"If any term of this agreement is unenforceable for any reason, it shall not affect..

[Amethyst]

"If any term of this agreement is unenforceable for any reason, it shall not affect the enforceability of any other term of this agreement."

Is that legal now ? I assume its okay now 127(3) has gone, but UTCCR still stands?

MarshallWard, Additions, Littlewoods, Kays (ie SHOP DIRECT) etc have added that term to contracts.

[Curlyben]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Absolute Ball Hooks !!!

As has been commented on numerous times, if one part of the agreement is rendered unenforceable that scuppers the entire agreement.
This isn't even covered under Force Majer (or how ever you spell it)

[Amethyst]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Jolly good

[Curlyben]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Just thinking some more about why they might of put this in.
I guess it's in response to the charges debackle, but that being said the OFT are looking at fairness and not enforceability.


Hmm inquiring minds want to know and so do I

[jax007]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Force Majeur hun
------------------------------- merged -------------------------------
........ oh and what do you mean Ames that 127(3) has 'gone'??

Sorry been away for 3 weeks so am trying to catch up somewhat

jaxx

[Curlyben]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Yet that as well
I had most of the right letters..

s127(3) was repealed with CCA 2006, BUT is NOT retrospective in nature.
If your agreement was pre April 2007, then it is still in effect..

[jax007]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

Aha!! Yep got that - thought it was something new!!:confused2:

[Amethyst]

Re: "If any term of this agreement is unenforceable for any reason, it shall not affe

I might pop off an email to the OFT / FSA and ask them their opinion ?


The clause appears to be in lots of privacy policys and your safety when using this website type agreements however with ShopDirect it is a clause in the actual credit agreement terms and conditions. Looking to see if/when it changed and whether its a standard phrase in all catalogue agreements.

Flexible Account Terms & Conditions

With Shop Direct Finance Company Limited, whose registered office is at Aintree Innovation Centre, Park Lane, Netherton, Bootle L30 1SL (the Creditor) and you.
Key Financial Information

1. Credit Limit - We will periodically set the credit limit and notify you of it.
2. Repayments - You will be sent a statement every 28 days giving details of all transactions on your account during the period since your last statement or, if there has been no previous statement, since the opening of your account. The first payment will become due 21 days after the date of your first statement and all subsequent payments will be due 21 days after the date of the statement on which they appear. The due date will be shown on each statement. You will be required to make at least the minimum payment by the due date shown on your statement. The minimum payment on current balances over £100 will be 5% of that current balance, rounded down to the nearest £1. The minimum payment on current balances of £100 or less will be £5 or the full current balance if it is less than £5. You may pay more if you wish to do so, including the Take 3 payment described in clause 1 of the terms and conditions. Any 28 day insurance premiums will be payable in addition to the minimum payment described above.
   If you use the account to purchase certain items we may ask you to make an additional payment in relation to that item. If this requirement applies we will determine and notify you of the amount and timing of the payment when you order the item.
3. APR - The following rates will apply
   
   1 2 Non Direct Debit 39.7% APR variable 44.9% APR variable Direct Debit 35.7% APR variable 40.9% APR variable

Other Financial Information

1. Total Charge for Credit - Assuming that you create a balance of £1500 on your account and choose to repay us in full by making twelve equal monthly instalments, the total charge for credit would be interest of:
   
   1 2 Non Direct Debit 39.7% APR variable 44.9% APR variable Interest £289.50 £305.98
2. The annual flat rate of interest under this Agreement is, if paying the minimum payment by variable direct debit::
   
   1
   39.7% APR variable 2
   44.9% APR variable Non Direct Debit 39.7% APR variable 44.9% APR variable Direct Debit 35.7% APR variable 40.9% APR variable
3. Charging Interest: If the Take 3 Facility applies to any purchases on your account, your statement will show a Take 3 Payment. This amount will be the sum of (i) the minimum payment; (ii) any insurance premiums due; (iii) the optional payment in respect of any balance on Take 3 Transactions; and (iv)any optional payment in respect of any Interest Opt-Out Transactions. Take 3 and Interest Opt-Out are detailed in clause 1 of the terms & conditions. No interest will be charged on the balance on Take 3 Transactions or on Interest Opt-Out Transactions for a statement period if you paid at least the Take 3 Payment shown on the previous statement by the payment due date. If you do not pay the Take 3 Payment, interest will be calculated on the daily current balance at the standard rate and applied to the account every 28 days. For all balances which do not relate to Take 3 or Interest Opt-Out Transactions, interest will be calculated on the daily current balance at the standard rate and applied to the account every 28 days.
4. Promotional Interest Rates: We may from time to time offer reduced interest rates (Promotional Interest Rates) on selected purchases or types of purchase (“Promotional Transactions”). We will advertise the Promotional Interest Rate, the period for which it applies (“Promotional Period”) and any other additional terms which apply to the Promotional Transaction in such a manner as we consider appropriate. We will charge interest at the Promotional Interest Rate on the outstanding balance in respect of Promotional Transactions for the Promotional Period, and after the end of the Promotional Period we will charge interest at the standard rate. The availability of Promotional Interest Rates is conditional on you keeping to this agreement, and if you do not keep to its terms we may withdraw any Promotional Interest Rates and charge interest at the standard rate on the full outstanding balance.
5. In calculating the APR, no account has been taken of any variation of the interest rate which may occur under this agreement. We have the right to vary the interest rate, for commercial reasons, upon giving 28 days written notification to you.
6. Allocation of payments - Any payments made under this agreement will be applied in the following order. We may change this order for specific promotions, and if we do so we will tell you when we give you details of the promotion:
   1. Payment Protection Insurance premiums and then other insurance premiums (including, first, any arrears).
   2. Default charges and then any other charges (including, first, any arrears).
   3. Other arrears.
   4. Interest.
   5. Reducing the outstanding balance.
   
   

Key Information

Default Charges - Charges are payable by you in respect of the following matters:

• You fail to make at least the minimum payment by the payment due date
• For any debt collection activity we undertake
• Debtor Trace
• Any cheque, direct debit or other item for payment into your account that is unpaid or dishonoured
• Temporary payment arrangement letter fee
• Transfer of your debt to a debt collection agency
• Any court fees & costs incurred by us in pursuit of arrears

We reserve the right to vary these charges (or introduce new charges) at any time in accordance with clause 10. Details of up to date charges in relation to each of these matters are available from us.
Missing Payments

Missing payments could have severe consequences and make obtaining credit more difficult.
Important - Read This Carefully to Find Out About Your Rights

The Consumer Credit Act 1974 lays down certain requirements for your protection which should have been complied with when this agreement was made. If they were not, we cannot enforce this agreement without getting a court order.
The Act also gives you a number of rights:

1. You can settle this agreement at any time by giving notice in writing and paying off the amount you owe under the agreement.
2. If you received unsatisfactory goods or services paid for under this agreement you may have a right to sue the supplier, us or both.
3. If the contract is not fulfilled, perhaps because the supplier has gone out of business, you may still be able to sue us. If you would like to know more about your rights under the Act, contact either your local Trading Standards Department or your nearest Citizens' Advice Bureau.
   If you would like to know more about your rights under the Act, contact either your local Trading Standards Department or your nearest Citizens Advice Bureau.

Further Terms and Conditions

1. DEBITS TO THE ACCOUNT, INTEREST OPT-OUTS AND BUY NOW PAY LATER. The following repayment options may be offered on selected purchases as published from time to time:
   • Take 3 Facility: The Take 3 Facility will apply to all purchases made on the account, apart from BNPL Transactions, Interest Opt-Out Transactions, and Promotional Transactions. We may also exclude other transactions from Take 3 from time to time, and will notify you of them. Purchases using the Take 3 Facility (“Take 3 Transactions”) will be charged to your account in full immediately. When a Take 3 Transaction is charged it is added to any existing balance for Take 3 Transactions (“the Take 3 Balance”) carried forward from your previous statement. The new Take 3 Balance is then used to calculate the optional payment for your Take 3 Facility which will form part of the Take 3 Payment shown on your statement. On the first statement after any new Take 3 Transaction has been charged to the account this optional payment will be one third of the Take 3 Balance. If there are no new Take 3 Transactions on the second statement, the optional payment will be one half of the remaining Take 3 Balance and on the third statement it will be the full remaining Take 3 Balance. Whenever a new Take 3 Transaction is charged this cycle starts again. However, the Take 3 Balance will only be carried forward from one statement to the next if you make the Take 3 Payment shown on the statement in full. If you do not make a Take 3 Payment shown on a statement the Take 3 Facility will cease to apply to all previous Take 3 Transactions, and the outstanding Take 3 Balance will be charged interest at the standard rate from the start of that statement period. Accordingly, if you wish to avoid paying interest on Take 3 Transactions you must pay the Take 3 Payment shown on each consecutive statement. If you do not do so you will lose the benefit of the Take 3 Facility for the outstanding balance, but will still be able to use it on future Take 3 Transactions.
   • Interest Opt-Out Transactions: Interest Opt-Outs of 6 months, 12 months, 2 years, 3 years and 4 years may be available on selected products as advertised from time to time. For Interest Opt-Out Transactions the cost of the purchase will be divided by the number of months in the Interest Opt-Out period applicable to that purchase (i.e. 6, 12, 26, 39 or 52) to produce the amount that will be charged to the account on each statement for the duration of the relevant Interest Opt-Out period. As an example, for a purchase on the 6 months Interest Opt-Out, one sixth of the purchase price will be charged to the account on each of 6 consecutive statements. When an Interest Opt-Out Transaction is charged to your account it is added to any balance of Interest Opt-Out Transactions (“the Interest Opt-Out Balance”) carried forward from your previous statement. We then use the new Interest Opt-Out Balance to calculate the optional payment for your Interest Opt-Out Transactions which will form part of the Take 3 Payment shown on your statement. On the first statement after any new Interest Opt-Out Transaction has been charged to the account this optional payment will be one third of the Interest Opt-Out Balance. If there has been no new Interest Opt-Out Transactions on the second statement the optional payment will be one half of the remaining Interest Opt-Out Balance, and on the third statement it will be the full remaining Interest Opt-Out Balance. Whenever a new Interest Opt-Out Transaction is charged this cycle starts again. If you do not make a Take 3 Payment shown on a statement the Interest Opt-Out Balance will be charged interest at the standard rate from the start of that statement period. Accordingly, if you wish to avoid paying interest on Interest Opt-Out Transactions you must pay the Take 3 Payment shown on each consecutive statement. Each amount charged will be treated as a new transaction, and accordingly the cycle described above will restart every month that an Interest Opt-Out amount is charged to the account.
   • Debits to the account - Purchases to which no Interest Opt-Out applies will be charged to your account in full immediately. For purchases to which an Interest Opt-Out applies, the cost of that purchase on the account will be divided by the number of calendar months in the Interest Opt-Out applicable to that purchase (i.e. 6, 12, 26, 39 or 52) to produce the amount that will be charged to the account on each statement for the duration of the relevant Interest Opt-Out. As an example, for a purchase on the 6 months interest opt-out, one sixth of the purchase price will be charged to the account on each of 6 consecutive statements.
   • Buy Now Pay Later Transactions: Selected purchases may be available on one of the following Buy Now Pay Later offers (“BNPL Transactions”) as published from time to time:
     • No interest during BNPL period: Once the BNPL Transaction is charged to your account at the end of the BNPL period it will be shown as part of the current balance and will become liable for interest and payment, but no interest will accrue on the BNPL Transaction until it is charged to your account. Amounts owing under a BNPL Transaction but not yet charged to your account will be deducted from your credit limit when we calculate the amount you have left to spend. The amount of credit available to you in relation to your account will be reduced accordingly.
     • Interest accruing during BNPL period: The BNPL Transaction will accrue interest from the purchase date but this interest will not show on the account until the expiry of the BNPL period. Once the BNPL Transaction is charged to your account at the end of the BNPL period, the balance including accrued interest will be shown as part of the current balance and will become liable for payment. Amounts owing under a BNPL Transaction but not yet charged to your account will be deducted from your credit limit when we calculate the amount you have left to spend. The amount of credit available to you in relation to your account will be reduced accordingly. If you pay the cash price of your BNPL Transaction before the expiry of the BNPL period, you will not be required to pay any interest on the Transaction.
     • BNPL Transactions will not qualify for Take 3 or Interest Opt-Out.
     • All Promotional Interest Rates, and the availability of the Take 3 Facility and Interest Opt-Out are conditional on you keeping to the terms of this agreement. If you do not do so we may remove the Take 3 Facility and Interest Opt-Out in respect of all outstanding Take 3 Transactions and Interest Opt-Out Transactions, and we may start charging the standard interest rate on the full outstanding balance on the account and on all new transactions. We may restore the Take 3 Facility and apply Promotional Interest Rates and Interest Opt-Out to new purchases once you have corrected any breach of this agreement and are complying with it again, but we will not be obliged to do so.
     
     
   
   
2. The credit under this agreement is to be used by you to purchase goods/services from retailers, outlets and brands agreed by us from time to time. We may debit your account on each occasion upon which you provide us with authority to do so, including verbal authority.
3. We may, subject to any statutory notice period, demand from you immediate payment of the full outstanding balance if you fail to make any payment owing under this agreement by its due date, if you fail to pay any other sums due from you to us within any grace period to which you are entitled, if you fail to comply with any other terms or conditions of this agreement, if we suspect fraud or unlawful use of the account or if any information you provide to us in connection to the account is inaccurate. The outstanding balance for all purposes of this agreement will include all sums then due on the account together with all amounts due to be charged to your account at any time in the future. We may close your account immediately, and without notice, if you fail to comply with any terms or conditions of this agreement.
4. Either you or us may terminate this agreement by giving at least seven days written notice of such to the other. If you terminate the agreement, you must immediately pay the full outstanding balance to us. If we terminate the agreement you will not be able to obtain further credit under this agreement and must repay the full outstanding balance to us on demand.
5. If you are not satisfied with any aspect of this agreement then write to: Shop Direct Finance Company Limited, Credit Support Team, Aintree Innovation Centre, Park Lane, Netherton, Liverpool, L72 1LE.
6. You have the right to cancel this agreement under the Financial Services (Distance Marketing) Regulations 2004. This right to cancel ends on the expiry of fourteen calendar days beginning with the day after the agreement is concluded. You can cancel by sending or taking a WRITTEN notice of cancellation to Shop Direct Finance Company Limited, Credit Support Team, Aintree Innovation Centre, Park Lane, Netherton, Liverpool, L72 1LE. Fax Number 0844 822 4740. E- Mail CreditAgreements@ShopDirect.com.
   If you intend to cancel, you should not use any goods you have under the agreement and you should keep them safe (legal action may be taken against you if you do not take proper care of them).
7. You must notify us in writing of any change of your address within seven days of such change.
8. If we temporarily relax any terms of this agreement e.g. allowing you more time to pay, we may strictly enforce those terms again at any time.
9. We may transfer any or all of our rights, duties and obligations under this agreement to any other person, or arrange for any other person to carry them out on our behalf, without giving notice to you. Any such transfer will not affect your rights under this agreement, or any other legal rights you may have, such as under the Consumer Credit Act 1974. You may not transfer your rights, duties or obligations under this agreement.
10. We reserve the right to vary the terms of this agreement at any time to reflect:
    • changes in relevant laws
    • changes in our system capabilities
    • changes in market conditions affecting our business
    • new developments in the market place
    
    We will give you twenty-eight days written notice of the variation. Where any such change is not to your benefit, you may end this agreement by giving us written notice and paying us the full outstanding balance before that change takes effect.
    
11. This agreement is governed by the laws of England and Wales, which we also take as applying prior to the making of this agreement.
12. All communications in relation to this agreement will be in English.
13. We may put your statements and any other notices that we wish to send to you, or are required by law to send to you, such as notice of sums in arrears and notices of default sum in the Transaction History of My Account on our website ( or such other secure electronic location as we may notify to you). We will send you an e-mail to let you know when we do this. You agree that you consent to receive statements and notices in this way. Statements and notices will remain in My Account for up to 12 months after posting. If you wish to obtain a copy of any statement or notice after it has been received, we may charge you for supplying it in accordance with our practice at that time. We would therefore recommend that you print off a copy and keep it secure.
    If we wish to do so, we may send statements and notices to you by post either as well as, or instead of electronically. We are required by law to send some types of notices by post.
14. If any term of this agreement is unenforceable for any reason, it shall not affect the enforceability of any other term of this agreement.
15. Unless you notify us to the contrary, we may appropriate any payments received from you to sums due under your account or under any other agreement you have with us as we decide.
16. References in this agreement to "you" and "your" are to the Customer named above. References to "us" and "we" are to the Creditor named above, and include any other party to whom our rights and/or liabilities under this agreement may be transferred.
17. We are a financial services company authorised and regulated to carry on insurance mediation business by the Financial Services Authority, under reference number 312194, and licensed by the Office of Fair Trading under consumer credit licence number 537906.
18. We are required to inform you that there is a possibility that other taxes or costs may exist during the currency of this agreement that are not paid via us or charged by us under this agreement.

Administration Charges

If you fall behind with your payments, we reserve the right to impose a charge to cover the cost of any action we may take. We will be entitled to debit your account with any costs incurred by us in respect of any missed or insufficient payment, including but not limited to dishonoured cheques, failed direct debits and recharged card payments. Payments received will be applied first in payment of insurance, interest and other charges as shown on the last statement and thereafter in the reduction of the current balance. Administration Charges:

• Copy statement - £5
• Immediate credit file update - £5
• Letter confirming clearance of your debt - £10
• Transfer of your balances - £12

Default Charges - Charges are payable by you in respect of the following matters:

• You fail to make at least the minimum payment by the payment due date - £12
• For any debt collection activity we undertake - £12
• Debtor Trace - £20
• Any cheque, direct debit or other item for payment into your account that is unpaid or dishonoured - £15
• Temporary payment arrangement letter fee - £10
• Transfer of your debt to a debt collection agency - £20
• Any court fees & costs incurred by us in pursuit of arrears