FROM OUR CELLAR LIMITED’S SELLER TERMS AND CONDITIONS
These are the terms and conditions (the “Conditions”) to which you have agreed to use our online marketplace www.fromourcellar.com or www.fromourcellar.co.uk known as ‘From Our Cellar’ (the “Platform”) to promote and sell your products (the “Products”). We provide the Platform to you as a means of connecting and facilitating the sale and purchase of Products by virtue of establishing and maintaining the Platform’s functionaliti.
1. DEFINITIONS AND INTERPRETATIONS
1.1 In these Conditions, the following expressions shall have the following meanings:
Application Form: means the form that must be submitted by you to us in order to register your Cellar Account on the Platform.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Cellar Account: means a Seller’s account on our online marketplace Platform through which a Seller may promote and sell its Products.
Cellar Page: means a Seller’s designated page on the Platform which provides details about the Seller, their Products and delivery and returns information and such other information, text and imagery that a Seller may upload to their cellar page, including you.
Charges: the charges payable by you to us for the use of the Platform as set out in clause 8 (Charges and payment).
Commission Fee: as referred to in clause 9 and being such fee notified to you by us.
Conditions: these terms and conditions as amended from time to time by us.
Confidential Information: means any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, operations, processes, product information, know-how, designs, trade secrets and software of either party.
Contract: the contract between you and us for the use of the Cellar Account on the Platform and all of our other legal documents referred to within these Conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: means a person(s), firm or company who purchase Products from you through the Platform.
Customer Data: means all personal data that Customers upload or process through the Platform concerning any orders placed for Products and which you will have access to.
Customer Terms: means the terms and conditions relating to Customers and their purchase of Products via the Platform.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Email Campaigns: means our email marketing service through which we promote and advertise Products on the Platform utilising our software and monitoring systems.
Force Majeure Event: means circumstances or causes beyond either party’s reasonable control, including but not specifically limited to those events or circumstances as set out in clause 17.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Joining Fee: as referred to in clause 9 and being such fee notified to you by us.
Order: a Customer’s order for Products as set out in the Customer’s purchase order processed through your Cellar Account on the Platform.
Payment: payment due to you for any Products sold to Customers via the Platform less the applicable Charges.
Platform: means the online marketplace known as ‘From Our Cellar’ hosted and operated on hardware under the control of us and provided to you via the internet, as well as the software updates and the relevant interfaces and which are accessible by you via your Cellar Account at www.fromourcellar.com/my-account, or such other worldwide web address that we in our sole discretion select as a replacement to facilitate the promotion and sale of Products. The Platform includes the associated documentation (including any online help or training resources or parts of them, dashboard or other tools that allow you to manage your Cellar Account) published online by us in accordance with the Conditions of the Contract.
Priority Listing Fee: has the meaning afforded to it in clause 7.6 and being such fee notified to you by us.
Products: means the goods that you wish to promote and sell through the Platform.
Product Listing Fee: as referred to in clause 9 and being such fee notified to you by us.
Product Page: means your page(s) on the Platform on which your Products are displayed for sale and relevant information relating to those Products is provided to potential Customers.
Re-joining Fee: as referred to in clause 9.7 and being such fee notified to you by us.
Seller: means a person whose application to the Platform has been accepted by us, and who sells its Products through the Platform, including you and who is referred to on the Platform as a “Cellar”.
Services: the provision and use of the Platform and such other services we may provide from time to time as described in these Conditions.
Social Media Sites: our social media sites through which we will promote Products available for purchase on the Platform.
Subscription Fee: as referred to in clause 9 and being such fee notified to you by us.
VAT: means any value added, sales or services tax, or any similar tax imposed in the United Kingdom or as applicable in any other 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 or a computer or network, or to intercept or access without authority or expropriate any system, information or data.
We/our/us: means From Our Cellar Limited a company registered in England and Wales will company registration number 13173438 whose registered office address is at 89 High Street, Hadleigh, Ipswich, Suffolk, IP7 5EA.
You/your: means any Seller as the case may be.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email but excludes fax.
2. YOUR CELLAR ACCOUNT AND ELIGIBILITY REQUIREMENTS
2.1 In order to sell your Products via our Platform or to us wholesale, you must submit an Application Form to us detailing your contact and business information, and, for sales through the Platform, a completed Cellar Page. Once we have received your Application Form we will review and consider the same and notify you whether you have been granted approval to become a Seller on the Platform.
2.4 You are responsible for the accuracy of the information provided when creating your Cellar Account profile and warrant that any such information so provided is true and accurate. You will ensure that your account details are maintained confidentially and only disclosed to those parties who are required to access the Cellar
2.5 If your account details change, you must notify us as soon as possible and no later than 2 Business Days after your details have changed. If you wish to change the details of your business, you agree to provide us with copies of all relevant information at listed in clause 2.3 above to enable us to undertake the necessary checks on your new and/or alternate business. When updating your account details, your Cellar Account will be suspended until the details for your new business account are verified to our satisfaction.
2.6 You shall take all reasonable measures to ensure the confidentiality of the access to your Cellar Account including all usernames and passwords assigned to you on the Platform, and shall be responsible for all activities undertaken on the Cellar In the event that your Cellar Account is accessed without your consent, you must inform us as soon as reasonable practicable. We shall in no circumstances be liable for any loss of your personal data or a Customer’s personal data due to any third-party access obtained to the Cellar Account, with or without your permission.
2.7 All listings and Products sold via the Platform must comply with all applicable laws and regulations. In the instance that you wish to sell alcohol through your Cellar Account on the Platform, you must be at least 18 years old and you are required to provide us with documentary evidence as set out in our Application Form. You must also have sufficient procedures in place to verify that a Customer is aged 18 years or over. If you intend to promote and sell alcoholic goods via the Platform, you will be required to disclose this information prior to any alcoholic Products going live for sale on the Platform and to upload your licence information for our review. We reserve the right to reject an Application Form in the instance that the documentation provided is insufficient, have reason to believe this to be in-accurate or feel that it would not be appropriate for you to sell these type of Products via the Platform.
2.8 All Products listed for sale on your Product Page must not be listed for an overall price higher (product price plus delivery) than that listed on your own website and/or retail shop as the case may be. You can however reduce your listing prices on the Platform as you see fit.
On acceptance of your Application Form, documentation as requested in accordance with clause 3 and on making payment in respect of the Joining Fee, a Contract will be formed between you and us (the “Commencement Date”) and you will be bound to adhere to the provisions outlined in these Conditions. The Contract will continue until terminated in accordance with the provisions of these Conditions or as set out in clause 16.
4. SUPPLY OF THE SERVICES
4.1 The Platform provides you with the ability to offer and sell your Products directly to Customers. We do not act as a commercial agent for you and all offer and sales transactions concluded via the Platform through your Cellar Account are contracts concluded directly between you and any Customers. We only facilitate such transactions only by means of establishing and maintaining the Platform’s functionalities.
4.2 We reserve the right to amend and/or terminate your access to the Platform and use of the Cellar Account and Services rendered by us at our sole discretion, if necessary, to comply with any applicable law or regulatory requirement or if we believe you are in breach of these Conditions. We may do so without notice to you and without any liability to you.
4.3 We may explore and propose new technology, management and operational developments, improvements and trends which may improve the standard of performance of the Platform or the effectiveness of its advertising and marketing strategies. We will use our reasonable care and skill to ensure the Services can be provided without any interruption or delay, however the sales achieved through your use of the Platform and the Services rendered are entirely at your risk and responsibility. We in no way guarantee sales through the Platform.
4.4 From time to time, we may undertake updates on the Platform and the Services may be delayed or inaccessible due to scheduled maintenance upgrades and improvements undertaken to the Platform by us.
4.5 We reserve the right to update, change or remove contents and features contained within the Platform from time to time including removing any Products listed for sale on the Platform that do not meet our eligibility requirements or we consider to be in breach of clause 6.1(d).
4.6 You hereby acknowledge and accept that your use of the Platform and Cellar Account are dependent upon you having access to the internet. It is your responsibility to ensure that you have an adequate internet connection, and we accept no liability for your inability to access your Cellar Account due to a poor and/or lack of internet connection or any other problems inherent with the use of the internet and electronic communications. We have no responsibility to you for the provision, support and maintenance of any of your hardware or software used to provide you with access to the internet or the Platform, or any related hardware or software (including an IP router, proxy server, firewall or anti-Virus software), the responsibility for which will remain exclusively with you.
4.7 We in no way guarantee that your use of the Platform and/or access to the Cellar Account will be uninterrupted or that such use will meet your desired requirements or expectations. You are solely responsible for any Products that you upload for sale via the Platform and any Products offered for sale through the Platform are neither owned by us nor come into our possession at any time.
5. LICENCE FOR USE OF THE PLATFORM
5.1 In consideration of the Charges to be paid by you to us, we grant you a personal, non-exclusive, non-transferable, revocable licence, commencing on and including the Commencement Date of the Contract, to use the Platform in connection with your Cellar Account to promote and sell your Products for normal business purposes until termination of the Contract howsoever caused.
5.2 You shall not:
(a) sub-license, assign or novate the benefit or burden of the licence granted in clause 5.1 in whole or in part; or
(b) deal in any other manner with any or all of your rights and obligations under the Contract.
5.3 We may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of our rights and obligations under the licence granted in clause 1 without providing notice to you, which does not in any event prevent us or any other third parties we chose to grant permission to from using the Platform.
5.4 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
5.5 You shall ensure:
(a) you and your authorised representatives shall have access to and utilise the Platform exclusively in connection with the provision of promoting and selling your Products through your Cellar Account; and
(b) notify us as soon as you become aware of any unauthorised use of the Platform and/or Cellar Account by any person.
5.6 You hereby irrevocably licence to us the use of, and the ability for us to display, your name, logo and domain name (as the case may be) on the Platform including, without limitation, in printed or visual media on the internet for so long as you have a Cellar Account on the Platform for the purpose of promoting your Products. You agree to provide us with your most recent name, logo or domain name as the case may be, and as and when they may be amended from time to time.
6. YOUR OBLIGATIONS
6.1 By uploading your Products to the Platform for sale you hereby warrant:
(a) that all information set out within the Application Form is accurate and up to date at all times, with any such changes notified to us as soon as reasonably practicable and all Seller information provided about you to Customers is true, accurate, current and complete
(c) you have the lawful right to distribute and sell the Products and will not infringe any third party’s Intellectual Property Rights in doing so;
(d) the Products uploaded for sale are not unlawful, defamatory, obscene, indecent, invasive or otherwise objectionable or offensive and are not in breach of any applicable law or regulation;
(e) the Products and information provided by you as a Seller will not adversely affect our reputation or the From Our Cellar brand;
(f) that any Products uploaded or Seller information provided is not likely to create liability for us or cause us to lose (in whole or in part) the Services of our internet Platform or other suppliers;
(g) you agree at all times to comply with all applicable laws and regulations including UK and relevant EU competition laws and all product safety and marketing laws and regulations, Trading Standards requirements in respect of the manufacture, packaging, marketing, certification (including without limitation, CE marking) and delivery of the Products you sell; and
(h) your Cellar Account and relevant page on the Platform will not contain any Virus or cause the Platform or its functionality to be interrupted, damaged or impaired in anyway.
6.2 In relation to your Cellar r Account, you warrant and undertake that:
(a) your business is incorporated and/or established (whether as a company, partnership, unincorporated association or sole trader) in the United Kingdom;
(b) where your business is established as a limited company, you are listed as a director on Companies House and all other information held on Companies House reflects the information you provide to us. For example, the company registration number, director(s) name(s), trading address and company name;
(c) you are at least 18 years of age;
(d) if you intend to sell alcoholic Products via the Platform, you hold a valid premises licence and personal alcohol licence; and
(e) you have a trading (operating) address in the United Kingdom.
6.3 In relation to ensuring compliance with all applicable UK and EU competition laws, you agree not to exchange (or attempt to exchange) any commercially sensitive information, including information on any current or future commercial strategies, costs and/or pricing, with any other Seller.
6.4 In relation to compliance with all applicable bribery legislation, you agree to:
(a) not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the UK bribery legislation if such activity, practice or conduct had been carried out in the UK;
(b) maintain in place throughout the duration of the Contract for the provision of the Services and use of the Platform (and enforce where appropriate) your own policies and procedures to ensure compliance with the UK bribery legislation;
(c) promptly report to us any request or demand for any undue financial or other advantage of any kind received by you in connection with the performance of these Conditions; and
(d) ensure that you impose written terms on any sub-contractor connected with the matters arising under these Conditions which are at least equivalent to those imposed on you in these Conditions.
6.5 Where required by applicable laws and regulations, you agree that appropriate instructions will be included with the Products to ensure the safe use of the Products.
6.6 You agree to inform us as soon as possible upon becoming aware of any claim against us or you arising out of or in connection with any defect in your Products, or any failure by you to ensure that the Products are appropriately marked or certified in accordance with applicable laws or regulations.
6.7 You will compensate us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any losses that are foreseeable) we incur in connection with any claim envisaged under this clause 6 or paid or agreed to be paid by us in settlement of the claim and all legal or other expenses incurred by us in or about the defence or settlement of the claim. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was entered into, both parties knew it might happen, for example, if you discussed it with us during the on-boarding process and on submitting an Application Form to open a Cellar Account. We will notify you in writing as soon as possible after becoming aware of the claim.
6.8 You agree to maintain at all times, at your own expense and with reputable insurers, appropriate insurance in relation to your business. You will agree to, upon written request from us, provide us with any information we reasonably require concerning the scope of your insurance together with any relevant certificates confirming that it is in place.
6.9 You agree to comply with our reasonable instructions relating to any Product recall and in any event we reserve the right to take immediate and exclusive conduct of the Product recall on notice to you, in which case you will give us such assistance as we may reasonably require.
6.10 You will maintain appropriate, up to date and accurate records to enable the immediate recall of any Products.
7. YOUR PRODUCT PAGE AND LISTING
7.1 You agree to ensure that your Cellar Page and Product Page maintain a high standard of presentation and at all times accords with any applicable guidelines notified to you by us, including in relation to the form and content of any imagery and to comply with all reasonable instructions from us concerning your Cellar Page or Product Page. All Seller information provided about you will at all times remain true, accurate, current and complete.
7.2 Any failure by you to maintain suitably high standards of page presentation may result in the de-activation of the relevant Cellar Page or Product Page. We reserve the right to de-activate your Cellar Account with us until such standards have been improved.
7.3 We have absolute discretion as to the look, feel and content of the Platform including all Cellar Pages and Product Pages. This includes, the positioning, content, location and all other presentation of Seller information and we may, at our sole discretion, remove any Seller information and/or Products from the Platform at any time during your Contract with us.
7.4 Although you may request Customer feedback in good faith, you agree not to review, nor engage any third party to review Products appearing on your Product Page. This prohibition includes, without limitation, paying for reviews or any other means of artificially increasing the number of reviews of Products on your Product Page.
7.5 In the instance that you procure to close your Cellar Account with us and close down your Cellar Page and Product Pages, you will ensure that all Customer orders placed are processed and satisfied and will remain responsible for processing any returns (further details of which are set out in clause 14).
7.6 In the instance that you wish for your Product Page and relevant Products to be ranked higher in preference to other products on our main listing page on the Platform, or to have an exclusive promotion slot on our Social Media Sites and Email Campaigns additional Charges, in the form of a day rate, will apply as notified to you on the Platform from time to time (the “Priority Listing Fee”). Please contact us should you wish to add a Social Media or Email Campaign service to your Cellar Account.
8. PRODUCT INFORMATION
8.1 Where a Product sold by you is personalised for the Customer, you must clearly state on your Product Page that the Product is a personalised or specially-made Product and that such Product requires Customer approval prior to its production by you. You will at all times display the relevant corresponding delivery times for a Customer.
8.2 If the Product is a non-returnable Product due to its nature, you must state clearly on your Product Page and Product information and description that the Product cannot be cancelled by the Customer as their order is for bespoke and/or perishable goods.
8.3 You must at all times display your expected delivery times, including any postage and packaging costs that will apply on your Product Page and must not include on your Product Page any direct, or indirect, link to other websites including your own personal website, your email address or any other means by which a Customer could communicate directly with you, other than through your Cellar Account on the Platform.
8.4 You are solely responsible for:
(a) amending and updating information about your Products displayed on the Platform and are responsible for designing, creating, managing and amending any bespoke graphics or Product imagery from time to time;
(b) accurately disapplying Product availability and to update Product availability using any ‘out of stock’ and ‘available’ options with regards to the Products sold and update any information to confirm when such Products will become available for purchase;
(c) if you no longer intend to sell or stock certain Products you must ensure that the Product information provided on your Product Page is up to date and reflects the intention to discontinue the Product (correctly updating the system to confirm when the last Product has been sold); and
(d) remove Products from your Product Page that are awaiting to be re-stocked for prolonged period (3 weeks of more) and until they become available for purchase again.
8.5 In the instance that a Customer places an order for a Product which is out of stock, but you have failed to update your Product Page to reflect the current stock levels and the Customer consequently requires a refund, we reserve the right to charge you the Commission Fee on that Order.
8.6 Your Prices for the Products must be fully inclusive of all taxes and additional charges. If you are VAT registered, you agree to set the VAT rate at the appropriate level which is currently applicable with respect to your Products.
8.7 You are solely responsible for ensuring that you fully comply with your current VAT registrations and accounting for VAT correctly and you agree to promptly provide us with any information that we may request from time to time in respect of the Products in the circumstances whereby we may be required to account for any VAT.
8.8 You have complete discretion over how you wish to price your Products and must ensure that all of your Product listings on your Product Page contain all of the information required by a Customer to make a valid purchase and that such information is wholly accurate.
8.9 In the instance that you wish to promote and sell your Products on another third party marketplace as another Seller, it will be your responsibility to resolve with the third party marketplace any conflict with regards to Intellectual Property Rights or otherwise. We have no liability for any such disputes that may arise from this and you agree to indemnify us against any Intellectual Property Infringement Claims that may arise in this respect.
9. CHARGES AND PAYMENTS
9.1 The Charges payable by you for your use of the Platform and associated Cellar Account comprise, as relevant and applicable, of the following fees:
(a) a one-off Joining Fee;
(b) a Commission Fee payable on each and every transaction concluded by you with a Customer and excluding all relevant bank transfer fees and such other charges;
(c) a monthly Subscription Fee;
(d) a Product Listing Fee;
(e) a Re-joining Fee as may apply from time to time; and
(f) a Priority Listing Fee (if such additional services are acquired by you on a one-off or recurring basis).
9.2 You must pay all Charges in accordance with the Contract. The relevant Charges payable by you for use of your Cellar Account and Platform will be as notified to you, and updated by us, from time to time in accordance with these Conditions.
9.3 The Joining Fee will be payable on application to become a Cellar. This is a one-off fee that is payable in full at the time of submitting your application to us and in order for you to use the Services. The amount of the Joining Fee will be as agreed between you and us in writing at the time of completing your Application Form. The Joining Fee is entirely non-refundable.
9.4 We will take a Commission Fee on each and every Customer Order placed and processed by you for the purchase of your Products. In the event that the circumstances in clause 8.5 apply, we reserve the right to charge a Commission Fee if you have not accurately presented Product stock levels on your Product Page. This amount will be deducted from the balance due to you on a sale of the Products by our third party payment processer, Stripe, as detailed in clause 10.2.
9.5 You will not be reimbursed the Commission Fee paid by you to us in the instance that the price paid to you by a Customer for a Product is refunded. The Commission Fee is the charge payable by you for your use and provisions of the Services provided.
9.6 We may charge a monthly Subscription Fee for your on-going use of the Services, in addition to this a Product Listing Fee may be charged for each and every Product that you list on your Product Page on the Platform. Such fees payable for the Subscription Fee and each Product Listing Fee will be as notified to you on the Platform from time to time upon providing you with 30 days’ written notice.
9.7 If you terminate your Cellar Account with us and wish to re-join and/or open a new Cellar Account with us at a later date a Re-joining Fee will be payable. As to whether we re-active your Cellar Account is entirely at our discretion and will be assessed by us at the relevant time in accordance with our eligibility requirements.
9.8 All amounts due under the Contract 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).
9.9 We reserve the right to increase the Charges payable on providing you with 30 days’ written notice. In the event that you wish to terminate your Contract following an increase in the Charges due on, the provisions of clause 16.5(c) will apply.
10. PAYMENTS DUE TO IN RESPECT OF THE ORDERS PLACED
10.1 All payments made to you in respect of processed Customer Orders via the Platform will be made through a secure payment gateway. The Platform allows Customers to make payment via Visa Debit, Visa Credit or MasterCard. In order to process their payment we use a third party payment processor known as Stripe. You will be required to set-up your own Stripe account through your Cellar Account.
10.3 You accept that banking charges may apply and such fees will be deducted from the payments received from Customers prior to releasing the balance due to you.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 You acknowledge that all Intellectual Property Rights in the Platform, the From Our Cellar name, logo and branding are owned entirely by us, or our licensors (as appropriate) and you shall have no rights in or to the Platform, the From Our Cellar name, logo and branding other than the right to use it in accordance with the terms of the Contract or with our prior written consent.
11.2 You warrant that you are the legal owner of all of 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 any copy that you provide and/or upload to the Platform or that you possess the relevant permission or licence to use any and all such Intellectual Property Rights.
11.3 By making the Products available for sale on the Platform, and consequent use of your Intellectual Property Rights by us as referred to in clause 5.6, you warrant that you will not infringe any Intellectual Property Rights owned by any third party, and there is and will be no claim against us by any third party arising in relation to the use of such Intellectual Property Rights and all Products offered by sale by you are not a replica or design copies of any other brand, designer or manufacturer.
11.4 You agree to indemnify us in full for any and all damages, liabilities, costs, expenses and/or losses resulting in a breach of clause 11.3 in respect of any claim that the normal operation, possession or use of those Intellectual Property Rights infringes a third party’s rights (an “Intellectual Property Rights Infringement Claim”).
11.5 If any third party makes an Intellectual Property Rights Infringement Claim, or notifies an intention to make such a claim against you, you will notify us immediately and make such alterations, modifications or adjustments as is necessary to make the Intellectual Property Rights non-infringing. In the circumstance that a third party contacts us directly and make an Intellectual Property Rights Infringement Claim, we will notify you as soon as reasonably practical.
11.6 We will be entitled to take sole conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim and may settle or compromise such claim or action at our sole discretion. In such circumstances you agree to give us such assistance as we may reasonably require in respect of the conduct of such defence including with any court procedures and deadlines and the provision of all relevant documents.
11.7 At our request, you agree to take the conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim. You agree not to, at any time, admit liability or otherwise settle or compromise, or attempt to settle or compromise, such claim or action except upon our express written instructions.
12. DATA PROTECTION
12.1 We will both comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
12.3 Without prejudice to the generality of clause 12.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of any Customer Data for the duration and purposes of the Contract.
12.4 You shall in relation to any Customer Data processed in connection with the performance by you of fulfilling a Customer’s Order:
(a) process that Customer Data only on the documented written instructions of the Customer unless you are required by applicable laws to otherwise process that personal data;
(b) ensure that all personnel who have access to and/or process the Customer Data via the Platform are obliged to keep the Personal Data confidential;
(i) the Customer has been provided with appropriate safeguards in relation to the transfer;
(ii) the Customer has enforceable rights and effective legal remedies;
(iii) you comply with your obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) notify the Customer without undue delay on becoming aware of a personal data breach of the Customer’s Data.
12.5 You must ensure that you have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting the Customer Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). We shall and will in no circumstances be liable for the loss of any Customer Data through the Platform and you must maintain your own security measures on your computer hardware.
12.6 You agree to indemnify us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any foreseeable losses) we incur in connection with any claim arising out of any personal data breach of this clause 12 including any legal or other expenses incurred by us in or about the defence or settlement of the claim. We will notify you in writing as soon as possible after becoming aware of the claim. This clause 12 will survive notwithstanding the termination or expiry of the Contract.
13.1 You will use your best endeavours to ensure that each Customer Order is processed in line with these Conditions and agree to fulfil the Customer’s Order in accordance with any delivery times as advertised on your Cellar Page or Product Page and/or in subsequent correspondence between you and the Customer. Delivery of the Products is your sole responsibility and we will in no manner assist with or facilitate the delivery of the Products.
13.2 You hereby undertake to attend to the following matters in relation to delivery of the Products:
(a) acknowledge receipt of the Customer’s Order and provide them with an estimated delivery date;
(b) attend to all enquiries raised by the Customer through your Cellar Account in relation to their Order; and
(c) acknowledge receipt of any Products returned to you in accordance with clause 14 below.
14. RETURNS AND REFUNDS
14.1 You undertake to ensure that all correspondence between you and a Customer will be in relation to managing the Customer’s Order only and will not include any reference to your own website, email address or other correspondence address outside those offered through the Platform.
14.2 You must cooperate and correspond with a Customer in relation to enquiries raised through your Cellar Account and ensure that all complaints are promptly and courteously attended to within 48 hours of the enquiry and/or complaint being made by a Customer. It is your responsibility to ensure these are adequately addressed and dealt with in a timely manner.
14.3 In the instance that a Customer wishes to request a refund and/or return the Products you must adhere to the returns provisions outlined in the Customer Terms. You must refund the Customer directly and it is your responsibility to process these refunds in a timely and orderly manner.
15. LIMITATION OF LIABILITY
15.1 You must obtain and maintain suitable professional indemnity insurance cover in respect of your own legal liability in respect of Products that you sell via our Platform.
15.2 Except as expressly stated in clause 15.3:
(a) we shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if we were aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
or in respect of any liability incurred by you to a Customer, or to any other person whether arising from your use of the Platform or otherwise.
15.3 Our total liability to you, whether in contract, tort (including negligence) or otherwise and whether in connection with the Contract or otherwise, shall in no circumstances exceed a sum equal to the total Charges received.
15.4 You agree that, in entering into the Contract, you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Conditions or (if you did rely on any representations, whether written or oral, not expressly set out in these Conditions) that you shall have no remedy in respect of such representations and (in either case) we shall have no liability in any circumstances otherwise than in accordance with the express terms of the Contract.
15.5 The exclusions in this clause 15 shall apply to the fullest extent permissible at law, but we do not exclude liability for:
(a) death or personal injury caused by our negligence of our officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which may not be excluded by law.
15.6 We shall not in any circumstances be liable to you for any loss or damage arising through your use of, or inability to use, the Platform or the Services including in respect of any content obtained from or through the Platform or any interruption, inaccuracy, error or omission particularly in respect of any information presented on the Platform.
16. TERM AND TERMINATION
16.1 Notwithstanding any other provision of these Conditions, the Contract shall commence on the Commencement Date and shall continue until either party gives the other not less than 30 days’ written notice.
16.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.3 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.4 Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving written notice to you if:
(a) you fail to pay any Charges due under the Contract on the due date for payment; or
(b) you use the Platform for purposes that are strictly prohibited as set out in clause 6.
16.5 On termination for any reason:
(a) all rights granted to you under the Contract and your access to the Platform shall cease with immediate effect;
(b) you shall cease all activities authorised by the Contract in accordance with these Conditions; and
(c) you shall immediately pay to us any Charges due to us under the Contract and that may be outstanding at the date of termination.
17. FORCE MAJEURE
For the purposes of the Contract, a force majeure event means an event beyond the reasonable control of the parties including, but not limited to, strikes or other industrial disputes (whether involving either party’s workforce or any other party), failure of a utility service or transport network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of subcontractors, epidemic or pandemic (“Force Majeure Event”). On the occurrence of a Force Majeure Event:
(a) Neither party will be liable to the other party for any delay in or failure to perform its obligations (other than in accordance with clause 9) as a result of any Force Majeure Event. The time for performance of such obligations shall be extended accordingly, excluding time for payment in accordance with clause 9.
(b) In the instance that we are unable to perform our obligations under the Contract, or provide the Services as required, we shall be entitled to re-schedule the provision of the Services only and will in no circumstances be entitled to a refund or relief in respect of Charges made or due to us in respect of your access of the Platform, albeit we reserve the right at our discretion to extend any pre-agreed payment terms if we consider it just and reasonable to do so in light of the Force Majeure Event. You shall in no circumstances be entitled to any compensation.
(c) If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than 2 months, the party not affected by the Force Majeure Event will be entitled to terminate the Contract by giving 10 days’ notice in writing.
18. ASSIGNMENT AND OTHER DEALINGS
We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Contract. You are not permitted to assign, transfer or deal in any other manner with any or all of your rights or obligations under the Contract.
You shall during the term of the Contract and thereafter, keep confidential all, and shall not use for your own purposes (other than implementation of these Conditions) nor without the prior written consent of us disclose to any third party (except your professional advisors or as may be required by any law or any legal or regulatory authority) any Confidential Information (including trade secrets and information of commercial value) which may become known to you from us and which relates to us, unless that information is public knowledge or already known to you at the time of disclosure, or subsequently becomes public knowledge other than by breach of these Conditions, or subsequently comes lawfully into your possession from a third party. You shall use your reasonable endeavours to prevent the unauthorised disclosure of any Confidential Information.
20. ENTIRE AGREEMENT
The Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to the subject matter of the Contract.
You acknowledge that in entering into the Contract you do not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Nothing in this clause 20 shall limit or exclude any liability for fraud.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by us to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of these Conditions 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 Conditions.
Any notice given under or in connection with the Contract shall be in writing and shall be sent by email to the email address specified in your Application Form or to email@example.com in the case of us.
Any notice shall be deemed to have been received if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 23.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
24. THIRD PARTY RIGTHS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by us.
26. GOVERNING LAW
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.