TERMS OF THIRDPARTY SUPPLY
Welcome to Nexian Ventures Limited’s (“Nexian”, “We”, “Us” and “Our”) e-commerce marketplace website, breakthemold.co.uk (the “Site”, “Marketplace”). Any person who wants to access the Marketplace to buy, sell or pre-order goods (“Products”) from persons other than Nexian must accept the Terms of Third Party Supply (the “Terms”) without change. These Terms constitute additional terms to the Terms of Supply in respect of Products sold by Sellers (as defined below). Please read the Terms, and any other documents expressly referred to herein, carefully and make sure that you understand them, as they form the terms of the contract between Buyers and Sellers, and between Buyers and Sellers and Us, as is appropriate (the “Contract”).
Please note that by using the Marketplace you acknowledge and accept that you have read, understood and agree to all of the terms of the Contract, which incorporate the Terms of Supply as appropriate, particularly in relation to your use of the Service. If any of these Terms conflict with any term of the Terms of Supply, these Terms will take priority.
In particular, you acknowledge that you have read and understood the clauses in this Contract relating to: Our disclaimer of warranties; limitation of liability; your liability; protection and use of your personal data; your consent to the publication of feedback and ratings about your performance on the Site; and the manner in which We may make changes to this Contract (whether set out in these Terms or the Terms of Supply).
Please note that, although We may list Products for sale via the Site, We are not a Seller for the purposes of this Contract.
You should print a copy of these Terms or save them to your computer for future reference.
We amend these Terms from time to time as set out in clause 27 of the Terms of Supply. Every time you wish to submit an Order, please check these Terms to ensure you understand the terms which will apply at that time. These Terms have been updated on the following dates:
[insert links to each set of Terms and specify the date i.e. Terms of Third Party Supply dated 1 September 2013 etc] There have been no updates to these Terms to date
When We use the words “writing” or “written” in these Terms, this will include email unless We say otherwise.
These Terms, and any Contract between us, are only in the English language.
1.1 When the following words with capital letters are used in these Terms, this is what they will mean:
(a) “Buyer” means any User who is using the Site to buy or pre-order Products from Sellers;
(b) “Event Outside the Sellers Control” means any act, event, non-occurrence, omission or accident beyond the Seller’s reasonable control, including without limitation strikes, lock-outs, boycotts or other industrial action (whether involving our workforce or any other party), civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, failure of public or private utility (including without limitation telecommunications networks, power, gas or water), malicious damage or sabotage, compliance with any law or governmental order, rule, regulation, sanction, embargo or direction, breakdown, cancellation or failure of machinery or transportation (including, without limitation railways, shipping, aircraft, motor transport or other means of public or private transport) and default of suppliers or subcontractors.
(c) “Order” means a Buyers order for the Products from Sellers; and
(d) “Seller” means any User who is using the Site to sell Products.
1.2 Any words not defined in these Terms will have the meanings set out in the Terms of Supply.
2. Information about us
2.1 We operate the Site. We are Nexian Ventures Limited, a company registered in England and Wales under company number 07245974 and with Our registered office at 64 Southwark Bridge Road, London, SE1 0AS. Our VAT is number pending.
2.2 To contact Us, please email firstname.lastname@example.org.
2.3 If you have a complaint during the use of Our Site, you will bring it to Our attention at the earliest appropriate opportunity in order that remedial action may, if appropriate, be taken. You expressly acknowledge that it is unreasonable to take no action whilst using the Site but to complain later. Any outstanding complaint not resolved during the use of Our Site must be notified to Us in writing within 30 calendar days of you ceasing to use Our Site. To the extent permitted by law, We will not be liable in respect of any claims/complaints raised later than 30 calendar days from the end of your use of Our Site.
2.4 If you wish to contact Us in writing, or if any clause in these Terms requires you to give Us notice in writing (for example, to cancel the Contract), you can send this to Us by email to email@example.com. We will confirm receipt of this by contacting you in writing. If We have to contact you or give you notice in writing, We will do so by email to the email address you provide to Us in when you registered an account on the Site.
2.5 As a consumer, you may have legal rights if the Products you purchase are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Terms will affect these legal rights.
3. Our role
3.1 We allow third party Sellers to list and sell their Products on the Site. In each such case this is indicated on the respective Product detail page. Buyers authorise Us to act as their limited representative to conclude on their behalf sales contracts directly between them and the Sellers for sales of Products via the Site. While We as the Marketplace provider help facilitate transactions that are carried out using the Site, We are neither the buyer nor the seller of the Seller’s Products. We provide a venue for Sellers and Buyers to negotiate and complete transactions in accordance with the provisions of these Terms. For the avoidance of doubt, We are not the agent of the Seller.
3.2 The Contract formed at the completion of a sale of Sellers Products is solely between Buyer and Seller. The enforcement of any contractual obligations arising out of the completion of a transaction using the Site is the responsibility of the Buyer and Seller that are party to that transaction. We are not a party to this Contract nor do We assume any responsibility arising out of or in connection with it. We are not obliged to mediate between Buyers and Sellers or enforce or execute fulfilment of any Contract. Subject to these Terms, the Seller is responsible for the sale of the Products and for dealing with any Buyer claims, disputes or any other issue arising out of or in connection with the Contract between the Buyer and Seller.
3.3 Buyers and Sellers use the Site at their own risk.
4.1 We grant to You a limited non-transferrable license to make personal use only of the Site and the Services offered on the Site in accordance with the Contract. This license expressly excludes, without limitation: any resale or commercial use of the Site and the Services; modifying, distributing, copying, republishing or making any derivative of the Site or the Services; the collection and use of User email addresses or other User information, ratings, Feedback, or any data extraction or data mining whatsoever.
4.2 By entering into the Contract and listing a Product, You grant Us and Our affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, right to exercise all copyright, database rights and rights of publicity over the material displayed in your listings or in any other catalogue or Product information that you provide to Us (excluding any of your logos, trademarks or other similar branding), in any existing or future media, known or unknown, now or at any later date.
5. Use of the Site
5.2 Only visitors to the Site who register an account and enter into this Contract may participate in buyer, selling, or using the Services, on the Site.
6. Your account
(a) In order to sell Products on the Site you must apply for, be granted and register a “Seller Account” with Us, which you can request by contacting firstname.lastname@example.org.
(b) To register as a Seller you must complete a Seller Registration Form and provide valid company details including your real name, address, phone number, email address and valid credit or debit card information. You must also supply your PayPal and Bank account details which we may use to transfer your earnings to you each month.
(c) If You are selling Products as a trader in the course of Your business, You are required by law to make that fact clear to potential Buyers in Your listing.
(d) The Seller Account is available only to individuals, businesses and others who meet the terms of eligibility, and whose applications are acceptable to Us in Our sole and absolute discretion. Sellers waive any rights with respect to the Services.
(e) Sellers are required to ship Products ordered via the Site directly to Buyers, and will be responsible for coordinating the delivery via a shipping partner of their own choosing.
(a) In order to buy Products on the Site you must register with Us, which you can do from the home page of the Shop by clicking Sign Up and completing the registration form.
(b) To register as a Buyer you must provide your real name, email address and valid credit or debit card information.
(c) To complete a purchase transaction, you must also provide a valid phone number and delivery address. You may also be required to supply your PayPal account details depending on the payment method you select.
6.3 We cannot be held liable for lost funds when you have not maintained up to date information on your account.
7. International sales
7.1 In listing a Product for sale internationally, the Seller may also have to comply with laws of the country in which both the Buyer and Seller resides dealing with, among other things, prohibitions on the sale, distribution or offering for sale of specific Products. It is the Seller’s responsibility to ensure that they are complying with the laws of their residing country and the countries that they ship Products to. We accept no responsibility for the misconduct or illegal conduct of Sellers. For each Product a Seller lists on the Site, the Seller will provide to Us the state or country from which the Product ships and must specify the countries which the Seller is willing to ship Products to. Sellers can update the shipping preferences for Products at any time by contacting email@example.com.
8. Prohibited Products
8.1 Any registered Seller may list a Product for sale on the Site. However, the following Products must not be listed on the Site by Sellers or purchased by Buyers (irrespective of whether the Product is listed on any of the other participating Nexian site):
(a) offensive material, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
(b) obscene material including pornographic material (eg: material rated R +18, home porn and hardcore material);
(c) living animals;
(d) intoxicating liquor and tobacco (except where the Seller is properly licensed under applicable law) and home-made alcoholic beverages;
(e) firearms and ammunition;
(f) stolen goods;
(h) Products that infringe another party’s IP Rights;
(i) illegal or prescription drugs;
(j) Products whose sale, distribution or offering for sale is prohibited by any applicable law;
(k) Products whose sale is subject to export restrictions (eg: Cuban cigars, certain encryption software and so on);
(l) offensive weapons, poisons and dangerous substances (as defined by the applicable law or laws); and
(m) any other types of Products that in our sole and absolute discretion are to be excluded from listing and/or sale using the Site.
8.2 We may remove any Product listed on the Site for any reason in our sole and absolute discretion.
9. Prohibited acts
9.1 Users will:
(a) sell Products on his or her own account and must not represent that he or she is selling on behalf of any third party;
(b) not, whether by themselves or in conjunction with other Users, manipulate transactions in ways that are unfair to other Users; and
(c) not use the Services or the Site in the contravention of any applicable law nor permit or assist others to do so.
10. How the Contract is formed
10.1 Between Buyers and Sellers
(a) Buyers may purchase a Product for sale by clicking on the “Add to Cart” button on the relevant Product’s page, provided that the Product is still showing as having a quantity of stock remaining. The Buyer must then follow the necessary “Checkout” procedure in order to purchase the Product. Multiple Products can be added to the Buyer’s “Basket” and purchased in one single checkout procedure.
(b) The Seller’s listing of a Product for Sale constitutes an offer to each Buyer to purchase the Product at that price and the act of clicking on the “Place Order” button by a Buyer constitutes acceptance of that offer. Such acceptance will become effective on receipt by the Site of such act. A Seller may retract a Product listed for Sale at any time but is bound by any offers accepted prior to the retraction. Accordingly, these Terms will become binding between the Buyer and the Seller upon the Buyer submitting the Order by clicking the “Place Order” button on the Site.
(c) The Seller is obliged to sell the Products at the listed price to Buyers.
(d) If any of these Terms conflict with any term of the Order, the Order will take priority.
(e) If you submitted an Order for and on behalf of any other person, you represent that you are a duly authorised agent of such person.
10.2 Between you and Us
10.3 These Terms will become binding on you and Us once you register an account with Us on the Site, at which point a Contract (comprising these Terms, the Terms of Supply any documents expressly referred to herein) will come into existence between you and Us.
11. Price of products, delivery charges and payment
11.1 On the Site Products are offered by Sellers for sale at a fixed price. Therefore, the price of any Products sold using the Site (including the applicable delivery charge) are displayed inclusive of any customs, import, export, and excise duty, VAT and other taxes which may be applicable and Sellers may not charge or seek to charge the buyer, or allow the buyer to be charged, for any customs, import, export, and excise duty, VAT or other taxes which are additional to the price displayed for the Products on the Site.
11.2 For Products listed for sale on the Site, Sellers may only charge Buyers a fixed delivery charge and such a charge will be priced in accordance with any delivery charge schedule that may be in effect from time to time and contained on the Site. Delivery charges will be displayed on the checkout page.
11.3 You agree that it is the Seller’s responsibility to determine whether VAT, customs, import or export duties, excise taxes or other taxes apply to the sale of Products to the Buyer and to collect, report and remit the correct tax, as applicable, to the appropriate tax authority. You agree that, unless otherwise agreed by Us with a Seller in advance in writing, the price stated by any Seller for any Product offered on the Site is inclusive of any VAT, customs, import or export duty, excise tax or other tax that the Seller may be required to remit in connection with such sale. You also agree that We are not obliged to determine whether VAT or other taxes apply to any sale of any Products by a Seller to a Buyer on the Site and We are not responsible for collecting, remitting or reporting any VAT or other taxes arising from such sale.
11.4 Prices for Products may change from time to time, but changes will not affect any Order which has been placed by a Buyer.
11.5 You can only pay for Products using a debit card, credit card or PayPal acceptable to Us as listed on checkout of your Order. Full payment for the Products and all applicable delivery charges as set out in your Order must be made upon submission of your Order to Us. We will not charge your debit card, credit card or PayPal account until the Seller dispatches your Order.
12. Discounts and Vouchers
12.1 Sellers can opt-out of discount sales and voucher-code campaigns.
13. Contract fulfillment/delivery
13.1 We will confirm each Order to the Seller and the Buyer. Sellers must dispatch Products sold within 2 business days once the Order confirmation is made available to them. If and when We make functionality available to the Seller which allows the Seller to display a Product availability message on the Site, the Seller must dispatch Products sold in accordance with the Product’s availability stated on the Site at the time of the Order. Sellers must provide a full refund to any Buyer who makes payment, if the Product cannot be shipped in accordance with this clause 13.1. Sellers must provide the refund promptly, but in no case later than 30 days following the date the Order was confirmed or 3 calendar days after the maximum estimated delivery date stated on the Site at the time of the Order (as the case may be).
13.2 If, by law, an agreement for the transfer of any property must be in some specific form, then the Buyer and Seller agree to complete the transaction in the relevant form (as the case may be), and will do this via the Site or by contacting Us on firstname.lastname@example.org.
13.3 Unless the Buyer and Seller expressly agree otherwise, the following terms and conditions will apply to the Contract between the Buyer and Seller for the sale of the relevant Product:
(a) the Buyer will be required to make full payment to the Seller of the Product, via the Site’s secure online checkout process. Please note the Site is a marketplace, and that transactions on the Site are between Buyer and Seller, and NOT between Buyer and Us;
(b) the Seller must specify a dispatch date when listing each Product. For example, “the Seller agrees to dispatch the Product within 1 – 2 business days of receiving the order confirmation email from Us, unless expressly stated otherwise in the Product description displayed on the site”;
(c) all postage, customs, import, export and excise duty, VAT and any other taxes associated with the sale (if applicable) will be paid by the Buyer and it is the Seller’s responsibility to determine, collect and remit the applicable VAT, customs, import, export and excise duties and any other taxes associated with the Sale. Unless otherwise agreed by Us in advance in writing, the price of any Products sold using the Site must be displayed inclusive of any customs, import, export and excise duty, VAT and any other taxes associated with the Sale, which may be applicable and Sellers will not charge or seek to charge the Buyer for any customs, import, export and excise duty, VAT or other taxes in addition to the price displayed for the Product on the Site;
(d) Buyers are required to pay Sellers in the currency in which the Product is listed which is usually Great British Pounds Sterling;
(e) if the Products do not arrive with the Buyer or arrive damaged or in a condition that is not described in the listing, the Seller must, by law, either ship a replacement suitable Product to the Buyer immediately and provide tracking for the replacement shipment, OR must process a full refund within 7 business days. It is the Seller’s responsibility should the Product be damaged in transit or lost;
(f) the sale will be subject to any warranties implied under applicable law; and
(g) the Contract between the Buyer and Seller will be governed by the laws of England (and expressly excluding the United Nations Convention on the Sale of Goods) and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
14. Velocity limits
14.1 As a security measure, We may, but are not required to, impose transaction limits on some or all Buyers and Sellers relating to the value of any transaction, disbursement or adjustment, the cumulative value of all transactions, disbursement or adjustment, during a period of time, or the number of transactions per day or other period of time (“Velocity Limits”). For security reasons, We do not disclose Velocity Limits.
14.2 We will not be liable to any Seller:
(a) if We do not proceed with a transaction or disbursement that would exceed any limit established by Us for a security reason; or
(b) if We permit a Buyer to withdraw from a transaction because the Payment Service (as defined in clause 25.5(a) below) is unavailable following the commencement of a transaction.
15. No warranties
15.1 The site and the services are provided on an “as is” basis. We make no other representations or warranties of any kind, express or implied, including without limitation that Sellers or Buyers will perform as promised. Please also see clause 25 of the Terms of Supply.
16. Our reserved rights
16.1 We retain the right to, if We consider it appropriate in our sole and absolute discretion, immediately remove any unlawful Products or Products prohibited for listing on the Site under these Terms. Without prejudice to generality of the rights in the Contract, and to any other rights that We may have in the Contract, We reserve the right to refuse listings or to immediately remove any listings where We object to how you identify yourself on the Site (including, without limitation, your name, branding or marks) and/or if you are otherwise making inappropriate use of your domain name contrary to the requirements set out in these Terms, and/or if you are otherwise in contravention of the requirements set out in these Terms.
16.2 We may earn interest or other compensation from the balances in our bank accounts that result from the timing difference between Our being paid by a Buyer and Our payment of the Sellers Earnings (as defined in clause 25.7(b) below) to the Seller from Our bank account. Each User, whether or not he or she is currently a Buyer or Seller, agrees that We will be entitled to retain the interest, if any, paid on balances in all Our bank accounts, notwithstanding that some of that interest may be attributable to the time taken for the exercise of the rights, and the performance of the obligations, under these Terms.
16.3 Our right to vary these Terms is set out in clause 27 of the Terms of Supply, which shall apply to these Terms in full, subject to these Terms taking priority in the event of a conflict.
16.4 Our rights to cancel a Contract between you and Us are set out in clause 29 of the Terms of Supply, which shall apply to these Terms in full, subject to these Terms taking priority in the event of a conflict.
17. Your rights to change, cancel and applicable refund
17.1 Your rights to change, and termination rights, in relation to your use of the Services are set out in clauses 28 and 30 of the Terms of Supply respectively.
17.2 Your rights to change an Order in relation to Products are:
(i) Sellers may make a change to an Order for Products at any time before the Products are dispatched by contacting Us. Where this means a change in the total price of the Products, the Seller must confirm any changes with the Buyer in writing via Us prior to shipping. Buyers can also choose to cancel the Order as set out in clause 17.3(b) in these circumstances.
(ii) Once the Products have been dispatched, the Seller may cancel an Order and/or Contract for Products as set out in clause 17.3(a).
(i) Buyers may make a change to an Order for Products at any time before the Products are dispatched by contacting Us. Where this means a change in the total price of the Products, We will notify the Buyer of the amended price in writing. Buyers can choose to cancel the Order as set out in clause 17.3(b) in these circumstances.
(ii) Once the Products have been dispatched, the Buyer may cancel an Order as set out in clause 17.3(b).
17.3 Your termination rights in relation to the purchase or sale of Products are:
(i) To cancel an Order or Contract please contact Us in writing to tell Us by sending an email to email@example.com. Your cancellation is effective from the date We confirm receipt of your cancellation in writing. We cannot accept cancellations by telephone.
(ii) If the Seller cancels an Order and/or Contract for Products, before the Products are delivered, and the Buyer has made any payment in advance for Products, the Seller will refund these amounts to the Buyer in full via Us.
(iii) Any refunds owed to Buyers will be processed by the Seller as soon as possible and, in any case, within 7 business days of the day on which We confirm receipt of the Seller’s cancellation as described above.
(iv) Sellers who cancel Product Orders will not be entitled to any full or part payment from Us of Sellers Earnings (as defined in clause 25.7(b) below) for those Orders cancelled by the Seller.
(v) Sellers who cancel a Buyer’s Order more than twice because of failure to update Product or stock information on the Site, may be removed from the site at Our sole and absolute discretion.
(vi) Sellers are required to observe Buyers legal right to cancel a Contract under the Consumer Protection (Distance Selling) Regulations 2000) during the period set out below in clause 17.3(b)(iv). This means that during the relevant period if a Buyer changes his/her mind or for any other reason decides they do not want to keep a Product, the Seller will be required to accept the Product return.
(vii) When We receive a request from a Buyer to return a Product We will coordinate with the Seller. Where We agree with the Buyer that they may return the Product the Seller will provide Us with any special return instructions for the Products that need to be returned.
(viii) In circumstances where Buyers return the Product to the Seller, the Seller will refund the price of Product in full and any applicable delivery charges the Buyer paid for delivery of the Product. However, Buyers will be responsible for the delivery charges incurred when returning the Product to the Seller. Where a Buyer wishes to return the Products to the Seller, and the Seller needs to arrange collection, the Seller may deduct the cost of the collection from the refund that is due to the Buyer. If the Buyer returns the Products to the Seller because they were faulty or mis-described, please see clause 17.3(a)(ix).
(ix) If a Buyer receives a Product in error, or receives a defective or mis-described Product, We will work with the Buyer to determine if the Product is defective or mis-described. If We determine in our sole and absolute discretion that the Product was received in error, defective or misdescribed, the Seller will refund the price of the Product in full, any applicable delivery charges, and any reasonable costs the Buyer has incurred in returning the Product to the Seller.
(x) Sellers are only required to accept returns on clothing only if the Product has not been worn and the brand labels are in the same condition as when the item was received by the Buyer. Sellers must accept returns on health products, food, and intimate items such as lingerie, only if the Product is in the original unused condition and in its original undamaged packing.
(xi) Sellers do not take title to returned items until the items arrive at the returns address destination. At Our sole and absolute discretion, a refund may be issued without requiring a return. In this situation, Sellers will not take title to the refunded item.
(xii) Refunds will be processed after the Products have been received by the Seller in good condition. Should Buyers have any questions about the status of a return or how to return an item, please contact Us at firstname.lastname@example.org.
(i) Buyers can cancel an Order for a Product at no cost any time before the Products are dispatched by the Seller. If a Buyer has made any payment in advance for Products, these amounts will be refunded to the Buyer.
(ii) If you are a consumer, you have a legal right to cancel a Contract under the Consumer Protection (Distance Selling) Regulations 2000) during the period set out below in clause 17.3(b)(iv). This means that during the relevant period if you change your mind or for any other reason you decide you do not want to keep a Product, you can notify Us of your decision to cancel the Contract and receive a refund under clause 17.3(b)(xiii). Advice about your legal right to cancel the Contract under these regulations is available from your local Citizens’ Advice Bureau or Trading Standards office.
(iii) However, this cancellation right does not apply in the case of:
(A) any made-to-measure Products;
(B) newspapers, periodicals or magazines;
(C) perishable goods, such as food, drink or fresh flowers;
(D) software, DVDs or CDs which have a security seal which you have opened or unsealed.
For the avoidance of doubt, you will not be able to cancel any Contract in relation to the above listed Products.
(iv) If the Products have already been delivered to you, you have a period of 7 business days in which you may cancel, starting from the day after the day you receive the Products.
(v) To cancel an Order or Contract please contact Us in writing to tell Us by sending an email to email@example.com. Any cancellation must be notified by the User who ordered the Product. You may wish to keep a copy of your cancellation notification for your own records. We cannot accept cancellations by telephone.
(vi) We must receive and approve your return request prior to any Products being returned. Once your request is received We will coordinate with the Seller to approved / reject the request. Where applicable We will issue the Buyer with a return authorisation notification by email and any special return instructions for any Products that need to be returned. Your cancellation is effective from the date We send you your return authorisation notification.
(vii) In circumstances where you return the Product to the Seller, We will refund the price of Product in full and any applicable delivery charges you paid for delivery of the Product to you. However, you will be responsible for the delivery charges incurred by you in retuning the Product to the Seller. Where you wish to return the Products to the Seller, and We need to arrange collection, We will deduct the cost of the collection from the refund that is due to you. If you returned the Products to the Seller because they were faulty or mis-described, please see clause 17.3(b)(viii).
(viii) If you believe you received a Product in error, or you receive a defective or mis-described Product, please email us at firstname.lastname@example.org so that we can assist you. If We agree that the Product is defective or mis-described you will return the Product to the Seller. We will refund the price of a defective or mis-described Product in full, any applicable delivery charges, and any reasonable costs you incur in returning the Product to the Seller.
(ix) If the Products were delivered to you:
(A) you must return the Products to the Seller as soon as reasonably practicable, but always within 14 calendar/working days of the date of Our return authorisation notification under clause 17.3(b)(vi);
(B) unless the Products are faulty or not as described (in this case, see clause 17.3(b)(viii)), you will be responsible for the cost of returning the Products to the Seller or, where relevant, the cost of the Seller collecting the Products from you; and
(C) you have a legal obligation to keep the Products in your possession and to take reasonable care of the Products while they are in your possession.
(x) The Seller can accept returns on clothing only if the Product has not been worn and the brand labels are in the same condition as when the item was received by you. The Seller can accept returns on health products, food, and intimate items such as lingerie, only if the Product is in the original unused condition and in its original undamaged packing.
(xi) Sellers do not take title to returned items until the items arrive at the returns address destination. At Our sole and absolute discretion, a refund may be issued without requiring a return. In this situation, the Seller does not take title to the refunded Product.
(xii) Refunds will be processed after the Products have been received by the Seller in good condition. Should you have any questions about the status of your return or how to return a Product, please contact Us at email@example.com.
(xiii) Any refunds made to you will be made to the credit card, debit card or PayPal account used by you to pay. We will process refunds due to you as soon as possible and, in any case, within 30 calendar days of the day on which We send you your return authorisation notification as described in clause 17.3(b)(vi).
(xiv) You may cancel a Contract for Products at any time by providing Us with notice in writing because the Seller is affected by an Event Outside the Sellers Control, if the event continues for longer than 30 calendar days. Any advance payment you have made for Products that have not been dispatched will be refunded to you.
(xv) As a consumer, you will always have legal rights in relation to Products that are faulty or not as described. These legal rights are not affected by this clause 17.3 or these Terms. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
17.4 For the avoidance of doubt, all changes, cancellations and refunds will be processed through Us and/or the Site, and not directly between Buyer and Seller.
18. Obligations on cancellation
18.1 Unless otherwise stated in these Terms, upon termination, all rights and obligations of the parties under the Contract will be extinguished, except that such rights and obligations will remain in effect after such termination to the extent necessary to process any Orders placed prior to such termination for Products listed by the Seller using the Service (including, without limitation, any fees and any other liabilities incurred).
19. Your liability
19.1 You hereby indemnify, on demand on a continuing basis, and hold Us, other members of Our group of companies and third parties connected to Us and Our, its or their employees, officers, directors and agents (“Indemnified Parties”) harmless from and against all liabilities, damages, losses, claims, charges, demands, costs and other expenses (including, without limitation, legal fees and any amounts paid by Us to a third party in settlement of a claim or dispute) (“Costs”) paid, incurred, suffered or made against the Indemnified Parties directly or indirectly arising out of any:
(a) negligence, willful default, fraud and/or breach by you of any provision of the Contract or other liabilities arising out of your use of Our Site; and/or
(b) any claim or action brought by a third party, arising out of or in connection with any Feedback left by you on the Site.
19.2 We will notify you of any such Costs arising in writing and you irrevocably authorise Us to charge your credit or debit card registered with Us on your account with such Costs upon such notification (and therefore demand) being sent to you. You acknowledge and agree that it is reasonable for Us to make such charges to your registered credit or debit card given the Services We are offering on the Site.
19.3 Nothing in these Terms limit or exclude your liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(d) defective Products under the Consumer Protection Act 1987; or
(e) lost funds when you have not maintained up to date information on your account.
19.4 This clause 19 shall survive termination of any Contract.
20. Our liability in relation to the contract between buyer and seller
20.1 Nothing in these Terms limit or exclude Our liability for:
(a) death or personal injury caused by our negligence; and/or
(b) fraud or fraudulent misrepresentation.
20.2 Subject to clause 20.1, We will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, implied term or otherwise, arising under or in connection with any Contract between a Buyer and a Seller for any direct or indirect loss, claim, liability, damage, cost, charge, demand or expense of any kind incurred, suffered or made against you and arising out of or in any way related to this Contract, the Site, the Services, the inability to use the Services, in connection with the provision of, or failure to provide, the Services or the failure of a Seller to provide the Products, or those resulting from the Sellers Products or Services purchased or obtained, messages received, Feedback posted on the Site, transactions entered into through the Site, any act or omission of Us, including without limitation:
(a) any loss of profits, sales, business, or revenue;
(b) loss or corruption of data, information or software;
(c) loss of business opportunity;
(d) business interruption;
(e) loss of anticipated savings;
(f) loss of goodwill;
(g) any indirect, incidental, special, punitive or consequential loss; and/or
(h) lost funds when you have not maintained up to date information on your account, whether or not We have been advised of the possibility of such damage.
20.3 Except as expressly stated in these Terms, We do not give any representation, warranties or undertakings in relation to the Site, the Service and/or the Sellers Products. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, We will not be responsible for ensuring that the Sellers Products are suitable for your purposes.
20.4 This clause 20 shall survive termination of any Contract.
21. General release
21.1 As We are neither the Buyer of the Seller of the Product(s), if a dispute arises between one or more Users, each of you release Us, Our affiliates and Our and their employees, officers, directors, representatives and agents, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
22. Credit card risk
22.1 We will bear the risk of credit card fraud (i.e. fraudulent purchase arising from the theft and unauthorised use of a third party’s credit card information) occurring in connection with a Buyer’s authorised credit card payment, and the Seller will bear all other risk of fraud or loss; provided, that We will not bear the risk of credit card fraud in connection with any of Seller’s Products that are not fulfilled strictly in accordance with the Order information and shipping information that We provide you.
23. Events outside our control
23.1 Please see clause 34 of the Terms of Supply in relation to the Contract between you and Us. We will only cancel the Contract if the Event Outside Our Control continues for longer than 30 calendar days in accordance with Our cancellation rights in clause 29 of the Terms of Supply.
23.2 In relation to the Contract between a Buyer and a Seller, either party may cancel the Contract if an Event Outside the Sellers Control takes place and either party no longer wishes to provide or receive the Products. Please see your cancellation rights under clause 17.3.
23.3 If an Event Outside the Sellers Control takes place that affects the performance of its obligations under a Contract:
(a) We will contact you as soon as reasonably possible to notify you; and
(b) the obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside the Sellers Control. Where the Event Outside the Sellers Control affects delivery of Products to you, We will arrange a new delivery date with you after the Event Outside the Sellers Control is over.
24. Other important terms
24.1 Nexian is not the agent, fiduciary, trustee or other representative of you.
24.2 Nothing expressed or mentioned in or implied from the Contract is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to the Contract. This Contract and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of Nexian and its affiliates, you, and relying buyers or sellers.
24.3 The Terms of Supply are incorporated into these Terms as appropriate. If any of these Term conflict with an term in the Terms of Supply these Terms will take priority.
25. Additional terms relating to Sellers
25.1 Seller Registration Form: Upon registering to become a Seller (see clause 6 above) Sellers must complete a Seller Registration Form and provide Us with all the information requested in the Seller Registration Form, including without limitation information about the Seller, his or her business, Products to be list for sale, and any other information as We may require to provide our Services effectively. This form may be updated by the Seller from time to time and Sellers must ensure that their information provided in the Seller Registration Form is kept up to date to continue using the Service.
25.2 Sellers must ensure that all content and other information provided to Us regarding each Product you offer or sell on or through the Site are of at least the same quality, completeness and accuracy as the highest quality and most complete and accurate content and other information displayed or used by the Seller or its affiliates for that Product.
25.3 Seller Communication Requirements: In order to provide Our Services effectively, We require Sellers to communicate with Us regularly throughout the order and delivery process.
(a) Sellers must provide to Us (using the processes and timing that We designate) any requested information regarding shipment, tracking (to the extent available) and order status, and We may make any of this information publicly available.
(b) Sellers will not send Buyers emails concerning shipping confirmation of Products sold (except that to the extent We have enabled functionality for your Seller Account that allows payment to be processed on the basis of when shipment occurs, then Sellers will send Buyers emails confirming shipment of Products you sold in a format and manner reasonably acceptable to Us). Promptly after shipment of a Buyer’s Order (or any portion of the Buyer’s Order), you will accurately inform Us that the Order has been shipped (and, in the case of a Buyers Order that is shipped in more than one shipment, accurately inform Us which portion of the Order has been shipped), using our standard functionality for communicating such information when We make that functionality available to you (“Confirmation of Shipment”). If you fail to provide Confirmation of Shipment within the time frame specified by Us, We may in our sole and absolute discretion cancel (and/or direct you to stop and/or cancel) any such Order, and you will stop and/or cancel any such Order upon such request by Us.
25.4 Retail and wholesale prices:
(a) Sellers will use the Seller Registration Form to provide Product retail and wholesale pricing information (including any wholesale volume requirements associated with wholesale pricing) per Product listed on the Site by region.
(b) We will agree all Product retail prices with the Seller before they are publicly listed on the Site. Wholesale prices will be as set by the Seller.
(c) The retail prices published on the Site for each Product with include the price payable to the Seller and Our markup which will be retained by Us.
(d) The wholesale prices published on the Site for each Product will include the price payable to the Seller and Our commission (where applicable) which will be retained by Us.
(e) We will agree Our markup and/or commission on each Product with you in the Seller Registration Form.
(f) Sellers will ensure that the purchase price and each other term of offer and/or sale for Products offered for sale on the Site are at least as favourable to Buyers as the terms of sale upon which the Seller or any of its affiliates offers or sells such Products through its or any of their respective sales channels (whether online or not) other than the Site, after taking into consideration all discounts, sales, rebates and other promotional offers or business practices.
(g) We reserve the right to not list any Product on the Site in Our sole and absolute discretion.
(a) The “Payment Service” facilitates the purchase of Products listed on the Site for Sale. A Buyer’s authorised credit card, debit card or PayPal payment (“Payment Transaction”) for a purchase of a Product is deposited to Our bank account, and funds are periodically transferred to the Seller by cheque payment or by transfer to the Sellers designated bank account or PayPal account as provided in the Seller Registration Form during the Seller Account opening process.
(b) Please note that each Payment Transaction will include the price of the Product and delivery charges. In addition, the price paid for the Product will take into account any “low price” guarantee, rebate, discount, or other promotion, and any free or discounted products or other benefit available as a result of purchasing the Product on the Site.
(c) Sellers shall not invoice buyers off the Site.
(d) The Seller will resolve any dispute directly with the Buyer. We will provide support and assistance with the assistance of Our customer services representatives.
(a) The retail price of each Product sold on the Site will include Our markup, which shall be retained by Us and constitute your payment for the use of the Services.
(b) The wholesale price of each Product sold on the Site will include Our commission (where applicable) which will be retained by Us and also constitute your payment for the use of the Services.
(c) We do not otherwise currently charge Sellers any other fees to use the Services and the Site, however We reserve Our right to do so in the future.
(d) We may, in our sole and absolute discretion, waive, reduce, or reverse charges or fees for a specific transaction.
25.7 Seller Earnings
(a) We can transfer earnings to a Seller only on a business day. For purposes of this Agreement, a business day is a Monday through Friday, excluding weekends and bank holidays in the United Kingdom. We will send a notification to the Seller via email for each completed transaction.
(b) All balances for a given 30-day period will be reflected in Our monthly statement to the Seller, sent via email. We will initiate a transfer to the Seller’s bank account on or close to the 7th or 8th of each month (“Payment Date”) or on the next business day if the scheduled Payment Date falls on a non-business day. We will initiate a transfer to the Seller’s bank account, on each Payment Date, for the total amount of Payment Transactions received from Buyers’ authorised credit card, debit card, or PayPal, for the Seller, less Our markup and/or commission as the case may be, any refunds, adjustments, return shipping charges, chargebacks, any other amounts owed by Seller to Us, or other claims or amounts paid to Buyers, incurred since the last Payment Date (“Sellers Earnings”).
(c) A Payment Transaction made by a Buyer in respect of a Product will not be due or payable to a Seller (or if paid, shall be reimbursed by the Seller to Us), and we will not be liable to the Seller, if we discover the payment is erroneous or relates to a duplicate transaction.
(d) Transfers of the Sellers Earnings to the Seller’s bank account will generally be made within 5 business days of the date We initiate the transfer. On occasion, We may send the Seller a paper cheque to the business address registered in their Seller Account, instead of an electronic transfer to the Seller’s bank account. We will do so, for example, if the Seller’s bank will not accept an electronic transfer to the Seller’s account.
(e) If We reasonably conclude, based on information available to Us, that Seller’s actions and/or performance in connection with the Services may result in a significant number of Buyer disputes, chargebacks or other claims, We reserve the right to delay initiating the transfer of Sellers Earnings to a Seller’s bank account (or sending paper cheques) for the shorter of either 90 days following the initial date of suspension or completion of an investigation regarding Buyer disputes, chargebacks or other claims.
(f) We reserve the right to delay initiating the transfer of the Sellers Earnings to a Seller’s bank account (or sending paper cheques) pending an investigation if We, in our sole discretion, believe the Buyer or the Seller may have breached these Terms. Notwithstanding any other provision of these Terms, if We determine, in our sole and absolute discretion, that the Seller has breached these Terms, We may refuse to transfer any Sellers Earnings to the Seller and may instead maintain such amount in a trust account or may return such amount to the Buyer.
(g) We will not be liable to the Seller if we act in accordance with the provisions of clauses 25.7(e) and (f).
25.8 Procedures: You agree to abide by the procedures and guidelines, contained in the Info section of the Site, for conducting sales, which are incorporated by reference into, and made part of, these Terms. The procedures and guidelines contained in the Info section explain the processes and set out acceptable conduct and prohibited practices. We may change these procedures and guidelines in the future in accordance with clause 27 of the Terms of Supply. You should refer regularly to the Info section to understand the current procedures and guidelines for participating and to be sure that the Product you offer for sale can be sold on the Site.
(a) You represent a warrant that:
(i) any information You provide Us, including without limitation, information provided during the registration process and/or in relation to your Products you sell on the Site (and any notification of change of such information) is true, correct and complete;
(ii) you are the true owner of the Product or are properly authorised to sell the Product by the true owner and are able to transfer good title to the Product free from any third party claims, liens or encumbrances;
(iii) all listings are accurate, current and complete and is not misleading or otherwise deceptive;
(iv) if you are a business, you are duly organized, validly existing and in good standing under the laws of the state or country in which your business is registered and lawfully able to enter into this Contract;
(v) if you are a business, the VAT registration number you provided to Us belongs to the business that you operate and all other information provided by you is true, accurate and current and you will immediately update any such information held by Us in case of any changes;
(vi) if you are a business all transactions on your Seller Account will be business-related transactions made by the business associated with the VAT registration number associated with that Seller Account; and
(vii) the sale or distribution of the Product is not in breach of applicable law (including, where Products are sold internationally, the law of the destination country). This responsibility includes, but is not limited to, ensuring that:
(A) any Products sold are safe;
(B) any Products sold bear a “CE” or any other mark where required by applicable law;
(C) the Product is not one that would fall within any of the prohibited Products described in clause 8;
(D) any Products sold are appropriately packaged and labelled as required by applicable law; and
(E) any Products sold otherwise comply with all applicable law regarding their sale.
You will audit the Products that you sell on a regular basis (at least monthly) to ensure ongoing compliance with this obligation. You will also advise Buyers of any age or other restrictions that apply to the sale of any Products that you sell. We make no representations that Products not appearing on the prohibited Products list in clause 8 may be sold or distributed or offered for sale under applicable law.
(b) If you become aware of any non-compliance with any of the warranties in clause 25.9, you will promptly compensate adversely affected Buyers by making appropriate refunds to them via Us.
25.10 Linking off the Site: Sellers must not include any links (graphical, text or otherwise) in their listing on the Site, save where such links convey Users directly to another location on the Site. Except as approved in advance in writing by Us, you will not, and you will cause your affiliates not to, directly or indirectly (i.e. through a Third Party (as defined below)):
(a) sell, barter, disclose or transfer to any Third Party (which in this clause 25.10 shall mean any party other than you or your affiliates (“Third Party”)), any data acquired by you as a result of any transaction using the Services (whether this is information that pertains to the identity of a User and/or Buyer, the Order or referral information (here meaning any information disclosing that a Buyer purchased a Product through the Site, and/or any other personally identifiable information regarding any User and/or Buyer), or permit any Third Party to have access to the same;
(b) send to any User or Buyer of the Services any non-electronic direct-mail marketing that promotes or advertises anyone (including you, your affiliates and any Third Party);
(c) send to any User or Buyer of the Services any electronic communication except as necessary to complete any Buyer’s transaction or to respond to a customer service enquiry made by such Buyer concerning such transaction;
(d) use any domain name (or any part of it) on the Site and/or otherwise in any communications that you have with any User of the Services and/or any Buyer (by way of example but not limitation, you should not use “www” “.com”, “.co.uk” or similar domain name identifiers);
(e) include in any communication made or authorised by you with any User of the Services and/or any Buyer including, without limitation, in any Order (including the packaging of the Order and any promotional pieces, invoices and alike sent with it), Order confirmation and/or other communication made in connection with the fulfilment of a transaction:
(i) any offer from or reference to any Third Party;
(ii) any link or reference to any website other than the Site (or otherwise seek to direct any person to any website other than the Site); and/or
(iii) any reference to domain names; and/or
(f) target (on any basis via any means) unsolicited communications of any kind to any User of the Services and/or any Buyer. You will comply with the Data Protection Act 1998, including, but not limited to, the Seventh Principle.
25.11 Our rights of recovery: We reserve the right to seek reimbursement from the Seller if We, in Our sole discretion, decide to reimburse a Buyer, provide a refund to the Buyer if the Seller cannot promptly deliver the Products, discover erroneous or duplicate transactions, or receive a chargeback from the Buyer’s credit card issuer for the amount of the Buyer’s purchase from the Seller. We may obtain such reimbursement by deducting from future payments owed to the Seller, reversing any transfer to the Seller’s bank account, charging the Seller’s credit card, debit card or Paypal account, or seeking such reimbursement from the Seller by any other lawful means.
26. Additional terms relating to Buyers
26.1 Wholesale Prices: Buyers may apply for access to wholesale pricing information on the Site by completing the Wholesale Prices Request Form available on the Site. We will consider such requests for access to wholesale prices on a case by case basis. A Buyer’s ability to access wholesale pricing will be permitted or refused in Our sole and absolute discretion. If We grant a Buyer access to wholesale prices, such access will be subject to the Buyer completing the a “Wholesale Registration Form” as provided by Us. We will provide you will access to wholesale prices once your Wholesale Registration Form has been submitted and approved by Us in our sole and absolute discretion.
26.2 Fees for retail Buyers: Although We do not currently charge Buyers any fees to use the Services and the Site as a retail buyer, We reserve Our right to do so in the future. In these circumstances, your acceptance of these Terms will constitute your payment (and therefore your consideration) for your use of the Services.
26.3 Fees for wholesale Buyers:
(a) By submitting the Wholesale Registration Form, Buyers agree to pay the applicable fees as agreed between you and Us in the Wholesale Registration Form. All fees will be payable on demand in accordance with the Wholesale Registration Form (except for subscription fees which are due periodically without demand as set out in the Wholesale Registration Form).
(b) The Buyer fees are subject to VAT where applicable and will be paid by the Buyer at the time of payment of the corresponding fees.
(c) We reserve the right to charge you any applicable unbilled VAT if you provide a VAT registration number that is determined to be invalid. You irrevocably authorise Us to debit your credit card, debit card, PayPal account or, where applicable, to deduct the amount from the funds owed to you, for any such unbilled VAT.
(d) If you are a business that is established in a European Union country and you provide Us with your valid VAT registration number that was issued to you by a European Union country, you agree to accept electronic VAT invoices in a format and method of delivery as determined by Us.
(e) We may, in our sole and absolute discretion, waive, reduce, or reverse charges or fees for a specific transaction.
26.4 The “Payment Service” facilitates the purchase of Products listed on the Site for Sale. A Buyer must purchase the Product(s) purchased on the Site, via the Site, and must authorise a Payment Transaction, with any major credit card, debit card or PayPal account accepted by Us on the Site. Nexian Ventures Limited is not the purchaser or the Seller of the Products.
26.5 Buyers must inspect any Products purchased from a Seller immediately upon receipt to ensure that it accords with any description given by the Seller in the Product’s listing and to ensure that the Product is safe.
26.6 Refunds may be initiated by the Buyer by contacting Us on firstname.lastname@example.org.
26.7 The Buyer will resolve any dispute directly with the Seller facilitated by Our customer services representative. Sellers shall not invoice Buyers, and Buyers must not accept Seller’s invoices, off the Site. All refunds for purchases made via the Site must be initiated by Usand may only be accepted by Buyers from Us.
26.8 You warrant to Us that the information you provide during the registration process (and any notification of change of such information) is true, correct and complete, and you will notify Us immediately if any of the information changes and needs to be updated.