Designer Terms & Conditions
THIS DOCUMENT SETS OUT THE TERMS ON WHICH THEPOMMIER.COM LIMITED TRADING AS THE POMMIER REGISTERED IN ENGLAND & WALES, COMPANY REG NO. 09504399 & VAT NO. 213181940 PROVIDES YOU ('SELLER') WITH ACCESS TO CERTAIN FEATURES AND FUNCTIONALITIES ON WWW.THEPOMMIER.COM ('WEBSITE') TO MARKET AND SELL JEWELLERY, FASHION ACCESSORIES, HOMEWARE AND CLOTHING. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE. THE SELLER ACKNOWLEDGES THAT BY CLICKING ON THE BUTTON MARKED 'I ACCEPT' OR BY USING THE WEBSITE (WHOLLY OR PARTLY) AS A SELLER, THE SELLER AGREES TO BE BOUND BY THESE TERMS. IF THE SELLER DOES NOT ACCEPT THESE TERMS, THE SELLER WILL NOT BE ABLE TO USE THE FEATURES AND FUNCTIONALITIES OF THE WEBSITE AS A SELLER. YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR FUTURE REFERENCE.
- A) The Pommier operates and maintains the Website (defined below) which is an online marketplace offering independent jewellery, fashion accessories, homeware and clothing and provides designers a facility to advertise and sell their Products (defined below) using the Website.
- B) The Seller is an independent jewellery, fashion accessories, homeware or clothing designer and wish to make its Products available using the Website and in accordance with the terms of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
'Comment' means the comment and feedback provided by the Users on the Website in respect of the Product and/or the Seller;
'Content' means materials owned by and/or licensed to the Seller including but not limited to, Listings, images, photographs, articles, write-ups and comments;
'Exclusive' means a Seller who has opted to sell a particular jewellery, homeware, clothing or fashion accessories item exclusively on the Internet through the Services and the Website and who shall be entitled to a different rate of Fees which are more particularly set out in clause 5 below;
'Fees' means a sum in Pound Sterling equivalent to a percentage of the Price (in Pound Sterling) after deduction of VAT (if applicable) which is more particularly set out in clause 5 below;
'Force Majeure' mean any non-performance, defective performance or delay in the performance of any of the Services caused directly or indirectly by acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, terrorism, lack of adequate power or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key
The Pommier employees or sub-contractors, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
'Intellectual Property Rights' means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, database rights, moral rights, topography rights, rights in databases, software rights (including without limitation rights to its object code and source code), trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equal or similar effect to any of these anywhere in the world;
'Listings' means details of a Product offered on the Website;
'Login Details' means the username and password to access the Services and the Website;
'Price' means the price of the Product excluding VAT, all other applicable taxes, shipping costs and any other additional and applicable costs;
'Product' means a fashion item including but not limited to jewellery, homeware, clothing and all other fashion accessories offered for sale on the Website using the Services;
'Services' means the facility offered by The Pommier to advertise the Product, publish and make available the Content and conduct a sale transaction in respect of the Product using the Website;
'Term' has the meaning set out in clause 6.1;
'Users' means a user registered with the Website; and
'Website' means www.thepommier.com or any other designated unique resource locator as determined by The Pommier from time to time.
2 SELLER'S OBLIGATION
2.1 The Seller shall maintain all contacts, and conduct all transaction for the sale of its Product with the Users using the functionalities available on the Website and/or the Services. The Seller shall not at any time during the Term contact the Users or any other prospective buyers using any other alternative means other than the Website and/or the Services.
2.2 The Seller acknowledges and agrees that The Pommier only provides the Seller with the Services and access to the Website. Consequently The Pommier is not a participant in any way, in the sale and purchase process between the Seller and the User.
2.3 The Seller shall procure that its contract with the User for the sale of its Product shall be strictly compliant with all applicable law and legislation including without limitation, all legislation relating to the consumer protection, data protection, e-commerce and distance selling.
2.4 All Content and Listing accompanying the advertising of a Product must be related to that Product offered for sale.
2.5 The Seller agrees to keep their product pricing and inventory up to date at all times.
2.5.1 If a sale has been made for the designer and the designer decides to cancel the order as the product is unavailable and has not been updated through the designers dashboard within 48 hours before the transaction is made, the seller agrees to pay the commission rate as set out in clause 5.2 within 14 days upon receipt of an invoice from The Pommier regardless of whether the sale is completed or not.
2.5.2 If clause 2.5.1 occurs, the seller may mediate with The Pommier to resolve the issue and make the product available within 14 days subject to acceptance by The Pommier.
2.6 The Seller shall procure that all activities in respect of advertising and/or making the Product available on the Website for sale to the Users, including without limitation, the publishing of the Content and Listing on the Website:
2.6.1 Does not infringe any Intellectual Property Rights or other proprietary rights of any third party; and
2.6.2 May reasonably be deemed to be illegal, offensive, inappropriate or in any way (a) promote racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) harass or advocate harassment of another person; (c) display pornographic or sexually explicit material; (d) promote any conduct that is abusive, threatening, obscene, defamatory or libellous; (e) promote any illegal activities; (f) provide instructional information about illegal activities, including violating someone else's privacy or providing or creating computer viruses; and (g) promote or contain information that you know or believe to be false, inaccurate or misleading.
2.7 The Seller acknowledges that The Pommier is not obliged to vet, review or verify the Content and/or the Product to determine whether any such Content and/or Product may result in any liability to any third party.
2.8 The Seller further acknowledges that The Pommier shall not be liable in any way and for any reason for the behaviour of the User or any Comments made by the User in respect of the Seller and/or the Product.
2.9 The Seller hereby acknowledges and accepts that, in respect of all of its Products and, in particular, to the extent that it engages in the display, advertisement and/or sale of Products comprising or containing precious metals on or through the Website, it shall be bound by and shall comply with the terms of all applicable hallmarking, consumer protection and trade description laws. For example, where the Seller displays, advertises or sells Products containing or comprising precious metals in the United Kingdom, it shall be bound by and comply with the terms of the Hallmarking Act 1973, which makes it an offence to describe an unhallmarked item as being wholly or party made of gold, silver, platinum or palladium. Further details of the UK hallmarking requirements may be found through the British Hallmarking Council website (http://bis.gov.uk/britishhallmarkingcouncil).
2.10 The Seller hereby warrants, undertakes and represents to The Pommier that, in respect of all of its Products and, in particular, any Products comprising or containing precious metals, where such Products are displayed by the Seller on the Website and/or sold through the Website:
2.10.1 The Seller shall comply with its obligations under all applicable hallmarking, consumer protection and trade description laws including, without limitation, the terms of the Hallmarking Act 1973; and
2.10.2 The Seller shall include a photograph of the Product on the Website so that any hallmarks are clearly visible.
2.11 If a claim for infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws is made in respect of any/all of the Seller’s Products or, in the reasonable opinion of The Pommier, such a claim is likely to be made, The Pommier shall be entitled to immediately and without notice to the Seller remove the Product from the Website and, at its sole discretion, suspend and/or cancel the Seller’s right to advertise their Products on the Website.
2.12 The Pommier shall have no liability for any infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws in respect of all/any of the Seller’s Products, and the Seller shall indemnify The Pommier against any claim that the Content, the Website and/or the Services infringes any such laws.
2.13 If the Seller registers with The Pommier with Exclusive items, the relationship between The Pommier and the Seller under this Agreement shall be exclusive for the duration of the Term. Consequently, the Seller shall not during the Term, sell and/or make the same Products available on the Internet to the public other than through the Website or the Seller's personal website.
2.14 The Seller agrees that it is solely responsible and liable for all use of the Services and the Website if such use was made using the Seller's Login Details. Consequently, the Seller shall promptly notify The Pommier in the event there is a breach of security or any unauthorised use of the Seller's Login Details.
2.15 The Seller acknowledges and agrees that The Pommier is not obliged to upload, publish or make available any of the Content, Listing and/or Products (wholly or partly) on the Website for any reason whatsoever other than those expressly set out in this Agreement.
2.16 The Seller agrees that at all times, it shall:
2.16.1 Not use its Login Details with the intent of impersonating another person;
2.16.2 Not allow any other person to use its Login Details;
2.16.3 Not use the information presented on the Website for any purposes other than those expressly set out herein;
2.16.4 Not do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Website or in respect of the network;
2.16.5 Not use the Website, the content therein and/or do anything that will infringe any intellectual property right or other rights of any third parties;
2.16.6 Not use any information obtained using the Website otherwise than in accordance with the terms set out herein;
2.16.7 comply with all instructions and policies from The Pommier in respect of the Website; and
2.16.8 co-operate with any reasonable security or other checks or requests for information made by The Pommier.
2.17 Without prejudice to any of The Pommier's other rights and remedies, The Pommier reserves the right, in its absolute and sole discretion, to take any action that it deems necessary and appropriate including without limitation, suspending wholly or partly, temporarily and permanently the Seller's use and/or access to the Website and/or the Services, in the event it considers that there is a breach or threatened breach of this clause 2.
2.18 The Seller must use a reputable logistics company to deliver their goods to the customer. The item must be packaged suitably to protect the goods whilst in transit as much as possible.
2.18.1 All goods must be shipped via a service that provides tracking and requires a signature to avoid doubt and to rectify disputes if they where to arise between the Seller and the Customer.
3 THE POMMIER 'S OBLIGATIONS
3.1 In consideration for the Seller's compliance with the terms of this Agreement and subject to clause 5.2, The Pommier shall use its reasonable endeavours to make available the Website and the Services during the Term.
3.2 The Client acknowledges and agrees that The Pommier relies on third party service providers to provide the Services and access to the Website. Consequently, The Pommier cannot guarantee uninterrupted or fault-free access to and/or use of the Services and the Website or any aspect thereof.
4 PRODUCT PRICING
4.1 The Seller shall be entitled to price its Products at its sole and absolute discretion, subject always that the pricing of such Products on the Website shall be compliant with all applicable laws and legislations.
4.2 The Price of your Products must be uploaded in Pound Sterling ('£') as the base currency. If there are dramatic changes in your local currency, you must notify The Pommier immediately or update your pricing through the partner portal.
4.2.1 If you choose for The Pommier to upload your products to its marketplace, they will converts your currency using the foreign exchange rate at that moment in time.
4.2.2 If there are changes in currencies and The Pommier have not been notified to make amendments and a sale is made, you will be paid the Pound Sterling ('£') rate of the amount paid by the customer to The Pommier.
4.2.3 The Pommier will not be liable for any loss of profits for currency changes if The Pommier where not given prior notification in writing at least 48 hours before.
4.3 The Price shall be converted into all other applicable currencies (as set out in clause 4.2) based on the currency conversion rate at the time the Seller registers the Price against the Product using the Services. Consequently, the Product shall be made available for purchase by the User in any one of the three (3) currencies.
For the avoidance of doubt, the conversion rate set out in clause 4.3, when applicable, shall be the mid-market foreign exchange rate as published by Yahoo! Finance at the previous day close the Seller registers the Price against the Product using the Services.
4.5 The Pommier shall not be responsible for the payment of all applicable tax which arises out of or in relation to the sale and delivery of the Product.
4.6 The Seller shall keep the retail and shipping prices of their items consistent across all distribution channels (online and offline) with no price difference.
5.1 The Seller shall pay The Pommier the Fees in accordance with this clause 5.
5.2 The Fees which shall be due and payable to The Pommier shall be TWENTY FIVE percent (25%) of the Price of the Product for standard items and TWENTY percent (20%) for Exclusive items. The Pommier shall notify the Seller of any applicable new Fees. All new Fees shall be applicable immediately upon notification to the Seller by The Pommier.
5.3 All Fees shall become due and payable and automatically deducted from the Price upon receipt of payment from the Users using the designated third party payment handler. All Fees shall be exclusive of any applicable value added tax (or any successor tax), shipping costs, delivery charges and/or any other applicable tax or charges of any nature whatsoever.
5.4 The Pommier shall be entitled to vary the Fees at anytime. Any changes made to this Agreement will be notified to the Seller in writing or by email and made available to the Seller using the Website.
5.5 The Pommier's service to Sellers is treated, for VAT purposes, as an electronically supplied service. As a Company based in the UK, Sellers are liable to pay VAT for The Pommier services as follows: If the Seller is based in the UK, he or she will be liable to pay VAT at the standard UK rate (20%) on The Pommier's administration fee, deductible from the Price of the item sold. If the Seller is based outside the UK but within the European Union (EU), the Seller is not liable for VAT if he or she operates as a business (evidenced by a VAT registration number). If the Seller is based outside the UK but within the European Union (EU), the Seller is liable for VAT if he or she does not operate as a business (no VAT registration number). If the Seller is based outside the UK and the EU, the Seller is not liable for VAT.
6 TERM AND TERMINATION
6.1 This Agreement shall commence on the Effective Date and shall remain in force until and unless terminated by the parties in accordance with this clause 6 ('Term').
6.2 Either party ('Terminating Party') may terminate this Agreement for any reason by giving notice to the other of such termination. The Pommier shall deactivate the Seller's account with the Website upon such termination.
6.3 On termination of this Agreement for any reason:
6.3.1 the Seller's right to use the Services and the Website shall cease forthwith and The Pommier shall procure the removal of all Content, Listings and any other information in respect of the Seller and/or its Products from the Website;
6.3.2 all licences granted to in accordance with this Agreement shall cease forthwith;
6.3.3 The Pommier shall be entitled to be paid all sums due (not paid) under this Agreement; and
6.3.4 the termination shall not affect the rights of either party accruing or accrued prior to the termination of this Agreement.
6.4 On termination of this Agreement for any reason, this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
7 EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
7.1 All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral in respect of the Website are hereby expressly excluded to the fullest extent permissible by law.
7.2 Subject to clause 7.1, the Seller warrants to The Pommier that:
7.2.1 the Seller is an independent jewellery, homeware, clothing or fashion accessories designer;
7.2.2 the Seller has the authority and capacity to enter into and be bound by the terms of this Agreement;
7.2.3 the information provided to The Pommier are true, accurate and correct and that it shall promptly notify The Pommier in the event of any changes to such information;
7.2.4 the Product, the Content and the Seller's right to sell or make the Product available on the Website using the Services do not infringe any third party Intellectual Property Rights, proprietary rights or rights of publicity or privacy;
7.2.5 the Product, the Content, the Seller's right to sell or make the Product available for purchase and the Seller's use of the Website and Services do not violate any applicable law, legislation, statute, ordinance and/or regulations;
7.2.6 the Content is not and may not be deemed defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
7.2.7 the Content and the Product are not and do not contain elements which are or may be deemed to be obscene or pornographic and do not contain child pornography; and
7.2.8 the Content do not contain any viruses, Trojans, worms, time bombs, cancel bots or other programmes that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.3 Subject to clause 7.5, the maximum aggregate liability of The Pommier (including its respective agents and sub-contractors) under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by the Seller under this Agreement.
7.4 In no event shall The Pommier (including its respective agents and sub-contractors) be liable for (a) any loss of profits, loss of data, loss of expectations, loss of anticipated savings, loss of business prospects, loss of business interruption, loss of use, loss of contracts, loss of goodwill and reputation (whether direct or indirect), loss of management time; or (b) any indirect or consequential losses of any nature whatsoever; or (c) any losses, claims, demands and damages (whether direct or consequential) of any kind and nature, known and unknown, arising out of or in connection with dispute(s) between the Seller and the Users; or (d) any inability and/or failure by the Seller to use the Services and the Website due the failure of or any integration or interoperability issues arising with any third party or the Seller's operating systems or legacy systems, whether or not caused by or resulting from The Pommier's negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if the Seller is advised of the possibility of such loss.
7.5 Nothing in these Terms shall limit or exclude The Pommier's liability in respect of death and personal injury.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 The Seller acknowledges and agrees unless otherwise expressly agreed to the contrary, all Intellectual Property Rights created in respect of the Services and under this Agreement shall be owned by The Pommier.
8.2 Nothing in this Agreement will serve to transfer from The Pommier to the Seller any of the Intellectual Property Rights owned by The Pommier and/or its licensors and all right, title and interest thereof shall remain exclusively with The Pommier and/or The Pommier's licensors.
8.3 Except for the rights expressly granted in this Agreement, nothing in this Agreement shall serve to transfer from the Seller to The Pommier any of the Content, and all right, title and interest in and to the Content will remain exclusively with the Seller.
8.4 The Pommier grants the Seller a non-exclusive, worldwide, non-assignable, non-sub-licensable licence to use the Intellectual Property Rights owned by and/or licensed to The Pommier strictly in respect of the Seller's use of the Website and the Services. Where the Seller's intended use of such Intellectual Property Rights is other than in respect of the Services and the Website, the Seller agrees that it shall first procure the prior written consent of The Pommier.
8.5 The Seller grants to The Pommier a non-exclusive, worldwide, non-assignable, non-sub-licensable, royalty-free licence to use the Content for the sole purposes of performing its obligations under this Agreement.
8.6 Nothing in this Agreement shall prevent The Pommier from using any know-how, methods, techniques or procedures owned or developed by The Pommier in the course of performing its obligations under this Agreement.
8.7 The Seller shall promptly notify The Pommier of any claim or demand which is made, brought or threatened against the Seller in respect of the infringement or alleged infringement of any Intellectual Property Right by reason of the use of the Services and the Website by the Seller. The Seller agrees to grant The Pommier exclusive control of any litigation and negotiations arising from such a claim, and to give The Pommier such assistance as it may reasonably request.
8.8 If a claim or demand for infringement or alleged infringement of any Intellectual Property Right is made in respect of the Website and/or use of the Services or, in the reasonable opinion of The Pommier, is likely to be made, The Pommier shall be entitled, at its own expense and option, either to:
8.8.1 modify or replace the infringing items of the Website and Services (without detracting in any way from their performance or functionality) so that the same cease to be infringing; or
8.8.2 procure the right for the Seller to continue using the Website and the Services as contemplated by this Agreement.
8.9 The Pommier shall have no liability for, and the Sellers shall indemnify The Pommier against any claim that the Content, the Website and/or the Services infringes any Intellectual Property Rights, where the cause of the infringement is:
8.9.1 any materials or instructions including without limitation, the Content provided to The Pommier by or on behalf of the Seller; or
8.9.2 modification, enhancement or alteration of the Content by or on behalf of the Seller; or
8.9.3 due to the use of the Content, the Website and the Services in breach of the provisions of this Agreement.
8.10 All third party Intellectual Property Rights required by the Seller to enable it to use the Website and the Services shall be procured by the Seller. The Pommier shall not be liable for any delay or failure of the Seller to procure such third party Intellectual Property Rights.
9 DATA PROTECTION
9.1 The Seller hereby warrants and agrees that it shall at all times comply with its obligations under the applicable data protection legislation during the Term. The Seller shall fully indemnity The Pommier against all actions, claims and expenses (including legal costs) whatsoever which arises out of any breach of this provision.
10.1 If The Pommier fails at any time to insist upon strict performance of its obligations under this Agreement or if it fails to exercise any of the rights or remedies to which it is entitled to under this Agreement, this will not constitute a waiver of any such rights or remedies and shall not relieve you from compliance with such obligations.
10.2 A waiver by The Pommier of any default shall not constitute a waiver of any subsequent default. No waiver by The Pommier of any of the provisions herein shall be effective unless it is expressly stated to be a waiver and is communicated to the Seller in writing.
10.3 All notification and communication shall be made in writing and delivered, or posted by first class pre-paid post or sent by facsimile or electronic mail to The Pommier or the Seller as appropriate and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of forty eight (48) hours after posting or at the time of sending the case of facsimile or electronic mail.
10.4 If any of the provisions herein are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
10.5 This Agreement represents the entire agreement between the Seller and The Pommier and shall supersede any prior agreement, understanding or arrangement between the parties whether oral or in writing.
10.6 The Seller acknowledges that in entering into this Agreement, it has not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between the parties except as expressly set out in this Agreement.
10.7 This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
11 CONTACT DETAILS
Please direct any queries about this Seller Agreement by email to: email@example.com with the subject: Seller Agreement.