1 Sale Terms
1.1 The following provisions (together the Sale Terms) set out the terms that apply to the sale of Products via the Marketplace by either the Service Provider as part of the Order Fulfilment Service or by a User where the Service Provider is not providing the Order Fulfilment Service to that User (the Seller) to another User (the Buyer).
1.2 It is important that Users read and understand these Sale Terms before Listing Products or selling or purchasing Products via the Marketplace.
1.3 The Buyer represents and warrants that:
1.3.1 it is lawfully able to agree to these Sale Terms and does so in the course of operating a trade or profession and not as a consumer; and
1.3.2 if the Buyer is agreeing to these Sale Terms on behalf on an entity, such as a company the Buyer works for, the Buyer represents that it has legal authority to bind itself and that legal entity to these Sale Terms.
1.4 The Service Provider reserves the right to change these Sale Terms at any time. Amendments will take effect when the revised Sale Terms are posted on the Marketplace. However, the Sale Terms in place at the time at which a particular Sale Contract (as defined below) comes into effect will apply to that Sale Contract, therefore Users must check these Sale Terms regularly to ensure they understand the terms that apply to the sale of Products at any given time.
1.5 The User’s attention is drawn in particular to the following Clauses in these Sales Terms:
1.5.1 Clause 4 (Price and payment for Products);
1.5.2 Clause 6 (Delivery);
1.5.3 Clause 8 (Transaction fees);
1.5.4 Clause 10 (Limitation of Liability); and
1.5.5 Clause 11 (Termination).
2 Confirmed and Unconfirmed Products
2.1 Provided a Product has been Listed in accordance with and as required by the Listing Terms, the Seller shall:
2.1.1 where the Product is a Confirmed Product, make an irrevocable offer to sell that Product; or
2.1.2 where the Product is an Unconfirmed Product, promptly, and in any event within 24 hours, from the time a Buyer makes a request to purchase the Product or as otherwise required by the Service Provider, provide confirmation as to whether such Unconfirmed Product is in stock and available to be shipped/delivered. Where the Seller confirms the availability of the Product for shipping/delivery, the Unconfirmed Product shall become a Confirmed Product and any relevant provisions set out in these Sale Terms which apply to Confirmed Products shall apply immediately.
2.2 In respect of Confirmed Products, the Seller warrants that:
2.2.1 it is the absolute unencumbered legal owner of the Confirmed Product with the full and exclusive right to sell the Confirmed Product;
2.2.2 the Confirmed Product is in working order unless otherwise stated;
2.2.3 where the Confirmed Product is an electrical item, the item has been tested and the Seller is able to evidence that the Confirmed Product is in working order prior to shipping/delivery;
2.2.4 the Confirmed Product conforms in all material respects with its description in the Listing Information;
2.2.5 the Confirmed Product does not contain asbestos or hazardous substances (or to the extent that they do contain any asbestos or hazardous substances, this is disclosed in full in the Listing Information);
2.2.6 no part of the Confirmed Product is a fixture or fitting which forms part of a property over which any third party has any rights; and
2.2.7 the Confirmed Product may be lawfully sold via the Marketplace and such sale shall not infringe any third party intellectual property or other rights.
3 The Sale Contract
3.2 A Sale Contract comes into effect in accordance with Clause 3.6 and will be deemed to include the following terms:
3.2.1 that the Buyer and Seller will comply with its obligations in these Sale Terms; and
3.2.2 that the Product will comply with the provisions set out in these Sale Terms and the Listing Terms;
3.2.3 title to the Product will Pass to the Buyer once full payment has been received by the Seller and the Payment Holding Period has expired; and
3.2.4 risk in the Product will Pass to the Buyer on delivery of the Product to the Buyer.
3.3 It will be made clear to the Buyer at the time of placing an order if the Product being ordered is a Confirmed Product or Unconfirmed Product. The Buyer can only proceed to check out on the Marketplace in respect of a Confirmed Product.
3.4 The Buyer can request to be notified by e-mail for a Product to be verified by the Seller within 24 hours. The Service Provider may (but is not obliged to) suggest a different Product to the Buyer if the Unconfirmed Product is not verified by the relevant Seller within 24 hours.
3.5 The Service Provider shall have no liability to:
3.5.1 a, where a Buyer purchases another Product from a different User.
3.6 A Buyer’s order will be accepted by an email sent to the Buyer by the Service Provider on the Seller’s behalf (Order Confirmation), at which point a contract will come into existence between the Seller and the Buyer for the supply of the Product set out in the Order Confirmation (the Sale Contract). If any information in the Order Confirmation is wrong, the Buyer shall immediately notify the Service Provider of the same.
These Sale Terms apply to the sale of Products by a Seller. No other terms are implied by
trade, custom, practice or course of dealing.
4 Price and payment for Products
4.1 In respect of any transaction which is completed between a Buyer and the Seller (whether via the Marketplace or otherwise) in relation to Products displayed on the Marketplace, the Buyer shall make payment for the price of the Product via the Marketplace.
4.2 The Buyer can elect to see the price of the Product, and make the payment for the Product, in pound sterling, euros or dollars (or such other currencies as may be supported on the Marketplace from time to time). If the currency the Buyer is viewing the price in is different to that which the Seller has requested the Listing be made in, the price displayed to the Buyer will be indicative only and may change due to fluctuations in the exchange rate. The price to be paid by the Buyer will be fixed and confirmed at the point of the Buyer places it’s order with the Marketplace.
4.3 All prices stated on the Marketplace include any VAT or other sales tax (if applicable).
4.4 Subject to Clause 5, the total price payable for an order will include the total price of all Products in the order and delivery charges (see Clause 6 below). However, unless the delivery charges are confirmed, the total price payable by the Buyer may not always be displayed during the checkout process as delivery charges may be confirmed at a later date.
4.5 The Marketplace retains the full amount paid (including VAT and delivery costs) from the date of payment until the expiry of 10 days from and including the date of delivery of the Products to the Buyer (Payment Holding Period).
4.6 The Buyer shall inspect the Products upon delivery and in any event during the Payment Holding Period. If following such inspection, the Buyer believes that the Product is faulty or otherwise breaches the warranties or assurances given in Clause 2.2, it shall notify the [Service Provider][Marketplace] of such matters within the Payment Holding Period (a Fault Notice).
4.7 If the [Service Provider][Marketplace] does not receive a Fault Notice within the Payment Holding Period, then the payment received from the Buyer shall be released by the Marketplace to the Seller, subject to any deductions in accordance with Clause 8 or adjustments in accordance with Clause 5.
4.8 If the [ ][ ] receives a Fault Notice within the Payment Holding Period, then the [ ][ ] shall be entitled to retain the full amount paid for such further period as it deems appropriate, pending resolution of any dispute in accordance with Clause 12.
5 Price Match Guarantee Service
5.1 Subject to Clause 5.2, where the terms of the Marketplace’s Lowest Price Guarantee are met in respect of Products which display a “Lowest Price Guarantee” icon on the Marketplace (the Relevant Products) and the Buyer:
5.1.1 discovers a Relevant Product available for sale for a price lower than the price available via the Marketplace, the Buyer may make a price match request to the Service Provider by clicking on the “Request Price Match” button;
5.1.2 makes a price match request pursuant to Clause 5.1.1, the Buyer shall provide the Service Provider with sufficient information and detail to enable the Service Provider to determine that the Relevant Product is available for sale from a third party supplier at a lower price than that offered on the Marketplace; and
5.1.3 the price of the Relevant Product shall be adjusted to a sum equivalent to the price of the Relevant Product offered by the third-party supplier identified pursuant to Clause 5.1.2;
the Price Match Guarantee Service.
5.2 The Buyer acknowledges and agrees that:
5.2.1 the Price Match Guarantee Service only applies to Products which feature the Lowest Price Guarantee icon only;
5.2.2 the Price Match Guarantee Service is only offered in respect of products offered for sale by UK retailers and websites only;
5.2.3 the Relevant Product must be exactly the same product as that offered for sale by the third party supplier and evidenced by the Buyer in accordance with Clause 5.1.2.
6.1 The cost of delivery will be as displayed to the Buyer during the checkout process as either confirmed delivery costs or estimated delivery costs. The Seller shall arrange for delivery of the Products to the address set out in the Order Confirmation.
6.2 The Buyer will pay the costs of delivery at the checkout only in respect of the confirmed delivery costs.
6.3 If the delivery costs are expressed to be estimated, then the Buyer shall not make any payment for delivery charges until the costs of the same have been confirmed with the Buyer. Once the estimated delivery costs have been confirmed, the Buyer will be notified of the confirmed delivery costs by email. The Buyer authorises the Service Provider to charge the Buyer the delivery costs once confirmed.
6.4 The Buyer’s order will be processed and dispatched when:
6.4.1 the delivery costs have been confirmed; and
6.4.2 payment has been received.
6.5 When the order is dispatched, the Buyer will receive a dispatch confirmation email from the Service Provider.
6.6 If the supply of the Products is delayed by an event outside of the Seller’s control, then the Service Provider will contact the Buyer as soon as possible to let the Buyer know and the Service Provider will take steps to minimise the effect of the delay. The Service Provider will not be liable for delays caused by the event, but if there is a risk of substantial delay the Buyer may contact the Service Provider to end the Sale Contract in respect of such Products and receive a refund for any Products the Buyer has paid for but not received.
7 Manufacturer’s Guarantee
7.1 To the extent that the benefit of any guarantees made by a third party manufacturer of the Products can be assigned to the Buyer, the Seller shall, as far as it is reasonably able, assign them to the Buyer. The nature and scope of any third party manufacturer’s warranty shall be provided to the Buyer at the time of placing the order and/or confirmed within the Order Confirmation.
8 Transaction fees
8.1 Unless the Seller is the Service Provider, this Clause 8 shall apply.
8.2 The Seller shall, unless otherwise agreed with the Service Provider, be liable to pay a transaction fee in respect of each Product sold pursuant to a Sale Contract or sold in accordance with Clause 8.5 (Seller Transaction Fee), which shall be calculated as follows:
8.2.1 where the Seller has set a fixed price that a Product is to be listed at, 20% of that fixed price;
8.2.2 where the Seller has not set a fixed price and the book value of the Product can be established via the CVS file, the Seller Transaction Fee shall be 20% of the Product’s book value;
8.2.3 where the Seller has not set a fixed price and the book value of the Product cannot be established via the CVS file, the Seller Transaction Fee shall be an amount equal to 20% of the Discounted Market Rate. For the purpose of this Clause 8, the Discounted Market Rate means 75% of the actual market value of the Product (as determined by the Service Provider in its sole discretion).
8.3 Seller Transaction Fees are non-refundable. The Service Provider will invoice the Seller upon conclusion of the sale of the particular Product.
8.4 The Service Provider shall, once it has received payment from the Buyer in respect of the Product, be entitled to calculate and deduct the Seller Transaction Fee before transferring the balance of the purchase price of the Product to the Seller. Otherwise, the Seller Transaction Fee shall be payable in accordance with Clause 8.6.
8.5 Seller Transaction Fees shall be payable in relation to all sales by the Seller of Products which have been the subject of a Listing if the Buyer and Seller were introduced to each other or have otherwise contacted each other through the Marketplace or the Service, whether or not the relevant Products were sold through the Marketplace, and in such circumstances this Clause 8 shall apply with the necessary changes having been made to effect such obligations.
8.6 All amounts payable to the Service Provider under these Sale Terms shall be paid in cleared funds by bank transfer to such bank account that the Service Provider shall nominate within 7 days from the date of the Service Provider’s invoice.
8.7 The Service Provider shall be entitled to charge interest on any late payment at a rate of 4% above the Bank of England base rate from the date on which the payment becomes overdue until such time as payment is received.
8.8 Payments shall be made in pound sterling or such other currency that the Service Provider may from time to time expressly permit.
8.9 The Service Provider may at any time, without notice, set off any liability of a Seller to the Service Provider against any liability of the Service Provider to the Seller, whether liability is present or future, liquidated or unliquidated, and whether or not such liability arises under these Sale Terms. If the liabilities to be set off are expressed in different currencies, the Service Provider may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Service Provider of its rights under this clause shall not limit or affect any other rights or remedies available to it under these Sale Terms or otherwise.
9 Payments by the Buyer
9.1 All amounts due from the Buyer under these Sale Terms shall be paid in full without any set- off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.2 If the Buyer is required under any applicable law to withhold or deduct any amount from the payments due to the Service Provider or the Seller, the Buyer shall increase the sum it pays by the amount necessary to leave the Service Provider or the Seller with an amount equal to
the sum it would have received if no such withholdings or deductions had been made.
9.3 Buyers are responsible for any costs of delivery, including any import taxes, duties or permit fees, and any insurance costs in respect of any Products purchased by them, unless otherwise stated on the Listing. Sellers are responsible for any export taxes.
9.4 Some transactions may involve Products being transported by Sellers to locations outside the territory or jurisdiction in which the Products are located. Buyers and Sellers alike must observe and comply with all applicable regulations and legislation, including obtaining all necessary cultural or customs permits and shall co-operate with each other for such purposes.
9.5 Buyers and Sellers shall co-operate with each other and provide such assistance and documentation that the other shall reasonably require for the purpose of importing or exporting the Products.
9.6 The Service Provider makes no representation and accepts no liability whatsoever in respect of the issuance or validity of any exportation or importation permits or the existence and exercise of exportation or importation regulations or any compulsory purchasing regimes.
10 Limitation of Liability
10.1 Nothing in these Sale Terms limits or excludes liability for:
10.1.1 death or personal injury caused by negligence;
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 any other liability that cannot be limited or excluded by law.
10.2 Subject to Clause 10.1, the Seller will under no circumstances be liable to any person (including any User), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with any Sale Contract for:
10.2.1 any loss of profits, sales, business, or revenue; or
10.2.2 loss or corruption of data, information or software; or
10.2.3 loss of business opportunity; or
10.2.4 loss of anticipated savings; or
10.2.5 loss of goodwill; or
10.2.6 any indirect or consequential loss.
10.3 Subject to Clause 10.1 the Seller’s total liability in contract, tort (including negligence), misrepresentation or otherwise under or in connection with a Sale Contract shall be limited to the price paid by the Buyer for the Products that are the subject of the Sale Contract.
11.1 Without limiting the other rights or remedies of the Seller, the Seller may at its sole discretion terminate the Sale Contract with immediate effect by giving written notice to the Buyer if:
11.1.1 the Buyer fails to make any payments due in accordance with these Sale Terms;
11.1.2 a winding-up order or bankruptcy order is made against the Buyer;
11.1.3 the Buyer makes a proposal for a voluntary arrangement within Part I of the Insolvency ACT 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors generally or if the Client is unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency ACT 1986 or if a trustee, receiver, administrator, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Buyer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Buyer or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction); or
11.1.4 the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
11.1.5 the Buyer, being a partnership, individual or sole trader, has a bankruptcy order made against it or any of its partners; or
11.1.6 any event analogous to those described in Clause 11.1.2 to Clause 11.1.5 occurs in relation to the Buyer in any jurisdiction in which the Buyer is incorporated, resident or carries on business.
11.2 The termination of the Sale Contract howsoever arising shall be without prejudice to any other rights or remedies a party may be entitled to under the Sale Contract or at law and shall not affect the accrued rights, obligations or liabilities of a party nor the coming into or continuance in force of any provision of the Sale Contract, which is expressly or by implication, intended to come into or continue in force on or after such termination.
11.3 The Buyer and Seller agree and acknowledge that any termination of the User Terms shall not terminate a Sale Contract if such Sale Contract was in existence prior to the date of termination of the User Terms in respect of the Buyer or the Seller (as applicable) and the Buyer and Seller shall continue to be bound by these Order Fulfilment Terms in respect of such Sale Contract until such time as the Sale Contract has expired or is terminated in accordance with these Sale Terms.
12 Returns and refunds
12.1 The Buyer agrees and acknowledges that:
12.1.1 the Service Provider is not responsible in any way if any Product sold via the Marketplace proves unsatisfactory to the Buyer;
12.1.2 under no circumstances will the Service Provider accept the return of any Products directly to the Service Provider, returns must be made to the User Listing the Product that is the subject of the Sale Contract.
12.2 There Buyer has no right to return any Product unless:
12.2.1 the Product is faulty or otherwise breaches the warranties or assurances given in Clause 2.2;
12.2.2 the Buyer is ending the Sale Contract because:
12.2.3 the Buyer has been told of an upcoming change to the Product or these Sale Terms;
12.2.4 of an error in pricing or description;
12.2.5 there is a delay in delivery due to events outside the Buyer’s control; or
12.2.6 it has a statutory right to do so.
12.3 In order to return the Product pursuant to Clause 12.2, the Buyer is required to serve a Fault Notice in accordance with Clause 4.6.
12.4 Where a Fault Notice is served by a Buyer, the User dispatching the Product will be required to prove that the Product was in a working order before it was collected by a courier.
12.5 The costs of returns shall be paid as follows:
12.5.1 by the User:
12.5.2 if the Products are faulty or misdescribed or represented by the User;
12.5.3 if the Buyer is ending the Sale Contract in accordance with Clauses 12.2.3 to 12.2.5;
12.5.4 by the Service Provider:
12.5.5 if the Products are faulty, provided that the User has proved to the satisfaction of the Service Provider, that the Product was working before delivery;
12.5.6 if the Service Provider has misdescribed or misrepresented the Product and such description or image is not provided by the User;
12.5.7 by the Buyer in all other circumstances.
12.6 The Service Provider will refund the Buyer the price the Buyer paid for the Products including delivery costs if (where the responsibility for such costs of return are not to be borne by the Buyer) the Product is faulty or misdescribed, by the method used for payment.
13 General terms
13.1 Save as set out in Clause 13.2, these Sale Terms do not give rise to any rights for a third party to enforce any term of these Sale Terms.
13.2 The Service Provider shall have the benefit of and the right to enforce these Sales Terms.
13.3 Nothing in these Sale Terms are intended to, or shall be deemed to, establish any partnership or joint venture between the Service Provider and any other person, constitute any of such persons the agent of another, or authorise any person to make or enter into any commitments for or on behalf of any other of such persons.
13.4 The rights and remedies provided under these Sale Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
13.5 Users shall not, without the prior written consent of the Service Provider, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of their rights and obligations under a Sale Contract and/or these Sale Terms.
13.6 If any provision or part-provision of these Sale Terms 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 these Sale Terms.
13.7 These Sale Terms, together with any document expressly referred to within their provisions, contains the entire agreement between the parties relating to the subject matter covered and
supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters or any statements made by any person, including any of employees or agents of the Service Provider. Save for fraud or fraudulent misrepresentation, the Service Provider shall have no liability for any such representation being untrue or misleading.
13.8 The Service Provider will not be in breach of these Sale Terms or otherwise liable for any delay in performance to the extent that any delay or failure is due to circumstances beyond its reasonable control, including acts of god, strikes, lock-outs, any law or any action taken by a government or public authority and other industrial disputes, breakdown of systems or network access, flood, fire, explosion or accident.
13.9 In these Sale Terms:
13.9.1 a reference to a User means any individual who uses the Service and/or the Marketplace either as a Seller or a Buyer (as applicable);
13.9.2 references to defined terms shall have the same meaning as defined within the User Terms, the Listing Terms and the Purchase Terms
13.9.3 reference to a Clause is to a Clause of these Sale Terms, unless the context requires otherwise;
13.9.4 a reference to one gender includes a reference to the other gender;
13.9.5 words in the singular include the plural and in the plural include the singular;
13.9.6 a reference to a person, business and/or individual includes in each case an incorporated or unincorporated body (as the context may permit);
13.9.7 a reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
13.9.8 unless the context otherwise requires, the words including and include and words of similar effect shall not be deemed to limit the general effect of the words which precede them;
13.9.9 the headings in these Sale Terms are for ease of reference only and shall not affect their construction or interpretation; and
13.9.10 any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
14.1 Any notice or other communication given to a Party under or in connection with a Sale Contract shall be in writing and shall be sent by email as follows:
14.1.1 in the case of the Service Provider, to [email protected]; and
14.1.2 in the case of a User, to the email address provided by such User on registering on
the Marketplace (as updated via the Marketplace from time to time).
14.2 Any notice or communication shall be deemed to have been received 24 hours following the
time at which the relevant email is sent.
14.3 This Clause 14 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.
15 Governing law and jurisdiction
15.1 A Sale Contract 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 laws of England.
15.2 Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) to which the Service Provider is party arising out of or in connection with a Sale Contract or its subject matter or formation.