TERMS FOR SELLERS

 

BACKGROUND:

 

These Terms for Sellers, together with any and all other documents referred to herein, set out the terms under which Users (“Sellers”) sell on Our Marketplace. Please read these Terms for Sellers carefully and ensure that you understand them before selling on Our Marketplace. You will be required to read and accept these Terms for Sellers when you register as a Seller on our Marketplace. If you do not agree to comply with and be bound by these Terms for Sellers, you will not be able to sell on Our Marketplace. These Terms for Sellers, as well as any and all contracts are in the English language only.

 

  1. Definitions and Interpretation

 

1.1     In these Terms for Sellers, unless the context otherwise requires, the following expressions have the following meanings:

 

“Account” means an account required to access and/or use certain areas of Our Site, including Our Marketplace;

“Basic Account” means an Account that allows limited access to Listings;

“Buyer” means a User who makes a purchase on Our Marketplace;

“Content” means any and all text, images, audio, video, scripts, code, software, databases, and any other form of information capable of being stored on a computer that appears on, or forms part of, Our Site;

“Directory” means the placing of a Profile on the directories that appear on our Marketplace;

“Listing” means a listing on Our Marketplace advertising digital workouts for sale;

“Marketplace” means Our platform for Buyers and Sellers on Our Site;

“Our Site” means this website,  https://fytfinder.com 

“Payment Service” means the payment service provided by PayPal;

“Payment Service Account”  means an account for the holding of funds provided as part of the Payment Service and administered by the Third Party Payment Service Provider;

“Seller” means a User who sells on Our Marketplace;

“Subscription Fee” means the amount payable per month for Sellers registering for a Pro Account which is subject to automatic renewal;

“Profile” means the profile that is submitted by a Seller to appear on a Directory or with a Listing;

“Pro Account” means an account that is subject to the Subscription Fee and Transaction Fees;

“Third Party Payment Service Provider” means PayPal, for which you will need to register an account and transaction fees will apply – PayPal’s terms and conditions can be found at https://www.paypal.com/uk/webapps/mpp/ua/legalhub-full?locale.x=en_GB

“Transaction Fee” means a percentage fee applied to each sale made on Our Marketplace;

“User” means a user of Our Site;

“User Content” means any Content added to Our Site by a User;

“We/Us/Our” means FYT FINDER LIMITED, a company registered in England under company number 11073136 and whose registered address is Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX.

 

  1. Information About Us

 

2.1     Our Site is owned and operated by us.

2.2     You can contact us by writing to us at Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX, emailing us at [email protected] or via the Site at https://fytfinder.com/contact-us/

2.3     We are not registered for VAT but Sellers should be aware that, in the event we become VAT registered then VAT will be chargeable on all Transaction and Subscription Fees (see Clause  10.4).

 

  1. Access to and Use of Our Site

 

3.1     Access to Our Site is free of charge.

3.2     It is your responsibility to make any and all arrangements necessary in order to access Our Site.

3.3     Access to Our Site is provided “as is” and on an “as available” basis. We may alter, suspend, or discontinue Our Site (or any part of it) at any time and without notice. Subject to the remainder of these Terms for Sellers, We will not be liable to you in any way if Our Site (or any part of it) is unavailable at any time and for any period.

3.4     Use of Our Site is also subject to Our Terms of Use and Terms for Buyers. Please ensure that you have read them carefully and that you understand them.

3.5     By registering as a Seller on our Marketplace you confirm that you are acting in the course of a business, trade or profession.

 

  1. Restrictions

 

You may only sell and place Listings on Our Marketplace if you are at least 18 years of age and are resident in the UK.

 

  1. Our Marketplace

 

Our Marketplace is provided solely as an online venue for Buyers and Sellers. We are not a party to any transactions or other relationships between Buyers and Sellers. You hereby acknowledge and agree that:

5.1     Buyers are not making purchases from Us and are not entering into a contract with Us. A Buyer’s purchase is from you, and their contract is with you;

5.2     We will not be a party to any dispute between you and any Buyer or another Seller. Any claims must be made directly against the party concerned;

5.3     We do not pre-screen Sellers or any Listings on Our Marketplace. We are not, therefore, in any way responsible for any items sold, for User Content or for the content of any Listings; and

5.4     You are required to comply with these Terms for Sellers, which include provisions covering important matters such as payment methods and processing times.  You must not take any payments from Buyers other than via the Third Party Payment Service Provider and all Listings available for sale must be available for immediate access/download/streaming by Buyers upon payment by Buyers for that item.

 

  1. What Can and Cannot be Sold on Our Marketplace

 

6.1     The following are permitted on Our Marketplace:

6.1.1  Profiles of those wishing to share their expertise within the fitness sector, meal preparation plans, training plans and digital downloadable files that contain information about fitness or fitness routine training plans.

6.2     You are not permitted to place anything on the Site that is not directly related to fitness, fitness training or meal plans, or any content that would breach of Website Terms of Use.

6.3     We reserve the right to remove any Listing that breaches the provisions of this Clause.  If We do so, please note that Subscription Fees are non-refundable. In addition, We may also suspend or terminate your Account. All sums due will remain due and payable notwithstanding any suspension or termination for any reason.

6.4     If you are registered for a Basic Account you may place 1 Profile in our expert directory and 1 Profile in our meal prep directory, and offer for sale unlimited Listings per calendar month.

6.5  If you are registered for a Pro Account, you may place Profiles in our expert directory and in our meal prep directory, and offer for sale unlimited Listings per month.

 

  1. Descriptions Policy

 

When selling on Our Marketplace, it is important that all descriptions of Listings and Profiles are truthful and accurate, and that all visual representations are true representations of what you are selling and what can and cannot be realistically achieved (as far as is reasonably possible). You agree that all Listings submitted by you will comply with the following:

7.1     it will be your own unique work;

7.2     you may only describe something as being made or done by you if that is truly the case. If any other party is involved, your Listing must state and describe their involvement;

7.3     Photographs must be of what you are selling;

7.4     you must not use any Content that belongs to other parties in your Listings without their express permission (please refer to Clause 8 for more information on intellectual property rights);

7.5     your Listing and Profile must not advertise alternate locations from which your items can be purchased, thereby avoiding Our Transaction Fees;

7.6  Your Profile must be a true and accurate reflection of your expertise and/or experience.

 

  1. Intellectual Property Rights

 

8.1     The provisions of Clause 6 of Our Terms of Use apply to all User Content submitted to Our Site, including any and all User Content submitted to Our Marketplace in Profiles, Listings or as digital content for purchase by Buyers.

8.2     Sellers must, at all times, respect the intellectual property rights of other Sellers on Our Marketplace. Under no circumstances may you use intellectual property belonging to another party without that party’s express permission.

8.3     If you feel that another User (whether they are another Seller or a Buyer or otherwise) has infringed your intellectual property rights in any way, please contact Us at [email protected].

8.4     If another party contacts Us accusing you of infringing their intellectual property rights:

8.4.1  We will contact you to inform you of the complaint;

8.4.2  We may remove the User Content that is the subject of the complaint;

8.4.3  if you have questions regarding the complaint, or wish to challenge it, you must contact the complaining party. We will not be a party to any dispute concerning intellectual property and cannot assist in resolving such disputes; and

8.4.4  you are free to resubmit the User Content in question if the complaint is resolved and you have the permission of the complaining party to do so (where it is required). We can neither permit nor deny such resubmission as We will not be a party to the dispute.

 

  1. Seller Rules and Acceptable Usage Policy

 

9.1     When using Our Marketplace, you must do so lawfully, fairly, and in a manner that complies with the provisions of this Clause 9. Specifically:

9.1.1  you must ensure that you comply fully with all local, national, or international laws, and/or regulations (including but not limited to those which may apply to the item(s) you wish to sell);

9.1.2  you must not use Our Marketplace in any way, or for any purpose, that is unlawful or fraudulent;

9.1.3  you must not use Our Marketplace to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind;

9.1.4  you must not use Our Marketplace in any way, or for any purpose, that is intended to harm any person or persons in any way;

9.1.5  you must always provide accurate, honest information about yourself and any and all items that you are selling on Our Marketplace;

9.1.6  you must not exceed the number of Listings if you are registered for a Basic Account;

9.1.7  you must state the price of an item accurately and clearly, and must not change it in order to avoid paying the applicable Transaction Fee; and

9.1.8  you must not engage in any form of price fixing with other Users (including Sellers and Buyers).

9.2     When using Our Marketplace, you must not submit anything (including, but not limited to, material in a Listing) or otherwise do anything that:

9.2.1  is sexually explicit;

9.2.2  is obscene, deliberately offensive, hateful, or otherwise inflammatory;

9.2.3  promotes violence;

9.2.4  promotes or assists in any form of unlawful activity;

9.2.5  discriminates against, or is in any way defamatory of, any person, group, or class of persons; race; gender; religion; nationality; disability; sexual orientation; or age;

9.2.6  is intended or otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;

9.2.7  is calculated or is otherwise likely to deceive;

9.2.8  is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy or otherwise uses their personal data in a way that you do not have a right to;

9.2.9  misleadingly impersonates any person or otherwise misrepresents your identity or affiliation in a way that is calculated to deceive (obvious parodies are not included within this definition provided that they do not fall within any of the other provisions of this sub-Clause 9.2);

9.2.10 implies any form of affiliation with Us where none exists;

9.2.11 infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks, patents, and database rights) of any other party; or

9.2.12 is in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence;

9.1.2.13  you must ensure that any advice provided with Listings or digital content is accurate, and understand that you have a duty to Buyers (both in contract and Tort) for the digital content you are selling.

9.3     We reserve the right to suspend or terminate your access to Our Marketplace if you materially breach the provisions of this Clause 9 or any of the other provisions of these Terms for Sellers. Further actions We may take include, but are not limited to:

9.3.1  removing your Profiles and Listing(s) from Our Marketplace;

9.3.2  issuing you with a written warning;

9.3.3  legal proceedings against you for reimbursement of any and all relevant costs resulting from your breach on an indemnity basis;

9.3.4  further legal action against you as appropriate;

9.3.5  disclosing such information to law enforcement authorities as required or as We deem reasonably necessary; and/or

9.3.6  any other actions which We deem reasonably necessary, appropriate, and lawful.

9.4     We hereby exclude any and all liability arising out of any actions that We may take in response to breaches of these Terms for Sellers.

 

  1. Subscription Fees and Transaction Fees

 

10.1    Subscription Fees are payable if you wish to register for a Pro account at the rate set out on the website https://fytfinder.com/pricing/ and are payable monthly in advance.

10.2    Subscriptions will automatically renew each month at the prevailing rate.  You may cancel a subscription to a Pro Account by simply emailing us at [email protected] and your Account will then be deleted at the end of the month in which you requested the cancellation.

10.3    We reserve the right to change the Subscription Fee from time to time without notice but the higher rate will only be charged on the following month of renewal.

10.4    If, at the point of an automatic renewal, we are VAT registered, then we will charge VAT at the applicable rate on the Subscription Fee.

10.5    A Transaction Fee will be charged at a percentage of the price of each item sold as set out at https://fytfinder.com/pricing/. If we become VAT registered, we will give you at least 28 days notice of this event and we may then charge VAT at the applicable rate on Transaction Fees that are payable to us after expiry of the written notice.

10.6  We reserve the right to change the level of Transaction Fees from time to time upon our giving to you 30 days notice of the change in writing.  The higher rate will become payable on all sales after 30 days, regardless of whether the items appeared on a Listing prior to the notice being given.

10.7    Any and all actions designed to avoid the payment of any fees described in these Terms for Sellers (including, but not limited to those described in sub-Clauses 7.5 and 9.1.7) are strictly prohibited.

10.8   You will be subject to the processing fees applied by our Third Party Payment Service.

10.9  We reserve the absolute right to charge a Subscription Fee for a Basic Account upon our giving 28 days written notice.  If you do not wish to pay the Subscription Fee that will be applicable after 28 days then your Account will be closed.

 

  1. Payment Service

 

11.1    All Payments on Our Marketplace are made through the Payment Service provided by PayPal, Our Third Party Payment Service Provider.

11.2    Your use of the Payment Service requires an account with the Third Party Payment Service Provider and will be subject to its own terms and conditions and privacy policy. You will be required to read and accept those terms and conditions and privacy policy before taking payments from Buyers on Our Marketplace.

11.3    By using the Payment Service, you acknowledge and agree to Us sharing your personal information and/or information about your transactions on Our Marketplace with the Third Party Payment Service Provider.

11.4    If We receive notice from the Third Party Payment Service Provider that your use of Our Marketplace or the Payment Service is in breach of their terms or of any agreement between you and them, We may take actions including, but not limited to, those necessary to rectify your breach, removing your ability to use the Payment Service to make or accept payments on Our Marketplace, and/or the suspension or termination of your Account on Our Site.

11.5    The Third Party Payment Service Provider reserves the right to refuse the use of the Payment Service to anyone, for any reason, and at any time.

 

  1. Payments from Buyers

 

12.1    All payments are processed using the Payment Service described above in Clause 11.

12.2    You will receive any payments from Buyers on the last day of each month. The payment you will receive is the total all your sales between the 1st of the month and the last day of the previous month less our fees and PayPal processing/transaction fees.

12.3    We will not make any Buyers’ payment details (including, but not limited to, card numbers, bank account numbers, and sort codes) available to you at any time, or for any reason. All payment details are held securely and shared only with Our Third Party Payment Service Provider.

 

  1. Payments to Us

 

13.1    We will deduct the Transaction Fees from your sales as set out in Clause 12.

13.2    All Subscription Fees are payable in advance.

13.3    If you do not make any payment due to Us on time, We will suspend any Listings and your Profile(s) you have on Our Marketplace and may, in addition, suspend or terminate your Account on Our Site. All sums due will remain due and payable notwithstanding any suspension or termination for any reason.

13.6    If you believe that We have charged you an incorrect amount, please contact Us at [email protected] as soon as reasonably possible to let Us know.

 

  1. Taxes

 

14.1    It is your responsibility to collect and pay applicable taxes on any sales made through Our Marketplace.

14.2    Where any tax, for example VAT, forms a part of the price of any item on Our Marketplace, the tax must be included in the price of the item and you must make clearly visible to the Buyer your VAT number.

14.3    Value added tax (“VAT”) may be charged to Buyers on purchases and to Sellers on fees payable to Us.

14.4    You may be obliged to register for, and charge VAT and it is your sole responsibility to establish your VAT liability https://www.gov.uk/guidance/the-vat-rules-if-you-supply-digital-services-to-private-consumers.

14.5    We may automatically collect VAT on all sales of digital services.

14.6    For further information on VAT and other taxes in your location, please contact your local tax authority.

 

  1. Downloads

 

You must ensure that your digital content is available for immediate download by a Buyer once payment has been made.

 

  1. Buyers’ Rights to Cancel

 

16.1    Buyers who are consumers (that is, not businesses) based in the European Union may be entitled to a “cooling-off” period within which they may cancel their contract with you for any reason. If applicable, the cooling-off period ends 14 calendar days after the day on which the Buyer (or someone nominated by the Buyer) receives the item.

16.2    The cooling-off period does not apply to digital content and it has been downloaded or otherwise accessed by the Buyer.  You may therefore need to consider how you will determine if a video has been downloaded or accessed.

16.3    If a Buyer exercises their right to cancel during the cooling-off period, they must inform you of that decision within the cooling-off period. The Buyer may do so in any way they wish. Cancellation by email or by post is effective from the date on which the Buyer sends you their message. Please note that the cooling-off period lasts for whole calendar days. If, for example, the Buyer sends you an email or letter by 23:59:59 on the final day of the cooling-off period, their cancellation will be valid and must be accepted.

16.4    When a Buyer cancels under the cooling-off period, you must issue a refund within 14 calendar days.

 

  1. Problems with Transactions and Buyers’ Rights

 

17.1    By law, you must provide goods digital content that is of satisfactory quality, fit for purpose, as described at the time of purchase, in accordance with any pre-contract information that you provide to the Buyer, and that matches any samples or models that you have shown to the Buyer (unless you have made the Buyer aware of any differences).

17.2    If items do not conform with the requirements outlined in sub-Clause 17.1, the Buyer must contact you as soon as reasonably possible to inform you of the problem.  You warrant to us that you will understand a Buyer’s rights and offer the legal remedies available to the Buyer.

17.3    Refunds (whether full or partial) under this Clause 17 must be issued within 14 calendar days of the day on which you agree that the Buyer is entitled to a refund..

17.4    Information on Buyers legal rights can be obtained from your local Citizens Advice Bureau or Trading Standards Office.

 

  1. Further Transaction Cancellation Rights

 

18.1    You have the right to cancel a transaction and issue a full refund of any sums paid (including delivery charges) in the following circumstances:

18.1.1 You and the Buyer have mutually agreed to cancel the transaction before the item was downloaded or accessed;

18.1.2 The Buyer has not paid; or

18.1.3 You have chosen to refuse service to the Buyer.

18.2    Refunds must be made within 14 days of:

18.2.1 the date on which you and the Buyer agree the cancellation, under sub-Clauses 18.1.1 and 18.1.2; or

18.2.2 the date on which you inform the Buyer that you are cancelling the transaction, under sub-Clause 18.1.3.

 

  1. Your Account Cancellation Rights

 

19.1    You may close your Account and cancel your agreement with Us by emailing us at [email protected].

19.2    Any outstanding sums due and payable to Us (including, but not limited to, Subscription Fees and Transaction Fees) will remain payable by the original due date and your Account will not be fully closed until all sums due to Us have been paid.

19.3    If We have done something wrong, you may be entitled to cancel and receive a refund of certain sums paid for services that have not been provided to you. You may also be entitled to compensation. This may apply in the following circumstances:

19.3.1 We have breached these Terms for Sellers in a material way and fail to remedy the breach within 30 days of you asking Us to do so in writing; or

19.3.2 We go into liquidation or have a receiver or administrator appointed over Our assets; or

19.3.3 We change our service or these Terms for Sellers to your material disadvantage; or

19.3.4 We are adversely affected by an event outside of Our control that continues for more than 60 days (as under sub-Clause 21.2.5).

 

  1. Our Liability to You

 

20.1    As stated in Clause 5, We are not a party to any transactions, other relationships, or disputes between Buyers and Sellers.

20.2    We will be responsible for any foreseeable loss or damage that you may suffer as a result of Our breach of these Terms for Sellers or as a result of Our negligence but our liability will be limited to the amount of Subscription Fees or Transaction Fees that you have paid to us in the previous 3 months.

20.3    Subject to sub-Clause 20.2, to the fullest extent permissible by law, We will not be liable to you for any loss of profit, loss of business, interruption to business, or for any loss of business opportunity.

20.4    Nothing in these Terms for Sellers seeks to limit or exclude Our liability for death or personal injury caused by Our negligence (including that of Our employees, agents, or sub-contractors); or for fraud or fraudulent misrepresentation.

 

  1. Events Outside of Our Control (Force Majeure)

 

21.1    We will not be liable for any failure or delay in performing Our obligations to you where that failure or delay results from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action by third parties, civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism, acts of war, governmental action, epidemic or other natural disaster, or any other event that is beyond Our reasonable control.

21.2    If any event described under this Clause 21 occurs that is likely to adversely affect Our performance of any of Our obligations to you:

21.2.1 We will inform you as soon as is reasonably possible;

21.2.2 Our obligations under these Terms for Sellers will be suspended and any time limits that We may be bound by will be extended accordingly;

21.2.3 We will inform you when the event outside of Our control is over and provide details of any new dates, times, or availability of services as necessary;

21.2.4 If the event outside of Our control continues for more than 20 days we will offer a refund of the Subscription Fee paid for that period;

21.2.5 If the event outside of Our control occurs and continues for more than 90 days you wish to exercise your right to cancel under sub-Clause 19.3.4, you may do so by emailing us at [email protected].

21.3    Any refunds due to you as a result of your cancellation under sub-Clause 21.2.5 will be paid to you as soon as is reasonably possible and in any event no later than 14 calendar days after your Account is cancelled.

 

  1. Communication and Contact Details

 

If you wish to contact Us with general questions or complaints, you may contact Us by

 

 

  1. Data Protection

 

23.1    All personal information that We may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and your rights under the GDPR.

23.2    For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy and Cookies Policy https://fytfinder.com/privacy-and-cookie-policy/

23.3    As a Seller, you will also collect, hold, and process Buyers’ personal information in the course of transactions (for example, buyers’ names and email addresses). You must have your own privacy policy in place to govern your collection, processing, and holding of Buyers’ personal data. Sellers are, therefore, also considered data controllers under the GDPR and you will be responsible for complying with your legal obligations and protecting Buyers’ rights under the GDPR. You must only use the personal data of other Users (whether they are Buyers or Sellers) to the extent necessary to complete a transaction, to communicate about a specific transaction, to communicate via Our Marketplace, and/or to respond to messages from them. You may not add any User to a mailing list or use their data for marketing. You may only use another User’s personal data for additional purposes with their consent.

23.4    If a Seller and Us are found to be joint data controllers of any Buyers’ personal data, and We are sued, fined, or otherwise incur any expense because of something you have done with a Buyer’s personal data, you agree to indemnify Us for any expenses incurred by Us in connection with your actions in respect of that personal data. Further details of the requirements of the GDPR can be obtained from the Information Commissioner’s Office.

 

  1. Other Important Terms

 

24.1    Buyer Reviews.

24.1.1 Subject to Clause 24.1.2, we may publish Buyer reviews on the Marketplace.

24.2.2 Buyer reviews shall automatically be published without prior notice to Sellers.  If the Seller objects to the contents of a Buyer review, the Seller will notify us of such objection in writing within 14 days of publication of the review on the Marketplace providing any evidence supporting its contrary views/objections.

24.2.3 We will consider the objections of a Seller and any decision to remove the relevant review will be at our absolute discretion and that decision is final. Any review that cannot be proved to the contrary shall stand as the reasonable opinion of the Buyer.

24.2.4 We will not monitor Buyer reviews but if we are made aware of any review that we consider to be inappropriate, defamatory, vulgar or abusive; to contain any advertising or marketing of any kind, or may disclose a person’s identity or personal details then we will remove the review.

24.2.5 If, in our reasonable opinion, Buyer reviews reflect low standards of the Seller, we reserve the right to investigate any such reviews and/or may suspend or terminate this Agreement immediately on the provision of written notice to the Seller.

24.3    We may determine the ranking of any Seller at our absolute discretion.

24.4    We may transfer (assign) Our obligations and rights under these Terms for Sellers to a third party (this may happen, for example, if We sell Our business).  If this occurs, you will be informed by Us in writing.  Your rights under these Terms for Sellers will not be affected and Our obligations under these Terms for Sellers will be transferred to the third party who will remain bound by them.

24.5    You may not transfer (assign) your obligations and rights under these Terms for Sellers without Our express written permission.

24.6    If any of the provisions of these Terms for Sellers are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms for Sellers.  The remainder of these Terms for Sellers shall be valid and enforceable.

24.7    No failure or delay by Us in exercising any of Our rights under these Terms for Sellers means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms for Sellers means that We will waive any subsequent breach of the same or any other provision.

24.8    We may revise these Terms for Sellers from time to time in response to changes in relevant laws and other regulatory requirements. If any changes to these Terms for Sellers are to your material disadvantage, you may cancel as set out in sub-Clause 19.3.3.

 

  1. Law and Jurisdiction

 

25.1    These Terms and Conditions, and the relationship between you and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with the law of England & Wales.

25.2 Any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England & Wales.