DESIGNER AGREEMENT
This document (together with the documents referred to in it) sets out the terms on which Tellusfashion Limited registered in England and Wales under company number 05833079 with registered office at 164 William Morris Way, London, SW6 2UW (us or we) provide the designer (you) with use of our website www.tellusfashion.com (Website), an online marketplace where you have the facility to advertise, offer and sell your clothes and fashion accessories (Products). Please read these terms before you start to use the Website. By using the Website as a designer and/or ticking the relevant box, you indicate that you accept these terms and that you agree to abide by them. If you do not agree to these terms, you will not be able to use the Website as a designer. You are an independent fashion designer and wish to make your Products available online using the Service and Website in accordance with the terms of this agreement.
DEFINITIONS
Commencement Date means the date this agreement was entered into;
Comment means comments and feedback provided by the Registered Users on the Website in respect of the Products and/or the designer;
Fees means the sum (in Pound Sterling) equivalent to fifteen (15) percent of the Price (excluding VAT for the Product, if applicable), plus VAT for the Service, if applicable, as set out under ‘Fees and Payment’ below;
Intellectual Property Rights means all patents, patent applications, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software (including but not limited to rights in its object code and source code), database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Price means the Product price including VAT (where applicable, the Price of a Product is inclusive of the respective taxes of the country the designer is based in, however only if the designer is VAT registered);
Product Information means details of the Products and materials owned by or licensed to the designer including (but not limited to) the prices, photographs, images, write-ups, articles and comments;
Service means the facility provided by TellusFashion where the designer can make available the Product Information, advertise, offer and sell the Products and transact a sale of the Products through the Website;
Registered User means a registered user with the Website;
COMMENCEMENT, DURATION AND TERMINATION
We shall provide the Service to you on the terms and conditions set out in this agreement from the Commencement Date until this agreement is terminated (Term).
Either party may terminate this agreement immediately for any reason by giving written notice to the other of such termination.
On termination of this agreement for any reason: (i) your right to use the Service and the Website shall cease immediately; and (ii) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
YOUR OBLIGATIONS
You shall maintain all contacts, and conduct all transaction for the sale of your Products with the Registered Users using the Service and the Website.
You acknowledge and agree that we are not a participant in any way, in the sale and purchase process between you and the Registered User. We only provide you with the Service and access to the Website.
You shall procure that its contract with the Registered User for the sale of your Products shall be strictly compliant with all applicable law and legislation including, but not limited to, all legislation relating to the consumer protection, data protection, e-commerce and distance selling.
All Product Information accompanying the advertising of a Product must be related to that Product offered for sale.
You shall procure that all activities in respect of advertising and/or making the Product available on the Website for sale to the Registered Users including, but not limited to, the publishing of the Product Information on the Website does not infringe any Intellectual Property Rights or other proprietary rights of any third party and comply with the provisions of our acceptable use policy.
You acknowledge that we are not obliged to vet, review or verify the Product Information and/or the Product to determine whether any such Product Information and/or Product may result in any liability to any third party.
You acknowledge that we shall not be liable in any way and for any reason for the behaviour of the Registered User or any Comments made by the Registered User in respect of you and/or the Product.
You acknowledge and agree that you are solely responsible and liable for all use of the Services and the Website if such use was made by accessing the Website using your designated username and password.
You agree to promptly notify us in the event there is a breach of security or any unauthorised use of your designated username and password.
You acknowledge and agree that we are not obliged to publish, upload or make available any of the Product Information and/or Products (wholly or partly) on the Website for any reason whatsoever other than those expressly set out in this agreement.
You agree that at all times, you shall comply with all instructions and policies (including the user terms, acceptable use policy and privacy policy) from us in respect of the Website and Service.
OUR OBLIGATIONS
We shall use reasonable endeavours to provide the Service and make available the Website during the Term.
You acknowledge and agree that we rely on third party service providers to provide the Service and access to the Website. Therefore, we cannot guarantee uninterrupted or fault-free use and/or access to the Service and/or the Website or any aspect thereof.
YOUR PRODUCT PRICING
You shall solely and absolutely decide the Price of your Products, subject always to the pricing of Products on the Website being compliant with all applicable laws and legislations.
The price of a Product displayed on the Website shall be the Price of such Product. Shipping costs will be added to the Price and displayed separately at the time of purchase and payment by a Registered User.
The Price shall automatically be converted (using a reputable currency exchange) to the applicable currency depending on the location from where the Registered User accesses the Website. This means that the currency conversion rate at the time you register the Price against the Product on the Website might differ from the conversion rate at the time of purchase of the Product by the Registered User.
For avoidance of doubt, we are not responsible for the payment of any applicable taxes arising out of or in relation to the sale and delivery of the Product to the Registered User (save for VAT on the Fee, if applicable).
You shall keep the retail price of your Products consistent across all distribution channels (online).
FEES AND PAYMENTS
In consideration of the provision of the Service by us, you shall pay the Fee as set out below.
We charge a 15% commission on all transactions and including the shipping fee.
All Fees shall become due and payable and automatically deducted from the Price of the Product upon receipt of payment from the Registered User using the designated third party payment system.
You are liable to pay VAT for the Services as follows: (i) you are based in the UK, you will be liable to pay VAT at the standard UK rate of 20% on our Fees; (ii) if you are based outside the UK but within the EU, you are not liable for VAT if you operate as a business (evidenced by a VAT registration number); (iii) if you are based outside the UK but within the EU, you are liable for VAT if you do not operate as a business (evidenced by no VAT registration number).
The parties agree that we may review and increase our Fees at any time, applicable immediately upon notification to you by us.
WARRANTIES AND LIMITATION OF LIABILITY
All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral in respect of our site are hereby expressly excluded to the fullest extent permissible by law.
Subject to the previous clause, you warrant to us that: (i) you are an independent fashion designer; (ii) you have the authority and capacity to enter into and be bound by the terms of this agreement; (iii) the information provided to us is true, accurate and correct and that you shall promptly notify us in the event of any changes to such information; (iv) the Product, the Product Information and your 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; (v) the Product, the Product Information, your right to sell or make the Product available for purchase and your use of the Website and Services do not violate any applicable law, legislation, statute, ordinance and/or regulations; (vi) the Product Information is not and may not be deemed defamatory, trade libellous, unlawfully threatening or unlawfully harassing; (vii) the Product Information 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 (viii) the Product Information 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.
Subject to the below clauses, our maximum aggregate liability (including our respective agents and sub-contractors) arising from or in connection with this agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by you under this agreement.
In no event shall we (including our respective agents and sub-contractors) be liable for: (i) 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 (ii) any indirect or consequential losses of any nature whatsoever; or (iii) 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 you and the Registered Users; or (iv) any inability and/or failure by you to use the Services and the Website due to failure of or any integration or interoperability issues arising with any third party or the your operating systems or legacy systems, whether or not caused by or resulting from your negligence or a breach of its statutory duties or a breach of your obligations howsoever caused even if you are advised of the possibility of such loss.
Nothing in these Terms shall limit or exclude our liability in respect of: (i) death and personal injury resulting from negligence; or (ii) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by you.
INTELLECTUAL PROPERTY RIGHTS
Except for the rights expressly granted in this agreement, nothing in this agreement shall serve to transfer from you to us the ownership of the Product Information, this means that all rights, title and interest in and to the Product Information will remain with you and that you have the right to use the Product Information anyway you choose.
We grant to you a non-exclusive, worldwide, non-assignable, non-sub-licensable, licence to use the Intellectual Property Rights owned by or licensed to us strictly in respect of your use of the Website and the Services. You agree to obtain prior written consent from us when you intend to use such Intellectual Property Rights for other purposes than the Services and the Website.
You grant to us a non-exclusive, worldwide, non-assignable, sub-licensable, royalty-free licence to use the Product Information. This means that you are free to licence the Product Information to anyone else in addition to us. We would not be able to provide the Service (e.g. allow Registered Users to access Product Information) without this licence.
As between you and us, we shall own all Intellectual Property Rights created in respect of the Services and under this agreement. Nothing in this agreement will serve to transfer from us to you any of the Intellectual Property Rights owned by us and/or our licensors and all right, title and interest thereof shall remain exclusively with us and/or our licensors.
Nothing in this agreement shall prevent us from using any know-how, methods, techniques or procedures owned or developed by us in the course of performing its obligations under this agreement.
You shall procure all third party Intellectual Property Rights required by you to enable you to use the Service and the Website.
You shall immediately notify us of any claim or demand which is made, brought or threatened against you 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 you. You agree to grant us exclusive control of any litigation and negotiations arising form such a claim, and to give us such assistance as it may reasonably request.
If a claim or demand for infringement or alleged infringement of any Intellectual Property Right is made in respect of the Website and/or use of the Services or, in the reasonable opinion of us, is likely to be made, we shall be entitled, at our own expense and option, ether to: (i) modify or replace the infringing items of the Website and Services (without detracting in any way from their performance or functionality) so that the same cease to be infringing; or (ii) procure the right for you to continue using the Website and the services as contemplated by this agreement.
We shall have no liability for, and you shall indemnify us against any claim that the Product Information, the Website and/or the Services infringes any Intellectual Property Rights, where the cause of the infringement is: (i) any materials or instructions including without limitation, the Product Information provided to us by or on behalf of you; or (ii) modification, enhancement or alteration of the Product Information by or on behalf of you; (iii) due to the use of the Product Information, the Website and the Services in breach of the provisions of this agreement.
CONFIDENTIALITY
You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or our products which you may obtain.
You may disclose such information: (i) to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under this agreement; and (ii) as may be required by law, court order or any governmental or regulatory authority.
You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with the relevant clauses in this agreement.
You shall not use any such information for any purpose other than to perform your obligations under this agreement.
DATA PROTECTION
You warrant and agree that you shall at all times comply with your obligations under the applicable data protection legislation during the Term. You shall fully indemnify us against all actions, claims and expenses (including legal costs) whatsoever which arises out of any breach of this provision.
GENERAL
A waiver of any right or remedy under this agreement is only effective if expressly stated to be a waiver and given in writing and shall not be deemed a waiver of any subsequent breach of default. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
A notice given to a party under or in connection with this agreement shall be in writing in English and sent by electronic mail to us or you as appropriate. If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been duly served upon and received by the party to whom it is addressed at the time of sending the electronic mail.
If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.
If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
We may revise this agreement at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we made, as they are binding on you. Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on our site.
This agreement and any documents referred to in it constitute the entire agreement between the parties supersede and extinguish all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that this is not set out in this agreement or those documents. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement or those documents (whether made innocently or negligently) shall be for breach of contract.
Nothing in this clause shall limit or exclude any liability for fraud.
You shall not, without the prior written consent of us, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of your rights or obligations under this agreement.
We may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of our rights or obligations under this agreement.
Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
A person who is not a party to this agreement shall not have any rights under or in connection with it.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
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 this agreement or its subject matter or formation (including non-contractual disputes or claims).
CONTACT DETAILS
Please direct any queries about this agreement to info@tellusfashion.com