Terms and Conditions - Merchants

Last Revision: 16th May, 2011

HyperOutlet Participation Agreement

A warm welcome to the HyperOutlet online Custom Sales and Support Platform on HyperOutlet.com (the "Site").

1. Acceptance

Merchants must accept the terms and conditions of this Participation Agreement. By completing the merchant registration process you acknowledge that you have read and understood the clauses in this Participation Agreement relating to HyperOutlet's disclaimer of warranties; limitation of liability; protection and use of your personal data; your consent to the publication of feedback and ratings about your performance on the Site and agree to allow us to advertise and market your products and/or services, use any brand and graphics for the purpose of progressing and extending your sales.

2. Registration and Commission fees

1. Use of the HyperOutlet Service is limited to parties that can lawfully enter into and form contracts under the laws of the United Kingdom.
2. Only merchants or entities that enter into and agree with this agreement are eligible to use HyperOutlet's administration and the various opportunities we extend.
3. You must provide us with true and accurate information when registering and must maintain and update that information as applicable. You must not impersonate any person or use a name you are not legally authorised to use. You authorise us to use any information provided to us in registering to verify your information.
4. To register you must provide all areas of the registration form signified by *. You warrant to HyperOutlet that the information you provide during the registration process (and any notification of change of such information) is true and correct.

You are obliged to notify HyperOutlet of any changes to your registration information immediately.

5. HyperOutlet reserves the right to reject any registration and to refuse service to anyone, for any reason, in its sole and absolute discretion and not be liable to explain the reasons for any such refusal.
6. If you provide false or incorrect registration information or do not notify HyperOutlet of changes to your registration information immediately, HyperOutlet reserves the right to terminate your account at once and without notice to you.

You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorised by you to use your account) and you are solely responsible for any use of or action taken under your password on this Site. If your password is compromised you must change your password.

7. By listing an item on the Site for Sale, you agree to pay the fees that we will agree or have already agreed with you, the fees will be agreed prior to the activation of your account and will not change unless we contact you to further discuss our agreement regarding fees with you or you contact us about the same. We may, in our sole and absolute discretion, waive, reduce, or reverse charges or fees for a specific transaction.
8. All fees are in UK Pounds Sterling, and are exclusive of VAT, unless stated otherwise. All fees are payable upon demand. By listing an item for Fixed Price Sale on the Site, you authorise HyperOutlet to charge your credit /debit card/PayPal or, where applicable, to debit your HyperOutlet Seller Account, for all and any commission fee amounts due. Notice of any demand will be sent prior to action.

3. Order information.

Each sale of an item agreed via the Site is recorded in the relevant seller's HyperOutlet Seller Account using our standard procedures. The seller may access the Seller's Transactions feature in the HyperOutlet Seller Account with a browser that is compatible with the Service.

4. Prohibited Items

The following items must not be listed on the Site:

1. Offensive material, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age. Obscene material including pornographic material. Ammunition. Firearms. Stolen goods.
2. Items that infringe another party's copyright, patent, trademark, design right, database right, or other intellectual property or other proprietary right. Items whose sale, distribution or offering for sale is prohibited by any applicable law. Items whose sale is subject to export restrictions. Offensive weapons, poisons and dangerous substances (as defined by the applicable law or laws).
3. Any other types of products that in our discretion are to be excluded from listing and/or sale using the Service.
4. Any item banned for transmission by Royal Mail or any other carrier.

5. Contract

1. HyperOutlet will confirm each order to the Merchant. Merchants must dispatch items sold within three Business Days once the order confirmation is made available to them. If and when HyperOutlet makes functionality available to the Merchant which allows Merchant to display a product availability message on the Site the seller must dispatch items sold in accordance with the product's availability stated on the Site at the time of the order. Merchants must provide a full refund to any buyer who remits payment. If the item cannot be shipped in accordance with this clause Merchant must provide the refund promptly, but in no case later than thirty (30) days following the date the order was confirmed or 3 calendar days after the maximum estimated delivery date stated on the Site at the time of the order (as the case may be).
2. Unless the buyer and Merchant expressly agree otherwise, the following terms and conditions will apply to the contract between the buyer and Merchant for the sale of the relevant item: All postage/carriage, customs, import, export and excise duty, VAT and any other taxes associated with the Fixed Price sale (if applicable) will be paid by the buyer and it is the Merchant responsibility to determine, collect and remit the applicable VAT, customs, import, export and excise duties and any other taxes associated with the Fixed Price Sale. Unless otherwise agreed by us in advance in writing, the price of any items sold using the Service must be displayed inclusive of any customs, import, export and excise duty, VAT and any other taxes associated with the Fixed Price Sale, which may be applicable and Merchants will not charge or seek to charge the buyer, or allow the buyer to be charged, for any customs, import, export and excise duty, VAT or other taxes or charges which are additional to the price displayed for the item on the Site;
3. Buyers are required to pay sellers in the currency in which the Fixed Price Sale is listed, the sale will be subject to any warranties implied under applicable law; and the contract between the buyer and seller will be governed by the laws of England (and expressly excluding the United Nations Convention on the Sale of Goods) and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales.

6. HyperOutlet's Role

Merchant authorises HyperOutlet to act as a representative solely to conclude on their behalf sales contracts directly between them and the buyers for sales of goods via the Service. While HyperOutlet helps facilitate transactions that are carried out using the Service, HyperOutlet is neither the buyer nor the seller of the seller's items. HyperOutlet is not an auctioneer. HyperOutlet provides a venue for sellers and buyers to negotiate and complete transactions in accordance with the provisions of this Participation Agreement. HyperOutlet is not the agent of the seller. Accordingly, the contract formed at the completion of a Fixed Price Sale is solely between buyer and Merchant; the enforcement of any contractual obligations arising out of the completion of a transaction using the Service is the responsibility of the buyer and seller that are party to that transaction.

HyperOutlet is not obliged to mediate between buyers and Merchants or enforce or execute fulfilment of any contract.

7. Reservation of Rights

HyperOutlet retains the right to, if it considers it appropriate: immediately halt any Fixed Price Sale; prevent or restrict access to the Site or the Service; or take any other action to restrict access to or availability of or remove any objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Site under this Participation Agreement. HyperOutlet reserves the right and has absolute discretion but not an obligation, to remove, screen or edit any content that breaches these provisions or is otherwise objectionable. Without prejudice to generality of the rights in this clause, and to any other rights that HyperOutlet may have in this Participation Agreement, HyperOutlet reserves the right to refuse listings or to immediately remove any listings where HyperOutlet objects to how you identify yourself on the Site (including, but not by way of limitation, your name, branding or marks) and/or if you are otherwise making inappropriate use of your domain name contrary to the requirements set out and/or if you are otherwise in contravention of the requirements set out.

Each participant, whether or not he or she is currently a buyer or seller, agrees that HyperOutlet shall be entitled to retain for itself the interest, if any, paid on balances in all its bank accounts, notwithstanding that some of that interest may be attributable to the time taken for the exercise of the rights, and the performance of the obligations, under this Participation Agreement.

8. Intellectual Property

HyperOutlet grants limited non-transferrable license to each participant to make personal use only of the Site and the Service in accordance with this Participation Agreement. This license excludes without limitation, any resale or commercial use of the Site and the Service; modifying, distributing, copying, or making any derivative of the Site; the use of participant e-mail addresses or other participant information, Ratings, Feedback or listings, or any data extraction whatsoever.

9. Intellectual Property Rights

HyperOutlet reserves all right, title and interest in its and its affiliates' intellectual property rights without limitation. Any goodwill accruing out of the use of HyperOutlet's and its affiliates' trade marks, trade, business names and service marks under this Participation Agreement will vest in HyperOutlet and its affiliates.

10. Data Protection and Privacy

1. HyperOutlet uses your personal data in the manner set out in the Privacy Notice and as further described in this Participation Agreement. By using the Service and the Site you consent to the collection and use of your personal data by HyperOutlet in the manner set out in the Privacy Notice. If we decide to change our Privacy Notice, we will post those changes on the Privacy Notice page so that you are always aware of what information we collect, how we use it and under what circumstances we disclose it. You should check the Privacy Notice frequently for changes. Please note that the information you provide to us in using the Service and the Site will be transferred outside the European Economic Area for the purposes of processing by HyperOutlet and its affiliates and in order to maintain customer accounts for you at other HyperOutlet sites. By using the Service and the Site, you consent to this transfer.
2. Unless otherwise authorised or consented, you agree not to use any information regarding other participants that is accessible from the Site, except to enter into and complete transactions conducted via the Site. You agree not to use any such information for purposes of advertising, unsolicited e-mail, invasion of privacy or other conduct.

11. No Warranties

Disclaimer of Warranties. THE SITE AND THE SERVICE ARE PROVIDED ON AN ‘AS IS’ BASIS. HYPEROUTLET MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT (b) THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, SECURE OR OPERATE WITHOUT ERROR; (c) THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF LISTING, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED. (d) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE; AND (e) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF HYPEROUTLET, TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HYPEROUTLET DISCLAIMS ANY AND ALL SUCH WARRANTIES.

12. General Release

BECAUSE HYPEROUTLET IS NEITHER THE BUYER NOR THE SELLER OF THE SELLER'S ITEMS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH RELEASES HYPEROUTLET FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

13. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, HYPEROUTLET WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH THE PARTICIPATION AGREEMENT, THE SITE, THE SERVICE, THE INABILITY TO USE THE SERVICE OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR FEEDBACK OR RATINGS POSTED TO THE SITE OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE, WHETHER OR NOT HYPEROUTLET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

14. VAT and other taxes on the sale of goods and/or services by Sellers.

You agree that it is the seller's responsibility to determine whether VAT, customs, import or export duties, excise taxes or other taxes apply to the sale of goods and services to the buyer and to collect, report and remit the correct tax, as applicable, to the appropriate tax authority. You agree that, unless otherwise agreed by us with a seller in advance in writing, the price stated by any seller for any goods or services offered on the Site is inclusive of any VAT, customs, import or export duty, excise tax or other tax that the seller may be required to remit in connection with such sale. You also agree that HyperOutlet is not obliged to determine whether VAT or other taxes apply to any sale of any goods or services by a seller to a buyer and is not responsible for collecting, remitting or reporting any VAT or other taxes arising from such sale.

15. General Provisions

Entire Agreement

This Agreement incorporates by this reference all terms, conditions, policies, guidelines and other information on the Site concerning the Site or the Service, including but not limited to the Privacy Notice and Conditions of Use & Sale and constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.

16. Third-Party Beneficiary

HyperOutlet is not your fiduciary or trustee. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of HyperOutlet and its affiliates, you, and relying buyers or sellers.

17. Severability

If any provision of this Agreement shall be deemed unlawful, void, or unenforceable, then that provision shall be severable from the agreement and shall not affect the validity of any remaining provisions.

18. No Waiver

HyperOutlet's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of HyperOutlet's right to subsequently enforce such provision or any other provisions of this Agreement.

19. Governing Law

This Participation Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the United Kingdom and you irrevocably submit to the non-exclusive jurisdiction of the Courts.

20. Seller's Obligations with respect to Listing Items

1. Sellers Warranties. By listing an item in a Fixed Price Sale:

you represent a warrant to prospective buyers that, you are the true owner of the item or are properly authorised to sell the item by the true owner and are able to transfer good title to the item free from any third party claims, liens or encumbrances and the listing is accurate, current and complete and is not misleading or otherwise deceptive;

2. Unless we have agreed with you in advance and in writing to the contrary, you represent and warrant to HyperOutlet that, if you are a business, you are duly organized, validly existing and in good standing under the laws of the state or country in which your business is registered. In any event, you represent and warrant to HyperOutlet that the item is not one that would fall within any of the prohibited items described in clause 3.(prohibited items) and that the item is safe and bears any marking and labeling required under applicable law.

21.

You are free to determine the prices at which you sell items on various selling channels. However, we are asking sellers who choose to sell their products on the Site not to charge customers higher prices on the Site than they charge customers elsewhere. Accordingly, effective 1st May, 2011 you must maintain parity between the terms on which you offer or sell each item on or through the Site and the terms on which you offer or sell that item on or through any Non-Physical Sales Channel as follows:

1. Price Terms. You will ensure that the Total Price of each item you offer or sell on the Site does not exceed the lowest Total Price for that item offered or sold by you on any Non-Physical Sales Channel.
2. Customer Service and Other Non-Price Terms. You will ensure that the customer service you provide and each other non-price term on which you offer or sell an item on or through the Site (e.g., return and refund policy terms) are at least as favourable to customers as the most favourable customer service and other corresponding terms offered by you for that item on any Non-Physical Sales Channel.

22. Content and Other Information.

You will ensure that all content and other information you provide to us regarding each item you offer or sell on or through the Site are of at least the same quality, completeness, and accuracy as the highest quality and most complete and accurate content and other information displayed or used by you for that item on any Non-Physical Sales Channel.

23.

'Total Price' means the total amount payable by the customer for the item, including without limitation, any carriage and handling charges, any "low price" guarantee, discount, or other promotion, or other benefit available as a result of purchasing the item, but excluding taxes.

‘Item Price’ means the price of a product itself, excluding taxes.

‘Non-Physical Sales Channels’ means all sales channels and other means (other than physical stores) through which you offer or sell products, including without limitation online channels, mobile devices, catalogues and other electronically-enabled channels.

24. Non-Compliance with Parity Obligations.

If you become aware of any non-compliance with any of the requirements you will promptly compensate adversely affected customers by making appropriate refunds to them.

25. Compliance with Applicable Law

You further warrant that the sale of the item is not in breach of any applicable law. This responsibility includes, but is not limited to, ensuring that any items sold are compliant with section 3; Any items sold are appropriately packaged and labelled as required by applicable law; any items sold otherwise comply with all applicable law regarding their sale. You will audit the products that you sell on a regular basis (at least monthly) to ensure ongoing compliance with these obligations. You will also advise the buyer of any age or other restrictions that apply to the sale of any products that you sell. HyperOutlet makes no representations that items not appearing on the prohibited items list in 3; may be sold or distributed or offered for sale under applicable law.

26. Linking off the Site

Sellers must not.

1. Send to any user or buyer of the Service any direct-mail marketing that advertises or promotes the sellers interests.
2. Send to any user or buyer of the Service any electronic communication except necessary to complete any buyer's transaction or to respond to a customer service enquiry made by such buyer concerning a transaction.
3. Use any domain name on the Site or otherwise in any communication that you have with any user of the Service or any buyer for example you should not use "www.” “.co.uk” or similar identifiers.
4. Include any literature or communications other than that which identifies the transaction.
5. Make any offer from or reference to any Third Party any link or reference to any website other than the Site or any reference to domain names;
6. Target unsolicited communications of any kind to any user of the Service or any buyer. You will comply with the Data Protection Act 1998.

27. Procedures and Guidelines

You agree to abide by the procedures and guidelines, contained herein for conducting Fixed Price Sales, which are incorporated by reference into, and made part of, this Participation Agreement. We may change these procedures and guidelines in the future. For each item you list on the Site, you will provide to us the state or country from which the item ships. You will provide to us any requested information regarding shipment, tracking (to the extent available) and order status, and we may make any of this information publicly available. You will not send customers emails concerning shipping confirmation of products you sell (except that to the extent we have not yet enabled functionality for your account that allows payment to be processed on the basis of when shipment occurs, then you will send customers emails confirming shipment of products you sell in a format and manner reasonably acceptable to us). Promptly after shipment of a customer's order (or any portion of the customer's order), you will accurately inform us that the order has been shipped (and, in the case of a customer order that is shipped in more than one shipment, accurately inform us which portion of the order has been shipped), using our standard functionality for communicating such information when we make that functionality available to you If you fail to provide Confirmation of Shipment within the time frame specified by us (e.g., 30 days after the date an order was placed), we may in our sole discretion cancel or direct you to stop or cancel) any such transaction, and you will stop or cancel any such transaction upon such request by us. You will comply with any instructions from the manufacturer, distributor or licensor of a product regarding street date for delivery (which means the date specified by the manufacturer, distributor or licensor of a product as the date before which such product should not be delivered or otherwise made available to customers) or the street date for disclosure (which means the date, if any, specified by the manufacturer, distributor or licensor of a product as the date before which specified information regarding such product should not be disclosed publicly).

28. Variations

This Participation Agreement may only be amended or modified in writing (which may be represented electronically) and only in the manner set out in the remainder of this clause. HyperOutlet reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Site or Service at any time in its sole and absolute discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to this Agreement will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICE FOLLOWING HYPEROUTLET'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, THEN YOUR REMEDY IS TO CEASE USE OF THE SERVICE OR THIS SITE.

29. Notices

Notices can be sent to you at the e-mail address you provided to HyperOutlet or posted on the Site.

You may send notices to HyperOutlet as follows:
helpdesk@hyperoutlet.com
Or in urgent matters by telephoning the Helpdesk: 0044 (0) 203 00 20 587 during normal office hours.

30. Additional notices.

We will send notices to the seller at the e-mail address maintained in HyperOutlet's records for the seller. The seller will monitor his or her e-mail messages frequently to ensure awareness of any notices sent by us. The seller will send notices to us at our current e-mail address published on our Site or through the support suite. E-mail notices are deemed written notices for all purposes for which written notices may be required. E-mail notices are deemed received the Business Day after transmission if properly addressed to the intended recipient.

31. Termination

1. HyperOutlet may, in its sole and absolute discretion, terminate this Participation Agreement, access to the Site or the Service, or any current Fixed Price Sales immediately without notice if your participation agreement with any of the other HyperOutlet or associated sites is terminated or for any breach of any of the terms of this Participation Agreement.
2. Merchants may terminate its participation in the Service at any time by giving notice to HyperOutlet. HyperOutlet may terminate the seller's participation in the Service at any time by giving notice to the seller. Upon termination, all rights and obligations of the parties under this Participation Agreement will be extinguished, except that such rights and obligations will remain in effect after such termination to the extent necessary to process any orders placed prior to such termination for items listed by seller using the Service.

Thank you for reading our agreement which sets out the various guide lines and terms for a wholly better customer experience and for your own safeguards.

HyperOutlet.