THIS DOCUMENT SETS OUT THE TERMS ON WHICH BOTICCA.COM LIMITED ('BOTICCA') PROVIDES YOU ('SELLER') WITH ACCESS TO CERTAIN FEATURES AND FUNCTIONALITIES ON WWW.BOTICCA.COM ('WEBSITE') TO MARKET AND SELL JEWELLERY, HANDBAGS OR FASHION ACCESSORIES. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE. THE SELLER ACKNOWLEDGES THAT BY CLICKING ON THE BUTTON MARKED 'I ACCEPT' OR BY USING THE WEBSITE (WHOLLY OR PARTLY) AS A SELLER, THE SELLER AGREES TO BE BOUND BY THESE TERMS. IF THE SELLER DOES NOT ACCEPT THESE TERMS, THE SELLER WILL NOT BE ABLE TO USE THE FEATURES AND FUNCTIONALITIES OF THE WEBSITE AS A SELLER.
YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR FUTURE REFERENCE.
A) Boticca operates and maintains the Website (defined below) which is an online marketplace offering independent jewellery, handbag and fashion accessories designers the facility to advertise and sell their Products (defined below) using the Website.
B) The Seller is an independent jewellery, handbag or fashion accessories designer and wish to make its Products available using the Website and in accordance with the terms of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
'Comment' means the comment and feedback provided by the Users on the Website in respect of the Product and/or the Seller;
'Content' means materials owned by and/or licensed to the Seller including but not limited to, Listings, images, photographs, articles, write-ups and comments;
'Exclusive Designer' means a Seller who has opted to sell its jewellery, handbags or fashion accessories exclusively on the Internet through the Services and the Website and who shall be entitled to a different rate of Fees which are more particularly set out in clause 5 below;
'Fees' means a sum in Pound Sterling equivalent to a percentage of the Price (in Pound Sterling) after deduction of VAT (if applicable) which is more particularly set out in clause 5 below;
'Force Majeure' mean any non-performance, defective performance or delay in the performance of any of the Services caused directly or indirectly by acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, terrorism, lack of adequate power or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key Boticca employees or sub-contractors, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
'Intellectual Property Rights' means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, database rights, moral rights, topography rights, rights in databases, software rights (including without limitation rights to its object code and source code), trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
'Listings' means details of a Product offered on the Website;
'Login Details' means the username and password to access the Services and the Website;
'Price' means the price of the Product excluding VAT, all other applicable taxes, shipping costs and any other additional and applicable costs;
'Product' means a fashion item including but not limited to jewellery, handbags and all other fashion accessories offered for sale on the Website using the Services;
'Services' means the facility offered by Boticca to advertise the Product, publish and make available the Content and conduct a sale transaction in respect of the Product using the Website;
'Term' has the meaning set out in clause 6.1;
'Users' means a user registered with the Website; and
'Website' means www.boticca.com or any other designated unique resource locator as determined by Boticca from time to time.
2. SELLER'S OBLIGATION
2.1The Seller shall maintain all contacts, and conduct all transaction for the sale of its Product with the Users using the functionalities available on the Website and/or the Services. The Seller shall not at any time during the Term contact the Users or any other prospective buyers using any other alternative means other than the Website and/or the Services.
2.2The Seller acknowledges and agrees that Boticca only provides the Seller with the Services and access to the Website. Consequently Boticca is not a participant in any way, in the sale and purchase process between the Seller and the User.
2.3The Seller shall procure that its contract with the User for the sale of its Product shall be strictly compliant with all applicable law and legislation including without limitation, all legislation relating to the consumer protection, data protection, e-commerce and distance selling.
2.4All Content and Listing accompanying the advertising of a Product must be related to that Product offered for sale.
2.5The Seller shall procure that all activities in respect of advertising and/or making the Product available on the Website for sale to the Users, including without limitation, the publishing of the Content and Listing on the Website:
2.5.1does not infringe any Intellectual Property Rights or other proprietary rights of any third party; and
2.5.2may reasonably be deemed to be offensive, illegal, inappropriate or in any way (a) promote racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) harass or advocate harassment of another person; (c) display pornographic or sexually explicit material; (d) promote any conduct that is abusive, threatening, obscene, defamatory or libellous; (e) promote any illegal activities; (f) provide instructional information about illegal activities, including violating someone else's privacy or providing or creating computer viruses; and (g) promote or contain information that you know or believe to be inaccurate, false or misleading.
2.6The Seller acknowledges that Boticca is not obliged to vet, review or verify the Content and/or the Product to determine whether any such Content and/or Product may result in any liability to any third party.
2.7The Seller further acknowledges that Boticca shall not be liable in any way and for any reason for the behaviour of the User or any Comments made by the User in respect of the Seller and/or the Product.
2.8 The Seller hereby acknowledges and accepts that, in respect of all of its Products and, in particular, to the extent that it engages in the display, advertisement and/or sale of Products comprising or containing precious metals on or through the Website, it shall be bound by and shall comply with the terms of all applicable hallmarking, consumer protection and trade description laws. For example, where the Seller displays, advertises or sells Products containing or comprising precious metals in the United Kingdom, it shall be bound by and comply with the terms of the Hallmarking Act 1973, which makes it an offence to describe an unhallmarked item as being wholly or party made of gold, silver, platinum or palladium. Further details of the UK hallmarking requirements may be found through the British Hallmarking Council website (http://bis.gov.uk/britishhallmarkingcouncil).
2.9 The Seller hereby warrants, undertakes and represents to Boticca that, in respect of all of its Products and, in particular, any Products comprising or containing precious metals, where such Products are displayed by the Seller on the Website and/or sold through the Website:
2.9.1 the Seller shall comply with its obligations under all applicable hallmarking, consumer protection and trade description laws including, without limitation, the terms of the Hallmarking Act 1973; and
2.9.2 the Seller shall include a photograph of the Product on the Website so that any hallmarks are clearly visible in the photograph.
2.10 If a claim for infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws is made in respect of any/all of the Seller’s Products or, in the reasonable opinion of Boticca, such a claim is likely to be made, Boticca shall be entitled to immediately and without notice to the Seller remove the Product from the Website and, at its sole discretion, suspend and/or cancel the Seller’s right to advertise its Products on the Website.
2.11 Boticca shall have no liability for any infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws in respect of all/any of the Seller’s Products, and the Seller shall indemnify Boticca against any claim that the Content, the Website and/or the Services infringes any such laws.
2.12 If the Seller registers with Boticca as an Exclusive Designer, the relationship between Boticca and the Seller under this Agreement shall be exclusive for the duration of the Term. Consequently, the Seller shall not during the Term, sell and/or make any of its Products available on the Internet to the public other than through the Website or the Seller's personal website.
2.13 The Seller agrees that it is solely responsible and liable for all use of the Services and the Website if such use was made using the Seller's Login Details. Consequently, the Seller shall promptly notify Boticca in the event there is a breach of security or any unauthorised use of the Seller's Login Details.
2.14 The Seller acknowledges and agrees that Boticca is not obliged to publish, upload or make available any of the Content, Listing and/or Products (wholly or partly) on the Website for any reason whatsoever other than those expressly set out in this Agreement.
2.15 The Seller agrees that at all times, it shall:
2.15.1 not use its Login Details with the intent of impersonating another person;
2.15.2 not allow any other person to use its Login Details;
2.15.3 not use the information presented on the Website for any purposes other than those expressly set out herein;
2.15.4 not do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Website or in respect of the network;
2.15.5 not use the Website, the content therein and/or do anything that will infringe any intellectual property right or other rights of any third parties;
2.15.6 not use any information obtained using the Website otherwise than in accordance with the terms set out herein;
2.15.7 comply with all instructions and policies from Boticca in respect of the Website; and
2.15.8 co-operate with any reasonable security or other checks or requests for information made by Boticca.
2.16 Without prejudice to any of Boticca's other rights and remedies, Boticca reserves the right, in its sole and absolute discretion, to take any action that it deems necessary and appropriate including without limitation, suspending wholly or partly, temporarily and permanently the Seller's use and/or access to the Website and/or the Services, in the event it considers that there is a breach or threatened breach of this clause 2.
3. BOTICCA'S OBLIGATIONS
3.1In consideration for the Seller's compliance with the terms of this Agreement and subject to clause 5.2, Boticca shall use its reasonable endeavours to make available the Website and the Services during the Term.
3.2The Client acknowledges and agrees that Boticca relies on third party service providers to provide the Services and access to the Website. Consequently, Boticca cannot guarantee uninterrupted or fault-free access to and/or use of the Services and the Website or any aspect thereof.
4. PRODUCT PRICING
4.1The Seller shall be entitled to price its Products at its sole and absolute discretion, subject always that the pricing of such Products on the Website shall be compliant with all applicable laws and legislations.
4.2The Price shall be determined in accordance with the location of the Seller as follows:
4.2.1in Pound Sterling ('£') if the Seller is located in the United Kingdom;
4.2.2in Euros ('€') if the Seller is located in the Euro Zone; or
4.2.3in Australian Dollars ('&A$;') if the Seller is located in Australia; or
4.2.4 in US Dollars ('$') if the Seller is located in a country other than as set out in clauses 4.2.1, 4.2.2 and 4.2.3 inclusive.
4.3The Price shall be converted into all other applicable currencies (as set out in clause 4.2) based on the currency conversion rate at the time the Seller registers the Price against the Product using the Services. Consequently, the Product shall be made available for purchase by the User in any one of the three (3) currencies.
For the avoidance of doubt, the conversion rate set out in clause 4.3, when applicable, shall be the mid-market foreign exchange rate as published by Yahoo! Finance at the previous day close the Seller registers the Price against the Product using the Services.
4.5The Buyer shall be responsible for the payment of all applicable tax which arises out of or in relation to the sale and delivery of the Product.
4.6The Seller shall keep the retail and shipping prices of their items consistent across all distribution channels (online and offline) with no price difference.
5.1The Seller shall pay Boticca the Fees in accordance with this clause 5.
5.2The Fees which shall be due and payable to Boticca shall be thirty-five percent (35%) of the Price of the Product for standard items and thirty percent (30%) for Exclusive items and Non-Exclusive items with free worldwide standard shipping. Furthermore, by joining Boticca, the Seller agrees to participate in free shipping promotions at their own cost across the entire Boticca website. These promotions do not exceed 6 days each calendar month and Sellers are provided with advance notice. Also, Boticca shall notify the Seller of any applicable new Fees. All new Fees shall be applicable immediately upon notification to the Seller by Boticca.
5.3All Fees shall become due and payable and automatically deducted from the Price upon receipt of payment from the Users using the designated third party payment handler. All Fees shall be exclusive of any applicable value added tax (or any successor tax), shipping costs, delivery charges and/or any other applicable tax or charges of any nature whatsoever.
5.4Boticca shall be entitled to vary the Fees at anytime. Any changes made to this Agreement will be notified to the Seller in writing or by email and made available to the Seller using the Website.
5.5Boticca's service to Sellers is treated, for VAT purposes, as an electronically supplied service. As a Company based in the UK, Sellers are liable to pay VAT for Boticca's services as follows: If the Seller is based in the UK, he or she will be liable to pay VAT at the standard UK rate (20%) on Boticca's seller fee, deductible from the Price of the item sold. If the Seller is based outside the UK but within the European Union (EU), the Seller is not liable for VAT if he or she operates as a business (evidenced by a VAT registration number). If the Seller is based outside the UK but within the European Union (EU), the Seller is liable for VAT if he or she does not operate as a business (no VAT registration number). If the Seller is based outside the UK and the EU, the Seller is not liable for VAT.
6. TERM AND TERMINATION
6.1This Agreement shall commence on the Effective Date and shall remain in force until and unless terminated by the parties in accordance with this clause 6 ('Term').
6.2Either party ('Terminating Party') may terminate this Agreement for any reason by giving notice to the other of such termination. Boticca shall deactivate the Seller's account with the Website upon such termination.
6.3On termination of this Agreement for any reason:
6.3.1the Seller's right to use the Services and the Website shall cease forthwith and the Seller shall and shall procure the removal of all Content, Listings and any other information in respect of the Seller and/or its Products from the Website;
6.3.2all licences granted to in accordance with this Agreement shall cease forthwith;
6.3.3Boticca shall be entitled to be paid all sums due (not paid) under this Agreement; and
6.3.4the termination shall not affect the rights of either party accruing or accrued prior to the termination of this Agreement.
6.4On termination of this Agreement for any reason, this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
7. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
7.1All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral in respect of the Website are hereby expressly excluded to the fullest extent permissible by law.
7.2Subject to clause 7.1, the Seller warrants to Boticca that:
7.2.1the Seller is an independent jewellery, handbag or fashion accessories designer;
7.2.2the Seller has the authority and capacity to enter into and be bound by the terms of this Agreement;
7.2.3the information provided to Boticca are true, accurate and correct and that it shall promptly notify Boticca in the event of any changes to such information;
7.2.4the Product, the Content and the Seller's right to sell or make the Product available on the Website using the Services do not infringe any third party Intellectual Property Rights, proprietary rights or rights of publicity or privacy;
7.2.5the Product, the Content, the Seller's right to sell or make the Product available for purchase and the Seller's use of the Website and Services do not violate any applicable law, legislation, statute, ordinance and/or regulations;
7.2.6the Content is not and may not be deemed defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
7.2.7the Content and the Product are not and do not contain elements which are or may be deemed to be obscene or pornographic and do not contain child pornography; and
7.2.8the Content do not contain any viruses, Trojans, worms, time bombs, cancel bots or other programmes that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.3Subject to clause 7.5, the maximum aggregate liability of Boticca (including its respective agents and sub-contractors) under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by the Seller under this Agreement.
7.4In no event shall Boticca (including its respective agents and sub-contractors) be liable for (a) any loss of profits, loss of data, loss of expectations, loss of anticipated savings, loss of business prospects, loss of business interruption, loss of use, loss of contracts, loss of goodwill and reputation (whether direct or indirect), loss of management time; or (b) any indirect or consequential losses of any nature whatsoever; or (c) any losses, claims, demands and damages (whether direct or consequential) of any kind and nature, known and unknown, arising out of or in connection with dispute(s) between the Seller and the Users; or (d) any inability and/or failure by the Seller to use the Services and the Website due the failure of or any integration or interoperability issues arising with any third party or the Seller's operating systems or legacy systems, whether or not caused by or resulting from Boticca's negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if the Seller is advised of the possibility of such loss.
7.5Nothing in these Terms shall limit or exclude Boticca's liability in respect of death and personal injury.
8. INTELLECTUAL PROPERTY RIGHTS
8.1The Seller acknowledges and agrees unless otherwise expressly agreed to the contrary, all Intellectual Property Rights created in respect of the Services and under this Agreement shall be owned by Boticca.
8.2Nothing in this Agreement will serve to transfer from Boticca to the Seller any of the Intellectual Property Rights owned by Boticca and/or its licensors and all right, title and interest thereof shall remain exclusively with Boticca and/or Boticca's licensors.
8.3Except for the rights expressly granted in this Agreement, nothing in this Agreement shall serve to transfer from the Seller to Boticca any of the Content, and all right, title and interest in and to the Content will remain exclusively with the Seller.
8.4Boticca grants the Seller a non-exclusive, worldwide, non-assignable, non-sub-licensable licence to use the Intellectual Property Rights owned by and/or licensed to Boticca strictly in respect of the Seller's use of the Website and the Services. Where the Seller's intended use of such Intellectual Property Rights is other than in respect of the Services and the Website, the Seller agrees that it shall first procure the prior written consent of Boticca.
8.5The Seller grants to Boticca a non-exclusive, worldwide, non-assignable, non-sub-licensable, royalty-free licence to use the Content for the sole purposes of performing its obligations under this Agreement.
8.6Nothing in this Agreement shall prevent Boticca from using any know-how, methods, techniques or procedures owned or developed by Boticca in the course of performing its obligations under this Agreement.
8.7The Seller shall promptly notify Boticca of any claim or demand which is made, brought or threatened against the Seller in respect of the infringement or alleged infringement of any Intellectual Property Right by reason of the use of the Services and the Website by the Seller. The Seller agrees to grant Boticca exclusive control of any litigation and negotiations arising from such a claim, and to give Boticca such assistance as it may reasonably request.
8.8If a claim or demand for infringement or alleged infringement of any Intellectual Property Right is made in respect of the Website and/or use of the Services or, in the reasonable opinion of Boticca, is likely to be made, Boticca shall be entitled, at its own expense and option, either to:
8.8.1modify or replace the infringing items of the Website and Services (without detracting in any way from their performance or functionality) so that the same cease to be infringing; or
8.8.2procure the right for the Seller to continue using the Website and the Services as contemplated by this Agreement.
8.9Boticca shall have no liability for, and the Sellers shall indemnify Boticca against any claim that the Content, the Website and/or the Services infringes any Intellectual Property Rights, where the cause of the infringement is:
8.9.1any materials or instructions including without limitation, the Content provided to Boticca by or on behalf of the Seller; or
8.9.2modification, enhancement or alteration of the Content by or on behalf of the Seller; or
8.9.3due to the use of the Content, the Website and the Services in breach of the provisions of this Agreement.
8.10All third party Intellectual Property Rights required by the Seller to enable it to use the Website and the Services shall be procured by the Seller. Boticca shall not be liable for any delay or failure of the Seller to procure such third party Intellectual Property Rights.
9. DATA PROTECTION
9.1The Seller hereby warrants and agrees that it shall at all times comply with its obligations under the applicable data protection legislation during the Term. The Seller shall fully indemnity Boticca against all actions, claims and expenses (including legal costs) whatsoever which arises out of any breach of this provision.
10.1If Boticca fails at any time to insist upon strict performance of its obligations under this Agreement or if it fails to exercise any of the rights or remedies to which it is entitled to under this Agreement, this will not constitute a waiver of any such rights or remedies and shall not relieve you from compliance with such obligations.
10.2A waiver by Boticca of any default shall no constitute a waiver of any subsequent default. No waiver by Boticca of any of the provisions herein shall be effective unless it is expressly stated to be a waiver and is communicated to the Seller in writing.
10.3All notification and communication shall be made in writing and delivered, or posted by first class pre-paid post or sent by facsimile or electronic mail to Boticca or the Seller as appropriate and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of forty eight (48) hours after posting or at the time of sending the case of facsimile or electronic mail.
10.4If any of the provisions herein are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
10.5This Agreement represents the entire agreement between the Seller and Boticca and shall supersede any prior agreement, understanding or arrangement between the parties whether oral or in writing.
10.6The Seller acknowledges that in entering into this Agreement, it has not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between the parties except as expressly set out in this Agreement.
10.7This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
11. CONTACT DETAILS
Please direct any queries about this Seller Agreement (preferably by fax or email) to:
Attn: User Support Department
Second Floor, Cardiff House
London NW2 1LJ
Tel: +44 (0) 845 299 7661
Fax: +44 (0) 207 979 0053