Retailer Agreement

Effective Date: 19th May 2021

  1. Definitions
    1. Account: The customer Account We create to administer your use of the Giftsite platform and process payments to you.
    2. Agreement: This Retailer User Agreement.
    3. Customer: The Retailer’s customer, typically a member of the public buying goods from the Website.
    4. Giftsite: The e-commerce platform and services operated by History & Heraldry.
    5. Registration: The process by which You sign-up to the Giftsite platform.
    6. Retailer: The individual or legal entity operating the Website.
    7. Services: Commercial services provided by History & Heraldry which allow the Giftsite platform to operate such as hosting, payment processing, configuration, advice, and other related services that may be offered from time to time.
    8. Start Date: The date on which the Agreement begins which is when You have successfully completed the Registration process, or when You take over an Account.
    9. Software: Computer programs that allow You to sell products online using the Giftsite platform.
    10. Termination: The process by which You close your Account on the Giftsite platform.
    11. Termination Date: The date on which the Agreement ends.
    12. We: History & Heraldry Ltd, 2 Denby Way, Hellaby Industrial Estate, Rotherham, South Yorkshire, United Kingdom S66 8HR. Telephone 01709 730700.
    13. Website: This is Your website installed on the Giftsite platform that You use to promote your business and sell products online.
    14. You: An individual; or the person representing a company, sole trader, limited company, or any other business entity. This can include a person under your direction and control.
  2. General
    1. This Agreement is subject to
      1. The Terms and Conditions for using www.giftsite.co.uk.
      2. Data Processing Policy. The Data Processing Policy takes precedence over the Agreement in matters of compliance to Data Protection legislation.
      3. Privacy Policy.

      This Agreement and these additional terms and policies forms the Entire Agreement between You and Us.

    2. By accepting this Agreement and by using the Software and Services, You agree to be bound by the terms and conditions of this Agreement, and to any terms and conditions that are incorporated into this Agreement by reference. If We change the terms and conditions of this Agreement, You will also be bound by those amendments should You continue to use the Software and Services.
    3. You will manage your Account on the platform by use of a username and password which You will create as part of the Registration process. It is Your responsibility to ensure the username and password are kept confidential.
    4. You agree that We can process Your data and your Customers’ data and transactions through the Giftsite platform.
    5. You must be at least 18 years old to create an Account. You must be able to enter a legally binding commercial contract as defined by English law. If You are registering on behalf of a business, You must have the authority to enter into such an agreement.
    6. Headings in this Agreement are for guidance only. References to the singular also include references to the plural (You / Your / Yours).
  3. Ownership
    1. You agree that the Software and Services supplied within the Giftsite platform remain the worldwide intellectual property of History & Heraldry. We retain exclusive ownership of the Giftsite platform.
    2. For the duration of the Agreement, We will grant You a non-exclusive, recoverable, limited license to use the Giftsite platform to create and manage Your Website.
    3. Except to the extent permitted by law, You must not copy, modify, merge, decompile, translate, or otherwise interfere with the Software. You must not sub-license, rent, re-sell, or loan the Software to any third party. You must not make available or disclose to any third party the Software in whole or in part. You are permitted to use the customisation features within the platform such as applying your logo, choosing a colour palette, selecting images from the image library.
    4. You agree that where the Software requires Us to accept separate terms relating to the Software such as hosting, plug-ins, and third-party licensing, these will apply to the Agreement.
    5. History and Heraldry Ltd own or have permission to use the intellectual property rights in the Website and its content. These rights are protected around the world. All such rights are reserved. You’re allowed to store, print and display our Website content only for your own personal use. You are not allowed to use any part of the Website for commercial purposes unless you have our express permission. You’re not allowed to use the Giftsite logo or any History and Heraldry Ltd brand or trade mark (or any marks which are colourably similar) without our express permission, you are also not allowed to use the logo, trade mark or images that are the intellectual property of our Suppliers and Partners, outside of the Giftsite platform without their express permission.
  4. Services
    1. We will provide the following Services. Some of these Services are mandatory to use the Giftsite platform. Other Services are optional.
    2. Mandatory Services are:
      1. Hosting: The Giftsite platform runs on computer Servers in a secure Data Centre with data residing in the UK. The platform can only be operated on Servers approved and supported by History & Heraldry. Your Website will be hosted on a shared server.
      2. Payment Processor: The Giftsite platform processes payments made by the Customer when buying goods from the Retailer. These payments are handled by Payment Processors such as Stripe and PayPal. Only Payment Processors approved and supported by History & Heraldry are permitted.
      3. Software Updates: Software updates to add new features and fix issues
      4. Security Updates: Updates to the security of the system will be required from time to time and may separately be imposed by third parties such as the Payment Processor or Data Centre operator.
    3. Non-mandatory services are:
      1. Parcel Carriers: We will provide integration with several Parcel Carriers. You can choose to use these integrations or make their own arrangements for deliveries. If You choose to use one of the integrated carrier options, You agree to be bound by their terms of carriage.
      2. Marketing Platform: We will provide integration to MailChimp where You can control email marketing and communication preferences outside Giftsite.
    4. From time to time We may add or remove Mandatory and Non-mandatory services. If We do, We will inform You and You give Us permission to write to you about these.
    5. Changes to the Software and Services offered and Policies, Documentation and Your Account will occur from time to time. We reserve the right to make such changes without prior notice. You agree that We can send this information to You by email.
    6. The Giftsite platform will be backed up once a day. We cannot guarantee that all data will be successfully backed up and can be restored. It is Your responsibility to ensure the data You need is backed up by You.
    7. Where services are provided by third parties such as Payment Processors and Carriers, We are not liable or have any control over the availability of those services or the operation of those services, or any claims that may arise as the result of breaches in the services.
    8. You own all data collected from or about customers of Your Website. We will process data on your behalf.
    9. We may at our sole discretion offer You access to Beta Services. Beta Services are features which are being developed and tested. You do not have to accept the offer to use Beta Services. If You accept the offer to use Beta Services You do so on the basis they may contain bugs, errors and defects and Your use is at Your risk. You accept Beta Services may be changed or discontinued at any time.
  5. Operating Your Website
    1. You are responsible for adding, amending, and removing Content on Your Website. This includes but is not limited to:
      1. Descriptions and other data about You, and Your business.
      2. Descriptions, images, pricing, and other data related to the Products sold on Your Website.
      3. Promotional activity such as discounts and special offers.
      4. Social media activity on other platforms such as Facebook, Instagram, YouTube which may be accessed from Your Website.
      5. You obtain approval to use material supplied by third parties including but not limited to copyright, use of logos and trademarks, intellectual property as required by those third parties.
      6. You obtain permission to use data and images that an individual or legal entity could consider private.
      7. You retain title and interest in Your Content subject to 5.1.5
    2. You are responsible for communicating with your Customers. This includes but is not limited to:
      1. Sales and marketing activity.
      2. Enquires, complaints, disputes, and claims.
    3. You are responsible for fulfilling orders. This includes but is not limited to:
      1. Product information.
      2. Stock levels.
      3. Pick, pack and dispatch of orders.
    4. You are responsible for managing refunds and returns. This includes but is not limited to:
      1. Whole or partial refunds in accordance with distance selling regulations and goodwill gestures.
      2. Carrier arrangements and costs of returning goods.
      3. Disposal of any returned Product.
    5. You agree that the Giftsite platform acts as a passive conduit, and We are not active and not participating perceptibly in Your activity.
    6. You agree that by adding content and products to the Giftsite platform, others can view and use Your content. We may choose to use this publicly available data to promote the Giftsite platform.
    7. You undertake to ensure you operate the Website in such a way that it complies with laws and guidelines on:
      1. PCI DSS
      2. GDPR, Data Protection and Privacy
      3. Distance selling regulations
      4. Tax
    8. You agree that the content and products on Your Website will not:
      1. Be offensive, libellous, defamatory, obscene, or threatening
      2. Be inaccurate, false, fraudulent, or misleading
      3. Involve the sale of stolen or counterfeit items
      4. Encourage violence, discrimination, harassment
      5. Violate any applicable law, statute, or regulation, or that violate this Agreement
    9. You agree to protect the Giftsite platform and Your Website by not:
      1. Installing or allowing the installation of viruses, ransomware or other computer programs that may interfere with the operation of the system, intercept data, or expose personal data
      2. Not to bypass, disable or override any restrictions, security measures, or other limitations on Your account, Your Website
      3. Using your Website in such a way as to be harmful or potentially harmful to Giftsite Servers, systems or infrastructure as determined by Our sole discretion
      4. Create liability or undue risk for Us or Our Partners which in Our sole discretion We determine to be harmful to Our, operations, reputation, or goodwill
    10. You agree not to sell or promote the following products and services:
      1. Blood, bodily fluids, antibodies, body parts, or items derived from these
      2. Illegal and restricted drugs; prescription drugs
      3. Guns, firearms, explosives, and hazardous materials
      4. Chemicals, toxins, and other poisons
      5. Personal information and data
      6. Material that is obscene, pornographic, offensive or could be considered as hate speech
      7. Violence or other illegal activity
      8. Self-harm or other activities detrimental to mental health
      9. Pets, animals, and wildlife products
      10. Financial products including but not limited to savings, investments, and loans
      11. Any products or service which at Our sole discretion is deemed objectionable or poses unreasonable risk
    11. You agree to the terms of carriage set out by parcel carriers You use to deliver goods to Your Customers and return goods from Your customers.
    12. We will provide You with a Privacy Policy page and a Terms & Conditions page for Your Website. We will populate these pages with content. It is Your responsibility to check, modify and update these pages as they are Your policies and terms.
  6. Fees & Remittance Payments
    1. We will charge the following fees for transactions made on Your Website:
      1. Card Processor fees. These fees are charged by card processors such as Stripe and PayPal. Card processors may vary their fees from time to time which will be published on their websites. We will recharge You the card processor fees at the rate We are charged. We will not add a mark-up.
      2. Carrier fees. These fees are charged by parcel carriers. Where You choose to make use of one of the parcel carriers with whom We have the commercial relationship (We pay the carriage invoice), We will recharge You the carriage fees at the rate We are charged. We will not add a mark-up.
      3. Commission: We will charge you 5% commission on every sale made excluding VAT through Your Website. The rate is calculated on the total sale value of goods and services. We exclude any delivery charge You make to Your customer from this calculation.
    2. We may from time to time change the commission rate. We will agree this in writing with You.
    3. Where bespoke work is required, We will provide a written proposal including costs and timescales. Work will not be undertaken without Your written approval.
    4. Where rectification work is required because of Your negligence or deviation from Our Terms, We reserve the right to recharge this work to You at Our prevailing hourly rate. This recharge may also include any additional third-party charges which include but are not limited to penalty fees and software licenses.
    5. We are responsible for holding Your money when a customer transaction is successfully completed by the card processor. We will arrange to pay a remittance to You of this money less any fees described in this section. Remittance will be made on a regular basis, usually monthly in arrears. Should We change these arrangements we will confirm this in writing to You.
    6. You may not offset other invoices and money owed to Us from funds associated to sales on Your Website.
  7. Taxes
    1. You are responsible for recording the sales of goods and services made on Your Website to comply with UK legislation. You are responsible for the payment of all taxes including VAT associated with the sales transaction.
    2. You are responsible for ensuring the correct tax rates are applied to product and services sold on Your Website. This is managed in the product maintenance section of the Website.
    3. When We deduct fees, We will apply VAT to comply with tax legislation before remitting payment to You. We will provide You with sales invoice documentation for your records. We will be responsible for paying VAT on fees.
  8. Warranty
    1. We supply the Giftsite platform as seen. We do not provide any guarantee or warranty – express, statutory, or implied – that the system is suitable for Your current and future needs; its fitness for any particular purpose; that it is error-free; and that the platform will be uninterrupted, accurate, and secure. You use the Giftsite platform at Your own risk.
  9. Liability
    1. Limitation of liability extends to History & Heraldry Ltd, service providers and their third parties. It applies to employees, directors, contractors, and agents.
    2. Liability excludes any loss of profits, consequential loss, penalties, or damages You may incur using the Giftsite platform.
    3. We recognise some liabilities cannot be excluded according to applicable law. Our liability is limited to the maximum extent limited by the applicable law.
  10. Indemnity
    1. You agree to indemnify and History & Heraldry, service providers and their third parties including their employees, directors, contractors and agents against any losses, costs and liabilities including reasonable legal costs arising from:
      1. Any content, product or service provided, sold, or otherwise distributed by You or generated by users of Your Website
      2. Any claims arising from the sale of goods or services on Your Website
      3. Any breach by You of this agreement
    2. We reserve the right to manage and control any legal defence of any claim against Us, service providers and their third parties. You agree to cooperate with such defence.
  11. Breach
    1. You will be considered in breach of this agreement if you:
      1. Fail to pay any fees or monies associated with this agreement
      2. Operate Your Website in such a way that contravenes this agreement
      3. Provide us with misleading or inaccurate information
      4. Operate Your Website in such a way that increases risk or causes harm to Us, our contactors and third parties, and Your customers
    2. Remedies available to Us at our sole discretion for any breach include but are not limited to:
      1. Write to You requesting You take corrective action
      2. Disable or suspend your Account and Website for a period
      3. Terminate your Account
  12. Termination
    1. This Agreement will remain in force with no minimum term or fixed period until termination. Termination can be given by either You or Us proving a minimum of one calendar months’ notice.
    2. At the end of the notice period We will remove permission for You to use Your license to operate on the Giftsite platform and you will cease using Your Website.
    3. All fees and monies owed by You to Us will become due immediately at the end of the termination notice period.
    4. Any remittance due for monies owed by Us to You will be suspended until all third-party costs have been processed and deducted from your balance. This will be done no later than three calendar months from the end of the termination notice period.
    5. We will delete all data relating to Your Website including data associated with customers, product, and management information within three months from the end of the termination notice period.
    6. Termination does not affect Our rights to recover from you any fees, losses or damages associated to this Agreement.
    7. We and You agree to keep confidential any data, know-how or intellectual property after termination.
    8. We reserve the right to refuse to set up a new Account for You following termination.
    9. On termination You can request We supply the following data. The data will be supplied in a format and to a timescale You and We agree. You accept We will provide this data on a best endeavours basis and time will not be of the essence.
      1. Orders
      2. Customers
      3. Product
      4. User generated Content
  • Disclaimer of Warranties
    1. You agree that Your use of Our Services is solely at Your own risk. You agree that such Services is provided on an “as is,” “as available” basis. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free; nor do We make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Service is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the Service or any transactions entered into through the Service. No advice or information, whether oral or written, obtained by You from Us or through the Service shall create any warranty not expressly made herein.
    2. We are not responsible for the appropriateness of or content on external sites.
  • Other
    1. This Agreement is governed by English law and jurisdiction of English courts.
    2. This Agreement does not directly or indirectly imply or establish an Agency, Distributor, Joint Venture, Employee / Employer, or similar relationship. No entity or person shall benefit from this Agreement except You and History & Heraldry.
    3. Force Majeure: Neither party will be liable for any failure or delay in the performance of this Agreement for the period that such a failure or delay is beyond the reasonable control of either party and could not have been reasonably foreseen or provided against. Reasons for delay include acts of God, war, riots, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, terrorism, and acts of state or governmental action.
    4. We will send You notices to Your registered email address or postal address registered to Your Account. We will assume you receive our emails within 24 hours and posted items in 3 working days after mailing. It is Your responsibility to inform Us if these details change. You can send notices to Us at support@giftsite.co.uk or our postal address see 1.12.
    5. You cannot assign or transfer this Agreement without our written consent. We will not withhold our consent unreasonably.
    6. If part of this Agreement is found to be unenforceable, the remaining provisions will continue to be enforceable.
    7. We and You agree to keep confidential any data, know-how and intellectual property stored and operated within with the Giftsite platform. This excludes any data or know-how available in the public domain established by legitimate means.
    8. We will comply with any legal request by law enforcement agencies to supply data from or provide access to Your Website.
    9. You agree that a link to a page on www.giftsite.co.uk or www.nextpixel.com will appear in small type at the bottom of the Your website reflecting the authorship of the Giftsite platform.
    10. You agree that any published works can be presented in the Giftsite or Next Pixel portfolio and feature as part of any future marketing campaigns unless agreed otherwise.
    11. Where disputes arise over trademarks and / or copyright, in the first instance an attempt to resolve the dispute should be made between the parties (for example between the Retailer and the owner of the trademark). If resolution cannot be achieved either party can contact Us at support@giftsite.co.uk where we will make best endeavours to investigate and resolve. Such resolution may involve Us:
      1. Temporarily or permanently removing content
      2. Temporarily or permanently suspending an Account
      3. Termination of the agreement

Basket