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New Seller Terms (from Thursday, 30th March 2023)

IMPORTANT:

This contract does not apply to customers.

If you are a customer (purchasing products through the OnBuy Marketplace) please go to the OnBuy Customer Terms.

Contents

Schedule 1 – Definitions

Schedule 2 - OnBuy Data Processing Agreement

1 INTERPRETATION

1.1 Unless the context otherwise requires, key terms are capitalised and defined in Schedule 1 (below).

1.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.3 Wherever a singular expression is used in these Seller Terms, that expression is considered as including the plural or the body corporate where required by the context.

1.4 In these Seller Terms, the term “or” shall not be interpreted to be exclusive, and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires).

2 SELLER ACCEPTANCE

2.1 By completing the Seller application, paying the Application Fee and using the OnBuy Marketplace from the Commencement Date the Seller agrees to be bound by these Seller Terms.

3 COMMENCEMENT AND DURATION

3.1 This contract shall commence on the Commencement Date and shall have a term of one-month which shall automatically renew on a monthly rolling basis unless and until terminated in accordance with clause 20 (Termination).

3.2 The contractual terms between OnBuy and the Seller that were applicable prior to the Commencement Date shall continue to apply to all sales made by the Seller prior to the Commencement Date OnBuy Terms and Conditions.

4 OVERVIEW OF ROLES

4.1 The OnBuy Marketplace is an online platform for the Seller and the Customers to complete transactions for the purchase of Products. OnBuy has the power to act as agent for the Seller, strictly on the terms set out in these Terms, to bind the Seller in concluding the sale of Products with Customers. OnBuy is never party to any contract for sale of Products with Customers (all contracts of sale for Products are between the Sellers and the Customers under the Customer Terms). OnBuy assumes no responsibility whatsoever for breaches by either party to the Customer Terms.

4.2 In consideration for the Monthly Subscription Fees and other fees described in these Terms, OnBuy shall give the Seller access to the OnBuy Marketplace. OnBuy shall:

4.2.1 Provide the OnBuy Marketplace and operational means for the Seller to sell Products to customers in various countries around the world;

4.2.2 Provide a framework for the Seller to enter into contractual relations with Customers;

4.2.3 Provide the means for Sellers to communicate with Customers, including acknowledgement of the Order, and (separately) confirming despatch of the order;

4.2.4 Accept payments from the Customer on behalf of the Seller in settlement of the debt owed by the Customer to the Seller. Payments shall be processed by OnBuy (or any wholly owned subsidiary of OnBuy) and made available for the Seller to withdraw pursuant to these Seller Terms.

4.2.5 Provide the operational and technical means for Sellers to effect sales with Customers;

4.2.6 Provide the means for Sellers to manage cancellations and process refunds;

4.2.7 Process full or partial refunds on the Seller’s behalf when OnBuy deems necessary (if OnBuy has already paid the Seller, the Seller shall refund such sums to OnBuy);

4.2.8 Provide a responsive Customer Care Team for and on behalf of the Seller to the Seller’s Customers. This shall include assistance, negotiation and conclusion of Customer disputes for the Seller; and

4.2.9 From time to time, deliver marketing and promotional campaigns and offer incentives to Customers in order to increase Seller sales;

4.3 OnBuy shall only act as agent for the Seller pursuant to these Seller Terms and will not act as agent for the Customer.

4.4 All contracts concluded by the Sellers with Customers through the OnBuy Marketplace shall be completed pursuant to the OnBuy Customer Terms, and the email confirmation of the Customer's Order. The Seller agrees to comply with Customer Terms.

4.5 OnBuy is not a party to the Customer Terms and OnBuy shall not be liable for, or in connection with, the Customer Terms or any claim or dispute arising out of or in connection with it.

5 SELLER APPLICATION PROCESS

5.1 The Seller agrees to pay OnBuy a non-refundable Application Fee in consideration of OnBuy processing the Seller’s application to sell on the Marketplace.

5.2 OnBuy reserves the right to reject applications at its sole discretion but shall not reject applications unreasonably.

5.3 During the application stage, the applicant will be asked to select a country of business registration This country must be featured among the list of supported countries set out and the Seller must be able to set up a business bank or business building society account in the chosen country.

5.4 If an applicant submits an application with false, erroneous or insufficient information, the Seller’s application shall be rejected by OnBuy. Duplicate applications shall also be rejected. The Seller may only have one account with OnBuy.

5.5 OnBuy shall be the sole arbiter of the success of applications. No refund of the Application Fee shall be made.

5.6 Unless advised otherwise by OnBuy, the Seller may make subsequent applications, but each subsequent application will be subject to a non-refundable Application Fee.

6 SELLER’S USE OF THE ONBUY MARKETPLACE

6.1 Accessing and completing the Seller Control Panel (SCP)

6.1.1 Once the Seller has successfully completed the application process OnBuy shall send a welcome email to the Seller and give the Seller full access to the SCP. The Seller shall be able to upload, update and review detailed Listing information for its Products. Orders will be logged into the SCP. The Seller will be able to use the SCP to manage Orders, view and manage disputes, view and print sales history, update and manage stock levels, view performance reports, manage its subscription and handle Customer feedback. All financial information will be stored in the SCP. All communication between the Seller and Customers will be made through the SCP.

6.1.2 The Seller shall ensure that the Seller's business name, company registration number and registered office (where applicable) as well as trading address and applicable VAT number are clearly displayed on the Seller's Shop and updated, as necessary, as soon as practicable.

6.2 Placing Products on the OnBuy Marketplace

6.2.1 The Seller shall be able to create a Product Page and/or add a Listing or use an existing Product Page and add a Listing.

6.2.2 If another seller is already using a Product Page and the Seller wishes to update the details on that Product Page, the Seller can submit a request to OnBuy. OnBuy reserves the right to accept or refuse to action such requests..

6.2.3 The Seller shall ensure that the correct age restrictions are entered into the Listing in the SCP for any applicable age restricted Products.

6.2.4 The Seller shall not use the OnBuy Marketplace as an advertising portal for selling items, other than the Products which the Seller is permitted to list for sales pursuant to these Seller Terms.

6.2.5 The Seller shall refrain from selling any Prohibited Products.

6.2.6 The Seller shall refrain from creating Product Pages which infringe upon the Intellectual Property Rights or proprietary rights of any third party.

6.2.7 The Seller shall not create Product Pages or upload anything onto the OnBuy Marketplace that contain obscene or discriminatory language, nude images, political messages or material or otherwise breaching the OnBuy Website Terms of Use as applicable at the time of such breach.

6.2.8 The Seller shall take sole responsibility for the accuracy and detail on all Product Pages it creates including, but not limited to:

  1. Product descriptions;
  2. categorisation of Products;
  3. origin of Products;
  4. Listing Prices;
  5. images (the Seller shall ensure the photographic quality of the Products is high and have a white background colour where possible);
  6. measurements, the condition and any other supplementary information about the Products (including packaging, postage and delivery as well as the delivery price for each Listing;
  7. the total amount of stock of the Product that the Seller has available for Customers to purchase and the Seller's stock keeping unit of the Product, ensuring that this information is detailed in each Listing.
    8. This responsibility in 6.2.8 applies irrespective of whether the Seller creates the Product Page or uses an existing Product Page..

6.2.9 The Seller shall ensure the Products are of satisfactory quality, that any refurbished or used Products are clearly displayed as such and that any Products that are sold as damaged or defective are clearly named as such in the Listing.

6.2.10 The Seller shall rectify any inaccuracy in any Product Page immediately upon knowledge of such inaccuracy. If for any reason the Seller is unable to make the necessary corrections, the Seller shall, as soon as reasonably practicable, promptly notify OnBuy, through the SCP, of any such inaccuracy and provide details of how the inaccuracy should be corrected.

6.2.11 Except where OnBuy is the deemed supplier for VAT purposes, the collection, reporting and payment of VAT to the relevant tax authority shall be the Seller’s sole responsibility. The Seller shall also be responsible for the collection, reporting and and payment of all other applicable taxes due in connection with the Products sold by the Seller via the OnBuy Marketplace, including (but not limited to) applicable Plastic Packaging Tax.

6.2.12 The Seller accepts all responsibility for ensuring that the transactions entered into with Customers are lawful in England and in the jurisdiction in which delivery is to be made to the Customer.

6.3 Seller use of the SCP

6.3.1 The Seller shall:

  1. check the SCP each day for alerts from OnBuy of new Orders, cancellations, refunds, disputes, Customer message requests;
  2. ensure that the SCP is updated daily and accurately reflects the Seller’s details, Orders including despatches and tracking numbers;
  3. display the Seller's Holiday Period in the SCP;
  4. use reasonable endeavours to respond to enquiries from Customers and OnBuy, including returns and disputes within at least 24-hours, unless such enquiries are made during the Seller's Holiday Period in which case the Seller shall respond with 48-hours of return;
  5. not use the SCP or any other part of the OnBuy Marketplace to communicate with the Customers with the intention of enticing them to purchase the Products through any other means than through OnBuy;
  6. neither engage in nor encourage communications outside of the SCP. Sellers may only communicate with Customers via the SCP.

6.4 Listing Prices

6.4.1 The Seller must add the Listing Price on the SCP;

6.4.2 The Listing Price is solely determined by the Seller and shall be deemed to be inclusive of:

  1. any applicable VAT;
  2. delivery charges including import fees and taxes;

6.4.3 Listing Prices shall not exceed £30,000 inclusive of VAT and delivery. OnBuy shall remove Listings hat are priced in excess of £30,000 (thirty thousand pounds) from the OnBuy Marketplace;

6.4.4 The Seller acknowledges and accepts that:

  1. The Seller has sole responsibility to add correct Listing Prices and categorise each Product. OnBuy bears no responsibility for incorrect Listing Prices or wrongly categorised Products. OnBuy reserves the right to recover sums from the Seller if Products are found to have been incorrectly categorised.
  2. Once the Seller has despatched the Product and OnBuy has sent a confirmation email to the Customer, the Seller has entered into a legally binding contract with the Customer and any errors in the Sale price cannot be changed.
  3. where the Seller has updated the Listing Price , the updated Listing Price may take up to 2-hours to display on the Marketplace. If a pricing error is discovered prior to despatch, the Seller shall contact the Customer as soon as is practicable and the Order shall be cancelled, and the Seller shall process a refund within 2 days.
  4. where packaging and postage costs or any other costs are not correctly inputted into the SCP, the Seller has no right to pursue the Customer for additional payments once the Customer has placed an Order.
  5. OnBuy may, at its own discretion, offer promotions for the purposes of increasing the Seller’s sales. Any pricing changes actioned by OnBuy will not affect payments otherwise due to the Seller.

6.5 Processing Orders

6.5.1 The Seller is solely responsible for fulfilment of Orders.

6.5.2 Once the Seller has received an Order through the SCP the Seller may decide to accept or reject the Order. If for any reason the Seller is unable to supply a Customer with all or part of the Order, the Seller will inform the Customer via the Customer’s OnBuy account. Rejections may affect the Seller’s performance metrics and cause the Seller to incur a refund fee pursuant to clause 6.7. If the Seller accepts the Order the Seller is obliged to fulfil and despatch the Order as soon as reasonably practicable and for receipt within the despatch timeframe options in the SCP.

6.5.3 The Seller must select a designated delivery timeframe from between 1 and 30 days.

6.5.4 Orders must be despatched within the Seller's Handling Time, which can be set in the SCP for a maximum of 10 days.

6.5.5 Priority Orders must be despatched on the same day if ordered before the priority cut off time set in the SCP.

6.5.6 Acceptance of the Order is achieved by email to the Customer sent through the SCP at the despatch of the Order.

6.5.7 Any enquiries relating to the Order or delivery must be dealt with through the SCP.

6.5.8 The Seller acknowledges and agrees that OnBuy shall, on the Seller’s behalf, have the right to refund the Customer's payment for an Order (from the monies received by OnBuy from the Customer on behalf of the Seller) if the Seller doesn't meet the Delivery Timeframes chosen by the Customer based upon the options set by the Seller.

6.5.9 The Seller must provide the Customer with an appropriate invoice if requested by the Customer. For sales where OnBuy is the deemed supplier for VAT purposes, OnBuy shall be responsible for providing the Customer with a VAT invoice.

6.5.10 OnBuy reserves the right to cancel an Order and process a refund if, in OnBuy’s reasonable opinion, it believes that the Seller is or will become in breach of these Seller Terms.

6.5.11 Where an Order is not marked as despatched within 30-days of the Order being made, the sale will be automatically cancelled and refunded by OnBuy (on behalf of the Seller) from the monies received by OnBuy from the Customer.

6.5.12 Where a Seller has not accepted an Order as described in 6.5.5 within the Handling Time that the Seller has set on the SCP, or where OnBuy reasonably believes that the Seller has rejected an Order, OnBuy shall be entitled to cancel the sale and refund the Customer's payment for that Order from the monies received by OnBuy from the Customer on behalf of the Seller.

6.5.13 If an Event Outside the Seller’s Control takes place that affects the performance of the seller’s obligations under the Customer Terms:

6.5.13.1 the Seller will contact and notify the Customer as soon as reasonably possible; and

6.5.13.2 the Seller’s obligations under the Customer Terms will be suspended and the time for performance of the Seller’s obligations will be extended for the duration of the Event Outside the Seller’s Control.

6.5.14 Where the Event Outside the Seller’s Control affects the Seller’s delivery of Products to the Customer, the Seller will endeavour to arrange a new delivery date with the Customer after the Event Outside the Seller’s Control comes to an end. Alternatively, the Customer may cancel the Order.

6.6 Delivery, Post and Packing

6.6.1 The Seller shall be solely responsible and bear all risk and liability for sourcing, storing, selling and delivering all the Products in an Order to the Customers and shall use standards of skill and care reasonably to be expected of a professional supplier in doing so.

6.6.2 The Seller bears the risk in the Products until the Products have been delivered to the Customer. The Seller may reduce this risk by using a tracked delivery service to deliver Products to Customers.

6.6.3 If the Products are delivered via an untracked delivery service and are not delivered to the Customer within the Delivery Timeframe, OnBuy reserves the right to require the Seller, at the Customer’s option, either to issue either a refund or provide a replacement to the Customer, in which case the Customer shall not be required to return any Products delivered late unless the Seller can demonstrate (for example, by providing tracking or other evidence of delivery for the relevant Order) that the Products were successfully delivered to the Customer within the relevant Delivery Timeframe.

6.6.4 The Seller shall be responsible for selecting in the SCP which delivery options shall apply.

6.6.5 If additional packaging and postage costs apply to the Products, where for example the Products are heavy, fragile, bulky, precious or perishable, the Seller is responsible for ensuring that these costs are included in the Listing Price.

6.6.6 The Seller must ensure that all the Products within the Order are wrapped in a professional manner. The wrapping must be appropriate for the Product (for example without limitation:

  1. delicate items should be wrapped in bubble packaging; and
  2. Products listed in any of the sex & adult categories should be delivered in discreet (opaque and not include any labelling which indicates the contents) packaging.

6.6.7 The Seller shall not include any promotional marketing material inside any packaging used to deliver the Product.

6.6.8 If the Seller uses a third-party to fulfil an Order, the Seller shall select a non-branded packaging option if such an option is available.

6.6.9 The Seller shall select the delivery options from the SCP that apply to the Product, and once an Order is made, the Seller must ensure that the Products are sent according to the delivery method selected by the Customer, or a faster and more secure method.

6.6.10 In the instance of non-delivery, mis-delivery, late delivery, theft or other error or mistake in connection with delivery of Products sold through the OnBuy Marketplace. The Seller shall resolve any issues with its delivery provider and under no circumstances request the Customer resolves delivery with the delivery provider aside from Customer confirmation that he/she will be able present at the delivery address at an agreed time.

6.6.11 Any customs and import fees levied on an Order delivered to a UK Address shall be the Seller’s sole responsibility. If a Customer raises a query regarding any customs and import fees applicable to its Order delivered to the UK, the Customer shall be entitled to reimbursement of such charges if it can provide evidence of the same with official documentation, in which case OnBuy shall reimburse the Customer and shall deduct the applicable customs and import fees from any payments due to the Seller in accordance with clause 16.1.

6.6.12 The Seller shall not via the OnBuy Marketplace export, directly or indirectly, any Products in breach of any applicable Laws or regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval;

6.6.13 The Seller must ensure that the value of the contents of all Product packages is correctly stated on the relevant packing materials to avoid the Customer being charged incorrect or excessive customs and import fees.

6.6.14 OnBuy accepts no liability for any customs and import fees arising on any Products returned by the Customer to the Seller, which shall be the sole responsibility of the Seller. If, for any reason, OnBuy incurs costs in respect of any sales that are a direct result of the mislabelling of consignments by the Seller, OnBuy reserves the right to deduct any such charges from any payments due to the Seller’s payment in accordance with clause 16.1. If such costs exceed the sums OnBuy holds on behalf of the Seller, the Seller shall make immediate payment of the costs to OnBuy upon demand.

6.7 Cancellations and Refunds

6.7.1 Where a Customer has a right to a full or partial refund as set out at clause 10 of the OnBuy Customer Terms, the Seller shall process the applicable refund to the Customer via the SCP within the relevant timescale. OnBuy reserves the right, at its sole discretion, with reasonable notice to the Seller, to refund the Customer on behalf of the Seller and recover the amount refunded from any monies owed to the Seller pursuant to with clause 16..

7 CUSTOMER CARE

7.1 OnBuy’s Customer Care Team shall deliver a customer care function for and on behalf of the Seller. Where possible and when the Customer Care Team deems it necessary to do so the Customer Care Team shall resolve queries without recourse to the Seller but may contact the Seller.

7.2 If a Customer communication relates to a query or complaint regarding the quality, fitness for purpose of a Product, whether a Product meets the Seller’s description or failed delivery of the Product, it shall be logged by OnBuy and referred to the Seller by OnBuy through the SCP.

7.3 The Seller shall use all reasonable endeavours to resolve any matters referred to in 7.2. directly with the Customer, using the SCP and within 48-hours.

7.4 If the Seller is unable to resolve the matter with Customer within 48-hours, the Seller shall notify OnBuy using the SCP.

7.5 From 48-hours after the Customer’s contact with OnBuy described in clause 7.2, the Seller may request that OnBuy’s Customer Care Team conducts a review. If the Customer Care Team identifies that the Customer has reasonable grounds for dissatisfaction, then OnBuy’s Customer Care Team, shall deduct a £6.50 OnBuy Dispute Fee from the Seller’s OnBuy account (if there are insufficient funds in the Seller’s account, OnBuy shall set the balance to a negative figure and deduct the balance from future sales) and refer the matter to the Dispute Resolution Stage as described below.

7.6 The Dispute Resolution Stage shall involve the Customer Care Team reviewing the full facts of the Dispute. The Customer Care Team may make further contact with the Seller and Customer to gather additional information.

7.7 Upon completion of the Dispute Resolution Stage, a decision will be made either in favour of the Seller or the Customer.

7.8 If the Customer Care Team:

7.8.1 finds in favour of the Seller, OnBuy shall not require the Seller to take any further action. The Customer Care Service shall not impact the Seller’s performance metrics and the OnBuy Dispute Fee described at 7.5 shall be refunded to the Seller;

7.8.2 finds in favour of the Customer, OnBuy shall process a refund to the Customer pursuant to 6.7.1 or 6.7.2 (whichever is applicable) Such a finding may also adversely affect the Seller’s performance metrics and may result in action being taken by OnBuy to restrict the Seller’s access to the SCP pursuant to clause 14.

7.8.3 The Seller accepts that the Customer Care Team described in this clause 7 is supplied by OnBuy for the benefit of the Seller to enable the Seller to dedicate its resources to selling and to reduce the likelihood that the Seller shall be subject to chargebacks and legal proceedings. The Seller agrees to accept all decisions by the Customer Care Team.

7.9 The Seller accepts that the Customer may commence legal proceedings against the Seller in addition or in the alternative to making contact with the Customer Care Team. The Seller shall, and shall procure that the Customer shall, release OnBuy from any Customer Claims (actual and consequential) of every kind and nature arising out of or in any way connected with such Customer claims and shall indemnify OnBuy against such Customer Claims.

8 VAT

8.1 When applicable OnBuy shall be responsible for calculating and charging the Customer the applicable VAT and/or any other applicable taxes, charges or levies (other than any customs and import fees) payable on all Orders.

8.2 Where OnBuy is legally obliged to collect VAT and/or any other applicable taxes, charges or levies for any reason in any jurisdiction in respect of the Seller’s use of the OnBuy Marketplace OnBuy will report and remit the relevant sums in respect of such VAT, other taxes, charges or levies directly to the appropriate national authorities and will accrue such sums from the sums paid by a Customer in any transaction and so reduce by the value of the relevant VAT, and/or any other applicable taxes, charges or levies, the net sale proceeds otherwise due to the Seller for that transaction.

8.3 Where OnBuy is not legally obliged to collect VAT or any other applicable taxes, charges or levies for any reason in any jurisdiction in respect of the Seller’s use of the OnBuy Marketplace, or any other transactions, OnBuy shall remit the net sale proceeds to the Seller inclusive of such VAT, or any other applicable taxes, charges or levies and the Seller shall be solely responsible for reporting and remitting the relevant sums in respect of such VAT, and/or any other applicable taxes, charges or levies directly to the appropriate national authorities. If OnBuy incurs liabilities in respect of any failure by the Seller to remit such VAT, or any other applicable taxes, charges or levies directly to the appropriate national authorities, OnBuy reserves the right to deduct any such amounts from any payments due to the Seller in accordance with clause 16.1

8.4 The Seller shall notify OnBuy as soon as possible if it becomes aware that the OnBuy Marketplace is incorrectly displaying VAT or any other applicable taxes, charges or levies for any of the Seller’s Products on the OnBuy Marketplace, or if there has been any significant change in the Seller’s tax position (e.g., additional tax registrations or de-registrations).

9 CHARGEBACKS

9.1 Fraud Related Chargebacks

9.1.1 OnBuy shall be responsible for Fraud Related Chargebacks except where OnBuy has instructed the Seller that an Order must be cancelled prior to the Order being despatched or if OnBuy has reasonable grounds to believe that the Seller is complicit with the fraud.

9.2 Customer Dispute Chargebacks

9.2.1 The Seller shall be responsible for Customer Dispute Chargebacks including, inter alia, where a Product is not as described or is defective; and for delivery related reasons (except where the Seller has proof of delivery to the address the Customer requested in the Order).

9.2.2 OnBuy will automatically assign liability to the Seller and OnBuy will deduct:

  1. the amount of the chargeback (including all charges from banks or card providers); and

  2. £14.00 OnBuy Chargeback Fee

    from any money owed to the Seller as net sale proceeds or otherwise. If the amount of the Customer Dispute Chargeback exceeds the monies owed to OnBuy by the Seller, OnBuy reserves the right to demand immediate payment by the Seller to OnBuy to cover any shortfall in accordance with sub-clause 16.1.

9.2.3 OnBuy shall use its reasonable endeavours to defend Customer Dispute Chargebacks raised against the Seller where the Seller can provide compelling evidence (as determined by the relevant payment processor), which shall be provided to OnBuy within 3-Business Days of request by OnBuy. If no compelling evidence is provided, OnBuy reserves the right to accept the Customer Dispute Chargeback (for which the Seller shall be liable in accordance with Clause 9.2.1. and 9.2.2).

9.2.4 If the Customer Dispute Chargeback is successfully defended, OnBuy shall pay the Seller the full amount of the Customer Dispute Chargeback set out at 9.2.2 a) and b).

10 PERSONAL DATA

10.1 The Seller shall at all times comply with the OnBuy Privacy Policy all relevant legislation in particular, but without the Data Protection Act 2018 and the UK Data Protection Regulation and OnBuy’s Data Processing Agreement which is accessible set out at Schedule 2 (below).

11 COMMUNICATIONS

11.1 The Seller shall communicate all matters with OnBuy via a support ticket in OnBuy’s Support Centre in the SCP.

11.2 OnBuy shall communicate with the Seller via the contact details the Seller provided in its application or those details in the SCP.

12 NO PROMOTION

12.1 The Seller shall refrain from including links to, or otherwise providing the address of, or promoting, its (or any other) website on the SCP, any Listing on the OnBuy Marketplace, in sales that were placed by the Customer on the Marketplace, or in any other means of communication with the Customer.

12.2 The Seller may not send emails or catalogues or other promotional material to Customers introduced to the Seller by OnBuy, other than those which are branded solely as from OnBuy.

12.3 The Seller acknowledges and accepts that ‘OnBuy' is a registered trade mark of Visor Commerce Ltd and no rights or licences are granted to the Seller in this respect.

12.4 The Seller shall not bid on OnBuy's name, or variations of the OnBuy brand or domain name or brand name, on Google or any other search engines or any search sites.

13 SECURITY

13.1 The Seller shall be solely responsible for procuring, maintaining and securing its network connections and telecommunications links at its own cost.

13.2 The Seller shall use its own virus protection software and shall not knowingly access, store, distribute or transmit any viruses or knowingly introduce or permit the introduction of any viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful during the course of its use of the OnBuy Marketplace.

13.3 The Seller must ensure its username and password logins are kept safe and not accessed by any other party. If these details are lost or the Seller becomes aware that they have been accessed by any other party the Seller must report the incident to OnBuy immediately via a support ticket in OnBuy’s Support Centre or, if the Support Centre is not working by email to [email protected].

14 RESTRICTED SELLER ACCESS

14.1 OnBuy may at its sole discretion, partially or completely restrict the Seller access to the SCP in the following and any other reasonable circumstances:

14.1.1 If the Seller fails to fulfil any of its payment obligations set out in these Seller Terms;

14.1.2 on termination of these Seller Terms;

14.1.3 if the Seller fails to despatch orders in a timely manner or at all;

14.1.4 If the Seller fails to adhere to clause 7 (Cancellations and Returns) of these Seller Terms.

14.1.5 if OnBuy, having made reasonable attempts to contact the Seller, believes that the Seller is and has been inactive for a period of at least 6-months;

14.1.6 if OnBuy has reasonable grounds to believe that the Seller is using the Site to sell fake/counterfeit Products or is otherwise infringing the intellectual property or proprietary rights of any third party;

14.1.7 if the Seller has a high rate of cancellations or refunds or is failing in OnBuy’s reasonable opinion to sufficiently deal with Customers’ queries or complaints pursuant to Clause 7 (Customer Care);

14.1.8 if OnBuy has other reasonable concerns regarding the Seller’s activity; or

14.1.9 pursuant to clause 20 (Termination).

14.2 If OnBuy partially restricts the Seller’s access pursuant to clause 14.1, OnBuy shall do so to the extent that the Seller can only view and manage live Orders and sale, view invoices between the Seller and OnBuy, mark Orders as despatched and handle Customer feedback. During this time, the Seller’s Listings will not be visible to Customers and Customers will not be able to place new Orders with the Seller.

15 FEES PAYABLE BY SELLERS TO ONBUY

15.1 The Seller shall pay OnBuy:

15.1.1 Monthly Subscription Fee;

15.1.2 Sales Fee;

15.1.3 Boost Fee as described at 15.4;

15.1.4 OnBuy Dispute Fee if applicable;

15.1.5 OnBuy Chargeback Fee if applicable; and

15.1.6 Refund Administration Fee if applicable.

15.2 Monthly Subscription

15.2.1 The Seller shall pay a Monthly Subscription Fee for each calendar month during the term of these Seller Terms. This fee is based on a monthly rolling contract and there is no minimum commitment.

15.2.2 The Monthly Subscription Fee shall be paid online by recurring payments made in advance commencing on the Commencement Date and thereafter on the subscription due date unless the Seller serves 30-days’ written notice through the SCP to terminate these Seller Terms pursuant to subclause 20.1 (Termination).

15.2.3 Where the first Monthly Subscription Fee is taken on the 28th, 29th, 30th or 31st of a month, the subsequent due dates for the Monthly Subscription Fee will be as close to the original payment dates as possible and no later than the date on which the first Monthly Subscription Fee was taken. The Monthly Subscription Fee is subject to VAT (where applicable) subject to OnBuy supplying the Seller with a valid VAT invoice.

15.2.4 OnBuy reserves the right to change the Monthly Subscription Fees upon 21 days' prior written notice to the Seller pursuant to Clause 24.4 (Variation).

15.3 Sales Fee

15.3.1 When a sale is made for a Product placed against the Seller’s Listing, the Seller shall always pay the applicable Sales Fee to OnBuy.

15.3.2 If for any reason, the Seller provides the Customer a full or partial refund pursuant to clause 6.7, or if OnBuy provides the Customer with a full or partial refund on behalf of the Seller pursuant clause 4.2.7, OnBuy will refund the relevant proportion of the Sales Fee to the Seller. OnBuy shall charge the Seller the applicable Refund Administration Fee. For avoidance of doubt, where a Sales Fee has been made up of two different percentages with a lower and upper threshold (see Sales Fees), any refunded Sales Fee will be paid in reverse order to how the Sales Fee was charged.

15.3.3 OnBuy reserves the right to change the Sales Fees upon at least 30-days' prior written notice to the Seller.

15.4 Boost Fee

15.4.1 When the Seller elects to Boost a Listing, the Seller agrees to pay OnBuy the Boost Fee. The Seller can control the Listings as to which the Boost function is applied and can disable it at any time, although the system can take up to 8-hours to update across all channels (during which time the Boost will continue to apply).

16 SELLER PAYMENTS TO ONBUY

16.1 Without limiting any of OnBuy’s other rights, if the Seller fails to pay OnBuy any undisputed amounts owed to OnBuy, OnBuy shall have the right to deduct the outstanding amount from:

16.1.1 any funds OnBuy holds on behalf of the Seller;

16.1.2 future funds received from Customers in payment for the Seller's Products ordered through the OnBuy Marketplace i.e., offset any amounts that are payable by the Seller to OnBuy against any payments OnBuy makes to Sellers, until the Seller settles any outstanding amounts;

16.1.3 any payments OnBuy is or becomes due to pay the Seller’s in accordance with clause 17. If such sums exceed the amounts OnBuy holds on behalf of the Seller, the Seller shall make immediate payment of the sums to OnBuy upon demand; and/or

16.1.4 any other payment or reimbursement due to the Seller from OnBuy.

16.2 If the Seller fails to pay the Monthly Subscription Fees, OnBuy may restrict the Seller’s access to the SCP until payment has been made. Restricted access will be granted via an automated process, as follows:

16.2.1 If the first payment attempt is unsuccessful, OnBuy’s system will make 3 more attempts (each one 24 hours after the last) to collect the Monthly Subscription Fees and each failure will trigger an automatic email notification to the Seller;

16.2.2 After a total of 4 unsuccessful attempts the Seller’s account will be automatically suspended, following which the Seller will need to reactivate the account (and pay the outstanding Monthly Subscription Fees) to regain access; and/or

16.2.3 charge the Seller interest and debt recovery costs pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 in addition to the outstanding amount.

17 PAYMENT TO THE SELLER

17.1 When payment is made by a Customer, the funds shall be paid to OnBuy in its role as agent for the Seller and pursuant to these Seller Terms.

17.2 Payment by a Customer to OnBuy settles the debt owed by a Customer to the Seller. When OnBuy receives payment from the Customer, the Customer will no longer owe that amount to the Seller.

17.3 Subject to 17.9, OnBuy, as agent for the Seller, shall pay the Seller the Listing Price together with delivery costs for the relevant Product less any the Sales Fee set out at 15.3.1 and any other charges pursuant to these Seller Terms. In the case of Sellers based outside the United Kingdom, OnBuy shall also deduct VAT.

17.4 Subject to 17.9 the Seller will be able to request a withdrawal of funds no later than seven days after the end of the Delivery Timeframe.

17.5 OnBuy shall initiate Seller’s pay-out pursuant to the Seller’s request set out at 17.4 no later than the end of the next Business Day. The receipt of settlements as cleared funds in the Seller's bank account(s) may be delayed because of interbank systems over which OnBuy has no control

17.6 The Seller will be able to transfer the funds to the Seller’s bank account, the details of which the Seller provided during the Seller’s application, unless those details have been changed by the Seller thereafter.

17.7 The Seller accepts that OnBuy has no liability to the Seller if the Seller provides or has provided incorrect bank details.

17.8 Under no circumstances shall OnBuy make payments due to the Seller to any third-party including any third-party bank account.

17.9 OnBuy has the right to withhold funds if it reasonably believes the Seller has breached these Seller Terms.

17.10 OnBuy will provide the Seller with monthly VAT invoices for all fees and charges. The VAT invoice will be prepared and provided to the Seller during the subsequent month following the period for which the VAT invoice relates e.g., the VAT invoice relating to the calendar month of February will be prepared on the 1st of March, the VAT invoice relating to the calendar month of March will be prepared on the 1st of April etc.

17.11 Sometimes the Customer may pay for Products using promotional codes or through other promotions. However, these promotions shall not affect the Seller’s right to receive payment of the Listing Price pursuant to 17.3.

18 REPRESENTATIONS AND WARRANTIES

18.1 General. Each party represents and warrants that:

18.1.1 it is a business, it is duly organised, validly existing and in good standing under the Laws of its jurisdiction in which the business is operating, and in the case of the Seller, it holds a valid bank account that can transact in Great British pounds sterling;

18.1.2 it has all requisite rights, power and authority to enter into these Seller Terms and perform its obligations and grants the rights, licences and authorisations it grants hereunder;

18.1.3 any information provided or made available by one party to the other party, or its affiliates is accurate and complete, and it will promptly update such information as necessary to ensure it at all times remains accurate and complete; and

18.1.4 it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the UK Government, US Government, the European Union or its member states, or other applicable government authority.

18.2 Seller Warranties. The Seller represents and warrants that:

18.2.1 it shall comply with all applicable Laws and shall not cause OnBuy to be in breach of any applicable Laws and shall not infringe the Intellectual Property Rights of any third party in its performance of these Seller Terms;

18.2.2 it shall comply with all its obligations under these Seller Terms including the policies referred to herein;

18.2.3 it shall perform all of its obligations in these Seller Terms (including to Customers) with reasonable care and skill and in accordance with best industry practice of an online seller, including that by listing a Product for sale on the OnBuy Marketplace:

  1. it shall comply with all applicable laws and shall not cause OnBuy to be in breach of any applicable laws and shall not infringe the rights (including Intellectual Property Rights) of any third party in its performance of these Seller Terms;
  2. it owns the Product or is authorised by the owner to sell the Product on the OnBuy Marketplace;
  3. it is able to transfer good title to the Product free from any third-party claims, liens or encumbrances;
  4. the details on Product Pages are accurate and complete and are not misleading or otherwise deceptive in any way;
  5. it shall despatch Orders promptly and in accordance with the delivery standards set out at clause 6 of these Seller Terms and in any event within the later of:
    1. 24-hours from the time the Customer places the Order (unless a longer Handling Time has been set by the Seller in the SCP); and
    2. the expected despatch date, as specified by the Seller at the time of the Order;
  6. the Product complies with all applicable Laws including the Laws of all countries in which the Product is made available via the OnBuy Marketplace, the country in which the Customer resides and any other relevant country (including the country where the Product is manufactured), including any prohibitions on sale, distribution or offering for sale of specific products, customs procedures, taxation, Intrastat, parallel importation, copyright levies, export controls, CE marking and any other relevant EU or UK required marks and labels relating to safety and environment regulations; and
  7. it shall not list any Product on the OnBuy Marketplace and shall immediately remove and recall from the Customer any Products from sale which are or subsequently become:
    1. considered by any local regulator or government body to be dangerous, harmful or hazardous, including all those listed as such on RAPEX, Safety Gate or similar; or
    2. subject to recall by the manufacturer or distributors.

18.3 OnBuy Warranties. Subject to clause 19 (Limitation of Liability):

18.3.1 the OnBuy Marketplace and all commercial agency services are supplied on an “as is” basis; and

18.3.2 except for the warranties, representations, conditions and obligations expressly set out in these Seller Terms, OnBuy disclaims all warranties, representations, conditions and obligations, whether express or implied, including:

  1. the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; and
  2. that the OnBuy Marketplace will meet the Seller requirements, will always be available, accurate, reliable, available, accessible, without interruption, timely, secure or free from error including, but not limited to malware, bugs and spam.

19 LIABILITY AND INDEMNITY

19.1 The Seller is responsible for losses the Customer may suffer which are caused by any breach by the Seller of the Customer Terms. Nothing in these Seller Terms shall limit or exclude OnBuy’s liability for:

19.1.1 death or personal injury caused by OnBuy’s negligence, or the negligence of OnBuy’s employees, agents or subcontractors; or fraud or fraudulent misrepresentation;

19.1.2 Subject to clause 19.1.1:

  1. OnBuy shall not be liable to the Seller whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any indirect or consequential loss or damage, or any:
    1. loss of profits;
    2. loss of revenue;
    3. loss of anticipated savings;
    4. loss of business;
    5. loss of opportunity;
    6. loss of goodwill;
    7. loss due to business interruption;
    8. liability to third parties (including any obligation to pay the Customer compensation whether ex gratia or otherwise);
    9. loss, alteration or corruption of data;
    10. additional operational and administrative costs and expenses;
    11. any fines, penalties or expenses imposed by a regulator, governmental authority or professional body (each of items (i) to (xi) applying whether such loss is direct or indirect); and

19.1.3 OnBuy’s total aggregate liability to the Seller arising under or in connection with the sale of the Products to the Customer pursuant to these Seller Terms, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall not exceed the total amount in Monthly Subscription Fees that the Seller has paid to OnBuy in the 12 months immediately preceding the date on which the claim arose; and

19.1.4 OnBuy assumes no liability in relation to the Products. It is the Seller’s responsibility to take out the relevant insurance necessary to cover the cost of the Products it supplies to Customers, inter alia, in the event that Products are lost or damaged in transit and relevant insurance to cover damage that the Products might cause Customers or third parties.

19.1.5 From time to time, it will be necessary for OnBuy to perform updates to and carry out essential maintenance to the OnBuy Marketplace. Although OnBuy shall endeavour to conduct such maintenance at times which are least likely to inconvenience the Seller, and OnBuy will always try to notify Sellers of any planned maintenance, OnBuy shall have no liability to the Seller for loss of profits or any other losses caused by maintenance carried out on the OnBuy Marketplace or downtime of the OnBuy Marketplace.

19.1.6 Except as set out in these Seller Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by Law, excluded.

19.1.7 The Seller shall defend, indemnify and hold OnBuy (including its parents, subsidiaries, affiliates, officers, directors, employees, agents, and other representatives) harmless from and against any and all liabilities, costs, expenses, damages and losses (including, without limitation, any direct, indirect, special, or consequential losses, loss of reputation and all interest, penalties and legal and other professional costs and expenses, including, without limitation, the cost of internal resources) suffered or incurred by OnBuy arising out of or in connection with: (i) any breach by the Seller of any provision contained in these Seller Terms or the Customer Terms; (ii) any actual or alleged defect in any Product (latent or patent); (iii) violation of any applicable laws (including costs, additional expenses, customs duties, or assessments, fines, citations, penalties, or Seller's failure to comply with any request by OnBuy for any import or export documentation); (iv) any claim made against OnBuy for actual or alleged infringement of a third-party's Intellectual Property Rights arising out of, or in connection with, the manufacturing, supply, sale or use of the Products; (v) any claim made against OnBuy by a third-party arising out of, or in connection with, the manufacturing, sale or supply of the Products, or for any damage arising out of, or in connection with the Products.

20 TERMINATION

20.1 Either party may terminate these Seller Terms by giving 30-days written notice to the other party at any time.

20.2 Without limiting the rights or remedies available to OnBuy and the Seller, each party may terminate these Seller Terms with immediate effect by giving written notice to the other party if:

20.3 the other party fails to pay any undisputed amount due pursuant to these Seller Terms on the due date for payment and fails to remedy that breach within 30-days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

20.4 the other party commits a material breach of any other terms of these Seller Terms which breach is irremediable or (if such breach is remediable) fail to remedy that breach within 30-days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

20.5 the other party repeatedly breaches any of the terms of these Seller Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with having the intention or ability to give effect to these Seller Terms;

20.6 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Seller Terms is in jeopardy;

20.7 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits its inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

20.8 the other party takes any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring in such manner that the company resulting from the restructuring effectively agrees to be bound by or to assume the obligations imposed on it pursuant to these Seller Terms), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring in such manner that the company resulting from the restructuring effectively agrees to be bound by or to assume the obligations imposed on it pursuant to these Seller Terms), having a receiver or administrative receiver appointed to or a creditor or encumbrancer taking possession of any of its assets or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

20.9 the other party suspends or ceases, or threatens to suspend or cease, to carry all or a substantial part of its business.

20.10 Without limiting OnBuy’s other rights or remedies, if the Seller fails to achieve the Seller performance metrics across the Marketplace in any month, then OnBuy will provide the Seller with written notice of such failure setting out full details of such failure and OnBuy will work with the Seller to help the Seller meet the Seller performance metrics in subsequent months. If (subject to OnBuy providing the Seller with such notice after the first month) the Seller fails to meet the Seller performance metrics across the OnBuy Marketplace for two consecutive months, OnBuy shall have the right, at its sole discretion, to:

20.10.1 grant the Seller only Restricted Access to the SCP; and

20.10.2 terminate these Seller Terms by giving the Seller 30-days’ written notice.

20.10.3 Without limiting OnBuy’s other rights or remedies, OnBuy shall have the right to immediately suspend the Seller’s access or grant the Seller only Restricted Access to the SCP if the Seller commits a material breach of these Seller Terms and, in the case of a breach which is capable of remedy, fails to remedy the same within 30-days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.

21 CONSEQUENCES OF TERMINATION

21.1 If OnBuy terminates these Seller Terms, all sums due to OnBuy in accordance with these Seller Terms shall become immediately due and payable by the Seller to OnBuy.

21.2 If OnBuy terminates this contract, the Seller shall continue to pay OnBuy all outstanding Fees set out under clause 15 (Fees) of these Seller Terms for, and related to, sales during, the 30-day notice period, and any other amounts which are properly owed to OnBuy, together with any applicable VAT.

21.3 The Seller shall ensure that all Orders placed before termination are fulfilled (where the Seller’s level of access to the SCP permits it to do so). If the Seller informs OnBuy that fulfilment of the Order is not possible, or if the Seller fails to fulfil an Order within 7-days of termination, OnBuy shall cancel the Order and process a refund to the Customer.

21.4 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination of these Seller Terms shall not be affected or prejudiced. This includes the right to claim damages in respect of any breach which existed at or before the date of termination or expiry.

21.5 The termination or expiration of these Seller Terms for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination or expiry and all provisions regarding indemnification, warranty, liability and limits, confidentiality and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose. Furthermore, termination of these Seller Terms shall not relieve the Seller of its respective obligations to supply Products that have been ordered and pay refunds and other charges even when such liabilities arise after date of termination or expiration (as one example: chargebacks).

21.6 All licences granted under these Seller Terms will expire on termination unless required for the purposes of clause 21.2;

21.7 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

21.8 The Seller acknowledges and accepts that OnBuy reserves the right to pass the Seller’s contact details held on the SCP (and any other details OnBuy holds relating to the Seller) to a Customer where, on or after termination of these Seller Terms, any dispute remains or arises between the Seller and the Customer.

22 CONFIDENTIALITY

22.1 Both parties agree that where either party is in possession of Confidential Information, subject to 22.2 both parties undertake to: (i) keep it confidential; (ii) use it only in connection with the performance of these Seller Terms; and (iii) not to disclose it to any other person or entity without the other party’s prior written consent.

22.2 The undertakings at 22.1 will not apply to information that otherwise becomes generally publicly available, was possessed prior to the Commencement Date (or prior to being designated as Confidential Information), or is lawfully acquired from a third party who is under no obligation of confidence or information which is or has been independently developed by the recipient. Both parties will be entitled to disclose Confidential Information to legal advisors to protect legitimate interests and to comply with any legal, professional or regulatory requirement.

22.3 The Seller agrees to reimburse any costs OnBuy may incur in complying with any such disclosure requirement relating to these Seller Terms imposed in any proceedings or regulatory process not involving any substantive claim or proceeding against OnBuy, provided that OnBuy notifies the Seller promptly and, where reasonably or legally possible, prior to disclosure.

22.4 The Seller acknowledges that OnBuy is entitled to share the Seller’s Confidential Information with its Affiliates and any subcontractors OnBuy uses in the performance of these Seller Terms (and more generally to those contractors providing administrative, infrastructure and other support services to OnBuy) in each case whether located within or outside of the United Kingdom on the understanding that they will treat the information as Confidential Information in accordance with the provisions of these Seller Terms.

22.5 When offering OnBuy’s services to other parties OnBuy may disclose to them that OnBuy has acted for the Seller unless the Seller instructs OnBuy to the contrary.

22.6 Nothing in these Seller Terms will prevent or restrict OnBuy from providing services to other parties (including services which are the same or similar to those offered under these Seller Terms) or using or sharing for any purpose any knowledge, experience and skills used in, gained or arising from performing these Seller Terms subject to the obligations of confidentiality set out in clause 22.1 even if those other parties’ interests are in competition with the Seller. The Seller also agrees that to the extent that OnBuy possesses information obtained under an obligation of confidentiality to another client or other third party, OnBuy is not obliged to disclose it to the Seller or make use of it for the Seller benefit, however relevant it may be to these Seller Terms.

22.7 The obligations of confidentiality in these Seller Terms shall remain in effect for 5 (five) years after the termination or expiry of these Seller Terms.

23 INTELLECTUAL PROPERTY RIGHTS

23.1 The Intellectual Property Rights in the Marketplace and in any materials and other documents or items that OnBuy prepares or produces in any form whatsoever in connection with the OnBuy Marketplace will belong to OnBuy absolutely.

23.2 The Seller may not use OnBuy’s Intellectual Property Rights without OnBuy's prior written consent.

23.3 Subject to Clause 23.7, the Seller acknowledges and accepts that the copyright, design rights and all other Intellectual Property Rights in a Listing will belong to OnBuy absolutely or have been licensed to OnBuy. The Seller agrees that its placing of a Product against a Listing does not grant the Seller any Intellectual Property Rights in that Listing.

23.4 OnBuy hereby grants the Seller a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right to use each Listing for the sole purpose of advertising the Products through the Marketplace.

23.5 Except as expressly stated in clause 23.4, these Seller Terms does not grant the Seller any rights to, under or in, any copyright, designs, patents, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the OnBuy Marketplace.

23.6 OnBuy represents, undertakes and warrants that it is the legal owner of all intellectual property in the OnBuy Marketplace (including without limitation the SCP) or has an irrevocable licence to use such intellectual property for the purposes for which it is used.

23.7 The Seller’s name, logo and all other Intellectual Property Rights that specifically relates to the Seller (including those in any materials and other documents or items that OnBuy prepares for the Seller in connection with the OnBuy Marketplace will belong to the Seller absolutely.

23.8 The Seller grants OnBuy a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright, publicity, database rights and all other intellectual property rights that it has in any logos, trademarks, brand names, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by it on the OnBuy Marketplace in all media.

24 GENERAL

24.1 Force Majeure: Subject to 6.5.13 and 6.5.14, neither party shall be responsible if it is prevented from or delayed in performing any of its respective obligations hereunder, or from carrying on its business as a result of a Force Majeure Event.

24.2 Counterparts: These Seller Terms may be executed in any number of counterparts and by either or both parties on separate counterparts, each of which shall be an original and all of which shall together constitute a single contract.

24.3 Entire agreement: These Seller Terms constitutes the entire agreement and understanding between the parties relating to its subject matter and supersedes any of the Seller’s own terms, any previous agreement between the parties relating to any such subject matter. Each party acknowledges and agrees that in entering into these Seller Terms, all statements, representations, warranties and undertakings on which it relies are incorporated into these Seller Terms and it does not rely on (and shall have no remedy in respect of) any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether party to these Seller Terms or not) which is not expressly set out in these Seller Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in these Seller Terms.

24.4 Variation: All Seller proposed changes to these Seller Terms shall be made in writing and shall not have effect unless and until agreed in writing by OnBuy. Subject to clause 24.4.1. With the exception of clause 15.3.2, OnBuy may amend any of the terms of these Seller Terms by giving the Seller at least 14 days’ prior written notice, after which the amendment shall be considered incorporated into these Seller Terms. The Seller’s continued use of the OnBuy Marketplace after OnBuy’s notice of the amendment will constitute the Seller’s acceptance of the variation.

24.4.1 The 14-day notice period set out in clause 24.4 shall not apply where:

  1. OnBuy is subject to a legal or regulatory obligation which requires it to amend these Seller Terms in a manner which does not allow it to respect the 14-day notice period; or
  2. Any exceptional or unforeseen circumstances which causes OnBuy to amend these Seller Terms to address an unforeseen and imminent danger related to protecting itself, the Seller and other sellers, Customers and other business users from fraud, malware, spam, data breaches or other cybersecurity risks. If any variation proposed by OnBuy is unacceptable to the Seller, the Seller shall be entitled to terminate these Seller Terms .

24.5 Order of precedence: In the event and only to the extent of any conflict between parts of the following (descending) order of precedence shall apply:

24.5.1 The Seller Terms(highest)

24.5.2 The Schedules

24.5.3 Documents that are included as links within these Seller Terms.

24.6 Anti-Bribery, Modern Slavery and Anti-Money Laundering: Both parties will comply with the Bribery Act 2010 and have and shall maintain in place throughout the duration of these Seller Terms respective policies and procedures, to ensure compliance with the Bribery Act 2010, the Modern Slavery Act 2015 and applicable anti-money laundering Law.

24.7 Assignment: The Seller shall not assign, transfer, charge, sub-contract or deal in any other manner with any of its rights or obligations under these Seller Terms without OnBuy’s prior written consent.

24.8 Notices: Any notice or other communication required or permitted to be given to a party pursuant to these Seller Terms shall be deemed to have been validly given if served personally on that party or if sent by first class pre-paid post to that party’s registered office (if a company) or its principal place of business (in any other case) or if sent electronically to that party's email address as notified to the other party in writing, or through the SCP in accordance with this clause. References in these Seller Terms to “writing” includes email (provided the email is supported by a valid server delivery receipt). Any notice or other communication shall be deemed to have been received:

24.8.1 if served personally, on signature of a delivery receipt;

24.8.2 if sent by first class pre-paid post, 2 Business Days after the date of posting; and

24.8.3 if sent electronically, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours mean 9.00am to 5.00pm on a Business Day.

24.9 No Waiver: No failure or delay by a party to exercise any right or remedy provided under these Seller Terms 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.

24.10 Invalidity: If any provision of these Seller Terms(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 these Seller Terms , and the validity and enforceability of the other provisions of these Seller Terms shall not be affected.

24.11 Headings: The headings contained in these Seller Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Seller Terms.

24.12 No Partnership: Nothing in these Seller Terms is intended or shall be deemed to create a partnership or joint venture of any kind between the parties, nor authorise the Seller to act as agent for OnBuy, and the Seller shall have no authority to act in OnBuy’s name or on OnBuy’s behalf or otherwise to bind OnBuy 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).

24.13 No Third-Party Rights: These Seller Terms shall not be enforceable by a person who is not a party to them under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

24.14 Governing Law and Jurisdiction: These Seller Terms shall be governed by and construed in accordance with English Law. OnBuy and the Seller irrevocably agree that the courts of England shall have exclusive jurisdiction to resolve any dispute or claim arising out of or in connection with the subject matter of these Seller Terms (including non-contractual disputes and claims).

SCHEDULE 1

Term Means
“Application Fee” The non-refundable payment made by the Seller to OnBuy to process the Seller's application to sell on the OnBuy Marketplace. If the Seller's application is successful, the Application Fee shall be used by OnBuy as payment for the Seller's first Monthly Subscription Fee.
“Boost” Enhanced promotional activity performed by OnBuy to increase the visibility of the Seller’s Listing. Boost is optional by the Seller.
“Boost Fee”

A non-refundable fee paid by the Seller to OnBuy each time the Seller sells a Product from a Listing which the Seller has elected to Boost.

The Boost Fee is set by the Seller on an individual Listing basis.

For the avoidance of doubt. Boost Fee is an additional fee to the Sales Fee and is charged on the Listing Price and any applicable delivery costs.
"Business Day" Any day except any Saturday, any Sunday, or any day which is a public holiday in England or any day on which banks in London are closed for business.
“Cancellable Products” Cancellable Product means a Product that is capable of return but excludes Non-Cancellable Products.
“Commencement Date” The date upon which the Seller's application to sell on OnBuy pursuant to these Seller Terms are accepted.
“Confidential Information” Information about the other party that is by its nature confidential or is designated as such by the other party (whether in writing or orally).
“Customer” A person who makes purchases from Sellers via the OnBuy Marketplace.
“Customer Care Team” OnBuy's dedicated team of staff that seeks to resolve Customer disputes.
“Customer Dispute Chargeback” Chargeback claims made by customers to banks/card providers in relation to Orders for Products that are either defective, not as described or undelivered.
“Customer Terms” The legally binding agreement between the Seller and the Customer for the sale/purchase of Products on the OnBuy Marketplace.
“Delivery Timeframes” The timescale for delivery selected by the Customer based upon the options the Seller offers in the SCP. The Delivery Timeframe begins from the time of Seller acceptance of the Order and ends upon delivery.
“Dispute” Dispute between the Seller and the Customer.
“Force Majeure Event” Any event that: (i) is beyond the reasonable control of, and is not due to the fault or negligence of, such party, and (ii) could not have been avoided by such party’s exercise of due diligence, including, but not limited to, a labour controversy, strike, lockout, boycott, transportation stoppage, action of a court or public authority, fire, flood, earthquake, storm, war, civil strife, terrorist action, epidemic, or act of God; provided that a Force Majeure Event will not include economic hardship, changes in market conditions, or insufficiency of funds. Notwithstanding the foregoing sentence, a Force Majeure Event does not excuse any obligation to make any payment required by these Seller Terms and will not affect either party’s right to terminate these Seller Terms pursuant to Clause 20 (Termination).
“Fraud Related Chargebacks” Chargeback claims made by Customers to banks/card providers in relation to fraudulent transactions and/or stolen cards.
"Handling Time" The time selected by the Seller for the processing of an Order. This timeframe may not exceed ten days.
“Intellectual Property Rights” All patents, trademarks, service marks, trade names, design rights, copyright, rights in software, database rights, rights in know-how and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights, and rights in Confidential Information.
“Law”

Laws of England including:

  1. all statutes, statutory instruments, regulations, by-laws, rules, ordinances, guidance or subordinate legislation from time to time made or issued to which a party is subject;
  2. the common law and the law of equity as applicable to the parties;
  3. any binding court order, judgment or decree;
  4. any applicable industry code, guidance, policy or standard which, in each case, is enforceable by law; or
  5. any applicable direction, policy, rule or order that is legally binding on OnBuy and that is made or given by any Regulator.
“Listing”

The Seller’s posting against Product for sale on the OnBuy Marketplace. The Listing includes but may not be limited to:

  • Stock Keeping Unit
  • Condition
  • Price
  • Stock
  • Delivery Weight
  • Handling Time
  • Return Time
  • Free Returns Applicability
  • Warranty Period
  • Delivery Template
  • Sales Price
  • Boost
"Listing Price" The price the Seller places against each Listing.
“Monthly Subscription Fee” The sum paid by the Seller to OnBuy for each calendar month during which the Seller is a member of the OnBuy Marketplace. The first month shall be paid for as part of the Application Fee if the Seller's application is successful.
“Non-cancellable Products”

Includes:

  1. personalised items that are specifically made to a Customer's specification (e.g., a custom-made print), except where the Customer has chosen items from pre-determined upgrade options or standard off-the-shelf components;
  2. items sealed for health protection or hygiene purposes which a Customer has unsealed after they receive them;
  3. personalised items;
  4. perishable items, including but not limited to food, drink and fresh flowers;
  5. audio or video recordings or computer software which a Customer has unsealed or opened after they receive them;
  6. newspapers, periodicals or magazines;
  7. items which by their nature cannot be returned (such as where it is physically impossible to return items or where items cannot be restored to the same physical state as they were supplied; and
  8. digital downloads that have been activated.
“OnBuy” Visor Commerce Limited with company registration number 09108414. Registered at OnBuy House, 12-14 Dean Park Crescent Bournemouth, BH1 1HP. United Kingdom.
OnBuy Chargeback Fee The sum of £14.00 payable by the Seller to OnBuy for OnBuy’s administrative costs in the event of a Customer Dispute Chargeback.
OnBuy Dispute Fee The sum of £6.50 payable by the Seller to OnBuy if the Customer raises a dispute and OnBuy reasonably believes the Seller may be in breach of these Seller Terms.
“OnBuy Marketplace” OnBuy - UK Online Marketplace
“Order” The offer (made by the Customer) to purchase the Seller's Product which the Seller can accept or reject.
“Performance Metrics” Ratings applied to each Seller based upon performance on the OnBuy Marketplace which may be used by OnBuy and shared with Customers.
“Products” Goods and services made for sale by the Seller.
“Product Page” A Product specific page on the OnBuy Marketplace where Sellers can create a Listing.
"Refund Administration Fee"

20% of the Sales Fee refunded with a minimum fee of £0.25 per line item refunded and a maximum of £5.00 per line item on the Order (a line item relates to each specific Product which may be of any quantity).

For example, if the Seller refunds a Customer £20.00 for a Product which attracts a category fee of 12%, the Seller’s Refund Administration Fee will be £0.48 (£20.00 x 12% commission fee = £2.40 x 20% Refund Administration Fee = £0.48).
"Sales Fee"

is a percentage (based upon the Product category) of the Listing Price and any applicable delivery costs.

The Sales Fee for each Product category is shown here: Sales Fees.
“Seller” The business that sells Products on the OnBuy Marketplace.
“Seller Control Panel (SCP)” Seller's own dedicated area of the OnBuy Marketplace which permits Sellers to amongst other things, list Products and communicate with Customers.
“Seller Holiday Period” the feature which allows a Seller to set specific days where they are unable to fulfil Orders. This allows a Seller to either extend their despatch date or completely hide their Listings from the OnBuy Marketplace during periods of absence. It also allows OnBuy to set specific holiday days for all sellers, such as an additional and unexpected public holiday.
"Seller Terms" This legally enforceable agreement between OnBuy and the Seller.
“Seller's Shop” Customer facing page on the OnBuy Marketplace which provides the Seller's details.
“VAT” Value Added Tax at the prevailing rate

SCHEDULE 2

OnBuy Data Processing Agreement

THIS AGREEMENT is made between:

  1. Visor Commerce Limited trading as OnBuy with company registration number 09108414, registered at OnBuy House, 12-14 Dean Park Crescent, Bournemouth. BH1 1HL; and
  2. The Seller (“Processor”), (each a "Party" and both the "Parties").

BACKGROUND:

  1. The Processor is required to Process Personal Data on behalf of the Controller in connection with the OnBuy-Seller Contract agreed between the Parties.
  2. This Agreement effects the appointment of the Processor and sets out the terms and conditions that shall apply to its Processing of the Processed Data.

NOW IT IS HEREBY AGREED as follows:

1 DEFINITIONS AND INTERPRETATION

1.1 In this Agreement unless the context otherwise requires the following words and expressions shall have the following meanings:

“Commencement Date” The date upon which the Processor commenced selling pursuant to the OnBuy-Seller Contract;
"Controller" has the meaning given to it in the GDPR;
“Data Protection Impact Assessment” means an assessment by the Controller, for the purposes of Article 35 of the GDPR, of the impact of certain envisaged Processing of Personal Data;
"Data Protection Legislation" means all applicable data protection and privacy legislation and laws in force from time to time, as applicable to a Party or the services performed under the OnBuy-Seller Contract, including but not limited to: (a) the GDPR, the ePrivacy Directive 2002/58/EC, the UK Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; (b) any laws which implement or supplement any such laws in any relevant jurisdiction; and (c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and (d) any guidance or codes of practice issued by any Supervisory Authority from time to time;
"Data Subject" has the meaning given to it in the GDPR;
“Data Subject Access Request” a request made by, or on behalf of, a Data Subject in accordance with the Data Subject’s rights under the Data Protection Legislation to access their Personal Data;
"GDPR"

General Data Protection Regulation (Regulation (EU) 2016/679)

(“EU GDPR”) and/or the UK GDPR (as defined in Part 1, Section 3(10) of the Data Protection Act 2018), as the context permits and to the extent applicable to a Party;
“International Organisation” has the meaning given to it in the GDPR;
“Law” means any law, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, (as applicable) any enforceable right within the meaning of Section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements with which the Processor is bound to comply;
“Personal Data” has the meaning given to it in the GDPR;
“Personal Data Breach” has the meaning given to it in the GDPR and includes also any breach of Article 5(1)(f) (the integrity and confidentiality principle) of GDPR;
"Processing" has the meaning given to it in the GDPR, and the terms “Process” and “Processed” shall be construed accordingly;
“Processor” has the meaning given to it in the GDPR;
Processed Data” means such item(s) forming part of the Personal Data being processed by the Processor on behalf of the Controller or which the Processor has access to under this Agreement as are more particularly specified in Annex 1 of this Agreement;
“Processor Personnel” means all directors, officers, employees, agents, consultants and contractors of the Processor and/or of any Sub-Processor engaged in the performance of its obligations under this Agreement;
“Sub-Processor” means any third party appointed to Process the Processed Data on behalf of the Processor
“Supervisory Authority” means the UK Information Commissioner and otherwise (where relevant) has the meaning given to it in the EU GDPR.
“Third Country” means any country other than the UK, a European Union Member State or a member of the European Economic Area at the time of transfer of the Processor Processed Data;

1.2 Clause, Annex and paragraph headings are illustrative and shall not affect the interpretation of this Agreement.

1.3 The Annexes form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.

1.4 Unless the context otherwise, requires, words in the singular shall include the plural and vice versa.

1.5 A reference to a person shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision, and such statute, statutory provision and subordinate legislation as amended, updated or re-enacted from time to time during the Term.

1.7 References to clauses and annexes are to the clauses and annexes of this Agreement and references to paragraphs are to paragraphs of the relevant Annex.

1.8 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.

1.9 In the case of any ambiguity between any provision contained in the main body of this Agreement and any provision contained in the Annexes, the provision in the main body of this Agreement shall take precedence.

1.10 A reference to writing or written includes messages transmitted by email.

2 COMMENCEMENT AND DURATION

2.1 This Agreement shall commence on the Commencement Date and continue in force until one of the following events occurs:

2.1.1 the termination or expiry of the commercial relationship between the Controller and the Processor including the completion of any post-termination obligations of the Processor set out in the OnBuy-Seller Contract which require the Processor to Process Processed Data; or

2.1.2 the Controller terminates the appointment of the Processor by giving not less than one (1) month’s prior notice to the Processor, at which point this Agreement shall terminate with immediately effect.

2.2 On the expiry or termination of this Agreement, the Processor shall cease to Process the Personal Data.

3 DATA PROCESSING

3.1 For the purposes of the Data Protection Legislation, the Controller is the Controller and hereby appoints the Processor as its Processor of the Processed Data, on the basis that the only Processing that the Processor is authorised to do is the Processing described in Annex 1 (as amended from time to time in accordance with Clause 5 of this Agreement). The Processor shall not make any decisions as to the Processing of the Processed Data such that it would make it the Controller of such Personal Data, including commercialisation, licensing, selling or any other steps use such data, even on an anonymised basis.

3.2 The Processor shall notify the Controller immediately if it considers that any of the Controller's instructions fail to comply with the Data Protection Legislation and/or with Law. If the Processor acts on the Controller’s instructions without giving any such notification, the Processor shall be deemed to have evaluated such instructions and concluded that they comply with the Data Protection Legislation and with Law.

3.3 If the Processing to be carried on by the Processor is to any extent subject to Article 35 and/or Article 36 of GDPR, the Processor shall provide reasonable assistance to the Controller in the preparation of the Data Protection Impact Assessment prior to commencing any Processing or in relation to any prior consultation with a Supervisory Authority. Such assistance may, at the discretion of the Controller, include:

3.3.1 a systematic description of the envisaged Processing operations and the purpose of the Processing;

3.3.2 an assessment of the necessity and proportionality of the Processing operations;

3.3.3 an assessment of the risks that the Processing shall pose to the rights and freedoms of Data Subjects; and

3.3.4 the measures proposed or envisaged to address such risks, including appropriate technical and organisational measures to ensure the protection of the Personal Data.

3.4 The Processor shall, in relation to any Processed Data Processed by it:

3.4.1 Process only in accordance with Annex 1 and in accordance with the Controller’s written instructions (including with respect to transfers of Personal Data to a Third Country or International Organisation), unless the Processor is required to do otherwise by Law (and if so, required by Law the Processor shall promptly notify the Controller before Processing the Processed Data unless prohibited by Law);

3.4.2 keep the Processed Data confidential and not disclose it to any third party without the prior written consent of the Controller (unless required to do so by Law);

3.4.3 take appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Processed Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects, including as appropriate:

3.4.3.1 the pseudonymisation and encryption of the Processed Data;

3.4.3.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;

3.4.3.3 the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and

3.4.3.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing;

3.4.4 ensure that:

3.4.4.1 the Processor Personnel do not Process any Processed Data other than in accordance with this Agreement;

3.4.4.2 it takes all reasonable steps to ensure reliability and integrity of any Processor Personnel who have access to the Processed Data and ensure that Processor Personnel:

  1. are aware of and comply with all the Processor’s duties under this Clause 3;
  2. are each subject to appropriate confidentiality undertakings that are enforceable by the Processor and/or are under an appropriate statutory obligation of confidentiality;
  3. are informed of the confidential nature of the Processed Data and do not publish, disclose or divulge any of the Processed Data to any third party unless directed in writing to do so by the Controller or as otherwise permitted by this Agreement (including having an obligation to do so by Law); and
  4. have undergone adequate training in the use, care, protection and handling of Processed Data;

3.4.5 shall not:

3.4.5.1 (where the Processor is located in the United Kingdom or the EEA) transfer the Processed Data to a Third Country, or to any International Organisation; or

3.4.5.2 (where the Processor is located outside the United Kingdom or the EEA) effect an onward transfer of the Processed Data to a Third Country, or to any International Organisation, unless the prior written consent of the Controller has been obtained and the following conditions are fulfilled:

  1. the Processor has, prior to such transfer, established, or procured the establishment of, appropriate safeguards in relation to the transfer of the Processed Data and complied with the provisions of clause 3.13 in respect of any transfers of Processed Data to Sub-Processors in Third Countries for Processing;
  2. each Data Subject whose Personal Data is transferred has enforceable rights and effective legal remedies which are enforceable against the Processor, and the Processor has ensured prior to any such transfer that such rights and remedies are available;
  3. the Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection for all Processed Data that is transferred (or procures that such protection is provided); and
  4. the Processor complies with all reasonable instructions notified to it in advance of such transfer by the Controller with respect to such transfer, including to provide to the Controller copies of adequate safeguards such as standard contractual clauses to be used by the Processor and details of transfer impact assessments or other risk assessments undertaken by the Processor in respect of the transfer.

3.5 Where the Processor is located outside the United Kingdom or the EEA, the Parties shall put in place appropriate safeguards in relation to the transfer of the Processed Data, and the Processor shall assist the Controller with carrying out such transfer impact assessments or other risk assessments as are required under Data Protection Laws in respect of the transfer.

3.6 Taking into account the nature of the processing, the Processor shall assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising data subject's rights, including Data Subject Access Requests.

3.7 Subject to Clause 3.8, the Processor shall notify the Controller immediately if the Processor:

3.7.1 receives any Data Subject Access Request (or purported Data Subject Access Request);

3.7.2 receives any request to rectify, block or erase any Processed Data;

3.7.3 receives any other request, complaint or communication relating to either Party's obligations under the Data Protection Legislation;

3.7.4 receives any communication from any Supervisory Authority or any other regulatory authority in connection with Processed Data;

3.7.5 receives a request from any third party for disclosure of Processed Data where compliance with such request is required by Law; or

3.7.6 becomes aware of any Personal Data Breach (and such notification shall be made not later than twenty-four (24) hours following the Processor becoming aware of each Personal Data Breach).

3.8 The Processor’s obligation to notify the Controller under Clause 3.7 shall include an obligation to provide information in accordance with Clause 3.9, and an obligation to provide further information to the Controller in phases, as further details become available.

3.9 The Processor shall assist and co-operate with the Controller in relation to the Controller’s compliance with its obligations under Data Protection Legislation (including each complaint, communication or request made under Clause 3.6 as well as any other complaint, communication or request relating to any Processed Data), and shall do so within the timescales reasonably required by the Controller. In particular the Processor shall promptly provide the Controller with:

3.9.1 full details and copies of each complaint, communication or request received by the Processor (or received by the Controller and relating to any Personal Data);

3.9.2 such assistance as is reasonably requested by the Controller to enable the Controller to comply with each Data Subject Access Request within the relevant timescales specified in or under the Data Protection Legislation;

3.9.3 copies of any Processed Data specified by the Controller, and details of the Processing of such Processed Data by or on behalf of the Processor;

3.9.4 assistance as requested by the Controller in relation to any Personal Data Breach, including supporting the Controller in relation to any notifications it is required to make to Supervisory Authorities or affected Data Subjects;

3.9.5 assistance to ensure that Processing of Processed Data by or on behalf of the Processor complies with any exercise by any relevant Data Subject of any of his or her rights under Data Protection Legislation, including to ensure that the Personal Data relating to such Data Subject is (for example) deleted and/or rectified and/or made subject to restrictions in accordance with such exercise of such rights; and

3.9.6 assistance as requested by the Controller with respect to any request from a Supervisory Authority, or any consultation by the Controller with a Supervisory Authority.

3.10 The Processor shall maintain complete, accurate and up to date records and information of the Processing it carries out in connection with this Agreement, which shall contain as a minimum:

3.10.1 its details, the Controller’s details and the details of the Processor’s data protection officer (if applicable) or, if the Processor is not subject to a mandatory requirement under Data Protection Legislation to appoint such an officer, the details of the person who has overall responsibility for the Processor’s compliance with the Data Protection Legislation;

3.10.2 the categories of Processing of the Processed Data that are carried out by or on behalf of the Processor;

3.10.3 the details of any transfers to any Third Countries, where applicable, and the safeguards in place for each such transfer; and

3.10.4 accurate records of the technical and organisational measures that the Processor has in place in accordance with clause 3.4.3.

3.11 The Processor shall make available to the Controller on request (and within three (3) days) all information necessary to demonstrate compliance by the Processor and the Controller with their respective obligations under Data Protection Legislation (including the copies of the records referred to in clause 3.10), and allow for and contribute to any and all audits, including inspections, of its Processing activities (including the records maintained under clause 3.10) by the Controller or the Controller’s designated auditor. The Controller’s rights under this clause 3.11 include a right for the Controller, or its designated auditor, to access premises used by or on behalf of the Processor, and to access and interview any Processor Personnel.

3.12 Each Party shall designate its own data protection officer if required by the Data Protection Legislation or (if not so required) shall designate one of its senior managers as being responsible for overseeing and managing the Party’s compliance with Data Protection Legislation.

3.13 Before allowing any Sub-Processor to Process any Processed Data, the Processor must:

3.13.1 notify the Controller in writing of the intended Sub-Processor and Processing;

3.13.2 obtain the written consent of the Controller to the Processor appointing or using the proposed Sub-Processor to Process certain Processed Data;

3.13.3 enter into a written agreement with the Sub-Processor which appoints the Sub-Processor on terms and conditions that comply with Data Protection Legislation and are no less onerous on the Sub-Processor, and no less protective of the Personal Data and of Data Subjects, than the provisions of this Agreement (and provide comprehensive details of all such agreements to the Controller on request within three (3) days); and

3.13.4 provide the Controller with such information regarding the proposed Sub-Processor as the Controller may reasonably require.

3.14 If any authorisation is given under clause 3.13.2, the Processor shall not make any changes concerning the addition or replacement of other Processors without first obtaining the Controller’s written consent to such changes.

3.15 The Processor shall remain fully responsible for, and liable in respect of, all acts or omissions of its Sub- Processors.

3.16 The Controller may, at any time on not less than thirty (30) days’ notice, amend this Clause 3 by replacing it with any applicable Controller to Processor standard clauses approved by a Supervisory Authority or other relevant approving authority.

3.17 In the event of a notification under clause 3.7.6, the Controller shall at its sole discretion determine whether to provide notification to the Data Subject, any third party or Supervisory Authority, and the Processor shall not notify the Data Subject, any third party or Supervisory Authority unless such disclosure is required by Law or is otherwise approved by the Controller.

3.18 At the written direction of the Controller given at any time (whether during the continuance of this Agreement, on the termination or expiry of this Agreement, or at any time after its termination or expiry), the Processor shall promptly (and in any event within three (3) days) securely return to the Controller and, if and when the Controller specifies, securely delete, the Processed Data or any part of it that is specified by the Controller (together with all copies of such Processed Data), unless the Processor is required by Law to retain the Processed Data (in which case it shall securely erase it as soon as such legal requirement has been fulfilled).

3.19 Nothing in this clause 3 shall relieve the Processor of its own direct responsibilities and liabilities under the Data Protection Legislation, where applicable.

3.20 The Parties agree to take account of any guidance issued by the Supervisory Authority. The Controller may on not less than thirty (30) days’ notice to the Processor amend this Agreement to ensure that it complies with any guidance issued by a Supervisory Authority.

3.21 In relation to processing by a Party of Personal Data of the other Party’s staff or representatives for contract administration purposes, each Party does so as an independent controller and shall do so in compliance with their respective obligations under Data Protection Legislation.

4 DISPUTE RESOLUTION

4.1 The Parties shall act in good faith to try and resolve any disputes.

5 VARIATION

5.1 Subject to Clauses 3.16 and 3.20, any amendment or variation to this Agreement shall be in writing and signed by duly authorised representatives of each of the Parties.

5.2 If the Data Protection Legislation changes in a way that the Agreement is no longer adequate for the purpose of governing lawful Processing exercises, the Parties agree they will negotiate in good faith to review the Agreement in the light of the new legislation.

6 NOTICES

6.1 Any notice or other communication given by either Party under or in connection with this Agreement shall be in writing and shall be:

6.1.1 delivered by hand, courier or by recorded post or other next working day recorded delivery service at its registered office (if a company) or its principal place of business (in any other case); or

6.1.2 sent by electronic mail to the Controller via the Seller’s OnBuy account and to the Seller at the email address linked to its OnBuy account.

6.2 Any notice or communication shall be deemed to have been received:

6.2.1 if delivered by hand or courier, on the date on which the delivery receipt is signed;

6.2.2 if sent by recorded post or other next working day recorded delivery service, at the time recorded by the delivery service; and

6.2.3 if delivered by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when those business hours resume, and in this clause 6.2 “business hours” means 9.00am to 5.00pm Monday to Friday on a working day, and in this clause 6 “working day” means that is not a weekend or public holiday in the place of receipt.

6.3 This clause 6 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

7 SEVERABILITY

7.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

7.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 7.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

8 WAIVER

8.1 No failure or delay by either Party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right to remedy.

9 THIRD PARTY RIGHTS

9.1 A person who is not a Party to this Agreement shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

10 ENTIRE AGREEMENT

10.1 This Agreement, supersedes all prior representations and agreements between the Parties (whether written or oral) relating to the subject matter of the Agreement and sets forth the entire agreement and understanding between the Parties.

10.2 Each Party warrants to the other that it has not relied on any representation or agreement (whether written or oral) not expressly set out or referred to in these Seller Terms.

11 COUNTERPARTS

11.1 This Agreement may be executed in one or more counterparts. Any single counterpart or a set of counterparts executed, in either case, by the Parties shall constitute a full original of this Agreement for all purposes.

12 GOVERNING LAW AND JURISDICTION

12.1 Each Party submits to the exclusive jurisdiction of the English courts and agrees that the Agreement is to be governed and construed according to English law. This Agreement has been entered into on the date stated above.

ANNEX 1

DATA PROCESSING

Description Details
Subject matter of the Processing Transactions placed by the Processor’s customers on OnBuy.
Duration of the Processing Until terminated under the terms of the Data Processing Agreement
Nature and purposes of the Processing To fulfil the customer transactions by delivering goods to customers and processing refunds to customers.
Type(s) of Personal Data

Customer Name;

Customer Address;

Customer E-Mail Address;

Customer Order Reference Number;

Customer Phone Number(s);

Customer Nationality;

Customer Gender (by title e.g., Mr, Mrs etc.)

IP address
Categories of Data Subject

Consumers i.e., those customers that by from sellers on the OnBuy Marketplace

Users of websites operated by Visor Commerce Limited

Last Modified: 31st January 2023

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