The Company owns and operates an online platform for emerging fashion designers to showcase and sell their garments to end consumers and retailers.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Designer to the Company for provision of the Services.
Commencement Date: has the meaning set out in Clause 2.1.
Designer or You: means any designer that agrees the terms of this Agreement for the purposes of accessing and using the Platform for the marketing and sale of Designer Goods.
Designer Goods: means the garments and other wares sold by Designers on the Platform.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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, 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.
Returns Period: means 10 days after a customer of the Designer confirms that it has received the Designer Goods from the Designer.
Services: means the provision of access to the Platform, by the Company, for the Designer to market and sell the Designer Goods and other duties of the Company arising out of this Agreement in relation to its operation and maintenance of the Platform.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Aperson includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to any Party shall include that party’s personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.10 A reference to writing or written includes e-mail.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.13 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.
1.14 Any reference to this Agreement terminating shall, where the context requires, include a reference to this Agreement terminating by expiry.
- COMMENCEMENT AND DURATION
- This Agreement shall commence on the date thatthe Designer confirms that it agrees to its terms (the Commencement Date).
- Subject to earlier termination of this Agreement, the term of this Agreement shall be 6 months after the Commencement Date (the Initial Term).
- At the end of the Initial Term, unless either Party terminates this Agreement in accordance with its terms, the Agreement shall automatically renew for 6 calendar months (the Additional Term). The terms of this Agreement shall continue to apply in the same way to the Additional Term and any subsequent terms.
- COMPANY OBLIGATIONS
- The Company’s shall perform its obligations as set out in Schedule 1 (Company’s Obligations) of this Agreement.
- The Company agrees that in relation to its obligations under this Contract, it shall perform them:
- using reasonable care and skill;
- in compliance with all laws applicable to it;
- in accordance with good industry practice;
- having obtained all necessary licences and consents required to perform its obligations under this Agreement; and
- with appropriately qualified personnel.
- DESIGNER OBLIGATIONS
- The Designer shall perform its obligations as set out in Schedule 2 (Designer’s Obligations) of this Agreement.
- The Designer agrees that in relation to its obligations under this Contract, it shall perform them:
- using reasonable care and skill;
- in compliance with all laws applicable to it;
- in accordance with good industry practice;
- having obtained all necessary licences and consents required to perform its obligations under this Agreement;
- with appropriately qualifier personnel; and
- in compliance with any other terms and conditions of the Platform.
- EXISTING ARRANGEMENTS
- Nothing in this Agreement shall restrict either Party’s right to continue to conduct its business activities or arrangements that existed on the Commencement Date or that otherwise come into being outside the scope of this Agreement.
- The Designerwarrants to the Company that the information it has provided in the sign – up form in relation to its existing arrangements is true and accurate at the time of its provision.
- CHARGES, INVOICING AND PAYMENT
- For the Initial Term, the remaining provisions of this Clause 6 shall not apply. At the end of the Initial Term, the Company shall have the option to apply the remaining provisions of this Clause 6. If the Company exercises its option to apply Clauses 2 to6.6, it shall notify the Designer at least 5 Business Days before the end of the Initial Term of such election.
- In consideration for the provision of its services to the Designer under this Agreement, the Company shall be entitled to a 25 per cent. commission on the revenues of every sale that a Designer completes on the Platform (the Fee).
- Payments received by the Company for goods sold by the Designer shall only become due and payable to the Designer during the relevant invoicing period and in any event only after the expiry of the Returns Period.
- Within 10 Business Days of the end of every month, the Company shall issue a written invoice to the Designer (the Company Invoice) detailing the goods it sold in the preceding month, the payments received for those goods, and the monies due and payable to the Designer for those goods sold less the Fee on such due and payable monies (the Designer’s Monies).
- Within 10 Business Days of the issue of the Company Invoice, except where the Designer disputes the invoice amount, the Company shall pay the Designer’s Monies to the Designated Account or other account notified by the Designer to the Company in writing.
- Any disputes between the Parties pursuant to Clause 5 shall be dealt with in accordance with Clause 29.
- Each Party agrees that it has no right to bind the other Party in contract or otherwise in relation to any customers of either Party, and it shall not represent that it has such right. This is without prejudice to the restriction against the Designer contained in Clause 2 below.
- Nothing in this Agreement constitutes one Party a partner, employer, employee or agent of the other Party in relation to either Party’s customers.
- Neither Party may provide to any of its customers any information, or make any representation, relating to the other Party’s products or services, unless that information or representation is approved in writing by that Party for use in those circumstances.
- INFORMATION FLOW
- To enable the Parties to maximise the benefits of this Agreement, each party shall:
(a) engage the other in planning discussions in relation to the Platform from time to time;
(b) facilitate regular discussions between appropriate members of its personnel and those of the other party in relation to each Project, including in relation to:
- performance and issues of concern in relation to the Platform;
- new developments and resource requirements;
- compliance with deadlines; and
- such other matters as the Parties may seek to discuss from time to time.
- Each Party shallsupply to the other Party information and assistance reasonably requested by it as is necessary to enable that other Party to perform its own obligations in relation to this Agreement.
All amounts due under this 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).
- Confidential Information means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives or advisers (together its Representatives) to the other Party and that Party’s Representatives prior to or after the Commencement Date in connection with the Platform and the Parties’ respective businesses, including information which:
- relates to the terms of this Agreement;
- would be regarded as confidential by a reasonable business person, relating to:
- the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing Party; and
- the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing Party;
- is developed by the Partiesduring the carrying out this Agreement; and
- is otherwise specified as confidential by either Party during the term of this Agreement.
- The provisions of this clause shall not apply to any Confidential Information that:
- is or becomes generally available to the public (other than because of its disclosure by the receiving Party or its Representatives in breach of this clause); or
- was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party; or
- was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; or
- theParties agree in writing is not confidential or may be disclosed.
10.3Each Party shall keep the other Party’s Confidential Information confidential and shall not:
- use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
- disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.4 A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
- it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
- it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a Party to this Agreement,
andalways, it is liable for the failure of any Representatives to comply with the obligations set out in this clause.
10.5 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Partyas much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.5, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
10.6 EachPartyreserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
10.7 The provisions of this Clause 10shall survive for a period of 1 year from termination of this Agreement.
Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including, without limitation, (i) the Data Protection Act 1998, until the effective date of its repeal, (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
The Parties acknowledge that a critical element of fulfilling the purpose of this Agreement is the protection of their respective Intellectual Property Rights. Therefore, the Parties agree that:
- this Agreement does not transfer any interest in Intellectual Property Rights from either Party to the other; and
- eachParty shall immediately give written notice to the other Party of any actual, threatened or suspected infringement of any party’s Intellectual Property Rights used in connection with this Agreement of which it becomes aware.
- the Designer takes responsibility for all content (images, videos, merchandise and other material) that it publishes on the Platform and the Company shall not bear any liability for any breach or infringement of any third party Intellectual Property Rights in such content published on the Platform by the Designer;
- if a third party brings an action against the Company for infringement of Intellectual Property Rights in respect of content published by the Designer on the Platform, the Designer shall defend, hold harmless and indemnify the Company against any damages, expenses, losses, fees or other costs that it may incur or suffer as a result of such action.
- EMPLOYEES, NON-SOLICITATION, NON-COMPETE AND EXCLUSIVITY
- A Party shall not, without the prior written consent of the other Party, at any time from the Commencement Date to the expiry of 12months after the date of termination of this Agreement, solicit or entice away from that Party or employ or attempt to employ any person who is, or has been, engaged as an employee of that party in relation to this Agreement.
- For a period of 12 months after the date of termination of this Agreement, the Designer shall not contract with, collaborate with or otherwise enter into any agreement for the sale of Designer Goods to any Retailer that it has been introduced to via the Platformand / oris registered on the Platform.
- During the term of this Agreement, the Designer shall conclude the sale of all Designer Goods posted on the Platform through the Platform. This is without prejudice to the Designer’s right to market and sell its goods on any other online platform, website, forum or other similar platform on the internet.
- LIABILITY AND INDEMNITY
- The Designer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:
- any claim made against the Company by any third party or customer of the Designer in connection to, or arising out of, its purchase and use of the Designer Goods; or
- any claim made against the Company by any third party for actual or alleged infringement of that third party’s Intellectual Property Rights by the Designer Goods arising out of, or in connection with, the Company’s performance of its obligations under this Agreement.
- This indemnity shall apply whether the Company has been negligent or at fault.
- If any third party makes a claim, or notifies an intention to make a claim, against the Company which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Company shall:
- as soon as reasonably practicable, give written notice of the Claim to the Designer, specifying the nature of the Claim in reasonable detail;
- not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Designer, provided that the Company may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Designer, but without obtaining the indemnifying party’s consent) if the Company believes that failure to settle the Claim would be prejudicial to it in any material respect; and
- give the Designer and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the indemnified party, so as to enable the Designer and its professional advisers to examine them and to take copies (at the Designer’s expense) for the purpose of assessing the Claim.
- If a payment due from the Designer under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Company shall be entitled to receive from the Designer such amounts as shall ensure that the net receipt, after tax, to the Company in respect of the payment is the same as it would have been were the payment not subject to tax.
- LIMITATION AND EXCLUSION OF LIABILITY
- Nothing in this Agreement shall limit or exclude a Party’s liability:
- for death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors;
- for fraud or fraudulent misrepresentation;
- for breach of any obligation as to title or quiet possession implied by statute; or
- for any other act, omission, or liability which may not be limited or excluded by law.
- Subject to Clause 1, neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the agreement.
- The Parties expressly agree that if any limitation or provision contained or expressly referred to in this Clause 15is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted in accordance with Clause 22.
- TERMINATION OF AGREEMENT
- Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party:
- if the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10Business Daysafter being notified in writing to make such payment;
- if the other Party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10Business Daysafter being notified in writing to do so;
- if the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- if the other Party initiates, undergoes or has insolvency proceedings commenced against it;
- if the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- if the other Party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
- For the purposes of1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
- a substantial portion of this Agreement; or
- any of the obligations set out in Clauses 3 and 4, over any 3-month period during the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
Termination for Convenience
- Subject to Clause4, and without affecting any other right or remedy available to it, either Partymay terminate this Agreement on giving not less than 1months’written notice to the other party.
- Subject to either Party’s right to terminate this Agreement pursuant to Clause1, neither Party shall be entitled to terminate this Agreement in accordance with Clause 16.3 in the first 1 month of this Agreement.
- CONSEQUENCES OF TERMINATION
- Termination of this 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 this Agreement which existed at or before the date of termination.
- FORCE MAJEURE
- Neither Partyshall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from government action (except for any pursuant to a breach, by the affected Party, of any laws or regulations), war, terrorism, fire, explosion, flood, strike (other than any solely in relation to the employees of the Party), riot, embargo, act of God, or another circumstances or causes beyond its reasonable control, and without fault or negligence of the affected Party (a Force Majeure Event). The affected Party shall notify the unaffected Party, as soon as reasonably practicable, of the fact of any Force Majeure Event affecting it, including details of the Force Majeure Event, the circumstances in which it has arisen, the duration for which the affected Party anticipates it will continue, and steps the affected Party is taking or proposes to take to mitigate the effects of the Force Majeure Event. In such circumstances the affected Partyshall be entitled to a reasonable extension of the time, determined by the unaffected Party, for performing such obligations.
- Notwithstanding Clause 1, a Force Majeure Event shall not include any of the following:
- any failure on the part of a supplier to either Party to perform its obligations pursuant to any agreement it may have with either Party (except to the extent such failure is due to an event of force majeure under such agreement); or
- the exit of the United Kingdom from the European Union (otherwise known as Brexit).
- If the period of delay or non-performance continues for 3 months or more, the unaffected Party may terminate this Agreement by giving 5Business Days’ written notice to the affected party.
- ASSIGNMENT AND OTHER DEALINGS
- The Designer shall not be entitled to subcontract or assign or transfer any of its right or obligations under this Agreement to any third party without the written consent of the Company.
- The Company is entitled to subcontract or assign any of its rights or obligations under this Agreement to any third party it so chooses to do so, provided it gives the Designer at least5Business Days’ written notice from the effective date of such subcontracting or assignment.
- The provisions of Clause 1 do not, in any way, affect the Contractor’s ability to procure the manufacture or provision of the Designer Goods from any third party pursuant to any contract, agreement or other arrangement that it has with that third party.
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties.
- A notice given to a Partyunder or in connection with this Agreement shall be in writing and sent to the Partyat the address or e-mail address provided at the sign – up stage or on the sign – up form. An e-mail sent as notice under this Agreement shall be deemed delivered on the Business Day following the day on which the e-mail was sent.
- If any provision or part-provision of this 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 this Agreement.
- If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- NO PARTNERSHIP OR AGENCY OR EMPLOYMENT
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between any of the Parties, constitute any Party the agent of the other Party, authorise any Party to make or enter into any commitments for or on behalf of the other Party or constitute a relationship of employment between the Parties.
- Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Without prejudice to any other rights or remedies that a Party(“first Party”) may have, the other Party(“other Party”) acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, the first Partyshall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
- A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- A failure or delay by a Partyto exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- THIRD PARTY RIGHTS
- A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- The rights of the Partiesto rescind or vary this Agreement are not subject to the consent of any other person.
- ENTIRE AGREEMENT
- This Agreement constitutes the entire agreement between the Partiesand supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
- Each Partyagrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No Partyshall have any claim for innocent or negligent misrepresentation based on any statement in this Agreement.
- DISPUTE RESOLUTION
- If either Party is disputes the operation of any term of this Agreement, it shall notify the other Party of its initiation of such a dispute, along with sufficient details of the nature of the dispute (Dispute Notice). Within 3 Business Days of receiving such Dispute Notice, the recipient Party shall respond to the Dispute Notice. From the day of the response to the Dispute Notice, the Parties shall have 10 Business Days within which to attempt to resolve the dispute between themselves.
- If the Parties fail to resolve the dispute in accordance with Clause 1, either Party may refer the dispute to mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator will be nominated by CEDR. To initiate the mediation a Partymust give notice in writing (ADR notice) to the other Partyto the dispute requesting a mediation. A copy of the request should be sent to CEDR.
- The mediation will start not later than 10Business Daysafter the date of the ADR notice.
- The mediation shall be conducted in accordance with the CEDR Model Mediation Procedure. The Parties shall provide the mediator with all documents, assistance and any other information the mediator reasonably requests to enable it to conduct the mediation.
- Unless the Parties agree, neither Party shall be precluded from taking further proceedings (either in the courts or arbitration) in relation to the dispute that was the subject of the mediation. For the avoidance of doubt, the Parties shall not commence any other legal proceedings (including court or arbitral proceedings) until the mediation process conducted in accordance with this Clause 29.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each Party irrevocably agrees that, subject to Clause 29, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
- The Company will provide the Platform for the Designer to showcase and sell the Designer Goods on
- The Companywill allow the Designer to access the Platform
- The Companywill act as third-party dispute arbiter if the Designer and one of its customers/buyerscannot reach agreement about a point of difference / dispute
- The Companywill pay the Designer the Designer Monies which becomes due for each order after the Returns Period for that order has passed
- The Companywill post about the Designer on the Company’s social media platform
- The Companywill include the Designer in E-mail marketing that is sent to its audience
- The Companywill encourage sales of the Designer Goods through the Company’s own social media and other marketing tools
- The Companywill invite customers and buyers to visit the Platform to view the Designer’s collections
- The Designer will have full responsibility of their own shop/profile/how they look to our audience
- The Designer must manage their own orders through the Platform
- The Designer must manage any questions asked by any customer or buyer through the communications on the Platform
- For all Designer Goods that are posted on the Platform, the Designer must ensure that all sales of such Designer Goods are exclusively completed through the Platform
- The Designer must ship all orders by signed and tracked shipping services
- The Designer must notify the Company when the customer has confirmed receipt of the order
- The Designer must provide the Company with marketing material and high-resolution imagery for marketing purposes
- The Designer must use high resolution imagery on their online shop
- The Designer must carry out their own marketing & PR activities in addition to the Company’s marketing
- The Designer must comply with any additional terms and conditions of use of the Platform