0. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
0.0 Definitions:
1 Application: the User’s application or the use of services.
2 Business Day: a day other than a Saturday, Sunday or public holiday in England, when
banks in London are open for business.
3 Charges: the charges payable by the User for the supply of the Services in accordance
with clause 5 (Charges and payment).
4 Commencement Date: has the meaning given in clause 1.1.
5 Conditions: these terms and conditions as amended from time to time in accordance with
clause 11.3.
6 Customer: The purchaser of User goods
7 Agreement: the Agreement between the Supplier and the User for the supply of Services
in accordance with these Conditions.
8 Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the
expression change of control shall be construed accordingly.
9 Controller, processor, data subject, personal data, personal data breach,
processing and appropriate technical measures: as defined in the Data Protection
Legislation.
10 User: the person, firm or company who uses the Supplier Services.
11 Data Protection Legislation: the UK Data Protection Legislation and any other European
Union legislation relating to personal data and all other legislation and regulatory
requirements in force from time to time which apply to a party relating to the use of
personal data (including, without limitation, the privacy of electronic communications); and
the guidance and codes of practice issued by the relevant data protection or supervisory
authority and applicable to a party.
12 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and
neighbouring and related rights, moral rights, trade marks and service marks, business
names and domain names, rights in get-up and trade dress, goodwill and the right to sue
for passing off or unfair competition, rights in designs, rights in computer software,
database rights, rights to use, and protect the confidentiality of, confidential information
(including know-how and trade secrets), and all other intellectual property rights, in each
case whether registered or unregistered and including all applications and rights to apply
for and be granted, renewals or extensions of, and rights to claim priority from, such rights
and all similar or equivalent rights or forms of protection which subsist or will subsist now
or in the future in any part of the world. 2
13 Services: the online selling platform provided by the Supplier for the User’s use.
14 Supplier: Fassion Limited registered in England and Wales with company number
12071757.
15 UK Data Protection Legislation: all applicable data protection and privacy legislation in
force from time to time in the UK including the General Data Protection Regulation ((EU)
2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications
Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and
Electronic Communications Regulations 2003 (SI 2003/2426) as amended.]
0.1 Interpretation:
( ) A reference to a statute or statutory provision is a reference to it as amended or
re-enacted. A reference to a statute or statutory provision includes all subordinate
legislation made under that statute or statutory provision.
(a) 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.
(b) A reference to writing or written includes fax and email.
1. Basis of Agreement
1.0 The Application constitutes an offer by the User to use Services in accordance with these
Conditions.
1.1 The Application shall only be deemed to be accepted when the Supplier issues written
acceptance of it at which point and on which date the Agreement shall come into existence
(Commencement Date).
1.2 The Supplier offers the services to the User for the User’s use in selling and promoting
their goods. Any samples, drawings, descriptive matters or advertising, pricing, terms of
refund and delivery issued by the User will be the liability of the User. The Supplier is not
in possession of any items nor is it involved in the individual terms and conditions of sale
or the transaction itself.
1.3 The Supplier offers no guarantee or accepts no liabilities in respect of any anomalies and
issues with a User Listing.
2. Supply of Services
2.0 The Supplier shall supply the Services to the User. 3
2.1 The Supplier reserves the right to amend the Services if necessary to comply with any
applicable law or regulatory requirement, or if the amendment will not materially affect the
nature or quality of the Services, and the Supplier shall notify the User in any such event.
3. User's obligations
3.0 The User shall:
( ) ensure that their Application is complete and accurate;
(a) co-operate with the Supplier in all matters relating to the Services;
(b) obtain and maintain all necessary licences, permissions and consents which may
be required for the Services before the date on which the Services are to start;
(c) comply with all applicable laws;
(d) ensure that their listings are complete and accurate;
(e) ensure that no false information or counterfeit goods are listed;
(f) ensure that the content of their listings are not discriminatory or use offensive
language;
(g) shall ensure that it does not copy and replicate other User Listings;
(h) ensure that it will comply with its own terms and conditions in respect of delivering
items and dealing with returns;
(i) will not reach The Bribery Act 2010;
(j) will ensure that it has a valid payment method set up prior to any listing;
(k) that it will use its customer information for the purposes of the transaction only.
4. Customer’s Obligations
4.0 The Customer shall ensure:-
( ) that he/she reads the full description and terms of the listing before committing to
purchase;
(a) once purchased that he/she makes payment promptly upon request;
(b) that any queries he/she has in respect of the purchased goods will be directed to
the User;
(c) that in purchasing the goods he/she is entering into a legally binding contract and
will be responsible for making a payment in consideration for the goods before
any delivery will be made;
(d) save where otherwise confirmed within listing, be responsible for the postage
costs of any returns. 4
5. Charges and payment
5.0 The Charges for the Services shall be calculated by way of a commission of 20% including
all delivery costs, which will be applicable to each User transaction.
5.1 The Supplier reserves the right to increase the Charges on an annual basis with effect
from each anniversary of the Commencement Date.
5.2 The charges will be taken automatically at source during the transmission of each
transaction.
5.3 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim,
deduction or withholding (other than any deduction or withholding of tax as required by
law).
6. Intellectual property rights
6.0 All Intellectual Property Rights in or arising out of or in connection with the Services (other
than Intellectual Property Rights in any materials provided by the User) shall be owned by
the Supplier.
6.1 The Supplier grants to the User, or shall procure the direct grant to the User of, a fully
paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement.
7. Data protection
7.0 Both parties will comply with all applicable requirements of the Data Protection Legislation.
This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations
or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means
(for so long as and to the extent that they apply to the Supplier) the law of the European
Union, the law of any member state of the European Union and/or Domestic UK Law; and
Domestic UK Law means the Data Protection Legislation from time to time in force in the
UK and any other law that applies in the UK.]
7.1 The parties acknowledge that for the purposes of the Data Protection Legislation, the User
is the controller and the Supplier is the processor.
7.2 Without prejudice to the generality of clause 7.0, the User will ensure that it has all
necessary appropriate consents and notices in place to enable lawful transfer of the
personal data to the Supplier for the duration and purposes of the Agreement.
7.3 Without prejudice to the generality of clause 7.0, the Supplier shall, in relation to any
personal data processed in connection with the performance by the Supplier of its
obligations under the Agreement: 5
( ) process that personal data only on the documented written instructions of the
User unless the Supplier is required by Applicable Laws to otherwise process that
personal data. Where the Supplier is relying on laws of a member of the European
Union or European Union law as the basis for processing Personal Data, the
Supplier shall promptly notify the User of this before performing the processing
required by the Applicable Laws unless those Applicable Laws prohibit the
Supplier from so notifying the User;
(a) ensure that it has in place appropriate technical and organisational measures,
reviewed and approved by the User, to protect against unauthorised or unlawful
processing of personal data and against accidental loss or destruction of, or
damage to, personal data, appropriate to the harm that might result from the
unauthorised or unlawful processing or accidental loss, destruction or damage
and the nature of the data to be protected, having regard to the state of
technological development and the cost of implementing any measures (those
measures may include, where appropriate, pseudonymising and encrypting
Personal Data, ensuring confidentiality, integrity, availability and resilience of its
systems and services, ensuring that availability of and access to personal data
can be restored in a timely manner after an incident, and regularly assessing and
evaluating the effectiveness of the technical and organisational measures
adopted by it);
(b) ensure that all personnel who have access to and/or process personal data are
obliged to keep the personal data confidential; and
(c) not transfer any personal data outside of the European Economic Area unless
the prior written consent of the User has been obtained and the following
conditions are fulfilled:
( ) the User or the Supplier has provided appropriate safeguards in relation
to the transfer;
(i) the data subject has enforceable rights and effective legal remedies;
(ii) the Supplier complies with its obligations under the Data Protection
Legislation by providing an adequate level of protection to any personal
data that is transferred; and
(iii) the Supplier complies with reasonable instructions notified to it in advance
by the User with respect to the processing of the personal data;
(d) assist the User, at the User's cost, in responding to any request from a data
subject and in ensuring compliance with its obligations under the Data Protection
Legislation with respect to security, breach notifications, impact assessments and
consultations with supervisory authorities or regulators;
(e) notify the User without undue delay on becoming aware of a personal data
breach; 6
maintain complete and accurate records and information to demonstrate its
compliance with this clause 7 and allow for audits by the User or the User's
designated auditor and immediately inform the User if, in the opinion of the
Supplier, an instruction infringes the Data Protection Legislation.
8. Limitation of liability:
8.0 Any liability for miss-sold or defective goods will be the responsibility of the User. The
Supplier has no liability for any transactional issues.
8.1 Nothing in the Agreement limits any liability which cannot legally be limited, including but
not limited to liability for:
( ) death or personal injury caused by negligence;
(a) fraud or fraudulent misrepresentation; and
(b) breach of the terms implied by section 2 of the Supply of Goods and Services Act
1982 (title and quiet possession).
8.2 Subject to clause 8.1, the Supplier's total liability to the User shall not exceed the value of
charges paid in any 12 month period. The Supplier's total liability includes liability in
Agreement, tort (including negligence), breach of statutory duty, or otherwise, arising
under or in connection with the Agreement.
8.3 This clause 8.7 sets out specific heads of excluded loss and exceptions from them:
( ) Subject to clause 8.1, the types of loss listed in clause 8.3(b) are wholly excluded
by the parties, but the types of loss and specific losses listed in clause Error!
Reference source not found. are not excluded.
(a) If any loss falls into one or more of the categories in clause 8.3(b) and also falls
into a category, or is specified, in clause Error! Reference source not found.,
then it is not excluded.
(b) The following types of loss are wholly excluded:
( ) Loss of profits
(i) Loss of sales or business.
(ii) Loss of agreements or Agreements.
(iii) Loss of anticipated savings.
(iv) Loss of use or corruption of software, data or information.
(v) Loss of or damage to goodwill.
(vi) Indirect or consequential loss. 7
8.4 This clause 8 shall survive termination of the Agreement.
9. Termination
9.0 Without affecting any other right or remedy available to it, the user may terminate the
Agreement deleting their account.
9.1 Without affecting any other right or remedy available to it, the Supplier may terminate the
Agreement with immediate effect by giving written notice to the other party if:
( ) the other party commits a material breach of any term of the Agreement and (if
such a breach is remediable) fails to remedy that breach within 14 days of that
party being notified in writing to do so;
(a) the other party takes any step or action in connection with its entering
administration, provisional liquidation or any composition or arrangement with its
creditors (other than in relation to a solvent restructuring), being wound up
(whether voluntarily or by Application of the court, unless for the purpose of a
solvent restructuring), having a receiver appointed to any of its assets or ceasing
to carry on business or, if the step or action is taken in another jurisdiction, in
connection with any analogous procedure in the relevant jurisdiction;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to
cease to carry on all or a substantial part of its business; or
(c) the other party's financial position deteriorates to such an extent that in the
terminating party's opinion the other party's capability to adequately fulfil its
obligations under the Agreement has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, the Supplier may suspend or
terminate the Agreement with immediate effect by giving written notice to the User if:
( ) there is a change of control of the User;
(a) If the User’s activity on the platform is dormant for a period of 12 months;
(b) The Supplier receives a serious complaint about the User’s activities
10. Consequences of termination
10.0 On termination of the Agreement:
( ) the User shall immediately pay to the Supplier all of the Supplier's outstanding
unpaid invoices and interest and, in respect of Services supplied but for which no
invoice has been submitted, the Supplier shall submit an invoice, which shall be
payable by the User immediately on receipt; 8
10.1 Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities
of the parties that have accrued up to the date of termination, including the right to claim
damages in respect of any breach of the Agreement which existed at or before the date
of termination.
10.2 Any provision of the Agreement that expressly or by implication is intended to come into
or continue in force on or after termination of the Agreement shall remain in full force and
effect.
11. General
11.0 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in
performing, or failure to perform, any of its obligations under the Agreement if such delay
or failure result from events, circumstances or causes beyond its reasonable control.
11.1 Assignment and other dealings.
( ) The Supplier may at any time assign, mortgage, charge, subAgreement,
delegate, declare a trust over or deal in any other manner with any or all of its
rights and obligations under the Agreement.
(a) The User shall not assign, transfer, mortgage, charge, subAgreement, delegate,
declare a trust over or deal in any other manner with any of its rights and
obligations under the Agreement without the prior written consent of the Supplier.
11.2 Entire agreement.
( ) The Agreement constitutes the entire agreement between the parties and
supersedes and extinguishes all previous agreements, promises, assurances,
warranties, representations and understandings between them, whether written
or oral, relating to its subject matter.
(a) Each party acknowledges that in entering into the Agreement it does not rely on,
and shall have no remedies in respect of any statement, representation,
assurance or warranty (whether made innocently or negligently) that is not set
out in the Agreement. Each party agrees that it shall have no claim for innocent
or negligent misrepresentation or negligent misstatement based on any
statement in the Agreement.
(b) Nothing in this clause shall limit or exclude any liability for fraud.
11.3 Variation. Except as set out in these Conditions, no variation of the Agreement shall be
effective unless it is in writing and signed by the parties (or their authorised
representatives). 9
11.4 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if
given in writing and shall not be deemed a waiver of any subsequent right or remedy. A
failure or delay by a party to exercise any right or remedy provided under the Agree ment
or by law shall not constitute a waiver of that or any other right or remedy, nor shall it
prevent or restrict any further exercise of that or any other right or remedy. No single or
partial exercise of any right or remedy provided under the Agreement or by law shall
prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of the Agreement is or becomes invalid,
illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to
make it valid, legal and enforceable. If such modification is not possible, the relevant
provision or part-provision shall be deemed deleted. Any modification to or deletion of a
provision or part-provision under this clause shall not affect the validity and enforceability
of the rest of the Agreement.
11.6 Third party rights.
( ) Unless it expressly states otherwise, the Agreement does not give rise to any
rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any
term of the Agreement.
(a) The rights of the parties to rescind or vary the Agreement are not subject to the
consent of any other person.
11.7 Governing law. The Agreement, and any dispute or claim (including non-contractual
disputes or claims) arising out of or in connection with it or its subject matter or formation
shall be governed by, and construed in accordance with the law of England and Wales.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute or claim (including non-contractual
disputes or claims) arising out of or in connection with the Agreement or its subject matter
or formation.