the meaning given to it in Clause 7 of these General Terms

“FCA” means the Financial Conduct Authority

“General Terms” means these terms and conditions, excluding all Addendums

“Information” means any and all text, numbers, graphics, audio stiland moving images, whether in physical or electronic form, as contained on the Platform

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world

“Cherry Orchard”, or “we”, “us” or “our” means Cherry Orchard, a public liability company incorporated in England and Wales and having its registered office at 721 Capability Green Luton, Bedfordshire LU1 3LU

“Investor Account” means our segregated bank account held at a duly authorised UK credit institution for the purpose of, amongst others, holding and disbursing funds paid by RPA Investors.

“Nominated Bank Account” means the bank account or building society account based in the UK and opened in your name which you have registered with us

“Privacy Policy” means the privacy and cookies policy, as updated from time to time, located at Privacy and Cookies “Property” a specific property which secures a loan which is the subject of a Receivables Participation Agreement.

“Receivables Participation Agreement” means the standard form agreement relating to the purchase of a participation in receivables, which has been entered into between an RPA Seller and an RPA Investor

“RPA Addendum” means the Addendum entitled “RPA Addendum”

“RPA Borrower” has the meaning set out in the RPA Addendum

“RPA Investor” has the meaning set out in the RPA Addendum

“RPA Loan Agreement” has the meaning set out in the RPA Addendum

“RPA Loans” has the meaning set out in the RPA Addendum

“RPA Offer” and “RPA Offers” has the meaning set out in the RPA Addendum

“RPA Purchase” has the meaning set out in the RPA Addendum

“RPA Security Documents” has the meaning set out in the RPA Addendum

“RPA Seller” has the meaning set out in the RPA Addendum

“Site” means the Cherry Orchard website

“User Account” means a data account in your name in our systems that will enable you to access and use the Platform in accordance with the provisions of this Agreement

“User Information” means any information relating to you, that you provide to us

“Valuer” means a professionally qualified valuer who is a member of the Royal Institution of Chartered Surveyors, chosen by Cherry Orchard

Users of the Site and the Platform should, in particular, be aware of and read the disclosures and disclaimers set out in Clause 3 of these General Terms.

3. Disclosures And Disclaimers

3.1 The Site and the Platform are provided “as is” and “as available”. We make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Site or the Platform, including any warranty that the Site, the Platform or any part or use of it will be uninterrupted, error free or free of harmful components, or that any information provided to us or available on the Site or the Platform will be secure, accurate, timely, up-to-date, reliable or not otherwise lost or corrupted. Except to the extent prohibited by law, we exclude all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade.

3.2 You acknowledge that you understand and accept that the Site and Platform operate as a platform intended to facilitate the sale and purchase of participations in receivables in relation to RPA Loans, and only limited investigation of RPA Offers is undertaken by us. RPA Investors are responsible for making your own assessment of the viability of each RPA Offer. If you are in doubt or require any assistance in making such an assessment, you should consult professional advisors.

3.3 Save as set out to the contrary in the Local Country Specific Addendum, the Information on the Site and the Platform is not intended for use outside the UK, and no such Information constitutes an offer or solicitation to anyone in any jurisdiction where such an offer is not lawful or to anyone to whom it is unlawful to make such an offer or solicitation.

3.4 We shall not have any duty to disclose to you any Information which we receive in the course of providing the Site or the Platform.

3.5 You acknowledge and agree that we do not provide any investment, financial, accounting, taxation or legal advice in general, or in relation to any RPA Loan, RPA Offer, Receivables Participation Agreement or this Agreement, and that we are not authorised to do so. Nothing that we do or communicate to you should be construed as the provision of any such advice by us or any of our group companies. You are solely responsible for making your own independent appraisal and investigation of the risks of making an RPA Purchase Request or RPA Purchase and entering into a subsequent Receivables Participation Agreement or otherwise investing or borrowing on the Platform and you should obtain your own legal, accounting, tax and/or financial advice in relation to such matters, as you consider necessary.