Terms & Conditions (For Sellers)
Terms & Conditions (For Sellers)
These Terms and Conditions apply between you (the "Seller") and Wolf & Badger Limited, registered in England (06980629) at 10 Queen Street Place, London, United Kingdom, EC4R 1AG, Wolf & Badger US Inc., Wolf & Badger (Ireland) Limited and Wolf & Badger AU Pty Ltd, (together "W&B", "we", "us") in connection to the Services provided.
Where an order is to be delivered within or into the United States, such orders shall be facilitated by Wolf & Badger US Inc. Where an order is delivered within or into the EU, such orders shall be facilitated by Wolf & Badger (Ireland) Limited. Where an order is delivered within or into Australia, such orders shall be facilitated by Wolf & Badger AU Pty Ltd. In all other cases, orders shall be facilitated by Wolf & Badger Limited.
1 DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, the following expressions shall have the following meanings:
"Additional Fees" means any ad hoc costs and/or charges for services which are not covered under the chosen Subscription Package and which are agreed between the Seller and W&B prior to being incurred, including, for the avoidance of doubt, any fee payable pursuant to clause 12.3.
"Affiliated Websites" means third party websites that W&B may advertise the Website Products on, as notified by W&B to the Seller from time to time.
"Code of Ethics" means W&B’s code of ethics which can be accessed at https://www.wolfandbadger.com/pages/csr-policy/
"Commission" means the commission payable by the Seller in respect of the Website Product(s) sold being the percentage of the aggregate Effective Price(s) of the Website Product(s) agreed between the Seller and W&B under the chosen Subscription Package.
"Confidential Information" means any confidential information which is disclosed by either party to the other pursuant to, or in connection with, these Terms and Conditions, other than information which is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality).
"Customer" means a customer of the Website.
"Designer Dashboard" means the area on the Website through which the Seller can upload Website Product(s), manage the Website Sales Area and stock documentation, and view the Statement.
"Effective Price" means in relation to any Website Product(s) the Price less any agreed discounts or rebates (including but not limited to the Permitted Discount actually applied but excluding the Non-Fulfilment Fee) in favour of a Customer.
"EU" means the European Union and each member state of the European Union from time to time.
"EU Sale" means a sale of Website Product(s) by W&B to a Customer through the Website which, if made directly by the Seller to the Customer, would require the Seller to ship the Website Product(s) to an address in the EU (including where such sale would be fulfilled from Stock held in the EU) and "EU Sales" will be construed accordingly.
"Fees" means the Commission (on ROW Sales) and Order Processing Fee, and where relevant and applicable, the Subscription Fee, Joining Fee, Returns Fee, Store Fulfilment Fee, Non-Fulfilment Fee and/or Additional Fees.
“Force Majeure” means any acts, events, omissions or accidents beyond the reasonable control of a party including but not limited to: (i) fire, flood, explosion, earthquake, storm or other natural disaster or extreme adverse weather conditions; (ii) terrorist attack, civil commotion or riots; (iii) collapse of building structures or failure of plant, machinery, computers or utility service.
“Heuristic Data” means any data which is derived from the Seller’s use of the Website or the processing of Seller Data and shall include: (i) any data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data.
“Intellectual Property” means any patent, copyright, registered design, unregistered design right, trade mark, trade name, domain name or other intellectual property rights together with any current applications for the registration of any of the foregoing.
“Joining Fee” means a one-off fee payable by the Seller prior to the commencement of these Terms and Conditions, if applicable.
“Label Fee” means the following fees payable by the Seller to W&B which apply per label provided by W&B for shipments to Customers:
|
UK Brands |
£5.90 GBP |
|
EU Brands |
€7.50 EUR |
|
US Brands |
$9.75 USD |
|
CA Brands |
$14.75 CAD |
|
AU Brands |
$15.75 AUD |
|
Rest of World Brands |
$13.00 USD |
“Late Payment Fee” means a charge to be paid by the Seller to W&B for failure to pay any debt due under these Terms and Conditions on the day they are due. The amount of charge will vary depending on the level of outstanding debt. For debts between £0.01 and £999.99 the charge will be £40, for debts between £1000 and £9999.99 the charge will be £70, for debts over £10,000 the charge will be £100. Late Payment Fees are expressed here in British Sterling but may be satisfied by an equivalent amount in the local currency in which all other Fees applicable to the Seller are denominated, applying the foreign exchange conversion rate (as quoted by a recognised exchange) in force as at the date any such Late Payment Fee becomes payable by the Seller.
“Losses” mean losses, liabilities, damages, compensation, penalties, costs, disbursements and expenses arising directly or indirectly from any claim, demand, action or proceedings.
“Non-Fulfilment Fee” means a fee of 10.00 GBP / $14.00 USD / $18.00 CAD / €12.00 EUR / $20.00 AUD payable by the Seller to W&B for any order for a Website Product which the Seller cancels prior to fulfilment or where the Seller sends an incorrect item to the Customer.
“Order Processing Fee” means the order processing fee payable by the Seller in respect of the Website Product(s) sold being the percentage of the aggregate Effective Price(s) of the Website Product(s) agreed between the Seller and W&B.
“Permitted Discount” means a discretionary discount of up to ten (10) per cent off the Price of each of the Website Product(s).
“Premises” means the areas determined by W&B of the W&B stores described on the Website, or any other W&B premises of which W&B informs the Seller.
“Price” means the amount that each Website Product(s) is to be offered for sale (outside of any Sales Periods) through the Website as determined by the Seller after consultation with and taking into account the reasonable advice of the staff of W&B and which amount shall be inclusive of applicable taxes (save for sales tax in the United States or in any country within the EU) but, in the case of international orders (being orders where Website Products are received in a destination outside of the customs zone from which it was sent, for example orders sent from the European Union but received outside of the European Union), shall be calculated prior to the inclusion of and excluding any additional applicable taxes, duties or fees (including costs relating to shipping and handling) that W&B may charge the Customer in its sole discretion.
"Product Information" means all descriptions, copy, artwork, photographic images (including, but not limited to, the right to use model likeness) or other information and materials in respect of the Website Product(s) provided by the Seller for display on the Website Sales Area which meet the guidelines (communicated to the Seller by W&B from time to time) which W&B has approved as being suitable for display on the Website and which W&B has agreed to display on the Website.
"Receipts" means the net amounts received from the sale of Website Product(s) during that Statement Period in cleared funds.
"Relevant Amount" means, in respect of UK Sales and EU Sales only, an amount equal to the Commission which would have been paid if the sale was a ROW Sale.
"Returns Fee" means a fixed amount charged by W&B to be paid by the Seller for any order returned by a Customer.
"Rights" means the Seller’s rights during the Term as set out in these Terms and Conditions: (i) to use the Website Sales Area to exhibit and sell the Website Product(s); and/or (ii) to keep Stock at the Premises; and/or (iii) to have the benefit of the Services. In respect of UK Sales and EU Sales only, the Seller's right to sell is limited to a sale to W&B on the applicable terms set out in these Terms and Conditions and W&B shall be deemed to have the same rights (whether implied by law or otherwise) in respect of such sale as against the Seller as a Customer would have if the Customer had purchased the Website Products directly from the Seller.
"ROW Sale" means a sale of: (i) Website Products through the Website which is not a UK Sale or an EU Sale; and (ii) Products at any Premises other than one that constitutes a UK Sale and EU sale.
“Sales Period” means any time during which W&B at its absolute discretion decides to hold a sale or promotion period or event on the Website.
“Self-Billing Obligations” means the provision of Seller Information by the Seller to W&B in accordance with clause 6.9 and compliance by the Seller of its obligations set out in clause 21.13 at all times.
“Seller’s Bank Card” means the bankcard details provided to W&B by the Seller and held on behalf of W&B with its third-party payment provider.
“Seller’s Data” means the data uploaded or submitted to the Website by the Seller directly or indirectly via any third-party application and shall include without limitation all anonymised business data, excluding any Heuristic Data.
“Seller’s Email Address” means the email address provided by the Seller to W&B as part of the Seller Information.
“Seller Information” means: (i) the Seller’s full name; (ii) the Seller’s registered business address; (iii) the Seller’s VAT registration status and details of any registration, deregistration or reregistration; (iv), details of the ultimate beneficial owner of the Seller; (v) details of any direct or indirect sale of the shares of the Seller or business of the Seller, in whole or in part and whether in one or a series of connected transactions; and (vi) such other information as W&B may request from time to time, including but not limited to in each case any change to such details from time to time.
“Seller’s Media/Content” means any media/content produced by the Seller in relation to their Website Product(s) and displayed on their website or any social media platform managed by the Seller or that has been provided by Seller to W&B.
“Services” means the services stipulated in the chosen Subscription Package to be provided by W&B to the Seller.
“Statement” means the notice in the Designer Dashboard setting out the Website Product(s) sold during the Statement Period.
“Statement Date” means on or before the 21st day following the end of any calendar month or such other dates as W&B shall notify to the Seller from time to time.
“Statement Period” means the period of one calendar month prior to each Statement Date and shall have the meaning given to it in clause 7.
“Stock” means any stock of the Website Product(s) stored by W&B at the Premises for the delivery of Website Product(s) to Customers.
“Stock Room” means that part of the Premises designated by W&B as the area where the Stock is to be stored.
“Store Fulfilment Fee” means a charge in the amount of £10.00 GBP / $14.00 USD / $18.00 CAD / €12.00 EUR / $20.00 AUD to be paid by the Seller to W&B for each online order between the Seller or W&B (as the case may be) and a Customer which is fulfilled from Stock. Such amount will be retained by W&B from Receipts not yet remitted to the Seller.
“Subscription Fee” means (where applicable under the chosen Subscription Package) a monthly or annual fee charged by W&B to be paid by the Seller (including any applicable Label Fees).
“Subscription Package” means the package of services offered by W&B to the Seller in relation to the sale of the Website Products whether such sale is: (i) made on the Website to the Customer; or (ii) facilitated by the Website to W&B.
“Term” means the duration of these Terms and Conditions as defined under clause 4 below.
“Terms and Conditions of Sale” the terms and conditions of sale displayed on the Website from time to time during the Term.
“UK” means the United Kingdom.
“UK Sale” means a sale of: (i) Website Product(s) by W&B to a Customer through the Website which, if made directly by the Seller to the Customer, would require the Seller to ship the Website Product(s) to an address in the UK (including where such sale would be fulfilled from Stock held in the UK); and (ii) Product(s) by W&B concluded at W&B’s store in London as anticipated under the in-store annex and “UK Sales” will be construed accordingly.
“VAT” means value added tax [or any other similar sales tax in any other jurisdiction other than the UK].
“Website” means the website at domain www.wolfandbadger.com which is owned and operated by W&B.
“Website Products” means any product or products that the Seller wishes to exhibit on the Website Sales Area and which W&B has approved as being suitable for display on the Website Sales Area and which W&B has agreed to exhibit on the Website Sales Area.
“Website Sales Area” means a webpage(s) and/or part of a webpage(s) on the Website which has been designated by W&B for the display of the Seller’s Website Product(s).
“W&B’s Email Address” means [email protected] or any other email address as communicated from W&B to the Seller.
Words importing persons include a corporate body, a firm or a partnership and vice versa.
Where any single party to these Terms and Conditions for the time being comprises two or more persons, obligations expressed or implied to be made by or with W&B are deemed to be made by such persons jointly and severally.
Any licence by the Seller not to do anything includes an obligation to use reasonable endeavours not to permit or suffer that thing to be done by another person where the Seller is aware that the thing is being done.
References to W&B or the Seller include any of their directors, executives, employees, staff or agents.
2 GRANT OF RIGHTS TO THE SELLER
2.1 W&B grants to the Seller the Rights during the Term.
2.2 W&B shall so far as it is reasonably able: (i) not grant similar rights to the Rights to persons other than talented fashion, jewellery, accessories, beauty or product designers; and (ii) ensure that the Website contains a good mix of high-quality design products.
3 NATURE OF THE RELATIONSHIP between THE SELLER AND W&B
3.1 This clause 3.1 applies only to ROW Sales. As a Seller, you hereby authorise us to act as your non-exclusive commercial agent to negotiate and conclude the sale of Website Products to Customers under the Terms and Conditions of Sale only on your behalf. In this limited capacity, W&B is not a party to the resulting sale contracts between you and each Customer (“Sale Contract”). Your geographical address and identity as Seller will be specified in the relevant despatch confirmation email where the Customer’s order is accepted. Each Customers’ obligation to pay amounts due under a Sales Contract shall be satisfied when W&B takes payment from the Customer as ‘merchant of record’ and the Customer will see W&B as merchant of record on the Customer’s card or payment account statement. W&B does not act as agent of the Customer or charge the Customer any fees to cover the Services.
3.2 In respect of UK Sales and EU Sales (as the case may be), W&B shall be the seller of the Website Products to the Customer and immediately upon the Seller receiving a notification of a UK Sale and EU Sales (as the case may be) in accordance with Clause 12, the Seller shall sell the relevant Website Product(s) to W&B on the applicable terms set out in these Terms and Conditions. However, for the purposes of the sale to Customers by W&B, the Seller irrevocably: (i) accepts and agrees that W&B may refer to itself as acting as undisclosed agent for the Seller; and (ii) authorises W&B to refer to such contracts as being entered into on behalf of the Seller, but in each case without prejudice to the other terms set out in these Terms and Conditions.
4 TERM, RENEWAL AND TERMINATION
4.1 These Terms and Conditions shall commence on W&B providing the Seller with access to the Designer Dashboard. Seller acknowledges that such access will not be granted until: (i) it has completed the application materials determined by W&B; (ii) W&B has accepted the application at its absolute discretion; and (iii) W&B has received in cleared funds any applicable fees (such as a Joining Fee or Subscription Fee).
4.2 These Terms and Conditions shall continue for an initial month, quarter or annual term (depending on the Subscription Package chosen by the Seller) and unless terminated, shall automatically renew and continue for successive renewal periods of equal length to the initial term until terminated in accordance with these Terms and Conditions.
4.3 Notwithstanding any other termination provision in these Terms and Conditions, in the event W&B exercises any of its termination rights under these Terms and Conditions it shall provide the Seller:
(i) with at least 30 days’ prior written notice. Such 30-day notice period is not required in the event that (i) the Seller is in persistent breach of these Terms and Conditions and/or (ii) there is a legal or regulatory obligation on W&B, which means it cannot give thirty (30) days’ notice; and
(ii) prior to or at the time of termination with a written statement of its reasons for terminating these Terms and Conditions.
4.4 In the event W&B exercises its rights under these Terms and Conditions to suspend or restrict the provision of the Services to the Seller, W&B shall provide the Seller:
(i) with at least 30 days’ prior written notice. Such 30-day notice period is not required in the event that (i) the Seller is in persistent breach of these Terms and Conditions and/or (ii) there is a legal or regulatory obligation on W&B, which means it cannot give thirty (30) days’ notice; and
(ii) prior to or at the time of suspension restriction, with a written statement containing the reasons for suspension or restriction.
4.5 If Seller has not opted-in to W&B’s in-store annex, either party may give at least 30 days’ notice to: (a) terminate these Terms and Conditions; or (b) temporarily pause their W&B account where, in each case, the expiry of such notice must coincide with the end of the then-current renewed period of the Terms and conditions in accordance with clause 4.1.
4.6 If the Seller has opted-in to W&B’s in-store annex, either party may give a notice to terminate (but not to temporarily pause their W&B account) in accordance with clause 4.5 above, but the date of termination of these Terms and Conditions (and the in-store annex) shall be no earlier than the expiry of the then-current fixed store dates notified by W&B to the Seller pursuant to the in-store annex terms (“Fixed Store Date”). Where the Fixed Store Date causes these Terms and Conditions to renew for a further period, the parties agree that the Subscription Package for such renewal shall be a monthly Subscription Package, notwithstanding that the Seller’s Subscription Package was a different Subscription Package prior to the service of a notice pursuant to this clause. That monthly Subscription Package shall continue to be renewed until the Fixed Store Date, in accordance with clause 4.1.
4.7 The Subscription Fee for the period due under any Subscription Package commenced by the Seller will remain payable in the event of termination prior to the end of the period to which the Subscription Fee relates and no pro-rated fees will be refundable. Any such termination shall be without prejudice to W&B’s rights in respect of any prior breach of the Seller’s obligations.
4.8 W&B shall be entitled to terminate these Terms & Conditions (without prejudice to W&B’s rights in respect of any prior breach of the Seller’s obligations) in addition to the rights in clause 4.3: (i) following the failure of the Seller to pay any sums due under these Terms and Conditions on the date due for payment; (ii) following any breach by the Seller of any of other obligations or conditions contained in these Terms and Conditions save that if any such breach is capable of cure or remedy W&B shall notify the Seller that it requires the Seller to remedy the breach within thirty (30) days of the date of such notice to cure or remedy the breach in which event these Terms and Conditions shall end on the expiry of such period if the breach has not been cured or remedied to the reasonable satisfaction of W&B; (iii) if the Seller ceases to carry on business due to bankruptcy, insolvency or has a liquidator, receiver of administrative receiver appointed to it or over part of its undertaking or assets, or passes a resolution for its winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity assumes all of the liabilities of it) or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or the enters into any voluntary arrangement with his, her or its creditors (or any similar process in any other jurisdiction); or (iv) if the Seller, being an individual, dies or by reason of incapacity or illness (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
4.9 Immediately upon the termination of these Terms and Conditions, however arising, the Seller shall pay to W&B any and all amounts payable by the Seller to W&B. In the event such amounts remain unpaid for a period of seven (7) days from the date of the termination of these Terms and Conditions, W&B reserves the right to charge the Seller a Late Payment Fee in addition to the overdue amount. The Seller shall pay the Late Payment Fee together with the overdue amount.
4.10 Upon termination of these Terms and Conditions, howsoever arising, W&B shall (unless otherwise agreed with the Seller) within fourteen (14) days remove the Website Product(s) from the Website Sales Area.
4.11 Upon termination of these Terms and Conditions, the provisions of clause 13, clause 18, clause 19 and clause 21, together with any terms which relate to the payment of Fees to W&B shall continue to apply.
5 THE SERVICES
5.1 W&B will provide the Services during the Term with reasonable skill and care.
5.2 W&B reserves the right to revise or alter the Services at any time upon providing the Seller with thirty (30) days’ written notice of variation. Seller may terminate these Terms and Conditions if it objects (by giving notice in writing to W&B) to any variation of these Terms and Conditions within such thirty (30) day notice period.
6 SELLER OBLIGATIONS
6.1 The Seller hereby undertakes to: (i) establish and maintain access to the internet at their 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 interoperate with the Designer Dashboard 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 W&B and to the Website is submitted free from viruses;
6.2 W&B has no responsibility for the provision, support and maintenance of any of the Seller’s hardware or software used to access the internet, or any related hardware or software, the responsibility for which shall remain exclusively the Seller’s.
Security
6.3 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 Service and access to the Designer Dashboard; (ii) shall inform W&B 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; (iii) shall inform W&B immediately if the Seller forgets or loses a password and must satisfy such security checks as W&B may operate in order to obtain a new password; and (iv) shall ensure that the Designer Dashboard and its content remains entirely confidential, and that no other person beside those in the Seller’s employment has sight of the Designer Dashboard or any of its content.
6.4 W&B reserves the right: (i) to suspend access to the Services if at any time W&B considers that there is or is likely to be a breach of security, in which event W&B 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 or all of the passwords used by the Seller in connection with the provision of the Service and access to the Designer Dashboard, in which event W&B 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.
The Seller’s Website Sales Area
6.5 W&B has absolute discretion as to the look, feel and content of the Website (including all Website Sales Area) as well as full and final say in the inclusion, positioning, location and all other presentation of Seller information, and reserves the right to remove any Website Product(s) from the Website at its sole discretion.
Quality of Presentation
6.6 The Seller shall: (i) ensure that the content uploaded to the Designer Dashboard at all times accords with any applicable guidelines notified to it from time to time by W&B, including in relation to the form and content of copy and Website Product(s) imagery; and (ii) comply with reasonable instructions from W&B concerning the Designer Dashboard.
6.7 Any failure to maintain suitably high standards of page presentation may result in the de-activation of the relevant Website Product page(s) in the first instance. W&B reserves the right, in its sole discretion, to de-activate the Seller’s Website Sales Area until standards have been improved.
6.8 For the avoidance of doubt, if the Seller breaches any part of clauses 6.6 and/or 6.7 on more than one occasion, this will constitute a persistent breach of these Terms & Conditions for the purposes of clauses 4.3 and 4.4.
Seller and Product Information
6.9 The Seller shall abide by W&B’s Code of Ethics and ensure that: (i) all Seller Information; and (ii) all Product Information and the detail of Website Product(s) on the Designer Dashboard, in each case is and remains true, accurate, current and complete at all times. Any failure to provide such information or updated information as soon as reasonably practicable and within 5 days of any request or matter which requires such information to be updated, as the case may be, shall constitute a material breach of these Terms & Conditions purposes of clauses 4.3 and 4.4.
6.10 The Seller shall: (i) where applicable, state clearly on the relevant Website Product page that a Website Product is a personalised or specially-made Website Product, and/or that such Website Product requires a Customer approval of proof prior to its production by the Seller, and shall display the relevant corresponding delivery times; and (ii) if a Website Product is one which is ineligible for the usual returns/cancellation process under applicable law, state clearly on the relevant Product page that such product cannot be cancelled/returned by the Customer.
6.11 The Seller shall not include within its Website Sales Area, on the Designer Dashboard, 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. The Seller agrees that it shall not include any promotional materials within any shipment to a Customer and a breach of this provision on more than one occasion shall constitute a material breach of these Terms & Conditions for the purposes of clauses 4.3 and 4.4.
Stock Information
6.12 The Seller shall accurately display stock availability for all Website Product(s) and shall update such stock availability regularly on the Designer Dashboard.
6.13 Once the final piece of stock of any Website Product has been sold and will no longer be available, the Seller must mark that item as discontinued on the Designer Dashboard.
6.14 The Seller shall remove Website Products from its Designer Dashboard that are awaiting stock for prolonged periods (four weeks or more) until they become available again.
Pricing
6.15 The Seller’s prices must be fully inclusive of all taxes and additional charges, save that for sales to be delivered into the United States, the Seller acknowledges that the price is prior to the imposition of applicable sales tax. The Seller’s prices may also be increased by W&B to reflect other ancillary costs in providing the Services to the Seller and delivering the Products to the Customer.
6.16 If the Seller is VAT registered, the Seller should set the VAT rate at the level that is currently in force in the applicable country with respect to the Seller's Website Products. Save for W&B's obligations in relation to self-billing in accordance with clause 21.13, the Seller is solely responsible for ensuring that it fully complies with current VAT regulations and accounting for VAT correctly.
6.17 Subject to clause 6.15, the Seller has complete discretion over how it wishes to price its Website Product(s) but must not price its Website Product(s) higher than those prices set publicly on its own website or other direct sales channels.
6.18 In the event that the Seller publicly offers the same Website Product(s) for sale elsewhere at a lower price, then W&B may reasonably request that the Website Product(s) are changed to reflect this lower price. In the event that a Customer has purchased the product at a higher price than that offered publicly by the Seller elsewhere within 14 days, W&B may reimburse the Customer the difference in price on behalf of the Seller (and W&B may pay such difference in price (Price Difference) from any Receipts which have not yet been remitted to the Seller. Where W&B reimburses a Price Difference in respect of UK Sales and EU Sales, it shall increase the Relevant Amount by an amount equal to the Price Difference on the next Statement).
Suspension of service
6.19 Subject to clause 4.4, W&B may suspend or terminate the Seller's subscription and use of the Services in the event W&B reasonably believes or suspects that any Seller Information does not comply with the provisions of this clause 6.
7 CHARGES
7.1 The Seller shall pay any and all Fees in accordance with these Terms and Conditions. The relevant Fees shall be as notified to the Seller and updated by W&B from time to time in accordance with these Terms and Conditions. Unless specified otherwise, all Fees 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 Fees themselves.
7.2 The Seller shall make all payments to W&B due under the Terms and Conditions without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
7.3 If any sum due from the Seller to W&B 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 W&B shall become due and payable immediately and, without prejudice to any other right or remedy available to W&B, W&B 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 W&B; (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; and (iii) deduct payment from any remittance to the Seller in accordance with clause 7.15 and clause 7.16.
Joining Fee
7.4 If applicable, the Joining Fee is a non-refundable fee to be paid by the Seller to W&B as a condition to the commencement of these Terms and Conditions. W&B may, in its sole discretion, permit the Seller to pay the Joining Fee in more than one instalment. The amount of each instalment, and the timing for payment of such instalments, shall be as agreed between the Seller and W&B in writing. Payment of the first instalment by the Seller shall constitute payment of the Joining Fee for the purposes of commencement of the Term but without prejudice to W&B’s entitlement to receive the balance of the Joining Fee.
Commission and Relevant Amount
7.5 In respect of all ROW Sales only, the Seller shall pay to W&B the Commission by way of retention of such amount by W&B from Receipts. W&B shall be permitted to increase the Commission at its discretion. Any such increase shall be notified to the Seller by email to the Seller’s Email Address with a minimum of 30 days’ notice following which the increase shall take effect. The notice period under this clause shall not apply to any change to the Commission resulting from a change of Subscription Package.
7.6 In respect of all UK Sales and EU Sales only, the Seller agrees that the amount payable by W&B to the Seller for each Website Product shall be equal to the Effective Price after deducting the Relevant Amount. W&B shall be permitted to increase the Relevant Amount at its discretion. Any such increase shall be notified to the Seller by email to the Seller's Email Address with a minimum of 30 days’ notice following which the increase shall take effect. The notice period under this clause shall not apply to any change to the Relevant Amount resulting from a change of Subscription Package.
Order Processing Fee
7.7 The Seller shall pay to W&B the Order Processing Fee, by way of retention of such amount by W&B from Receipts. W&B shall be permitted to increase the Order Processing Fee at its discretion. Any such increase shall be notified to the Seller by email to the Seller’s Email Address with a minimum of 30 days’ notice following which the increase shall take effect.
7.8 The Order Processing Fee is set currently at 2.50% of the aggregate Effective Price(s) of the Website Product(s).
Subscription Fee
7.9 Where a Subscription Fee is applicable under the chosen Subscription Package the Seller shall pay to W&B the Subscription Fee during the Term by way of a charge to the Seller’s Bank Card. The charge to the Seller’s Bank Card shall be made on the date the Seller chooses the Subscription Package which provides for a Subscription Fee (the "Start Date") and be charged at either monthly or annual intervals following the Start Date, depending on the Subscription Package chosen. For the avoidance of doubt, if these Terms and Conditions are terminated by the Seller upon any proposed amendments by W&B in respect of which W&B is required to give 30 days’ notice, the Subscription Fee shall remain payable by the Seller to W&B [and, instead of being paid monthly, shall instead be due and payable in full upon termination].
Returns Fee
7.10 Where a Customer returns an order using a return delivery method arranged and paid for by W&B, the Seller agrees to reimburse W&B a fixed amount of the returns cost for each shipment by way of retention of such amount by W&B.
7.11 W&B shall be permitted to increase the Returns Fee at its discretion. Any such increase shall be notified to the Seller by email to the Seller’s Email Address with a minimum of 30 days’ notice following which the increase shall take effect.
7.12 The Returns Fee is set to the same rate as the Label Fee.
Store Fulfilment Fees and Non-Fulfilment Fee
7.13 The Seller shall pay to W&B any Store Fulfilment Fee and Non-Fulfilment Fee by way of retention of such amount by W&B from Receipts. W&B shall be permitted to increase the Store Fulfilment Fee or Non-Fulfilment Fee at its discretion. Any such increase shall be notified to the Seller by email to the Seller’s Email Address with a minimum of 30 days’ notice following which the increase shall take effect.
Additional Fees
7.14 Where applicable the Seller shall pay to W&B any Additional Fees by way of a charge to the Seller’s Bank Card on either (i) the date the Additional Fees are agreed between the parties; or (ii) on the first day of the calendar month immediately following the date on which the Additional Fees were agreed between the parties.
Statement
7.15 W&B shall display on the Designer Dashboard: (i) the Statement showing the Website Product(s) sold during the calendar month prior to the relevant Statement Date (the "Statement Period"); (ii) the Effective Price(s) at which the Website Product(s) were sold; (iii) the Receipts; (iv) the Relevant Amount or the amount of the Commission deducted from and retained by W&B from the Receipts; and (v) any Relevant Amount, Commission, Fees or other amounts from any date prior to the Statement Period that remains outstanding from the Seller to W&B; and (vi) a reasonable amount (which may constitute the entire sum) to cover any anticipated costs (for example, non-exhaustively, any customs or other delay in receiving Products or in anticipation of costs if these Terms and Conditions are terminated for any reason).
7.16 W&B shall remit to the Seller within seven (7) days of the Statement Date the amount payable in the Statement, being the Receipts less: (i) the Commission; (ii) the Relevant Amount; (iii) any other Fees that have accrued during the Statement Period; (iv) any sums due but unpaid pursuant to clause 7.15(v); and (v) any sums withheld under clause 7.15.
7.17 W&B shall be entitled to deduct from the amounts payable to the Seller in respect of a Website Product, pursuant to these Terms and Conditions: (i) any amounts paid by W&B on behalf of the Seller to the Customer in respect of any full or partial refund provided, in respect a sale through the Website by the Seller to the Customer; and (ii) in respect of a sale by the Seller to W&B under these Terms and Conditions, a sum equal to the amount payable by W&B to the Seller in respect of such Website Product.
7.18 The Seller shall not seek or accept payments due under Sale Contracts from Customers other than from W&B under these Terms and Conditions.
8 ACCOUNTS AND RECORDS
8.1 In respect of ROW Sales:
(i) W&B shall collect all monies due to the Seller in respect of sales of the Website Product(s) on behalf of the Seller but shall not be required to hold the same in separate bank accounts for the Seller.
(ii) the Seller shall comply with all invoicing, ordering and accounting procedures as set out in the rules and regulations imposed by W&B from time to time a copy of which W&B shall hold at the Premises and shall allow the Seller to view on prior arrangement with W&B.
(iii) the Seller shall produce to W&B copies of valid tax invoices within fourteen (14) days of W&B making a written request to the Seller for the same.
8.2 In respect of UK Sales and EU Sales:
(i) W&B shall not be required to hold any sums payable by it to the Seller for Website Product(s) purchased by W&B in a separate bank account for the Seller.
(ii) W&B shall invoice the Customer in the name of W&B (where required) and no invoice will be sent directly by the Seller to the Customer in the Seller's name.
(iii) W&B has or will make available on the Website an agreement between W&B and the Seller in respect of self-billing (Self-Billing Agreement) which will be presented for confirmation of your agreement on and from 1 January in each year until such terms are accepted by the Seller. If the Seller does not indicate its agreement to W&B of the terms of a valid Self-Billing Agreement to the satisfaction of W&B or is in breach of any of its Self-Billing Obligations, W&B is not able to provide any of the Services to the Seller and the Seller shall not be able to sell any Website Products through the Website. No Fees are refundable or rendered not due and payable by the Seller to W&B as a result of the absence of a valid Self-Billing Agreement between the Seller and W&B or as a result of the Seller's breach of a Self-Billing Obligation. Notwithstanding any other terms of these Terms and Conditions, W&B shall be entitled to withhold all Receipts held by W&B on behalf of the Seller which would otherwise be remitted to the Seller, until the Seller has entered into a valid Self-Billing Agreement and has complied in full with all Self-Billing Obligations to the satisfaction of W&B.
9 WEBSITE MATERIALS
9.1 W&B shall use its reasonable endeavours to within 30 days following the commencement of these Terms and Conditions display the Product Information on the Website Sales Area for the Term, subject to the Seller providing the Product Information to W&B for prior approval via the Online Membership Area. The number of photographs displayed on the Website Sales Area in respect of a Website Product will be dependent on the Subscription Package.
9.2 Where the Seller wishes to alter the Product Information displayed on the Website Sales Area the Seller may make a request to W&B via the Online Membership Area. Such a request must contain information on the Product Information the Seller wishes to alter and, where the Seller wishes to use new Product Information, they must upload high-resolution images of the Product Information on the Online Membership Area that the Seller wishes to use.
9.3 Subject to W&B’s approval of the suggested changes to the Product Information W&B will use its reasonable endeavours to alter the Product Information on the Website Sales Area within 30 days of approving the request.
10 SALE OF WEBSITE PRODUCT(S)
10.1 The Seller warrants to W&B that: (i) it owns and has proper title to the Website Product(s) and to all Intellectual Property in relation to or in connection with Website Product(s); (ii) it is fully authorised to sell the Website Product(s); (iii) the sale of the Website Product(s) will not infringe any laws or rights of any third parties, including any Intellectual Property rights; and (iv) the Website Product(s) and/ or the Stock are 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.
10.2 In respect of ROW Sales only:
(i) W&B is appointed by the Seller to sell the Website Product(s) through the Website and the Affiliated Websites on behalf of the Seller and on the terms set out in these Terms and Conditions and the Seller shall not interfere with the sale of the Website Product(s) through the Website or (if applicable) the Affiliated Websites. Ownership of the Website Product(s) and/or the Stock remains with the Seller at all times until title passes to the Customer.
(ii) the Website Product(s) shall be sold by W&B, acting in its capacity as disclosed agent or for tax purposes, on behalf of the Seller subject to the terms of these Terms and Conditions.
10.3 In respect of UK Sales and EU Sales only:
(i) the Seller shall sell the Website Products notified to the Seller by W&B in accordance with clause 12.1 to W&B on the terms set out in these Terms and Conditions, including but not limited to those set out in clause 21. Ownership of and title to the Website Product(s) sold by the Seller to W&B shall pass in the manner set out in clause 21.
(ii) the Website Product(s) shall be sold by W&B to the Customer, acting in its capacity as principal or undisclosed agent of the Seller for tax purposes, subject to the terms of these Terms and Conditions.
10.4 For the sake of clarity, W&B and the Seller understand that the relationship between W&B and the Seller hereunder is not subject to the scope of the Commercial Agents (Council Directive) Regulations 1993 (as amended) or any similar law or regulation applicable to commercial agents, and no compensation and/or indemnity shall be payable by the Seller to W&B in respect thereof in the event of expiration of termination of this agreement.
10.5 W&B shall provide to Customers who wish to purchase the Website Product(s) through the Website an efficient online credit card system for credit card transactions.
10.6 The Price of the Website Product(s) shall be determined by the Seller after consultation with W&B and after taking into account the reasonable advice and opinions of W&B based on W&B’s experience and requirements for the Website to offer high quality design products.
10.7 The Website Products shall be displayed on the Website along with products from W&B’s other sellers. The prominence of the Website Products on the Website is dependent on the product’s rank. Each Website Product will be ranked by W&B in accordance with the following criteria: (i) popularity; (ii) newness; (iii) customer reviews; (iv) price; (v) stock availability; and (vi) quality of the product listing (quality will be improved by photos of the Website Product and its description amongst other factors). The Seller may contact W&B via W&B’s Email Address to request any further clarification on the ranking criteria.
10.8 W&B may, at its discretion from time to time, offer Customers the Permitted Discount to the Price of the Website Product(s). W&B agrees to seek the permission of the Seller in advance of offering a discount to Customers above the Permitted Discount.
10.9 The Seller shall not discount or deduct from the Price of Website Product(s) or promote the Website Product(s) in any way so as to decrease its value from that of the Price save during a Sales Period.
10.10 Where any Website Product(s) sold is/are returned by a Customer on the basis that it is/they are defective in design, material or workmanship or do not comply with applicable statutory and regulatory requirements then W&B may (at its absolute discretion): (i) provide the Customer with a full or partial refund; (ii) replace the Website Product(s) (in which event the replaced Website Product(s) shall be subject to the provisions of this clause); or (iii) return the Website Product(s) to the Seller to be repaired. The return of any Website Product(s) by a Customer sold pursuant to a UK Sale or an EU Sale shall entitle W&B to return the item to the Seller at the Seller's cost (such cost to include but not be limited to the cost of return from the Customer's address to the Seller) and W&B may elect to: (i) receive a full or partial refund and credit note in respect of such refund (and W&B shall be entitled, immediately upon such election, to retain such refund from any Receipts which would otherwise be payable to the Seller by W&B); (ii) request a replacement the Website Product(s) (in which event the replaced Website Product(s) shall be subject to the provisions of this clause); or (iii) request a repair of the Website Product(s).
10.11 If a Customer is unhappy with the Website Product(s) for any other reason (subject to the provision of a valid sales receipt) the Customer may return the Website Product(s) to W&B within twenty-eight (28) days of the date of delivery of the Website Product(s) to the Customer (or twenty-eight (28) days of the date the item was picked up by Customer at a W&B store in case of Store Delivery Request) and W&B shall be entitled to refund the full amount paid by the Customer. Where the Customer returns the Website Product(s) to W&B (or in the case of a Customer return under a UK Sale or an EU Sale), W&B shall return (or facilitate the return of) the Website Product(s) to the Seller within a reasonable time period unless otherwise agreed with the Seller. In respect of a UK Sale or an EU Sale, the Seller shall issue any credit notes pursuant to the Self-Billing Agreement then in place between the Seller and W&B and W&B shall be entitled to deduct an amount equal to the sum set out in all such credit notes from the Receipts for the then current Statement Period.
10.12 If W&B returns the Website Product(s) to the Seller to be repaired in accordance with these Terms and Conditions, then the Seller shall repair Website Product(s) at its sole cost and return it to W&B within ten (10) working days of being requested to do so by W&B.
10.13 If the Seller is unable to repair and return the Website Product(s) within the requisite ten (10) working days the Seller shall inform W&B immediately on becoming aware of the same and W&B may (at its own discretion): (i) provide W&B or the Customer (as the case may be) with a full or partial refund; or (ii) replace the Website Product(s).
11 USE OF STOCK ROOM
11.1 All requirements for the holding of Stock shall be agreed in advance between W&B and the Seller but in the absence of agreement W&B’s decision as to the amount of Website Product(s) to be stored as Stock in the Stock Room shall be final and binding.
11.2 W&B shall use its reasonable endeavours to ensure that Stock is stored separately from other goods and clearly indicated as belonging to the Seller.
11.3 If the Seller has run out of Website Product(s), the Seller shall immediately mark those Website Product(s) as out of stock via the Designer Dashboard.
12 DELIVERY OF THE WEBSITE PRODUCT(S) TO CUSTOMERS OR TO W&B
12.1 Where a Customer purchases Website Product(s) from the Website, W&B shall inform the Seller:
(i) whether the purchase is a UK Sale, an EU Sale or a ROW Sale;
(ii) of the purchase by email to the Seller's Email Address and/or via the Online Membership Area and either: (i) request that the Seller send the relevant Website Product(s) to W&B to send on to the Customer (a "Store Delivery Request"); (ii) inform the Seller that W&B has sufficient Stock of Website Product(s) held with W&B from which to make delivery to the Customer; or (iii) request that the Seller send the relevant Website Product(s) to the Customer directly (a "Direct Delivery Request").
12.2 Where W&B makes a Store Delivery Request to the Seller, W&B shall state in the Store Delivery Request the Website Product(s) purchased by the Customer (or purchased by W&B from the Seller in the case of a UK Sale or an EU Sale) and the name of the relevant Premises to which the Seller must deliver the Website Product(s).
12.3 Where W&B makes a Direct Delivery Request to the Seller, W&B shall state in the Direct Delivery Request the Website Product(s) to be delivered by the Customer and the address details of the Customer. The Seller agrees that it shall not use, process or store the Data (as defined in clause 12.4 below) provided by the Customer for any other purpose than processing the Direct Delivery Request. The Seller agrees that it shall not attempt to directly solicit custom from the Customer when sending the Website Product(s) to the Customer, including, but not limited to, the inclusion of promotional material (other than W&B promotional material) in the shipment, and shall not subsequently use the Customer details provided in the Direct Delivery Request to solicit future business from the Customer. The Seller shall pay to W&B on request the sum of £1,000 per breach of such provision but such payment shall be without prejudice to any rights that W&B may have whether under these Terms and Conditions or otherwise. Further nothing shall absolve the Seller from its obligations to comply with all applicable law nor from any liabilities incurred in respect of a breach of applicable law.
12.4 Where there is insufficient Stock of the Website Product(s) held with the Seller, W&B shall arrange delivery of the Website Product(s) to the Customer, and charge the Seller a Stock Fulfilment Fee.
12.5 Where more than one Website Product is ordered by a Customer, the Seller shall not deliver the Website Products in instalments without W&B's prior written consent.
12.6 Where Seller delivers Products directly to the Customer, Seller acts as a Processor in connection with Personal Data relating to such Customer’s order and delivery information (the "Data"). The Seller’s Processing instructions and operations shall consist of arranging and ensuring the delivery of the Product to the Customer, and such Processing in respect of any given Customer shall continue for a period of 30 days after the Product has been dispatched, at which point Seller shall securely delete the Data. Seller shall: (i) implement appropriate technical and organisational measures to ensure the Data is kept secure; (ii) ensure that any person it authorises to Process the Data shall be subject to written confidentiality obligations (and the provisions of clause 12.5); and (iii) comply with and ensure that it complies at all times with the data protection laws which apply from time to time to the processing of Data by W&B and by the Seller.
12.7 Seller shall not appoint third party Processors over the Data or transfer the Data outside of the UK and/or the European Economic Area without first obtaining W&B’s consent, save that delivery and courier service providers are deemed expressly approved for the purposes of these Terms and Conditions. Seller shall be liable to W&B for any breach of these Terms and Conditions that is caused by any of the Seller’s Processors. Seller shall notify W&B of the delivery and courier third party Processors it uses as at the date of these Terms and Conditions, and shall notify W&B of any changes in such providers, giving W&B the chance to object.
12.8 Seller shall provide assistance to W&B to demonstrate compliance with W&B’s audit, security, breach notification, impact assessment and prior consultation obligations, and assist W&B in responding to any request, enquiry or complaint from a Data Subject (such as to exercise their rights under the Data Protection Legislation).
12.9 Seller shall notify W&B without undue delay on discovering a Personal Data Breach in connection with the Data. If Seller is aware that W&B’s Processing instructions infringe applicable law, it shall notify W&B immediately (unless prevented from doing so by applicable law) and not carry out the relevant Processing. If Seller is required to Process the Data other than in accordance with W&B’s instructions, Seller will notify W&B of this (unless prohibited from doing so by applicable law).
12.10 Upon termination or expiry of these Terms and Conditions, the Seller shall destroy or return to W&B all Data in its possession or control.
12.11 Upon receipt of such a Delivery Request from W&B, the Seller shall within 48 hours deliver the relevant Website Product(s) to the relevant Premises by a recorded delivery method and upon dispatching the relevant Website Product(s) inform W&B of the dispatch via email to W&B’s Email Address and/or via the Designer Dashboard.
12.12 The Seller shall own all right, title and interest in and to all of the Seller Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Seller Data.
12.13 W&B may use the Seller Data to provide and improve the performance and functionality of the Services. W&B shall own all rights, title and interest in and to all of the Heuristic Data.
12.14 W&B may track and analyse the Seller’s use of the Services for the purposes of security and to help W&B improve the Services and the Website.
12.15 W&B may share the Seller Data with a third-party data aggregator to gather trends and insights in order to help W&B provide and improve the Services and the Website.
13 INDEMNITY
13.1 The Seller shall keep W&B fully indemnified against all Losses arising directly or indirectly out of: (i) any act, omission, default or negligence of the Seller, or any persons expressly or impliedly acting with its authority, at the Premises or in connection with the exercise or purported exercise of the Rights; (ii) any breach or non-observance by the Seller of the obligations, conditions or other provisions of these Terms and Conditions; (iii) any faults or defect in the materials or workmanship of the Website Product(s) or Product(s) that causes death or personal injury to any persons who purchase Website Product(s) or Product(s); (iv) where the Customer makes a claim of any nature and howsoever arising against W&B in respect of any Website Product or Product(s) under a UK Sale or an EU Sale and (v) any other claims made by any person against W&B in relation to or in connection with the Website Product(s) or Product(s) or the sale of the Website Product(s) or Product(s).
13.2 The Seller shall indemnify W&B against all Losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by W&B arising out of or in connection with:
(i) any claim made against W&B for actual or alleged infringement of a third party's patents, rights to inventions, copyright and neighbouring and related 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, 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 arising out of, or in connection with, the supply or use of the Website Products or the Products;
(ii) any claim made against W&B by a third party arising out of, or in connection with, the supply of the Website Products or the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Seller, its employees, agents or subcontractors; and
(iii) any claim made against W&B by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Website Products or the Products, to the extent that the defect in the Website Products or Products is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors.
13.3 If a payment due from the Seller under this clause is subject to tax (whether by way of direct assessment or withholding at its source), W&B shall be entitled to receive from the Seller such amounts as shall ensure that the net receipt, after tax, to W&B in respect of the payment is the same as it would have been were the payment not subject to tax.
14 INSURANCE
14.1 W&B shall take out and maintain insurance with a reputable insurance company or companies (subject to any exclusions, conditions, excesses and limitations) insurance of any Stock within the Premises to the value of its wholesale value against a reasonable range of risks (including product and public liability insurance if W&B permits the seller to use the Premises for any kind of pop-up events).
14.2 W&B shall not be liable for: (i) any damage to or loss of the Stock or any other product or item of the Seller in or upon the Premises; or (ii) any other losses of the Seller, save in each case to the extent that any such loss or damage is recovered under the insurance policy or policies outlined above, in which event W&B shall be liable to the Seller for the lesser of: (i) the wholesale price of the damaged and/or lost Stock; or (ii) forty (40) per cent of the Price of the damaged and/or lost Stock, in each case, after deducting any sums attributable to damage or loss of Stock.
14.3 The Seller must not do or omit anything that could cause any insurance policy on or in relation to the Premises or the Stock to become wholly or partly void or voidable, or do or omit anything by which additional insurance premiums may become payable.
14.4 The Seller shall pay to W&B on demand any amount deducted or disallowed by the insurers pursuant to any excess in the insurance policy outlined above (pro-rated to reflect the relevant items that related to the Seller).
15 FORCE MAJEURE
15.1 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 Condition arising from or attributable to Force Majeure.
16 VAT AND SALES TAX
16.1 In respect of all ROW Sales:
(i) all sums payable by the Seller under these Terms and Conditions are exclusive of any value added tax or other sales tax that may be chargeable. The Seller shall pay value added tax or any other sales tax in respect of all taxable supplies made to it in connection with these Terms and Conditions where due on the due date.
(ii) W&B is acting as a disclosed agent for the Seller regarding the sale of the Website Product(s) to Customers. It is the Seller’s responsibility to account for and remit any value added tax due on any sales of the Website Product(s) to the appropriate tax authority. W&B shall not be liable for the Seller’s failure to remit to the appropriate tax authority any value added tax due on the sale of the Website Product(s) to Customers.
(iii) notwithstanding anything to the contrary, W&B may in its sole discretion, deduct an amount equal to the assumed value added tax (or other applicable taxes, duties and fees including any export or import taxes) included in the Price where it deems appropriate and will notify the Seller of this in the Statement and provide details of the associated export.
16.2 In respect of all UK Sales and EU Sales:
(i) all sums payable by the Seller under these Terms and Conditions are exclusive of any value added tax or other sales tax that may be chargeable. The Seller shall pay value added tax or any other sales tax in respect of all taxable supplies made to it in connection with these Terms and Conditions where due on the due date.
(ii) W&B shall purchase the Website Products indicated in any notification from W&B to the Seller in accordance with clause 12.1 subject to the applicable terms of these Terms and Conditions, including those set out in clause 21. It is the Seller’s responsibility to account for and remit any value added tax due on any sales of the Website Product(s) to W&B to the appropriate tax authority. W&B shall not be liable for the Seller’s failure to remit to the appropriate tax authority any value added tax due on the sale of the Website Product(s) to W&B.
(iii) Notwithstanding anything to the contrary, W&B may in its sole discretion, deduct an amount equal to the assumed value added tax (or other applicable taxes, duties and fees including any export or import taxes) included in the Price and will notify the Seller of this in the Statement and provide details of the associated export.
16.3 In respect of US sales, W&B is registered to collect sales tax in the following regions and will collect sales tax on all taxable sales of tangible personal property that it facilitates for Sellers for delivery to an address within these regions: Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.
16.4 If at any time W&B is required to make any payment of or on account of tax on or in relation to any sum received or receivable under these Terms and Conditions (such as but not limited to any sales tax), or if any liability in respect of any such payment is asserted, imposed, levied or assessed against W&B, the Seller shall indemnify W&B against any loss or liability suffered as a result of such payment or liability, together with any associated interest, penalties, costs and expenses.
17 INTELLECTUAL PROPERTY
17.1 W&B acknowledges that the Intellectual Property rights used on or in relation to the Website Product(s) are (with the exception of the Intellectual Property rights in relation to the Product Information which are W&B’s property), the Seller’s property and W&B is only permitted to use the Intellectual Property for the purposes of these Terms and Conditions.
17.2 The Seller hereby grants to W&B a non-exclusive licence to use the Intellectual Property rights and the Seller’s Media/Content for the purposes of marketing and selling the Website Product(s) under the provisions of these Terms and Conditions.
17.3 The Seller hereby grants W&B a non-exclusive licence to use the Intellectual Property rights in W&B’s advertising including the use of the Seller’s branding and trademark as keywords in relation to Google Ads.
17.4 The Seller acknowledges that it is not permitted to use any Intellectual Property rights which belong to W&B and shall indemnify W&B against all Losses arising out of any action or claim that arises due to any breach by the Seller of this clause.
18 CONFIDENTIALITY
18.1 Each party undertakes to the other that it shall not at any time copy, use or disclose to any person any Confidential Information, except as permitted by these Terms and Conditions.
18.2 A party may disclose Confidential Information: (i) to the employees, officers, representatives or advisers of that party who need to know such information for the purposes of carrying out its obligations under these Terms and Conditions but shall ensure that the employees, officers, representatives or advisers to whom the Confidential Information is disclosed comply with this clause; and (ii) as may be required by law, court order or any governmental or regulatory authority.
18.3 No party shall use the Confidential Information for any purpose other than to perform its obligations under these Terms and Conditions.
19 LIMITATION OF LIABILITY
19.1 Nothing in these Terms and Conditions limits any liability which cannot be limited, including liability for fraud, death or personal injury caused by negligence, and fraud or fraudulent misrepresentation. Neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms and Conditions for any indirect or consequential loss, save where expressly stated. The Seller agrees that any Losses suffered by W&B as a result of a Website Product purchased by W&B from the Seller and then sold by W&B to a Customer shall be a direct loss suffered by W&B for the purpose of these Terms and Conditions.
19.2 Subject to the provisions of this clause, W&B’s aggregate liability to the Seller shall not exceed £1,000. Such total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms & Conditions.
20 GENERAL
20.1 All notices served by either party pursuant to the provisions of these Terms and Conditions shall be in writing, and shall be sufficiently served if delivered by hand, or sent by recorded delivery to the address of W&B or Seller specified in these Terms and Conditions or if sent by W&B to the Seller’s email address or by the Seller to W&B’s Email Address.
20.2 W&B shall be entitled to amend these Terms and Conditions, the Fees or all or any of them from time to time by posting such amended versions of them on the Designer Dashboard. W&B will advise the Seller of any changes to these Terms and Conditions by email or by a notification on the Website at least 30 days prior to posting an amended version on the Website unless such changes are required to meet regulatory obligations or to address an unforeseen and imminent concern (such as fraud or a data breach), in which case no prior notice is required. If the Seller does not agree to the changes made to the Terms and Conditions, then it shall have the right to cancel its agreement with W&B prior to the end of the 30-day notice period and stop receiving the Services. It should do so in writing to W&B’s Email Address. The Seller’s continued use of any of the Services, the Website and/or the Designer Dashboard, after the date the changes have come into effect will constitute its acceptance of the amended Terms.
20.3 No failure or delay by W&B to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.4 If any of the provisions of these Terms and Conditions are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such terms, condition or provision will to the extent be severed from the remaining terms, condition and provisions which will continue to be valid to the fullest extent permitted by law.
20.5 These Terms and Conditions are binding upon the Seller and its successors and the Seller may not transfer, assign, charge or otherwise dispose of any of its rights and/or obligations arising under these Terms and Conditions without the prior written consent of W&B.
20.6 W&B may transfer, assign, subcontract or otherwise dispose of any of its rights or obligations arising under these Terms and Conditions at any time during the Term.
20.7 These Terms and Conditions shall constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between the parties.
20.8 Each party acknowledges that, in entering into these Terms and Conditions neither party has relied on any statement, representation, assurance or warranty of any person (whether a party to these Terms and Conditions or not) other than as expressly set out in these Terms and Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation (or negligent misstatement), whether or not based on any statement in these Terms and Conditions.
20.9 Where there is a dispute between the Seller and another trader or occupier(s) in the Premises W&B shall have the power in its absolute discretion to resolve the dispute, after affording to the Seller and the other disputing party an opportunity to make representations.
20.10 Where there is a dispute between the Seller and a Customer or between the Customer and W&B regarding Product(s) purchased by the Customer, W&B may offer the Customer a full refund and the provisions of clause 7.18 shall apply.
20.11 The Seller shall observe and comply with and abide by any decisions made by W&B acting reasonably pursuant to these Terms and Conditions unless otherwise directed by W&B.
20.12 If the Seller wishes to make a complaint or has any concerns in relation to these Terms and Conditions, it shall contact W&B using W&B’s Email Address.
20.13 These Terms and Conditions and any dispute or claim arising out of or in accordance with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
20.14 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).
21 TERMS APPLICABLE TO UK SALES AND EU SALES
21.1 The provisions of this clause 21 shall apply as between the Seller and W&B in respect of UK Sales and EU Sales.
21.2 W&B shall purchase the Website Products that it notifies to the Seller in accordance with the provisions of clause 12.1 and the Seller accepts that W&B shall immediately sell such Website Product to a Customer. The Seller shall be deemed to have fulfilled its obligations to supply a Website Product to W&B upon delivery by the Seller in accordance with W&B's instruction pursuant to clause 12.
21.3 W&B may amend or cancel an order in whole or in part at any time before delivery by giving the Seller written notice at no extra charge to W&B.
21.4 The Seller shall ensure that every Website Product supplied to W&B for on-sale to a Customer:
(i) corresponds with their description;
(ii) is of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose;
(iii) free from defects in design, material and workmanship and remain so for 12 months after delivery; and
(iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Website Products.
21.5 The Seller shall ensure that:
(i) the Website Products are properly packed and secured in such manner as to enable them to reach their destination in good condition. All packaging costs are included in the price paid for the Website Product by W&B to the Seller.
(ii) it provides W&B with such information in respect of a UK Sale or an EU Sale such that it is able to prepare all shipping documentation and a packing slip in respect of any shipment of Website Product(s).
21.6 If W&B or a Customer rejects any Website Products, they are returnable to the Seller (in accordance with the returns process set out in clause 7.18).
21.7 Where more than one Website Product is ordered by W&B for onsale to a Customer, the Seller shall not deliver the Website Products in instalments without W&B's prior written consent.
21.8 If the Website Products are not delivered on in accordance with W&B's instruction pursuant to clause 12, or do not comply with the undertakings set out in clause 21.4, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Website Products W&B may claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Seller's failure to carry out its obligations to W&B in respect of such Website Products.
21.9 W&B rights and remedies under this clause 21 are in addition to its rights and remedies implied by statute and common law.
21.10 Title to and risk in the Website Product(s) purchased by W&B shall pass to W&B immediately prior to the Website Products passing through Customs in the UK in respect of a UK Sale and the EU in respect of an EU Sale.
21.11 On a return of items by W&B to the Seller, title to and risk in the Website Product(s) shall pass to the Seller immediately following the Website Products leaving the UK in respect of a UK Sale and the EU in respect of an EU Sale, having passed through outward Customs in the UK or the EU (as the case may be) and having been fully processed for export. The Seller shall ensure that it carries out all acts and matters (whether as to payment or otherwise) as may be required to enable any items returned by W&B to the Seller to be required at the Seller's return address stated on the returns label. If the Seller breaches its obligations under this clause and any Website Product(s) are returned to W&B, the Seller shall be liable to W&B for any Losses W&B suffers as a result of such breach and such Losses may be deducted from any Receipts which, but for such breach, would have been remitted to the Seller. Losses for the purposes of this clause shall include and customs charge or other tax that is payable by W&B as a result of the Seller's breach of this provision.
21.12 The amount payable by W&B to the Seller for a Website Products shall be calculated in accordance with clause 7.6. No extra charges shall be payable by W&B unless agreed in writing and signed by W&B.
21.13 Any sums payable by W&B pursuant to clause 21.12 during a Statement Period shall be shown on the Statement for that period and shall be comprised in the Receipts remitted by W&B to the Seller, subject always to: (i) any withholding or deductions that W&B are entitled to make under these Terms and Conditions; (ii) the Seller providing W&B with all information required in order for W&B to issue self-billed invoices; (iii) the Seller agreeing to use self-billing arrangements with W&B and to provide approval for self-billing on a rolling annual basis unless notified otherwise by W&B; and (iv) the Seller agreeing not to issue sales invoices to W&B for the Website Product(s) that W&B purchases from the Seller.
21.14 The Seller shall provide W&B with any other supporting or related documentation reasonably requested by W&B from time to time in connection with Services and these Terms and Conditions, including but not limited to information required to complete any shipping documentation in respect of Website Product(s).