ART IN THE HEART MARKETPLACE
SELLERS TERMS & CONDITIONS
- What these terms cover. These are the terms and conditions on which Art and Craft Sales UK Limited (with the trading name “Art in the Heart”), a company registered in England and Wales (company registration number 09681109) and with registered office at Art and Craft Sales UK Ltd. PO Box 1353, Peterborough, PE1 9UG (“we, “us”) provides Service to you (the “Seller”).
The following definitions and rules of interpretation apply in this agreement.
Registration Form: the form which must be agreed to online when subscribing by the Seller as part of its application to join the Online Marketplace.
Commission Fee: the fee set out in clause 6.3.
Customer: a person, firm or company who enters into or is invited to enter into any contract with the Seller via the Online Marketplace.
Customer Terms & Conditions: the terms and conditions between us and the Customer, as notified to you from time to time.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
- acts of God, flood, drought, earthquake or other natural disaster;
- epidemic or pandemic;
- terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
- nuclear, chemical or biological contamination or sonic boom;
- any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
- collapse of buildings, fire, explosion or accident; and
- interruption or failure of utility service.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Online Marketplace: means the online marketplace provided by us via the www.artintheheart.co.uk/marketplace website to market and facilitate the sale of Seller’s Products.
Policies: any and all policies provided by us to the Seller, including the Obligations (includes Quality Control Requirements in terms of what and where you can sell, Image and Product Description Requirements, Product Listing Requirements, Customer Service Requirements, Product Pricing Requirements); the Data Protection, Privacy and Cookies Policy; Refunds and Returns Policy; Shipping and Delivery Policy.
Presentation Guidelines: See Obligations
Product: the goods that Sellers wish to market and sell via the Online Marketplace.
Product Pricing Policy: How sellers price their work via the online Marketplace. See Obligations
Product Set-up and Listing Requirements: How sellers should upload images and give descriptions and should explain their shipping and returns arrangements. See Obligations
Service: the Online Marketplace and other related services to be provided by us under this agreement.
[Storefront]: means the individual Seller’s portal/Dashboard within the Online Marketplace to market its Products.
Subscription Fee: the annual fee set out in clause 6.2.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
- Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
- A reference to writing or written includes fax and email
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- COMMENCEMENT AND DURATION
- We shall provide the Service to the Seller on the terms and conditions of this agreement.
- We shall provide the Service to the Seller after the following events and the Seller accepts that we have the sole discretion as to whether to invite or select prospective Sellers to use the Service:
- we have received a completed Registration Form with agreement to the Terms and Conditions and Obligations and other Requirements stipulated from the prospective Seller for example appropriate products commensurate with the Art in the Heart brand; and
- we have notified the prospective Seller of our acceptance of the Registration
- The Seller has paid the annual non-refundable subscription fee
- This agreement shall continue unless it is terminated by one of the parties giving to the other not less than one months’ notice, unless this agreement is terminated in accordance with clause 11.
- OUR OBLIGATIONS (Set out in full in the Obligations Document which is part of the Terms and Conditions)
- We shall use reasonable endeavours to provide the Service, and to provide the Service with reasonable care and skill.
- We shall provide a portal/Dashboard for the Seller to create and update a Storefront.
- We shall use reasonable endeavours to host the Online Marketplace and remedy any faults in the Service that is within our control as soon as reasonably practicable. The Seller accepts that the Service will not be entirely free of fault at all times and that in some instances the website may need to be shut down for maintenance purposes.
- We shall provide the Seller with access to the Online Marketplace where the Seller may offer and sell their Products directly to Customers. Thereby:
- we shall promote the sale of products via the Online Marketplace, social media, by newsletter and other standard means in our sole discretion;
- any contract for sale of the Products is made directly between the Seller and the Customer and we are not party to any such contract;
- we shall facilitate the sale of Products via email;
- we shall facilitate payment of the Products in accordance with clause 5;
- We retain the right to change the Service at any time.
- SELLER’S OBLIGATIONS (Set out in full in the Obligations Document which is part of the Terms and Conditions)
- General Obligations – The Seller shall:
- warrant that all information set out within the Registration Form is accurate and up to date at all times, with any such changes to be notified to us as soon as possible;
- sell the Products to the Customers in accordance with the Customer Terms & Conditions;
- not, without our prior written consent, sell Products through any unauthorised online marketplace, large chain/department stores. (The Document ‘What and Where you can Sell’ is part of the Obligations and Terms and Conditions)
- co-operate with us in all matters relating to the Service.
- Technical Obligations – The Seller shall:
- be responsible for providing and maintaining (at its own cost) access to the World Wide Web and ensure that all computer equipment used by the Seller, including hardware and software, is up-to-date and can access and inter-operate with the Online Marketplace. In particular, the Seller should ensure that it has appropriate anti-Virus software in place;
- provide, in a timely manner, such material and other information as we may reasonably require, and ensure that it is accurate in all material respects;
- ensure that any information, documentation or photographs provided to us electronically, either via email or the Online Market-place is transmitted free from Viruses;
- be responsible for the security and proper use of passwords and other security devices used in connection with the Service;
- not include on the Website, the Storefront or in any communication with the Customer a link to another website (including the Seller’s website and social media pages), its email address, address or telephone number;
- at all times comply with any Security Requirements provided by us to the Seller.
- Storefront Obligations – The Seller shall:
- be responsible for creating, managing and displaying their Product on the Storefront in a professional and appealing manner which is kept up to date;
- display for sale a minimum of 10 individual Products on the Storefront at any one time;
- at all times comply with any Presentation Guidelines provided by us to the Seller;
- ensure that all Seller Information provided in respect of itself or the Products is and remains true, accurate, current and complete;
- warrant that none of its Seller Information, Products or use of the website will:
- be false, inaccurate or misleading;
- be fraudulent, or involve the sale of counterfeit or stolen items;
- be defamatory, menacing, offensive, obscene, pornographic, abusive, indecent or in poor taste;
- be in breach of any applicable law or regulation, including but not limited to breach of copyright, confidence, privacy, e-commerce, distance selling, data protection, export control, tax, consumer protection and advertising;
- infringe any third party Intellectual Property Rights or privacy;
- adversely affect the reputation of our brand.
- comply with the Product Information Policy provided by us to the Seller; See the Obligations document
- comply with the Product Pricing Policy provided by us to the Seller. See the Obligations document
- comply with the Product Set-up and Listing Requirements provided by us to the Seller. See the Obligations Document
- Customer Order Obligations – The Seller shall:
- agree that following acceptance of an order via the Online Marketplace, such order is irrevocable and must be concluded by the Seller directly to the Customer;
- be bound by the Customer Terms and Conditions in respect of the sale of the Products;
- comply with the Customer Order Requirements provided by us to the Seller. See the Obligations document.
- comply with the Returns and Refunds Requirements provided by us to the Seller; See the Returns and Refunds Policy.
- You agree that we may deactivate the Seller’s Storefront at any time if, in our sole discretion, we consider that the Seller has not complied with any of our Policies.
- General Obligations – The Seller shall:
- CHARGES AND PAYMENT
- In consideration of the provision of the Service by us, the Seller shall pay the Subscription Fee and the Commission Fee as set out in Clauses 2 and 6.3.
- The annual non refundable Subscription Fee is £25.00 payable upon written notice from us. This will be paid either through Paypal or by bank transfer
- The Commission Fee is set at 25% of the value of the total amount payable by a Customer in relation to each Product sold through our Website by the Seller including VAT if applicable and the delivery charges applying to the Product
- If the goods are returned to the Seller according to the Refunds and Returns Policy then the Seller must reimburse the Customer the full amount. The Customer informs us that the item has been sent back and reimbursed and we reimburse the Customer their 25%.
- Payments for the Products shall be made directly to us by Customers, following the Seller confirming its acceptance of an order at the moment via Paypal. The Seller agrees that the Customer’s obligation to pay the Seller for Products is fulfilled when the Customer validly pays us for the applicable Product.
- The Commission Fee shall be collected directly by us from payments made by the Customer.
- Payments for Products by Customers will be via payment methods used by us from time to time.
- We shall pay the Seller for all transactions that have taken place by a withdraw method from the Seller Dashboard. It is the Seller’s responsibility to withdraw from their balance (what is has been earned minus 25%) in our Paypal account. The Seller has to request withdrawal which has to be approved by us. The Seller has to have at least £30 in their balance before they can withdraw. The money earned from any transaction has to remain in the balance for a period of 30 days to allow for the possibility of a Return and Refund.
- All payments must be made in pounds sterling.
- The Seller shall agree to use a Paypal business account or up-to-date banking details to us whatever is stipulated by us in order to facilitate subscription or other payments other than payments for sold products and shall be responsible for any banking charges or administrative expenses incurred by us in respect of incorrect or inaccurate information.
- INTELLECTUAL PROPERTY RIGHTS
- Our IPR
- All Intellectual Property Rights in our name, logo, and brand shall be owned by us. Subject to clause 1.2, we license to the Seller the use of our name, logo and branding on promotional material, packaging or elsewhere in accordance with these terms. On the termination of this agreement, this licence will automatically terminate.
- All Intellectual Property Rights in the Service and in any software or documentation are the property of us or our licencors. Subject to clause 1.2, we grant to the Seller a non-exclusive, non-transferable, revocable and limited licence to use any software or documentation for the sole purpose of accessing and using the Service. On the termination of this agreement, this licence will automatically terminate.
- Any Intellectual Property Rights created by us will remain the property of us.
- The Seller’s IPR
- The Seller warrants that:
- it is the legal owner of all of the IPR in and relating to the Products (including any photographs, images, logos), and/or that it has a valid licence to use any such IPR;
- the use by the Seller and/or us of the IPR in order to sell the Products on the Online Market-place will not infringe any third party Intellectual Property Rights.
- The Seller shall at all times during and after the term of this Agreement indemnify us against any and all claims, demands, damages, liabilities, losses, costs and /or expenses arising out of or in relation to any breach of clause 1.1 (“IPR Claim”).
- If an IPR Claim is made, the Seller shall:
- do all things necessary to make the IPRs non-infringing;
- notify us in writing of any IPR Claim.
- We may conduct and defend any IPR Claim and may settle or compromise such claim at our sole discretion. The Seller shall give us such assistance as we shall reasonably require in respect of the conduct of the claim and defence.
- The Seller licenses to us access to and use of any content that is placed on the Seller’s Storefront.
- The Seller warrants that:
- Our IPR
- CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
- Each party receiving Confidential Information from the other shall keep that information confidential. This agreement is to be considered Confidential Information.
- The obligations of confidentiality shall not apply:
- where specific prior written consent of disclosure has been given;
- to information in the public domain, other than through a breach of confidentiality;
- to information lawfully in the possession of the recipient before the disclosure was make;
- where the information is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
- The obligations of confidentiality shall remain in effect for five (5) years after the termination or expiry of this agreement.
- LIMITATION OF LIABILITY –
- Nothing in this agreement limits or excludes our liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be limited or excluded by applicable law.
- Subject to clause 1, we shall not be liable to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software, data or information;
- any indirect or consequential loss.
- Subject to clause 1 and clause 9.2, our total liability to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to:
- £250 per claim
- Nothing in this agreement limits or excludes our liability for:
- DATA PROTECTION
- The Seller acknowledges and agrees that personal data will be processed by and on behalf of the Supplier in connection with the Service.
- Information, data, and/or images provided by the Seller may be used, disclosed and distributed by us.
- Without affecting any other right or remedy available to it, this agreement shall remain in force until either party notifies the other in writing with at least 30 days’ notice.
- We may immediately suspend or terminate this agreement with immediate effect without liability by giving written notice to the Seller if:
- the Seller commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so;
- the Seller cannot pay its debts as they fall due or becomes or is threatened to become insolvent, or is the subject of a bankruptcy order, or makes any arrangement or makes a proposal for or enters into any compromise or arrangement with any of its creditors, or goes into voluntary or compulsory liquidation, or an application is made to court, or an order is made, for the appointment of an administrator, or the equivalent of any such event happens to the Seller;
- the Seller fails to display/ sell a minimum of 10 individual Products at any time, in accordance with clause [3.2]/ sell £50 worth of products each calendar month after an initial month’s presence on the Marketplace
- in our sole discretion, we consider that the Seller’s eligibility or suitability to be listed on the Online Marketplace changes.
- CONSEQUENCES OF TERMINATION
- On termination or expiry of this agreement, the Seller shall immediately pay to us any outstanding Fees due and unpaid.
- Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
- FORCE MAJEURE
- If a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
- If the Force Majeure Event prevails for a continuous period of more than three (3) months, either party may terminate this agreement by giving 14 days’ written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- ENTIRE AGREEMENT
- This agreement, and any documents referred to in it, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- ASSIGNMENT AND OTHER DEALINGS
- This agreement is personal to the Seller and the Seller shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
- We may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
- THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms. Nothing in this clause excludes our rights to act as payment agent of the Seller.
- A notice given to a party under or in connection with this agreement:
- shall be in writing and in English;
- shall be sent to the party for the attention of the contact and at the address or fax or email listed in clause 2
- is deemed received as set out in clause 3 if prepared and sent in accordance with this clause.
- The parties’ addresses and contacts are as set out in this table:
- A notice given to a party under or in connection with this agreement:
|Art in the Heart||Sales||Art and Craft Sales UK, PO Box 1353, Peterborough, PE1 9UG||N/Afirstname.lastname@example.org|
|Art in the Heart||Technical||Art and Craft Sales UK, PO Box 1353, Peterborough, PE1 9UG||N/Aemail@example.com|
- This table sets out:
- delivery methods for sending a notice to a party under this agreement; and
- for each delivery method, the corresponding delivery date and time when delivery of the notice is deemed to have taken place provided that all other requirements in this clause have been satisfied and subject to the provisions in clause 4:
|Delivery method||Deemed delivery date and time|
|Delivery by hand.||On signature of a delivery receipt.|
|Pre-paid first class post or other next working day delivery service providing proof of delivery||9.00 am on the second Business Day after posting or at the time recorded by the delivery service|
|Fax.||At the time of transmission.|
|On acknowledgment of receipt of the email.|
- For the purpose of clause 3 and calculating deemed receipt:
- all references to time are to local time in the place of deemed receipt; and
- if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00 am on the day when business next starts in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
- No counterpart shall be effective until each party has executed at least one counterpart.
- DISPUTE RESOLUTION PROCEDURE
- If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause: The Party should inform the other party the exact reason for the dispute. Each party should try and resolve the dispute by email or if necessary by phone. Each party should adhere to the agreement. If there is a dispute over the agreement, then resolution between the 2 parties should be found for the individual case. This may involve discussion and compromise. As a last resort legal advice should be sought with regard to breaches of contract for either party and legal solutions enforced. This may include compensation or disqualification from using the service. Amicable resolutions are favoured.
- GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date of Registration/Sign Up when the Terms and Conditions and Obligations box is checked, the Seller’s Products have been vetted and accepted, the £50 registration fee has been paid and the Seller Dashboard has been issued