Definitions. In these Conditions, the following definitions apply:
the original products made available by Us to You through the Website for personalisation to create Merchandise Products;
a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
the price of the Blank Product plus all applicable costs of personalising the Blank Product with the Artwork to create the Merchandise Product as shown on the Website from time to time (but exclusive of any Embroidery Setup Charges);
the amount that will be payable to You by Us on each Completed Sale, calculated as the Sales Price minus the Cost Price at the time the Customer places the order for the Merchandise Product;
a Customer order for a Merchandise Product, which has not been cancelled by the Customer in accordance with any legal right to cancel under applicable law or returned by the Customer by reason of a Low Quality Artwork. An order will be deemed to be a Completed Sale on the 31st day after the day on which the Merchandise Products were delivered to the Customer if by this date it has not been cancelled or returned by reason of a Low Quality Artwork;
the person that purchases the Merchandise Products from the Website;
Embroidery Setup Charge
has the meaning given to it in clause 5.1;
Intellectual Property Rights
patents, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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;
Low Quality Artwork
has the meaning given to it in clause 5.3;
a product created by You by personalising a Blank Product with an Artwork for sale by Us to Customers through the Website;
Merchandise Store Logo
the image, design, logo, word/phrase or any other material uploaded or submitted onto the Website by You for use as the logo for the Merchandise Store;
has the meaning given to it in clause 6.1;
the price at which the Merchandise Products will be sold to Customers by Us through the Merchandise Store;
the provision by Us of online facilities for the creation and management of Merchandise Stores and for the creation of Merchandise Products and Our processing of Customer orders for Merchandise Products and payment of Commission to You;
value added tax;
Our website through which Merchandise Stores can be created and managed, which shall be at https://stores.clothes2order.com or such other website as We shall specify from time to time.
Construction. In these Conditions: a reference to a
includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality); a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
OUR CONTRACT WITH YOU
You acknowledge that You enter the Contract in the course of a business, trade, profession or craft, whether acting personally or, through another person acting in a trader's name or on a trader's behalf. You acknowledge that You are not acting as a consumer and therefore, the laws applicable to consumers will not apply to this Contract.
The Contract constitutes the entire agreement between the parties. You acknowledge that You have not relied on and have no remedy for any statement, promise, representation, assurance or warranty made or given by Us or on Our behalf which is not set out in the Contract.
The Services are made available free of charge (except to the extent that any Embroidery Setup Charge is payable). We make no guarantee that the Services will be available at all times or that access to the Services will be uninterrupted. In particular, We may suspend or restrict the Services to carry out repairs or maintenance to the Website or for the introduction of new facilities and services onto the Website. We will not be liable to You for any losses or costs arising directly or indirectly out of the Services being unavailable or interrupted or if Your Merchandise Store, or any content or Merchandise Products on it, are not accessible to the public at any time, or for any periods of time, for any reason.
Access to the Services is granted on a temporary basis and We reserve the right to change the arrangements for access to, deny access to, and close or suspend, part or the whole of the Services (including by suspending or closing any Merchandise Store) and to change the Services or the functionality offered on the Website as part of the Services at any time, for any period of time, and for any reason without telling You beforehand and without liability.
To use the Services, You must register to create a Merchandise Store on the Website. You can create one (1) Merchandise Stores per valid email address. If You register for and each Merchandise Store will constitute a separate contract, formed when You register to create the Merchandise Store. All information that You provide in registering for a Merchandise Store must be accurate and up to date and We will not be liable for any losses or costs that arise directly or indirectly from Your failure to provide accurate and up to date information.
We will sell the Merchandise Products through the Merchandise Store on the Website to Customers. You will have no contractual relationship with the Customer.
We will pay You Commission on all Completed Sales in accordance with, and subject to the conditions in, clause 7. This is Your only right to payment under the Contract.
You have the right to customise the "look and feel" of Your Merchandise Store using the functionality provided as part of the Website.
You can upload, submit or select a Merchandise Store Logo which will be used on the Website to represent the Merchandise Store.
CREATING MERCHANDISE PRODUCTS
Provided that You comply with the Personalisation Conditions set out in clause 6.1, You may upload or submit Artwork through the Merchandise Store, which will be saved on Your Merchandise Store account. You can upload or submit as many Artworks as You like for the Merchandise Store account. For any Artworks that You wish to be embroidered onto Blank Products, You must pay Us an embroidery design setup charge (the "Embroidery Setup Charge"). This is a one-off charge that must be paid in full by You before You will be able to use the Artwork to create Merchandise Products. Once the Embroidery Setup Charge has been paid, You will be able to apply the respective Artwork to as many Blank Products as You like. The Embroidery Setup Charge is payable regardless of whether We receive any orders for the relevant Merchandise Product and You will not be entitled to a refund of the Embroidery Setup Charge at any point.
You will be able to personalise Blank Products with the Artwork to create Merchandise Products. The Blank Products that are available will be at Our complete discretion, may vary from time to time and are subject to availability. Where We withdraw a Blank Product that You have chosen to personalise, or that Blank Product becomes unavailable for any reason, We will endeavour to tell You as soon as possible and Customers will be unable to order any Merchandise Products that incorporate withdrawn/unavailable Blank Products. You can create as many Merchandise Products as You like for sale through the Merchandise Store.
Where You upload or submit an image as part of an Artwork, the higher the quality of the image uploaded or submitted to Us, the better We can print or embroider the image onto the Blank Product. Images may be uploaded in jpeg, jpg, gif, bmp, ai, eps, ps, pdf, png, psd, svg, tiff and tif format. Any other format such as Word documents cannot be accepted. The maximum upload size is 50mb. We recommend that all Artwork is at least 300 DPI (Dots Per Inch) but We will endeavour to contact You if, on receiving a Customer order for the Merchandise Product incorporating the Artwork, We feel that the Artwork quality would not give a good end result (a "Low Quality Artwork"). If We do so, You will be given the opportunity to upload/submit a new version of the Artwork. Where We discover that You have uploaded/submitted Low Quality Artwork, We may:
delete the Low Quality Artwork;
remove from sale any Merchandise Product which incorporates a Low Quality Artwork; and/or
close a Merchandise Store.
We will not process any Customer orders for Merchandise Products that incorporate a Low Quality Artwork.
We will endeavour to reproduce the colours incorporated in an Artwork with Our print colours / embroidery cotton colours when manufacturing the Merchandise Products as closely as possible but We are unable to guarantee that the colours will be an exact reproduction of an Artwork. All personalisation of Products are completed by hand. As such, We will endeavour to position the Artwork on the Merchandise Product exactly as You have designed it but We are unable to guarantee that the positioning will be an exact reproduction of Your Merchandise Product design. We will not be liable to You for any discrepancies between the colours incorporated in an Artwork and the colours of the printed/embroidered Artwork on the Merchandise Products or for any discrepancies between the position of the Artwork on the Merchandise Product as it appears on screen and how it is manufactured.b>
You must specify a name for each Merchandise Product, which will be unique to the Merchandise Store and will determine the URL through which the Merchandise Product will be available. If You amend the Merchandise Product name at any time, the Merchandise Product's URL will change. You must also create a description for each Merchandise Product, which will be displayed on the Merchandise Product page, together with the Blank Product description. We will provide the content of the Blank Product description and You will not have the right to amend or delete this. The Merchandise Product name and description must comply with the Personalisation Conditions set out in clause 6.1.
Your finished Merchandise Products will automatically be made available for sale to Customers through the Merchandise Store. You will have the option to delete or amend a Merchandise Product through Your Merchandise Store account at any time. We reserve the right to refuse to sell, withdraw from sale (temporarily or permanently), or delete any Merchandise Product for any reason at any time, without liability to You. Any amendments or deletions to a Merchandise Product by You, or deletions, refusals to sell or withdrawals from sale of the Merchandise Product by Us, will not affect Customer orders that have already been placed.
ARTWORK, MERCHANDISE PRODUCTS AND MERCHANDISE STORE STANDARDS
You must not upload, submit or create any Artwork, Merchandise Product name or description and/or Merchandise Store Logo (together the "Merchandiser Designs") that:
is inaccurate, defamatory, obscene, offensive, indecent, pornographic, abusive, blasphemous, hateful, threatening, inflammatory, in breach of privacy or which may cause annoyance, upset, anxiety, embarrassment or inconvenience to any other person;
discriminates based on race, sex, religion, nationality, disability, sexual orientation or age;
attempts to deceive any person or be used to impersonate any person, or to misrepresent Your identity or relationship with any person. In particular, You must not mislead the Customer into thinking that You are seller or that the Merchandise Store has been created by anybody but You, or as to the origin of a Merchandise Product or Artwork;
gives the impression that it originates from Us, if this is not the case;
includes any data relating to another person that personally identifies them, such as their address, telephone number, or email address, without their express approval. By uploading or submitting any such content, You agree that You have obtained this approval;
supports, promotes or assists violence or any unlawful act; or
infringes anyone's Intellectual Property Rights or other rights. In particular, You must ensure that You either own the copyright in any Merchandiser Designs that You upload or submit or that You are fully licenced by the copyright owner to use the Merchandiser Designs to personalise products and to sell the Artwork in the form of Merchandise Products, that You are not infringing any third party's trademark, or breaching a duty of confidentiality to any third party.
These conditions are known as Our "Personalisation Standards" and We will have the right to amend any Merchandise Product name or description, to refuse to display or sell any Merchandise Product, or to terminate Our Contract with You, without liability, if We find that You have not adhered to the Personalisation Standards. You agree to fully indemnify Us on demand against any claim, costs, losses, expenses (including legal fees), whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise that arise out of Your failure to comply with the Personalisation Standards.
PRICE AND PAYMENT
You will be responsible for recommending the Sale Price for the Merchandise Products. The recommended Sale Price must not be less than the Cost Price for the Merchandise Product and will be inclusive of VAT and displayed in pounds sterling. You may amend Your recommended Sales Price at any time, but any changes will not affect any Customer orders that have already been placed. We reserve the ultimate right to determine the Sales Price, and We are under no obligation to sell the Merchandise Products at Your recommended Sales Price.
We reserve the right to vary the Cost Price at any time and We will notify You if We make any changes to a Cost Price that affects Your Merchandise Store. The Cost Price applicable to a sale of a Merchandise Product to a Customer will be determined at the time the Customer places an order through the Merchandise Store. Where We exercise Our right to vary the Cost Price, the Sales Price will automatically be changed accordingly.
An indication of the amount of commission You will receive per Merchandise Product sold if We sell the Merchandise Product at Your recommended Sales Price will be shown on the Website when You create a Merchandise Product. This is an estimate only and the amount of Commission which will be payable on a Completed Sale will be determined at the time the Customer places an order. You will be entitled to Commission on Completed Sales only.
The Customer will pay Us the Sales Price for the Merchandise Products directly. We will pay You the Commission on a Completed Sale by bank transfer or PayPal. Commission will be paid on the twenty-fifth (25th) day of each month (or the next Business Day where this date falls other than on a Business Day) in respect of Completed Sales made in the previous month, provided that You have provided Your bank details or PayPal account details for payment ("Payment Details") and that the total Commission payable exceeds 50 pounds (£50). Any Commission payable that does not exceed £50 will be carried over until Your Commission exceeds £50, when it will be paid in accordance with this clause. Time shall not be of the essence of the Contract and We will not be liable for any inaccurate Payment Details provided. We reserve the right, without limiting any of Our other rights or remedies, to set-off, deduct, or withhold any amount owing to Us by You against any amount payable in Commission by Us to You.
We reserve the right to deduct from any Commission payable by Us to You, any costs that We incur as a result of a Customer returning a Merchandise Product for any reason other than where the Blank Product incorporated into the Merchandise Product is faulty or where a fault with the Merchandise Product was directly caused by an act or omission on Our part.
If We fail to make any payment of Commission due to You in accordance with clause 7.4 within three (3) months of the relevant sale becoming a Completed Sale, We shall pay interest on the overdue amount at the rate of 2% per cent per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. We shall pay the interest together with the overdue amount. This shall be Your sole and exclusive remedy in respect of late payment of Commission and You agree that this constitutes a substantial remedy.
Commission is calculated using the net value of the sale and the net value of the cost, VAT is then added to the commission and the gross value is payable by us.
You will be responsible for the payment of VAT on the Commission to the extent required by law. We offer no tax advice and We will not be liable to You in any way in connection with the payment of VAT.
You agree to fully indemnify Us on demand and hold us harmless against any claim, costs, losses, and expenses (including legal fees), whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise that arise out of Your failure to pay, or account for, or any disputes relating to, any applicable taxes (including VAT) on the Commission You receive under the Contract.
MARKETING YOUR MERCHANDISE PRODUCTS
You are responsible for Your own marketing of the Merchandise Products and the Merchandise Store and for all costs associated with such marketing. We are not obliged to provide any assistance in respect of such marketing or to conduct any independent marketing of the Merchandise Products or Merchandise Store.
is fair and lawful and does not damage, cause likelihood of damage to, or take advantage of, Our reputation;
does not suggest any form of partnership between You and Us or suggest that We have endorsed or approved the Merchandise Product or Your brand;
does not imply that any content on the Website is Yours or that You are licensed to use it except in respect of the Merchandiser Designs; and
does not constitute framing the Website.
We will own all data relating to the Customer generated from the Services ("Customer Data") and You will have no rights in the Customer Data or to access, process or otherwise deal with Customer Data at any time.
You will be able to track visitors to Your Merchandise Store using free tracking software, Google Analytics. There are instructions to assist You to do this on the Website. No 'personal data' (as defined in the Data Protection Act 1998) shall be transferred to You through this tracking software.
co-operate with Us in all matters relating to the Services;
provide Us with such information and materials as We may reasonably require in order to supply the Services and to supply the Merchandise Products to the Customer;
maintain all necessary licences, permissions and consents which may be required for Us to use the Merchandiser Designs IP for the purpose of the Contract and to sell the Merchandise Products; and
not do or say anything in the public arena (including via social media websites, whether or not Your activity on such social media websites is accessible to the public at large or a limited selection of people) which could, in Our reasonable opinion, cause damage to Us or Our brand or put Our business into disrepute;
INTELLECTUAL PROPERTY RIGHTS
By uploading or submitting any Merchandiser Designs, You confirm that You have the right to do so and that none of the Merchandiser Designs infringes the rights of any other person. You agree to fully indemnify Us on demand and hold Us harmless against any claim, costs, losses, expenses (including legal fees), whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise that arise out of any claim that any Merchandiser Designs, or any Merchandise Products which incorporate Merchandiser Designs, infringe the rights of any third person.
You will retain all Intellectual Property Rights in the Merchandiser Designs.
By uploading or submitting Merchandiser Designs, You grant us a royalty free, worldwide, non-exclusive licence to store, use, reproduce, adapt and publicise the Merchandiser Designs (and allow any third party who assists Us to do so too) for the purpose of performing Our obligations and exercising Our rights under the Contract and to enable Us to sell the Merchandise Products to Customers and to advertise the Merchandise Products and Our Services to the public. Please note that this includes the right to modify any Artwork to conform it to the requirements of the Merchandise Product You have created. You agree that You have the right to grant this licence. In particular, You agree that where You are the licensee of any Merchandiser Designs, You have the right to grant Us a sub-licence in accordance with this clause 11.
Subject to clause 11.1, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned, or licensed by Us. For the avoidance of doubt, notwithstanding clause 11.1, We will own all Intellectual Property Rights in the digitalised Artwork files created when You upload or Submit any Merchandiser Designs. These files are created purely to enable Us to apply the Artwork to the Blank Products (i.e. they contain print or embroidery patterns) and We will not use these files except to the extent required to comply with the Contract and to manufacture and sell the Merchandise Products to the Customer. You will have no rights or interests in such files.
LIMITATION OF LIABILITY
Nothing in these Terms shall limit or exclude either party's liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
fraud or fraudulent misrepresentation.
Subject to clause 12.1:
We shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
any loss of profits, sales, business, or revenue;
loss or corruption of data or information (including any Merchandiser Designs) or software;
loss of business opportunity;
loss of anticipated savings;
loss of goodwill; or
any indirect or consequential loss.
Our total liability to You in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of Commission paid in respect of the Merchandise Products to which the loss relates, or if the loss does not relate directly to a Merchandise Product, the total amount of Commission paid in the preceding three (3) months.
Without limiting any rights or remedies that have accrued under the Contract, We and You will be able to terminate the Contract at any time without liability.
Termination will be effected by:
Us removing Your Merchandise Store from the Website; or
by You notifying Us that You wish to delete the Merchandise Store. We will remove the Merchandise Store from the Website within five (5) Business Days of receiving such a notification and termination will be deemed to be effected from the point at which the Merchandise Store is removed.
CONSEQUENCES OF TERMINATION
On termination of the Contract:
the Merchandise Store and all Merchandise Products will be removed from the Website and the respective URLs will be deleted;
We will delete all Merchandiser Designs save that We will have the right to retain one copy of each design file containing Merchandiser Designs for our internal records;
subject to clause 14.2, all licences granted under the Contract will immediately cease; and
the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract and the right to exercise any indemnity under the Contract which existed at or before the date of termination or expiry.
Termination by either party will not affect any Customer orders that have already been placed and Our licence to store, use, reproduce, adapt and publicise the Merchandiser Designs (and allow any third party who assists Us to do so too) will continue for the purpose of performing Our obligations and exercising Our rights under the Contract until such Customer orders have been fulfilled or refused by Us. For the avoidance of doubt, We have the right to refuse any Customer orders placed and therefore We are under no obligation to process any Customer orders that have not been accepted at the time of termination of the Contract (in accordance with the Terms and Conditions of Sale).
For the purposes of this Contract, Force Majeure Event means an event beyond Our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
We shall not be liable to You as a result of any delay or failure to perform Our obligations under this Contract as a result of a Force Majeure Event.
If the Force Majeure Event prevents Us from providing any of the Services for more than six (6) weeks, We shall, without limiting Our other rights or remedies, have the right to terminate this Contract immediately by giving written notice to You.
Assignment and other dealings
We may at any time assign, transfer, subcontract or deal in any other manner with all or any of Our rights under the Contract and may subcontract or delegate in any manner any or all of Our obligations under the Contract to any third party or agent.
You shall not, without Our prior written consent, assign, transfer, subcontract, or deal in any other manner with any or all of Your rights or obligations under the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as the party specified at the time of registering for a Merchandise Store, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or (for notices served by Us to You only) e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause (a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Severance. If any provision or part-provision of the Contract 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 Contract.
Waiver. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its 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.
No partnership, agency or employment. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership, joint venture or employment relationship between the parties, nor constitute either party the agent of the other for any purpose. Except as set out in the Contract, neither party shall have authority to act as agent for, or to bind, the other party in any way.
Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
Variation. We have the right to vary the Terms at any time by updating the Terms. We will notify You if the Terms change. By using the Merchandise Store after any changes have been made, You will be deemed to have accepted the amended Terms.
Governing law & jurisdiction. The Contract, and any dispute or claim 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. Each party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation, save that We may, at Our discretion, elect to bring a claim in the courts of any competent jurisdiction.