These terms and conditions (the “Terms and Conditions”) apply between you (the “Seller”) and MountVerdi Limited trading as Mountverdi.com (“MV”) in connection with the provision of the Services (as hereinafter defined) by MV to you. Please read these Terms and Conditions carefully before agreeing to them.
2. Definitions & interpretationsIn these Terms and Conditions, the following words shall have the following meanings:
"MV" means MountVerdi Limited (a company incorporated and registered in England and Wales with company number 12078992) whose registered office is at The Pinnacle, 177 Midsummer Boulevard, Milton Keynes, MK9 1BD, United Kingdom, trading as Mountverdi.com;
"Agreement" means the form of agreement signed by you as prospective Seller with MV;
"Charges" means the Commission Fee; as set out in the annexe to this agreement."CMS" means if and when applicable, any content management system provided by MV to you as Seller for management of its Storefront and associated transactions;
"Commission Fee" which shall include VAT thereon has the meaning ascribed to it in clause 12.B of these Terms and Conditions;
“Confidential Information” means any confidential information disclosed by either party to the other pursuant to or in connection with these Terms and Conditions and is more fully defined in the Confidentiality, Non-Circumvention and Non-disclosure agreement signed or to be signed by the parties.
"Customer" means any person(s), firm or company who is invited to enter into or enters into any transaction to purchase Product(s) from the Seller through the Site;
"Documentation" means any user guide, information or other material provided by MV to prospective or existing Sellers in hard copy or electronic form relating to the Services;
“Force Majeure” means circumstances beyond the reasonable control of a party, including but not restricted to acts of God, fire, flood, lightning, severe weather conditions, war, revolution, acts of terrorism, IT or internet outage, industrial dispute or imposition of legal or regulatory restriction on intended transactions;
"Intellectual Property Rights" means all the intellectual property rights conferred by any lawful jurisdiction on any products, packaging, marketing tools, database, design, confidential information, know-how or trade secret whether by way of copyright, trademark, patent or otherwise and in each case whether or not it has been reduced to material form and/or however it is recorded, stored or embodied and including all applications for such rights as well as all extensions and renewals of such rights;
"Policies" means any policy (including any guides relating to content and style) which may be notified and made available to the Seller by MV from time to time;
"Products" means the goods, services or information that Sellers wish to promote and sell through the Site;
“Product Information” means the information on the Products provided to MV by the Seller;
“Product Page” means the relevant web page on the Seller’s Storefront on which an individual Product is displayed and the relevant information relating to that Product is provided;
“Product Photographs” means the photographic images of the Product(s) provided to MV by the Seller for display on its Storefront which meet the photography guidelines (communicated to the Seller by MV from time to time), which MV has approved as being suitable for display on the Storefront and which MV has agreed to display on the Storefront.
"Returns & Refunds Procedures" means the returns and refund procedures as displayed on the Website from time to time;
"Seller" means a person whose application to the Website has been accepted by MV and who sells its Products through the Site;
"Seller Information" means information, data or content provided by the Seller in any form or medium uploaded to the Seller’s Storefront or given by the Seller to MV for whatever purpose;
"Services" means the Site and other services provided by MV as further described in these Terms and Conditions;
"Site" means the online marketplace provided by MV through the Website to facilitate the promotion and sale of Sellers' Products;
"Software" means any software installed by or on behalf of MV that permits Sellers to access and trade through the Site;
"Storefront" means an area of the Site designated to the Seller by MV for the promotion of the Seller and its Products;
"Term" means a period of twenty-four (24) months;
""Terms and Conditions" means these terms and conditions and any document referred to in them, or any amended version of them brought into effect from time to time in accordance with these Terms and Conditions;
""VAT" means value added, sales or services tax, or any similar tax imposed in any jurisdiction;
""Virus" means any computer virus, macro virus, trojan horse, worm or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or network, or to intercept or access without authority or expropriate any system, information or data;
""Website" means www.mountverdi.com or such other worldwide web address that MV in its sole discretion selects as a replacement; and
"“Working Day” means any day other than a Saturday or Sunday on which banks are open for business in London.
"The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.
"Words expressed in the singular shall include the plural and vice versa. Words importing one gender include all other genders. References to a person include an individual, company, corporation, firm or partnership.
"References to any statute or statutory provision shall include:
"(i) Any subordinate legislation made under it;
"(ii) Any provision which it has modified or re-enacted (whether with or without modification); and
"(iii) Any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
"All references in these Terms and Conditions to clauses are to the clauses in these Terms and Conditions unless otherwise stated.
"References to the words "include", "includes", "including", "in particular" or any similar words do not limit the words preceding or following.
""a) MV reserves the right to amend the Terms and Conditions, the Charges or all or any of them at any time. It will provide not less than thirty (30) days’ written notice to the Seller of any material amendment to the Terms and Conditions and/or the Charges.
"b) Notwithstanding the foregoing MV reserves the right to make amendments to the Terms and Conditions and/or the Charges without the aforesaid or any notice where MV reasonably considers:
(i) Such changes not to be material; or
(ii) That it is otherwise not reasonably practicable to provide thirty (30) days’ written notice.
c) If the Seller does not accept the amended Terms and Conditions and/or the Charges, it shall provide MV with written notice stating its rejection of the amended Terms and Conditions and/or the Charges. On the last day of the month in which any such notice is received MV will be at liberty to terminate these Terms and Conditions on thirty (30) days’ notice in which event the provisions of clause 4.d shall apply. It may be in MV interests to continue the business relationship on the old terms. This revision gives you that option.
4. Term and termination
a) The Term of these Terms and Conditions shall commence after:
(i) MV has received a signed Agreement from the prospective Seller completed to the satisfaction of MV and
(ii) MV has notified the prospective Seller in writing of its acceptance of the Agreement. It shall be entirely at MV’s discretion whether to accept or not accept a Seller’s Agreement.
b) Without prejudice to the right to terminate the Terms and Conditions in accordance with clause 4.c, the Terms and Conditions shall continue in force for the Term save and unless either Party shall be in fundamental breach of the terms of this agreement in which event the other party may elect to terminate the agreement on thirty days (30 days) written notice.
c) MV may immediately suspend provision of the Services or terminate the Terms and Conditions by notifying the Seller in writing if:
(i) The Seller commits a material breach of the Terms and Conditions and, if capable of remedy, fails to remedy the breach within fourteen (14) days of a written notice to do so;
(ii) The Seller fails to pay any Charges payable to MV within seven (7) working days of its due date for payment under these Terms and Conditions;
(iii) The Seller is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any relevant jurisdiction occurs to the Seller.
d) Notwithstanding any such termination or suspension in accordance with the foregoing clause:
(i) The Seller shall pay AG all Charges due up to and including the date of suspension or termination; and
(ii) Termination of these Terms and Conditions shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force, or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force after such termination.
5. The servicesa) MV provides a platform to enable Sellers who comply with these Terms and Conditions to offer and expand sales of their Products directly to Customers. In doing so the Seller authorises and appoints MV as a commercial agent directly to negotiate and/or conclude the sale and/or purchase of Products between the Seller and Customers via the Services and MV accepts this appointment on the terms of these Terms and Conditions. The Seller acknowledges that:
(i) Any contract to sell and buy Products is made only between the Seller and Customer concerned and MV is not a party to any such contract;
(ii) Products offered for sale through the Website are neither owned nor come into the possession of MV at any time;
(iii) the Seller is solely liable for any refund, shipping, customer support and other arrangements and activities with respect its business and/or the Products and/or its Customers.
b) Following commencement of the Term, MV will:
(i) Provide the Services for the Term with reasonable skill and care and
(ii) Use reasonable endeavours to restore any faults in the Services as soon as reasonably practicable. The Seller acknowledges that the transmission of information via electronic means is not completely secure and of risk that communications may not reach their intended destination or may do so later than intended and/or may not be provided entirely free of fault at all times.
c) MV reserves the right to revise or alter the Services at any time on thirty (30) days written notice. Any variation in the Services will be subject to the Terms and Conditions..
6. Sellers obligation
a) The Seller hereby undertakes to:
(i) Establish and maintain access to the World Wide Web at its own cost, through use of a computer and modem or other access device;
(ii) Ensure that at all times all computer hardware and software it uses to access and inter-operate with the Site is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against Viruses; and
(iii) To ensure that information supplied electronically to MV and to the Website is submitted free from Viruses;
(iv) MV has no responsibility for the provision, support and maintenance of any of the Seller's hardware or software used to provide the Seller with access to the internet or the Website or any related hardware or software (including any IP router, proxy server, firewall or anti-virus software), the responsibility for which shall remain exclusively with the Seller.
a) The Seller:
(i) Is responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Services and access to the Storefront (which responsibility shall include the obligation to change passwords on a regular basis);
(ii) Shall take all necessary steps to ensure that passwords and other security devices remain confidential, secure, used properly and not disclosed to unauthorised third parties;
(iii) Shall inform MV immediately if there is any reason to believe that a password or any other security device has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or for unauthorised purpose;
(iv) Shall inform MV immediately if the Seller forgets or loses a password and must satisfy such security checks as MV may operate in order to obtain a new password; and
((v) Shall ensure that the CMS and its content remains entirely confidential and that only persons employed by the Seller has sight of the CMS or its content.
b) MV reserves the right:
(i) To suspend access to the Services if at any time MV considers that there is or is likely to be a breach of security, in which event it will notify the Seller of the suspension and any steps to be taken by it as soon as reasonably practicable; and
(ii) To require the Seller to change any passwords used by the Seller in connection with the provision of the Services and access to the Storefront in which event MV will notify the Seller of the requirement to change passwords and any further steps to be taken by the Seller as soon as reasonably practicable.
C. Website and storefronts
a) MV has absolute discretion as to the content, appearance and feel of the Website (including all Storefronts and their content) as well as to the inclusion, positioning, location and all other presentation of Seller Information (including in MV’s sole discretion the right to remove any Seller Information or any Product from the Website at any time during the Term).
b) MV shall use its reasonable endeavours, within thirty (30) days following the commencement of these Terms and Conditions, to upload Product Photographs, Product Information and Seller Information on the Website for the Term, subject to the Seller providing MV with the same.
c) The Seller shall:
(i) Ensure that the content provided for uploading to the Seller’s Storefront is of a high standard of presentation and accords with any applicable guidelines notified to it from time to time by MV including in relation to the form and content of copy and Product imagery;
(ii) Comply with reasonable instructions from MV concerning its Storefront.
d) Any failure to provide a suitably high standard of content and of Product imagery for Product Page presentation may result in the de-activation of the relevant Product Page(s) in the first instance. MV reserves the right in its sole discretion to de-activate the Seller’s Storefront until standards have been improved.
D. Seller and product information
a) The Seller shall ensure that all Seller Information provided about itself and its Products is and remains true, accurate, current and complete and shall notify MV not less than thirty (30) days in advance of any changes to price, shipping or Return Material Authorisation policy or other material changes relating to any Seller Information;
b) Without prejudice to the Seller's obligation to comply with any Policies, the Seller undertakes and agrees that none of its Seller Information nor any of the its activities or use of the Website (including its use of its Storefront), will:
(i) Be false, inaccurate or misleading;
(ii) Be offensive, indecent, obscene, pornographic, menacing, abusive or defamatory;
(iii) Be in breach of copyright, confidence, privacy or other rights and will not infringe any third party’s Intellectual Property Rights, or other proprietary rights or rights of publicity or privacy;
(iv) Be in breach of any applicable law or regulation; (including, but not limited to, laws or regulations governing e-commerce, distance selling, data protection, export control tax, consumer protection, advertising and requirements of Trading Standards);
(v) Be in breach of the Policies;
(vi) Adversely affect the reputation of MV or the MV brand;
(vii) Create, or be likely to create, liability for MV or cause MV to lose (in whole or in part) the services of its internet service or other suppliers;
(viii) Be fraudulent or involve the sale of counterfeit or stolen goods or goods prohibited for sale or transmission to or from any relevant jurisdiction;
(ix) Contain any Virus; and
(x) Cause the Site or the CMS or their functionality to be interrupted, damaged or impaired in any way.
c) The Seller shall not include within its Storefront, on the CMS, any other place on the Website or in any other means of communication with the Customer:
(i) Any direct or indirect link to other websites including the Seller's own website;
(ii) The Seller’s email address; or
(iii) Any other means by which a Customer could communicate directly with the Seller, other than through the Website.
E. Stock information
a) Once the final piece of stock of any Product has been sold and will no longer be available, the Seller must advise MV accordingly so that the item can be removed from its Storefront. The seller shall give MV thirty (30) days notice of any stock item where the available supply is expected to be exhausted within six weeks.
b) MV has the right to remove Products from a Storefront that are awaiting stock for prolonged periods (four weeks or more) until they become available again.
F. Product listing
a) The Seller shall work co-operatively with MV to enable its Products to be uploaded onto the Website.
b) The Services allows Sellers to offer their Products on the Website as part of an online catalogue containing categories.
c) MV may, in its absolute discretion and where relevant and appropriate and without changes to and misuse of facts and medical data and other similar parameters relating to a Product, select a Product for inclusion in a number of categories.
d) The Seller shall ensure that each of the Seller's Product listings contains all the information required by a Customer to make a purchase, and that such information is wholly accurate.
a) The Seller's prices must be fully inclusive of all taxes and additional charges. The exception to this is shipping and packaging costs, which, if such charges apply, the Seller will show separately.
b) If the Seller is VAT registered, the Seller should set the VAT rate at the level which is currently in force in the UK with respect to the Seller's Products.
c) The Seller is solely responsible for ensuring that it fully complies with current VAT regulations and accounting for VAT correctly. MV shall not be liable for the Seller’s failure to remit to the appropriate tax authority any VAT due on the sale of the Products to Customers.
d) The Seller has complete discretion over how it wishes to price its Products. However, the prices of Products must be in line with the Seller’s pricing policy (including any discounts, reductions and offers) on its own website or where offered for sale through channels other than the Website.
7. Legal compliance and taxes
a) The seller warrants that:
(i) It is duly incorporated and/or validly established (whether as a company, partnership, unincorporated association, or sole trader) under the laws of the United Kingdom or the Republic of Ireland, or the country in which it is registered and that it has the requisite right, power and authority to enter into this agreement and perform its obligations hereunder.
(ii) it is fully authorised to sell the Products.
(iii) The sale of the Products will not infringe any laws or rights of any third parties either in the jurisdiction of England and Wales or elsewhere;
(iv) So far as the Seller is aware the Products are or will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller and are or will be free from defects in design, material and workmanship and comply or will comply with all applicable statutory and regulatory requirements both in England and Wales and any other jurisdiction in which they are supplied;
(v) All product safety and product marking laws and regulations, and where applicable, Trading Standards requirements, in respect of the manufacture, packaging, marking, certification (including, without limitation, CE marking) will be or have been complied with and
(vi) The Seller will inform MV as soon as reasonably practicable upon becoming aware of any claim against MV or the Seller arising out of or in connection with any defect in its Products or any failure by the Seller to ensure that the Products are appropriately marked or certified in accordance with applicable laws or regulations.
b) The seller shall:
(i) Comply at all times with all applicable domestic and international laws and regulations, including the General Data Protection Regulation (GDPR) and other data protection and data privacy regulations of any nature applicable to the Seller and/or its business in connection with the Services and the Website, and shall be responsible for paying any and all taxes applicable to any purchase or sales of its Products made through the Website.
(ii) Maintain at all times at its own expense and with reputable insurers appropriate insurance in relation to its business.
c) The Seller shall indemnify and hold harmless MV against any and all liabilities, costs, expenses, fines, damages and losses (including any direct, indirect or consequential losses) it incurs in connection with any claim envisaged under this clause 7 or paid or agreed to be paid by MV in settlement of the claim and all legal or other expenses incurred by MV in or about the defence or settlement of the claim which for the avoidance of doubt shall be assessed on the indemnity basis.
d) MV may immediately suspend or terminate the use of the Services and if applicable the Subscription Fee, in the event MV reasonably believes or suspects that any Seller Information does not comply with the provisions of this clause 7.
e) The Seller confirms that, in the course of its use of the Website or any Storefront or at any other time, it is fully responsible for complying with and ensuring the compliance with the General Data Protection Regulation (GDPR) and other data protection and data privacy regulations of any nature (the “Data Protection Regulations”) to the extent applicable to the Seller and/or its business in connection with the Services and the Website. MV shall not be liable for the Seller’s failure to comply with it ensure the compliance with the Data Protection Regulations.
8. Sales to customers
A. The sales contract
a) The Seller acknowledges and agrees that following acceptance of an order via MV or via the CMS, such an acceptance is also deemed to be an irrevocable instruction by the Seller to MV to conclude a contract of sale between the Seller and the Customer. The contract of sale between the Seller and the Customer is concluded when MV (acting as the commercial agent of the Seller) sends an order confirmation email to the Customer. MV has no responsibility for the performance of the sale contract.
b) The Seller acknowledges and agrees that the terms and conditions relating to any such contract shall comprise of the Customer terms, the email confirmation relating to the Customer's order and the applicable details on the relevant Product page. The Seller agrees to be bound by all such provisions.
B. Processing customer orders
a) When a Customer purchases a Product(s) from the Website MV shall notify the Seller of the purchase via email to the Seller’s email address and via the CMS.
b) Following receipt of such notification the Seller shall, within a maximum of two (2) Working Days, and as a matter of best practice within twenty-four (24) hours, confirm its acceptance or rejection of the order, via email and/or using the CMS.
c) Following acceptance of an order, the Seller shall dispatch the relevant Product(s) to ensure that it reaches the Customer within the timelines advertised on the relevant Product(s) page(s) but in any event as soon as reasonably practicable and immediately inform MV via email to MV’s email address and/or via the CMS of the dispatch date together with any tracking reference number;
d) MV shall state in the order notification to the Seller the Product(s) purchased by the Customer and the address details of the Customer. The Seller agrees that such Customer information is to be used solely for the purposes of processing a Customer order and it shall not attempt to directly solicit custom from the Customer when sending the Product(s) to the Customer nor subsequently use the Customer details provided in the order notification to solicit future business from the Customer.
e) The Seller shall use its best endeavours to respond to MV concerning any Customer enquiries or Customer complaints within one (1) Working Day of being informed of the same by MV.
9. Returns and refunds
a) Any requests received by MV for refunds or returns for any Products provided by the Seller to a Customer shall be notified to the Seller by MV.
b) Following receipt of such notification the Seller shall initiate the refund directly in accordance with the Returns & Refunds Procedures.
c) Subject to the provisions of the Returns & Refunds Procedures, MV shall approve such refund.
d) The Commission Fee paid in respect of the refunded Product(s) will be credited to the Seller. Such credits will be collated monthly and credited to the Seller on the next payment date after the last day of each calendar month.
e) The Seller must only process refunds through MV 's current online payment provider.
f) If the Customer requests a refund for a Product then such refund shall be processed by the Seller (or MV, in line with clause 9.i) as soon as possible and in any case no later than:
(i) 14 days after the day the returned Product is received by the Seller; or
(ii) If earlier, 14 days after the date the Customer provides evidence that they have returned the Product to the Seller;
g) If a Customer rejects a Product because it is faulty, the Seller shall follow the relevant provisions of the Returns & Refunds Procedures;
h) The Seller shall provide MV with an address to which a Customer may return a Product;
i) MV may process a refund for a Product as the Seller’s payment agent to a Customer where:
(i) The Seller asks MV to process such refund to a Customer from funds of the Seller held by MV, or upon payment of such refund amounts to MV by the Seller; or
(ii) In MV’S opinion, a Seller has not acted in accordance with the Returns & Refunds Procedures or the Terms and Conditions, in which case MV shall be reimbursed from funds of the Seller held by MV or the Seller shall be obliged to reimburse AG for such refund.
10. Intellectual property rights
A. MV’S intellectual property rights
a) The Seller recognises that the Intellectual Property Rights in the MV name, logo or branding are owned entirely by MV and agrees that it may only use the MV name, logo or branding on any promotional material, packaging or elsewhere whether in hard or electronic format in accordance with these Terms and Conditions or with the prior written consent of MV.
b) All Intellectual Property Rights in the Services, CMS and in any Software and/or Documentation are and will remain the absolute property of MV or its licensors as appropriate.
c) Any Intellectual Property Rights created by MV in the course of the performance of these Terms and Conditions or otherwise in the provision of the Services, including but not limited to any and all text, visual, graphic or other materials with or without any references to or a description of the Seller or any Seller’s Products, shall remain the property of MV.
d) MV hereby grants to the Seller a non-exclusive, non-transferable revocable and limited licence for the duration of the Terms and Conditions only to use any Software or Documentation for the sole purpose of accessing and using the Services and only to the extent reasonably needed for the Seller to use the Services. Subject thereto, nothing in the Terms and Conditions shall be deemed to have given the Seller a licence or any other right to use any of MV’s Intellectual Property Rights.
e) Where photographs or images of the Seller's Products are produced by MV or its agents any such images may not be used by the Seller for any purpose other than for display on the MV Website or in printed material produced by MV with a clear indication of MV’s trademarks and other necessary requisites. MV reserves the right to charge the Seller a licence fee in respect of any use of such photographs or images in contravention of this clause.
B. Seller’s intellectual property rights
a) The Seller warrants that:
(i) It is the legal beneficial owner of the Products and of all the Intellectual Property Rights in and relating to the Products (which includes the data and information, including Seller Information, relating to such Products), photographs, logos, images and copy that it provides or uploads to MV, and/or that it possesses a valid licence to use such Intellectual Property Rights; and
(ii) The consequent use of the Seller’s Intellectual Property Rights by MV as referred to in clause 10.B.b below will not infringe any Intellectual Property Rights owned by any third party and there is and will be no claim against MV by any third party arising in relation to the use of such Intellectual Property Rights;
b) The Seller permits MV to access and use any content that appears on the Seller's Storefront or in any other promotional material, including but not limited to any visual or graphic materials and records, reviews, ratings, acknowledgments, certificates and other similar information from the Seller’s own website, in MV’s own editorial content or promotional activity relating to the Seller, its business and Products.
c) The Seller shall indemnify and hold MV harmless against any and all damages, liabilities, costs, expenses and/or losses (including but not limited to any loss of profit) arising out of or relating to any breach of clause 10.B.a in respect of any claim or action that the normal operation, possession or use of those Intellectual Property Rights by MV infringes a third party's rights (the “IPR Infringement Claim”).
(i) In the event of an IPR Infringement Claim the Seller shall forthwith make without charge to MV such alterations, modifications or adjustments to the IPR as shall be necessary to make them non-infringing;
(ii) MV shall notify the Seller as soon as reasonably practicable if it becomes aware of any IPR Infringement Claim by a third party;
(iii) MV shall be entitled to take sole conduct of the defence to any claim or action in respect of any IPR Infringement Claim and may settle or compromise such claim or action at is sole discretion. The Seller shall give MV such assistance as it shall reasonably require in respect of the conduct of the said defence including, without prejudice to the generality of the foregoing, the filing of all pleadings and other court process and the provision of all relevant documents;
(iv) In the event that in exercise of its discretion indicated above at (iii) MV elects to compromise an IPR Infringement Claim the Seller shall indemnify MV the full costs of such settlement plus the costs and expenses including any administrative expenses of MV involved in the claim assessed on a full indemnity basis
(v) At the request of MV the Seller shall take the conduct of the defence to any claim or action in respect of any IPR Infringement Claim. The Seller shall not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise such claim or action except upon the express written instructions of MV such instructions not to be unreasonably withheld or delayed.
d) The Seller acknowledges and confirms for the benefit of MV that any information, data, comments, images, or any other content of whatever nature and form prepared, produced, created, developed, generated, published, displayed or otherwise caused to appear by or on behalf or at request of MV on the Website (including, for the avoidance of doubt, on the Seller's Storefront(-s)) or any other media channel or platform (either digital or physical), including but not limited to any description of or in connection with the Seller, its business and Seller's Products (the " MV Content") is the sole property of MV, and MV retains all rights to the MV Content.
f) The Seller expressly agrees that MV may, in its sole discretion, display or cause to be displayed at any time any Product Information or any Seller’s Content or any MV Content with respect to the Seller, its business and Seller’s Product in the Website or in any Seller’s Storefront or through any appropriate channel, irrespective of whether:
(i) a specific Product is no longer available on the Seller’s website;
(ii) the Seller has ceased to sell a specific Product;
(iii) a specific Product is, either currently or permanently, out of stock; or
(iv) the Seller has ceased to carry on business generally or partially or has changed a nature of its business in any respect.
To the extent permitted by applicable law and without prejudice to any other provision of these Terms and Conditions, including Clause 6(C)(a), the Seller expressly confirms and agrees that it is the sole discretion of MV to determine whether and when to remove any information referred to in this paragraph (g) from the Website or any Seller’s Storefront or any appropriate channel.
g) The Seller and MV expressly agree that this clause 10 shall survive termination or expiry of these Terms and Conditions howsoever arising. For the avoidance of doubt, MV is hereby irrevocably permitted to use, disclose, distribute, modify, copy, share, publicly perform or display, translate and create derivative works of any Seller’s Content also following suspension, termination or expire of these Terms and Conditions or if the Seller ceases to carry on business, is declared by a court of competent jurisdiction to be bankrupt, or an order made or a resolution passed for the winding up of the Seller or upon the appointment of a liquidator of the Seller.
a) The Seller shall permit MV to promote, sell or market its Products in such form and manner as MV in its sole discretion deems appropriate whether directly through the Website or through websites or social networks or offline publications not produced, owned or operated by AG, including by developing, expanding or managing any email, social and other campaigns and by promoting or offering its Products jointly with other brands, goods, and products, including any competing brands, goods, and products and any brands, goods, and products of the same nature of a similar kind.
b) MV may from time to time run promotions on all or part of the Website. Any such promotions may involve offering Customers promotional activity relating to some or all Products on the Website. Such promotional activity may involve any cross-promotional activity with offering some or all Products of a Seller jointly with other brands, goods, and products, including any competing brands, goods, and products and any brands, goods, and products of the same nature of a similar kind, within the same promotional activity irrespective of its form, nature, and other parameters. MV shall where relevant and applicable to the Seller and/or its Product inform the Seller of the nature and terms of any such promotion and at MV sole discretion may decide to carry the costs of any such promotion or where MV requires the Seller to bear those costs the Seller shall inform MV in writing whether or not it wishes to participate in the relevant promotion.
c) The Seller shall permit MV to use, replicate, quote, mention, refer to Seller’s social accounts in MV’s social accounts for whatever purpose.
a) The Seller shall pay any and all Charges in accordance with these Terms and Conditions.
b) The relevant Charges shall be as notified to the Seller and updated by MV from time to time in accordance with these Terms and Conditions.
c) Unless specified otherwise, all Charges are subject to VAT or other similar taxes or levies, all of which amounts the Seller shall pay where appropriate at the rate prevailing at the relevant tax point and in addition to the Charges themselves.
d) The Seller shall make all payments to MV due under the Terms and Conditions without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
e) If any sum due from the Seller to MV under these Terms and Conditions is not paid on or before the due date for payment, then all sums then owing by the Seller to MV shall become due and payable immediately and, without prejudice to any other right or remedy available to AG, AG shall be entitled to:
(i) Cancel or suspend its performance of the Terms and Conditions or any order, including suspending provision of the Services, until arrangements as to payment or credit have been established which are satisfactory to AG; and
(ii) Charge the Seller the cost of obtaining judgment or payment, to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
B. Commission fee
a) The Commission Fee payable by the Seller shall be as notified to the Seller by MV in writing at the time of inviting the Seller to participate in the Site or as may be amended in accordance with clause 3 of these Terms and Conditions and will be added as an annexe to this agreement. Ordinarily the commission payable will be deducted by MV from the prices received from the Seller’s customers.
b) The Commission Fee is calculated as a percentage of the total price including any VAT paid by the customer but not including any delivery charges if separately itemised on the purchase order.
c) MV will refund the Commission Fee to the Seller in respect of sold Products that are subsequently returned by the Customer and refunded by the Seller in accordance with the provisions hereof.
13. Payments to sellers
a) As part of the Seller’s appointment of MV as its commercial agent (as set out in clause 5.a of these Terms and Conditions), the Seller agrees that MV also acts as the Seller's exclusive agent for the purpose of accepting, refunding and/or otherwise processing payment(s) related to the sale of Product(s) by the Seller via the Site (or any other sales channel which MV may offer to the Seller from time to time).
b) The Seller and MV acknowledge and agree that except as otherwise provided in these Terms and Conditions (and in acknowledgement that both parties are businesses), that the duties of an agent implied under statute and the common law are expressly excluded and that MV does not act either as buyer or seller of the Product(s) and is not a party to the contract of sale of Product(s) between the Seller and the Customer.
c) Payments for Product(s) will be made directly by a Customer to MV The Seller agrees that its Customer’s obligation to pay the Seller for Product(s) is fully satisfied upon payment of the Price for same to MV The Seller will not seek recovery of the price of any goods sold or ordered through the CMS from its Customer or any third party (including, but not limited to any payment service provider or gateway) for payment of a Product and undertakes to pay over to MV on demand any such payment that it has received whereupon MV may in its discretion either refund the Customer, payment service provider or gateway the full sum or if appropriate deduct from it the appropriate Commission Fee and remit the balance to the seller.
d) Payment for Product(s) by Customers through the Website will be through payment methods made available from time to time, using MV’s current online payment processing system. MV shall not be required to hold such payments in separate bank accounts for the Seller.
e) MV shall pay the Seller for the relevant transaction less the Commission Fee monthly, 30 days in arrears following notification of dispatch of the order by the Seller. Unless otherwise agreed by MV and the Seller any payments made by MV to the Seller will be in the domestic currency of the region where the Seller’s bank account nominated to receive such payments is held.
f) The Seller shall provide such of its banking details as are required or requested by MV in order that payment may be processed to the Seller in respect of any Products sold. The Seller shall ensure the banking details are kept up-to-date and shall notify MV of any changes on the next Working Day. MV shall not be liable for any loss incurred by the Seller failing to promptly notify MV of a change to its banking details.
a) The parties agree that they shall keep in confidence any Confidential Information and except in accordance with these Terms and Conditions will not disclose that Confidential Information to any person (other than their employees, professional advisers or suppliers who need to know the information) without the written consent of the other party. For the avoidance of doubt, the Seller authorises MV (including its employees, agents and contractors) to hold and process Seller Information.
15. Exclusion and limitation of liabilitya) Nothing in these Terms and Conditions excludes or limits the liability of MV for death or personal injury caused by MV’s negligence or for fraudulent misrepresentation or any other liability that cannot be excluded by law.
b) Subject to clause 15.a MV’s total liability in respect of any breach of contract, any tort including negligence or misrepresentation or any breach of statutory duty or any other cause arising in connection with the provision of the Services and performance or contemplated performance of these Terms and Conditions, shall be limited in aggregate to a maximum of GBP2,000 save and to the extent that such limitation is excluded by operation of law.
c) Subject to clause 15.a MV shall not be liable to the Seller for any loss of profit or other economic loss, consequential loss, costs, expenses or other claims that arise out of or in connection with its performance of rights or duties under these Terms and Conditions or for any liability incurred by the Seller to a Customer or other third party.
16. Transfers of rights and obligations
a) These Terms and Conditions are binding upon the Seller and its successors and the Seller shall not be entitled to assign, charge, subcontract, transfer or otherwise dispose of any of its rights and/or obligations arising under these Terms and Conditions without the prior written consent of MV.
b) MV may assign, charge, subcontract, transfer or otherwise dispose of any of its rights and/or obligations arising under these Terms and Conditions to any party at any time during the Term subject to providing prior written notice to the Seller
c) These Terms and Conditions shall not be enforceable by any third party which includes for these purposes any employee, officer, agent, representative or sub-contractor or either MV or the Seller under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Nothing in this clause excludes the rights of MV when acting as payment agent of any seller.
17. Force majure
a) Neither party shall be in breach of these Terms and Conditions nor liable for any failure or delay in performance of any of its obligations under these Terms and Conditions arising from or attributable to Force Majeure. In the event of any Force Majeure being in operation for more than thirty (30) days the parties shall use their best endeavours to negotiate an arrangement which will enable normal performance of the agreement to continue.
a) A waiver by either party of any breach of the Terms and Conditions or delay in enforcing any breach shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
a) If any one or more of these Terms and Conditions or any part of one or more of these Terms and Conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law that term or the part of that term concerned shall be deemed omitted from the Terms and Conditions and the validity and/or enforceability of the remaining provisions of the Terms and Conditions shall not in any way be affected or impaired as a result of that omission.
a) In the event that any sum of money payable under these Terms and Conditions remain unpaid for a period of seven (7) days from the date when the same shall be due the amount due shall bear interest at the rate of four (4) per cent above Barclays Bank plc base lending rate (as varied from time to time).
a) All notices given under the Terms and Conditions must be in writing and may be delivered by hand or by courier or sent by prepaid first class or registered mail to in the case of MV its registered address, or any alternative address notified by MV to the Seller in accordance with this provision; and, in the case of the Seller, to the address which it provides on the CMS or any alternative address notified by it to MV in accordance with this provision.
b) Notices may be validly served by email provided that to be effective such email is sent to the email address most recently provided by the addressee to the sender of the relevant notice.
22. Entire agreement
a) This agreement and any documents referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous arrangements, understandings or agreements between the, whether written or oral relating to the subject matter of this agreement.
b) Each party acknowledges that in entering into these Terms and Conditions neither party has relied on any statement, representation or warranty of any person (whether a party to these Terms and Conditions) other than as expressly set out in these Terms and Conditions.
a) In the event of a dispute between the Seller and a Customer regarding Product(s) purchased by the Customer MV may try to help resolve the dispute at the request of either or both parties or on its own initiative. MV will do so in its sole and absolute discretion and has no obligation to try to help resolve such disputes.
b) In the event of dispute between MV and the Seller the parties shall use their best endeavours to resolve the dispute by round table discussion or by the appointment of an agreed mediator (and in the absence of agreement as to the identity of a mediator by a mediator appointed by CEDR).
24. Governing law and jurisdiction
a) These Terms and Conditions and any non-contractual obligations relating to or arising under the same shall be governed by the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute relating to or arising under them which has not been resolved by agreement or other form of ADR