SELLERS TERMS & CONDITIONS
THIS DOCUMENT SETS OUT THE TERMS ON WHICH THEPOMMIER.COM LIMITED TRADING AS THE GRAINES REGISTERED IN ENGLAND & WALES, COMPANY REG NO. 09504399 & VAT NO. 213181940 PROVIDES YOU ('SELLER') WITH ACCESS TO CERTAIN FEATURES AND FUNCTIONALITIES ON WWW.THEGRAINES.COM ('WEBSITE') TO MARKET AND SELL JEWELLERY, FASHION ACCESSORIES, HOMEWARE AND CLOTHING.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE. THE SELLER ACKNOWLEDGES THAT BY CLICKING ON THE BUTTON MARKED 'I ACCEPT' OR BY USING THE WEBSITE (WHOLLY OR PARTLY) AS A SELLER, THE SELLER AGREES TO BE BOUND BY THESE TERMS FROM THAT MOMENT. IF THE SELLER DOES NOT ACCEPT THESE TERMS, THE SELLER WILL NOT BE ABLE TO USE THE FEATURES AND FUNCTIONALITIES OF THE WEBSITE AS A SELLER.
YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR FUTURE REFERENCE.
- A) The Graines operates and maintains the Website (defined below) which is an online marketplace offering independent jewellery, fashion accessories, homeware and clothing and provides sellers a facility to advertise and sell their Products (defined below) using the Website.
- B) The Seller is a jewellery, fashion accessories, homeware or clothing designer and wish to make its Products available using the Website and in accordance with the terms of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
'Comment' means the comment and feedback provided by the Users on the Website in respect of the Product and/or the Seller;
'Content' means materials owned by and/or licensed to the Seller including but not limited to, Listings, images, photographs, articles, write-ups and comments;
'Exclusive' means a Seller who has opted to sell a particular jewellery, homeware, clothing or fashion accessories item exclusively on the Internet through the Services and the Website and who shall be entitled to a different rate of Fees which are more particularly set out in clause 5 below;
'Fees' means a sum in Pound Sterling equivalent to a percentage or fixed sum of the Price (in Pound Sterling) after deduction of VAT (if applicable) which is more particularly set out in clause 5 below;
"Membership" means a subscription fee to our services which will entitle you to access our platform, team, contacts and associated businesses.
"Coverage" means your products included in but not limited to: Magazines, Blogs, Social Media, Paid Adverts or Newspapers.
'Force Majeure' mean any non-performance, defective performance or delay in the performance of any of the Services caused directly or indirectly by acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, terrorism, lack of adequate power or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key
"Abuse" means to continue an action after being notified by The Graines to stop.
The Graines employees or sub-contractors, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
'Intellectual Property Rights' means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, database rights, moral rights, topography rights, rights in databases, software rights (including without limitation rights to its object code and source code), trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equal or similar effect to any of these anywhere in the world;
'Listings' means details of a Product offered on the Website;
'Login Details' means the username and password to access the Services and the Website;
"Dashboard" means a secure portal on which a seller can can manage their products, orders and customers.
"Sellers Policy" means our clear rules and guidelines that need to be adhered to in order to use our website or and can be found in your dashboard.
'Price' means the price of the Product excluding VAT, all other applicable taxes, shipping costs and any other additional and applicable costs;
'Product' means a fashion item including but not limited to jewellery, homeware, clothing and all other fashion accessories offered for sale on the Website using the Services;
'Services' means the facility offered by The Graines to advertise the Product, publish and make available the Content and conduct a sale transaction in respect of the Product using the Website;
'Term' has the meaning set out in clause 6.1;
'Users' means a user registered with the Website; and
'Website' means www.thegraines.com or any other designated unique resource locator as determined by The Graines from time to time.
'Default' - When your account with The Graines has been put on hold and services have been made temporarily unavailable.
'Notice" means written communication via email, postal services of fax.
2 SELLER'S OBLIGATION
2.1 The Seller shall maintain all contacts, and conduct all transaction for the sale of its Product with the Users using the functionalities available on the Website and/or the Services. The Seller shall not at any time during the Term contact the Users or any other prospective buyers using any other alternative means other than the Website and/or the Services.
2.2 The Seller acknowledges and agrees that The Graines only provides the Seller with the Services to access the Website. Consequently The Graines is not a participant in any way, in the sale and purchase process between the Seller and the User.
2.3 The Seller shall procure that its contract with the User for the sale of its Product shall be strictly compliant with all applicable law and legislation including without limitation, all legislation relating to the consumer protection, data protection, e-commerce and distance selling.
2.4 All Content and Listing accompanying the advertising of a Product must be related to that Product offered for sale.
2.5 The Seller agrees to keep their product pricing and inventory up to date at all times.
2.5.1 If a sale has been made for the seller and the seller decides to cancel the order as the product is unavailable and has not been updated through the sellers dashboard within 48 hours before the transaction is made, the seller agrees to pay the commission rate as set out in clause 5.2 within 7 days upon receipt of an invoice from The Graines regardless of whether the sale is fulfilled by them or not.
2.5.2 If clause 2.5.1 occurs, the seller may mediate with The Graines to resolve the issue and make the product available within 7 days subject to acceptance by The Graines.
2.6 The Seller shall procure that all activities in respect of advertising and/or making the Product available on the Website for sale to the Users, including without limitation, the publishing of the Content and Listing on the Website:
2.6.1 Does not infringe any Intellectual Property Rights or other proprietary rights of any third party; and
2.6.2 May reasonably be deemed to be illegal, offensive, inappropriate or in any way (a) promote racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) harass or advocate harassment of another person; (c) display pornographic or sexually explicit material; (d) promote any conduct that is abusive, threatening, obscene, defamatory or libellous; (e) promote any illegal activities; (f) provide instructional information about illegal activities, including violating someone else's privacy or providing or creating computer viruses; and (g) promote or contain information that you know or believe to be false, inaccurate or misleading.
2.7 The Seller acknowledges that The Graines is not obliged to vet, review or verify the Content and/or the Product to determine whether any such Content and/or Product may result in any liability to any third party.
2.8 The Seller further acknowledges that The Graines shall not be liable in any way and for any reason for the behaviour of the User or any Comments made by the User in respect of the Seller and/or the Product.
2.9 The Seller hereby acknowledges and accepts that, in respect of all of its Products and, in particular, to the extent that it engages in the display, advertisement and/or sale of Products comprising or containing precious metals on or through the Website, it shall be bound by and shall comply with the terms of all applicable hallmarking, consumer protection and trade description laws. For example, where the Seller displays, advertises or sells Products containing or comprising precious metals in the United Kingdom, it shall be bound by and comply with the terms of the Hallmarking Act 1973, which makes it an offence to describe an unhallmarked item as being wholly or party made of gold, silver, platinum or palladium. Further details of the UK hallmarking requirements may be found through the British Hallmarking Council website (http://bis.gov.uk/britishhallmarkingcouncil).
2.10 The Seller hereby warrants, undertakes and represents to The Graines that, in respect of all of its Products and, in particular, any Products comprising or containing precious metals, where such Products are displayed by the Seller on the Website and/or sold through the Website:
2.10.1 The Seller shall comply with its obligations under all applicable hallmarking, consumer protection and trade description laws including, without limitation, the terms of the Hallmarking Act 1973; and
2.10.2 The Seller shall include a photograph of the Product on the Website so that any hallmarks are clearly visible.
2.11 If a claim for infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws is made in respect of any/all of the Seller’s Products or, in the reasonable opinion of The Graines, such a claim is likely to be made, The Graines shall be entitled to immediately and without notice to the Seller remove the Product from the Website and, at its sole discretion, suspend and/or cancel the Seller’s right to advertise their Products on the Website.
2.12 The Graines shall have no liability for any infringement or alleged infringement of any hallmarking, consumer protection and/or trade description laws in respect of all/any of the Seller’s Products, and the Seller shall indemnify The Graines against any claim that the Content, the Website and/or the Services infringes any such laws.
2.13 If the Seller registers with The Graines with Exclusive items, the relationship between The Graines and the Seller under this Agreement shall be exclusive for the duration of the Term. Consequently, the Seller shall not during the Term, sell and/or make the same Products available on the Internet to the public other than through The Graines's website.
2.14 The Seller agrees that it is solely responsible and liable for all use of the Services and the Website if such use was made using the Seller's Login Details. Consequently, the Seller shall promptly notify The Graines in the event there is a breach of security or any unauthorised use of the Seller's Login Details.
2.15 The Seller acknowledges and agrees that The Graines is not obliged to upload, publish or make available any of the Content, Listing and/or Products (wholly or partly) on the Website for any reason whatsoever other than those expressly set out in this Agreement.
2.16 The Seller agrees that at all times, it shall:
2.16.1 Not use its Login Details with the intent of impersonating another person;
2.16.2 Not allow any other person to use its Login Details;
2.16.3 Not use the information presented on the Website for any purposes other than those expressly set out herein;
2.16.4 Not do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Website or in respect of the network;
2.16.5 Not use the Website, the content therein and/or do anything that will infringe any intellectual property right or other rights of any third parties;
2.16.6 Not use any information obtained using the Website otherwise than in accordance with the terms set out herein;
2.16.7 comply with all instructions and policies from The Graines in respect of the Website; and
2.16.8 co-operate with any reasonable security or other checks or requests for information made by The Graines.
2.16.8 Not abuse services or facilities including employees of The Graines such as but not limited to: (a) the dashboard (b) the website (c) service support (d) email communication (e) late payments (f) product tags (g) product listings (h) late orders (i) late communication with The Graines and it's customers (j) rules explained in our sellers policy (k) rules set in our shop FAQ's (l) rules set to you via email.
2.17 The Graines operate a 3 tier warning system for sellers abusing it's rules, services and facilities. Warnings will be sent to you in writing via email to notify you to consider the rules. The third warning will be immediate termination of our services and any outstanding payments will be held by The Graines until the seller has paid in full the remainder of their service agreement.
2.18 Without prejudice to any of The Graines's other rights and remedies, The Graines reserves the right, in its absolute and sole discretion, to take any action that it deems necessary and appropriate including without limitation, suspending wholly or partly, temporarily and permanently the Seller's use and/or access to the Website and/or the Services, in the event it considers that there is a breach or threatened breach of this clause 2.
2.19 The Seller must use a reputable logistics company to deliver their goods to the customer. The item must be packaged suitably to protect the goods whilst in transit as much as possible.
2.19.1 All goods must be shipped via a service that provides tracking and requires a signature to avoid doubt and to rectify disputes if they where to arise between the Seller and the Customer.
2.20 The Seller must maintain a professional level of service to to it's customers at all times and the seller agrees that:
2.20.1 (a) The Seller will respond to any customer queries made on the website within 24 hours whilst their account is in Live Mode (Products are made available for sale and not in "Vacation Mode").
2.20.2 (b) The Seller will respond to queries about their products and account made by The Graines and it's employees within 24 hours whilst their account is in Live Mode (Products are made available for sale and not in "Vacation Mode").
2.20.3 (c) The Seller must at all times be accountable when communicating with customers.
2.20.4 (d) The Seller will have the ability to grow their followers on our platform and to automatically email those followers when they update new products or change information such as stock levels on our marketplace. The Seller acknowledges that customers may unfollow their brand at anytime and this is not the responsibility of The Graines.
2.20.5 (e) The Seller must at all times aim to receive above a 4 star service review from it's customers. The Graines may provide advice on how to increase their reviews but are not liable to do so.
2.21.1 If The Seller continues to fail the terms set out in clauses 2.19 and it's sub-sections, The Graines may at is sole and absolute discretion decide to terminate partly or wholly the services it provides to the seller.
2.21.2 If The Seller continues to fail the terms set out in clauses 2.19 and it's sub-sections, The Graines may at is sole and absolute discretion invoice the seller the agreed commission fee per sale for the sale that was due to take place.
2.22.1 The Seller must list The Graines as an official retailer on their website and hyper link back to www.thegraines.com or directly to their shop page on our website to be able to advertise their products or services on our website.
2.22.2 If the Seller does not list The Graines as an official retailer on their own website, The Graines will not approve their product listings and or profile and may remove or limit access to our system.
2.22.3 If the Seller adds The Graines as an official stockist and later removes the hyperlink from their website, The Graines will remove access to advertising on our website until the link is put back into place.
2.23.1 The Seller must adhere to The Graines's product listing guidelines which are provided during the upload process of products in your dashboard.
2.23.2 If items do not adhere to our guidelines set out in the product upload process they will not be approved onto our website or our Point of Sale system - This will limited functionalities of the system such as advertising, reports, sales and more.
2.24 The seller agrees to abide by The Graines's Sellers Policy at all times and agrees that the sellers policy forms part of their agreement with The Graines. Sellers Policy can be found in your dashboard or here: https://www.thegraines.com/pages/policy-overview
3 THE GRAINES 'S OBLIGATIONS
3.1 In consideration for the Seller's compliance with the terms of this Agreement and subject to clause 5.2, The Graines shall use its reasonable endeavours to make available the Website and the Services during the Term.
3.2 The Client acknowledges and agrees that The Graines relies on third party service providers to provide the Services and access to the Website. Consequently, The Graines cannot guarantee uninterrupted or fault-free access to and/or use of the Services and the Website or any aspect thereof.
3.3 Provided that the seller is compliant with these terms & conditions and sellers policy, The Graines will make payments for sales to sellers once a month on or around the 7th of the month. Should this date change we will notify you in writing.
3.4 The Graines shall make payment to it’s Sellers via a nominated method or payment handler of The Graines choosing.
4 PRODUCT PRICING
4.1.1 The Seller shall be entitled to price its Products at its sole and absolute discretion, subject always that the pricing of such Products on the Website shall be compliant with all applicable laws and legislations.
4.1.2 The Seller agrees that their pricing for products must be the same as sold by the seller to a user at a wholesale rate, other wholesale websites and wholesale agents / distributors.
4.1.3 The Graines offer their users a price promise guarantee which can be found on www.thegraines.com. If your products are discovered to be listed at a lower price point anywhere online, directly through you or through another third party agency or distributor and the customer notifies us and provides satisfactory proof, you consent that The Graines can automatically match that price. This includes items that are on sale.
4.2 The Price of your Products must be listed in Pound Sterling ('£') as the base currency. If there are dramatic changes in your local currency, you must update your pricing through the partner portal.
4.2.1 If you choose for The Graines to upload your products to its marketplace, they will converts your currency using the foreign exchange rate at that moment in time.
4.2.2 If there are changes in currencies and The Graines have not been notified to make amendments or you have failed to make the amendments in your dashboard and a sale is made, you will be paid the Pound Sterling ('£') rate of the amount paid by the user to The Graines.
4.2.3 The Graines will not be liable for any loss of profits for currency changes if The Graines where not given prior notification in writing at least 48 hours before the sale was made.
4.3 The Price shall be converted into all other applicable currencies (as set out in clause 4.2) based on the currency conversion rate at the time the Seller registers the Price against the Product using our Services.
4.4 For the avoidance of doubt, the conversion rate set out in clause 4.3, when applicable, shall be the mid-market foreign exchange rate as published by Yahoo! Finance at the previous day close the Seller registers the Price against the Product using the Services.
4.5 The Graines shall not be responsible for the payment of all applicable tax which arises out of or in relation to the sale and delivery of the Product.
4.6 The seller agrees to offer a discretionary discount to its users of up to 5% which may be offered by The Graines to obtain the seller a sale. The Seller may also request to offer a higher percentage discount to the users of The Graines but this must be notified to The Graines by the seller in writing.
5.1 The Seller shall pay The Graines the Fees in accordance with this clause 5.
5.2.1 The Fees which shall be due and payable to The Graines shall be TEN percent (10% + VAT) of the Price of the Product or TWELVE (12%) for sellers outside the UK and the set shipping fee's for standard items. The Graines shall notify the Seller of any applicable new Fees or any additional fee's agreed between The Seller and The Graines. All new Fees shall be applicable immediately upon notification to the Seller by The Graines.
5.2.2 You may be liable to pay a joining fee to The Graines. Joining Fee's are agreed before the creation of your account and will be final and non-refundable at anytime for any reason.
5.3 All Fees shall become due and payable and/or automatically deducted from the Price upon receipt of payment from the Users using the designated third party payment handler. All Fees shall be exclusive of any applicable value added tax (or any successor tax), shipping costs, delivery charges and/or any other applicable tax or charges of any nature whatsoever.
5.4 Membership with The Graines is for a fixed annual price and fixed term as set out in the proposal. Membership fee’s are payable on agreement of these terms and are strictly non-refundable.
5.4.1 Failure to pay these fee's on time will result in your account automatically being disabled until your fee's are paid.
5.4.2 if the seller continues to fail to pay these fee's The Graines has the right to (a) Invoice the seller for the remainder of the agreement in one invoice (b) warn the seller for abusing it's services (c) fully suspend and terminate it's agreement with the seller and all payments will be held by The Graines until the seller pay's the remainder of their membership in full.
5.4.4 Unless either party gives to the other in writing not less than one full calendar month prior notice to terminate the agreement at the end of the anniversary date the agreement will automatically renew and continue on the same terms thereafter.
5.5.1 Failure to pay the applicable fee’s to The Graines will result in a default until your invoice is paid in full. Whilst in default, your products will be removed from all of our advertising spaces and any products in possession of The Graines will be kept in storage until the amount is paid in full. Any fee’s for storage will be added to the invoice and are liable to be paid for by the advertiser.
5.5.2 For late payments, an administration fee of £40 + VAT and an interest rate set at 8% will be added to the overall total of each invoice outstanding on a weekly basis until the invoice is settled in full.
5.5.3 When your account is in Default, access to your dashboard will be temporarily removed and failure to resolve payment may result in additional text being added to your online profile stating that your account is on hold until payment is received. The text will be removed as soon as your agreement is paid in full.
5.5.4 Whilst in default, The Graines will invoice the seller for loss of revenue in addition to the outstanding amount owed. Loss of revenue will be calculated by adding the total amount of commission earned since the first day the seller advertised at the retail store and then dividing the final number by the amount of days the seller has advertised at the retail store to get the daily rate of revenue lost.
5.5.5 Whilst in default, we will stop ALL services that The Graines provides to the seller.
5.6 The Graines shall be entitled to vary the Fees at anytime. Any changes made to fee's in this Agreement will be notified to the Seller in writing or by email and made available to the Seller using the Website. The seller will have 14 days to reject these changes. If the seller is still using our services (website or dashboard) or has manually opted in to these changes without objecting to the changes within 14 days they are in acceptance of the varied fee's.
5.7 The Graines's service to Sellers is treated, for VAT purposes, as an electronically supplied service. As a Company based in the UK, Sellers are liable to pay VAT for The Graines services as follows: If the Seller is based in the UK, he or she will be liable to pay VAT at the standard UK rate (20%) on The Graines's administration fee, deductible from the Price of the item sold. If the Seller is based outside the UK but within the European Union (EU), the Seller is not liable for VAT if he or she operates as a business (evidenced by a VAT registration number). If the Seller is based outside the UK but within the European Union (EU), the Seller is liable for VAT if he or she does not operate as a business (no VAT registration number). If the Seller is based outside the UK and the EU, the Seller is not liable for VAT.
5.8 If a seller is offered a discounted price or term as to the price and terms listed in the proposal originally sent to the seller for consideration and they fail to make payment to The Graines for their agreed fee's, the seller will be liable to pay the full original price and terms as set out in the proposal plus any costs incurred by The Graines in recovering the debt, this includes but is not limited to staff related expenses, third party expenses and legal expenses.
6 TERM AND TERMINATION
6.1.1 This Agreement shall commence on the Effective Date and shall remain in force until and unless terminated by the parties in accordance with this clause ('Term').
6.2 Either party ('Terminating Party') may terminate this Agreement for any reason by giving 1 full calendar months notice to the other of such termination. The Graines shall deactivate the Seller's account with the Website upon such termination.
6.3 On termination of this Agreement for any reason:
6.3.1 the Seller's right to use the Services and the Website shall cease forthwith and The Graines shall procure the removal of all product information in respect of the Seller from the Website;
6.3.2 all licences granted to in accordance with this Agreement shall cease forthwith;
6.3.3 The Graines shall be entitled to be paid all sums due (not paid) under this Agreement; and
6.3.4 the termination shall not affect the rights of either party accruing or accrued prior to the termination of this Agreement.
6.4 On termination of this Agreement for any reason, this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
6.5 In order to protect the Confidential Information and business connections of The Graines and each Associated Business to which you have access as a result of your agreement with us, you covenant with The Graines (for itself and as trustee and agent for each Associated Business) that you shall not:
6.5.1 Whilst in agreement and or six months after the Termination Date, solicit or endeavour to entice away from The Graines or any Group Business the business or custom of a Restricted Customer (Seller or consumer) with a view to providing to that Restricted Customer goods or services which compete with those offered by The Graines; or
6.5.2 For six months after the Termination Date offer to employ or engage or otherwise endeavour to entice away from The Graines or any Group Business any Restricted Person.
6.6 Failure to comply with terms 6.5, 6.5.1, 6.5.2 will result in immediate termination of all agreements with The Graines and any owed payments will be retained to cover damages, physical losses and loss of reputation.
6.7 For the avoidance of doubt, submitting a cancellation request does not immediately suspend your membership as your membership is agreed for a set period of time. On Receipt of a valid URC from the seller, The Graines will confirm with the seller it's agreed cancellation date.
7 EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
7.1 All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral in respect of the Website are hereby expressly excluded to the fullest extent permissible by law.
7.2 Subject to clause 7.1, the Seller warrants to The Graines that:
7.2.1 the Seller is a jewellery, homeware, clothing or fashion accessories designer;
7.2.2 the Seller has the authority and capacity to enter into and be bound by the terms of this Agreement;
7.2.3 the information provided to The Graines is true, accurate and correct and that it shall promptly notify The Graines in the event of any changes to such information;
7.2.4 the Product, the Content and the Seller's right to sell or make the Product available on the Website using the Services do not infringe any third party Intellectual Property Rights, proprietary rights or rights of publicity or privacy;
7.2.5 the Product, the Content, the Seller's right to sell or make the Product available for purchase and the Seller's use of the Website and Services do not violate any applicable law, legislation, statute, ordinance and/or regulations;
7.2.6 the Content is not and may not be deemed defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
7.2.7 the Content and the Product are not and do not contain elements which are or may be deemed to be obscene or pornographic and do not contain child pornography; and
7.2.8 the Content do not contain any viruses, Trojans, worms, time bombs, cancel bots or other programmes that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.3 Subject to clause 7.5, the maximum aggregate liability of The Graines (including its respective agents and sub-contractors) under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by the Seller under this Agreement.
7.4 In no event shall The Graines (including its respective agents and sub-contractors) be liable for (a) any loss of profits, loss of data, loss of expectations, loss of anticipated savings, loss of business prospects, loss of business interruption, loss of use, loss of contracts, loss of goodwill and reputation (whether direct or indirect), loss of management time; or (b) any indirect or consequential losses of any nature whatsoever; or (c) any losses, claims, demands and damages (whether direct or consequential) of any kind and nature, known and unknown, arising out of or in connection with dispute(s) between the Seller and the Users; or (d) any inability and/or failure by the Seller to use the Services and the Website due the failure of or any integration or interoperability issues arising with any third party or the Seller's operating systems or legacy systems, whether or not caused by or resulting from The Graines's negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if the Seller is advised of the possibility of such loss.
7.5 In no event shall The Graines be liable for any predicted, anticipated or fabricated sales targets set by The Seller. The Seller acknowledges that The Graines simply provide the facilities for The Seller to advertise their products and handle the financial transaction between the customer and the seller.
7.6 Nothing in these Terms shall limit or exclude The Graines's liability in respect of death and personal injury.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 The Seller acknowledges and agrees unless otherwise expressly agreed to the contrary, all Intellectual Property Rights created in respect of the Services and under this Agreement shall be owned by The Graines.
8.2 Nothing in this Agreement will serve to transfer from The Graines to the Seller any of the Intellectual Property Rights owned by The Graines and/or its licensors and all right, title and interest thereof shall remain exclusively with The Graines and/or The Graines's licensors.
8.3 Except for the rights expressly granted in this Agreement, nothing in this Agreement shall serve to transfer from the Seller to The Graines any of the Content, and all right, title and interest in and to the Content will remain exclusively with the Seller.
8.4 The Graines grants the Seller a non-exclusive, worldwide, non-assignable, non-sub-licensable licence to use the Intellectual Property Rights owned by and/or licensed to The Graines strictly in respect of the Seller's use of the Website and the Services. Where the Seller's intended use of such Intellectual Property Rights is other than in respect of the Services and the Website, the Seller agrees that it shall first procure the prior written consent of The Graines.
8.5 The Seller grants to The Graines a non-exclusive, worldwide, non-assignable, non-sub-licensable, royalty-free licence to use the Content for the sole purposes of performing its obligations under this Agreement.
8.6 Nothing in this Agreement shall prevent The Graines from using any know-how, methods, techniques or procedures owned or developed by The Graines in the course of performing its obligations under this Agreement.
8.7 The Seller shall promptly notify The Graines of any claim or demand which is made, brought or threatened against the Seller in respect of the infringement or alleged infringement of any Intellectual Property Right by reason of the use of the Services and the Website by the Seller. The Seller agrees to grant The Graines exclusive control of any litigation and negotiations arising from such a claim, and to give The Graines such assistance as it may reasonably request.
8.8 If a claim or demand for infringement or alleged infringement of any Intellectual Property Right is made in respect of the Website and/or use of the Services or, in the reasonable opinion of The Graines, is likely to be made, The Graines shall be entitled, at its own expense and option, either to:
8.8.1 modify or replace the infringing items of the Website and Services (without detracting in any way from their performance or functionality) so that the same cease to be infringing; or
8.8.2 procure the right for the Seller to continue using the Website and the Services as contemplated by this Agreement.
8.9 The Graines shall have no liability for, and the Sellers shall indemnify The Graines against any claim that the Content, the Website and/or the Services infringes any Intellectual Property Rights, where the cause of the infringement is:
8.9.1 any materials or instructions including without limitation, the Content provided to The Graines by or on behalf of the Seller; or
8.9.2 modification, enhancement or alteration of the Content by or on behalf of the Seller; or
8.9.3 due to the use of the Content, the Website and the Services in breach of the provisions of this Agreement.
8.10 All third party Intellectual Property Rights required by the Seller to enable it to use the Website and the Services shall be procured by the Seller. The Graines shall not be liable for any delay or failure of the Seller to procure such third party Intellectual Property Rights.
9 DATA PROTECTION
9.1 The Seller hereby warrants and agrees that it shall at all times comply with its obligations under the applicable data protection legislation during the Term. The Seller shall fully indemnity The Graines against all actions, claims and expenses (including legal costs) whatsoever which arises out of any breach of this provision.
10.1 If The Graines fails at any time to insist upon strict performance of its obligations under this Agreement or if it fails to exercise any of the rights or remedies to which it is entitled to under this Agreement, this will not constitute a waiver of any such rights or remedies and shall not relieve you from compliance with such obligations.
10.2 A waiver by The Graines of any default shall not constitute a waiver of any subsequent default. No waiver by The Graines of any of the provisions herein shall be effective unless it is expressly stated to be a waiver and is communicated to the Seller in writing.
10.3 All notification and communication shall be made in writing and delivered, or posted by first class pre-paid post or sent by facsimile or electronic mail to The Graines or the Seller as appropriate and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of forty eight (48) hours after posting or at the time of sending the case of facsimile or electronic mail.
10.4 If any of the provisions herein are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
10.5 This Agreement represents the entire agreement between the Seller and The Graines and shall supersede any prior agreement, understanding or arrangement between the parties whether oral or in writing.
10.6 The Seller acknowledges that in entering into this Agreement, it has not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between the parties except as expressly set out in this Agreement.
10.7 This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
10.8 The Graines reserves the right to make changes to these terms & conditions at anytime and will notify the seller of any changes.
11 CONTACT DETAILS
Please direct any queries about this Seller Agreement by email to: email@example.com with the subject: Seller Agreement.