Seller Terms & Conditions
1.1. These terms and conditions (the “Conditions”) apply between you (the “Seller”) and Unearth Ltd (“we”, “us” or “Unearth”), in connection with the provision of the Service (defined below) to you by us.
1.2. It is important that you read and understand these terms and conditions before agreeing to them.
1.3. Unearth shall be entitled to amend the Conditions, the Charges or all or any of them from time to time by posting such amended versions of them on the Unearth Website. The Seller acknowledges that it is its responsibility to check the Unearth Website on a regular basis to make and keep itself aware and notified of any changes made by Unearth to the Conditions, the Charges or all or any of them. Where reasonably practicable, Unearth shall provide not less than thirty (30) days’ written notice to the Seller of any material amendment to the Conditions or the Charges. Notwithstanding the foregoing, Unearth reserves the right to make amendments to the Conditions and/or the Charges from time to time without notice, or providing less than thirty (30) days’ notice, to the Seller, where Unearth reasonably considers:
1.3.1. such changes not to be material; or
1.3.2. that it is otherwise not reasonably practicable to provide thirty (30) days’ written notice.
2. DEFINITIONS AND INTERPRETATION
In these Conditions, the following words shall have the following meanings only and shall not affect the interpretation or construction of the Conditions:
"Application Form" means the form accessible on the Unearth Website to a prospective Seller which must be completed and agreed by the prospective Seller as a part of the application process;
“Cancellable Product” means any Product other than a Non-Cancellable Product;
"Charges" means the charges detailed in Clause 15 of these Conditions and notified to you by Unearth in writing;
"Conditions" means these terms and conditions and any document referred to in them, or any amended version of them brought into effect from time to time in accordance with these Conditions;
“Confidential Information” means any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, operations, processes, product information, know-how, designs, trade secrets or software of either party;
"Customer" means a person(s), firm or company who enters into or is invited to enter into any transaction to purchases Product(s) from the Seller through the Site;
"Customer Feedback" means any and all information provided to us by a Customer via our customer feedback service regarding any goods and/or services provided by the Seller in respect of a particular transaction with that Customer (including in respect of any communications with the Seller), which may include any opinions about the Seller;
"Customer Terms" means the terms and conditions relating to a Customer set out here;
"Data Protection Legislation" means the Data Protection Act 1998 unless and until it is superseded and replaced by the General Data Protection Regulation ((EU) 2016/679) (the "GDPR") and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR;
"Documentation" means any user guide, information or other material provided by Unearth to prospective or existing Sellers, in hard copy or electronic form, relating to the Service;
"Exclusive" means the sale of a Product on the Unearth Website only, and not through any other online or offline channel, including the Seller’s own website (if applicable).
"IPR" means all the intellectual property rights conferred by the law of any country or jurisdiction in the world (including by statute) as amended or re-enacted (by common law, civil law, equity or otherwise) in relation to any invention, discovery, literary work, dramatic work, musical work, artistic work, copyright, database, trade mark, service mark, design (whether two dimensional or three dimensional), patents, semiconductor topography, confidential information, know-how, trade secret, and in each case whether or not it has been reduced to a material form, and howsoever it may be recorded, stored or embodied (including in an electronic or transient medium), including all applications for such rights as well as all extensions and renewals of such rights;
"Joining Fee" has the meaning ascribed to it in Clause 15 (Charges);
"Non-Cancellable Product” has the meaning ascribed to it in paragraph F of Clause 8 (Returns & Refunds);
“Personal Data” has the meaning given to it in the Data Protection Legislation;
“Personal Data Breach” means a breach of security (caused or contributed to by internal and/or external factors) leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data;
"Policies" means any policy (including any guides relating to content and style) which may be notified and made available to the Seller by Unearth through the Seller Portal or Website from time to time;
"Products" means the goods, services or information that Sellers wish to promote and sell through the Site;
“Product Page” means the particular web page on the Seller’s Storefront on which an individual Product is displayed and the relevant information relating to that Product is provided;
“Product Submission Process” means the process for bringing and maintaining any Product on Site, as updated from time to time;
“Re-activation Fee” has the meaning ascribed to it in Clause 15.6. of these Conditions;
“Response” means a response by the Seller to any Customer Feedback;
"Returns & Refunds Procedures" means the procedures set out in Clause 8 (Returns & Refunds) of these Conditions or as may be updated by Unearth from time to time and displayed within the Customer Terms;
"Seller" means a person whose application to the Site has been accepted by Unearth, and who sells its Products through the Site;
"Seller Information" means information, data or content provided by the Seller in any form or medium, whether or not such information is owned by the Seller, contained in the Application Form, uploaded to the Seller’s Storefront or given by the Seller to Unearth for whatever purpose, whether directly or on the Seller’s behalf;
"Seller Portal" means the content management system provided by Unearth to each Seller for management of its Storefront and associated transactions;
"Service" means the Site and other services provided by Unearth, as further described in these Conditions;
"Commission Fee" has the meaning ascribed to it in Clause 15.4. of these Conditions;
"Site" means the online marketplace provided by Unearth through the Unearth Website to facilitate the promotion and sale of Sellers' Products;
"Software" means any software installed by or on behalf of Unearth that permits Sellers to access and trade through the Site;
"Storefront" means an area of the Site dedicated for use by the Seller to promote itself and its Products;
"Subscription Fee" has the meaning ascribed to it in Clause 15 (Charges);
"Unearth" means Unearth Ltd (a company incorporated and registered in England and Wales with company number 12384335) whose registered office is at: 137 Rusthall Avenue, Chiswick, London W4 1BL;
"Unearth Website" means http://www.unearthmarket.co.uk or such other worldwide web address that Unearth in its sole discretion selects as a replacement;
"Unearthmarket.co.uk" means the trading name of the Unearth Website;
“Upgrade Fee” has the meaning ascribed to it in Clause 15 (Charges);
"Value Added Tax" means value added, sales or services tax, or any similar tax imposed in any jurisdiction;
"Virus" means any computer virus, macro virus, trojan horse, worm or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or network, or to intercept or access without authority or expropriate any system, information or data;
“Working Day” means any day other than a Saturday or Sunday on which banks are open for business in London.
The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Conditions.
Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender.
References to a person include an individual, company, corporation, firm or partnership.
References to any statute or statutory provision shall include:
- any subordinate legislation made under it;
- any provision which it has modified or re-enacted (whether with or without modification); and
- any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
All references in these Conditions to clauses are to the clauses in these Conditions unless otherwise stated.
References to the words "include", "includes", "including", "in particular" or any similar words do not limit the words preceding or following.
3.1. These Conditions shall commence after:
3.1.1. Unearth has received an Application Form from the prospective Seller completed to the satisfaction of Unearth; and
3.1.2. Unearth has notified the prospective Seller in writing of its acceptance of the Seller’s Application Form. It shall be entirely at the discretion of Unearth whether or not to accept a Seller’s Application Form; and
3.1.3. the Joining Fee (if payable in accordance with Clause 15.3.) has been paid by the Seller.
3.2. Without prejudice to either party's right to terminate the Conditions under the remainder of this Clause 3, these Conditions shall continue in force unless and until either party gives the other at least 30 days notice to terminate in writing.
3.3. Unearth may immediately suspend provision of the Service or terminate the Conditions without liability to Unearth by notifying the Seller in writing if:
3.3.1. the Seller commits a material breach of the Conditions (including a material breach of any of the Policies) and, if capable of remedy, fails to remedy the breach within fourteen (14) days of a written notice to do so;
3.3.2. the Seller fails to pay any Charges payable to Unearth within seven working days of its due date for payment under these Conditions;
3.3.3. the Seller is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any relevant jurisdiction occurs to the Seller; or
3.3.4. in Unearth's sole discretion, a Seller's eligibility or suitability to be listed on the Site, or otherwise receive the Service, changes.
3.4. Notwithstanding any such termination or suspension in accordance with the foregoing clause:
3.4.1. the Seller shall pay Unearth all Charges due up to and including the date of suspension or termination; and
3.4.2. termination of this agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force, or the continuance in force, of any provision hereof which is expressly or by implication intended to come into or continue in force after such termination.
4. THE SERVICE PROVIDED BY US
4.1. Following commencement of these Conditions, Unearth will:
4.1.1. provide a password so that the Seller may construct a Storefront and update the Storefront whenever such functions are made available by Unearth;
4.1.2. provide the Service with reasonable skill and care; and
4.1.3. use reasonable endeavours to restore any faults in the Service as soon as reasonably practicable. The Seller acknowledges that the transmission of information via the internet is not completely secure, there is always a risk that communications by electronic means may not reach their intended destination, or may do so much later than intended, for reasons outside Unearth's control, and that it is technically impossible to provide the Service entirely free of fault at all times.
4.2. Unearth reserves the right to revise or alter the Service at any time. Any variation in the Service will be subject to the Conditions.
4.3. The Site provides a platform to allow Sellers to offer and sell their Products directly to Customers. In doing so, the Seller authorises and appoints Unearth as its commercial agent to directly negotiate and/or conclude the sale and/or purchase of Products between the Seller and Customers via the Unearth Services and Unearth accepts this appointment on the terms of these Conditions. As part of this process:
4.3.1 any contract to sell and buy Products is made only between the Seller and Customer concerned and Unearth is not a party to any such contract;
4.3.2 Unearth facilitates the negotiation of the sale of Products between Customers and Sellers through the use of the Seller Portal and e-mail communication services operated and managed by Unearth, together with the Unearth Services that contribute to increasing the Seller’s goodwill, promote the Seller’s Products and generally encourage Customers to place orders with Sellers.
4.3.3. Products offered for sale through the Unearth Website are neither owned nor come into the possession of Unearth at any time.
4.4. The Seller hereby acknowledges that Unearth has sole and complete discretion whether to invite or select prospective Sellers to subscribe to use of the Service.
4.5. The Site provides a system of Customer Feedback, which may be obtained and/or facilitated by a third party service provider selected by Unearth (the “Third Party”). By using the Site and Service the Seller agrees that:
4.5.1. Unearth and/or the Third Party may, in its discretion, post on the Seller’s relevant Product Page and on the Third Party website any and all Customer Feedback relating to the transaction in question for a period of up to two (2) years after Unearth and/or the Third Party receives such Customer Feedback;
4.5.2. Following the provision of any Customer Feedback, Unearth shall make such Customer Feedback available to the Seller via the Seller Portal. The Seller may submit a Response to any negative Customer Feedback via the facility provided by Unearth on the Seller Portal, and Unearth and any Third Party will display any such Response with reasonable prominence and proximity to the corresponding Customer Feedback. The Seller agrees that it shall not contact any Customer directly, whether via the Seller Portal through an order or product enquiry or otherwise in response to any Customer Feedback.
4.5.3. The Seller will ensure that any Response is true and accurate and not misleading in any way, and does not contain any material that may be construed as offensive, defamatory or unlawful.
4.5.4. Unearth may, in its sole discretion and in accordance with the applicable terms and conditions of any Third Party elect to amend, or not to post, any Response that Unearth and/or the Third Party consider, in their sole discretion, to be offensive, defamatory, unlawful or otherwise inappropriate.
4.6. Unearth may from time to time introduce a Seller to third parties with whom special terms have been arranged unique to Sellers. Any contract entered into between Sellers and any such third party is concluded directly between the Seller and the third party concerned and, except as expressly set out in these Seller Terms, Unearth cannot be involved in the fulfilment or liability for any such contracts.
5. YOUR OBLIGATIONS – WHAT YOU PROMISE
The Seller warrants that:
5.1.1. it is incorporated and/or established (whether as a company, partnership, unincorporated association, or sole trader) in the United Kingdom or the Republic of Ireland; and
5.1.2. it has a trading (operating) address in the United Kingdom or the Republic of Ireland.
5.1.3.. The Seller hereby undertakes to:
126.96.36.199. establish and maintain access to the World Wide Web at their own cost, through use of a computer and modem or other access device;
188.8.131.52. ensure that at all times all computer hardware and software it uses to access and interoperate with the Site is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against Viruses; and
184.108.40.206. to ensure that information supplied electronically to Unearth and to the Unearth Website is submitted free from Viruses;
220.127.116.11. Unearth has no responsibility for the provision, support and maintenance of any of the Seller's hardware or software used to provide the Seller with access to the internet or the Unearth Website, or any related hardware or software (including any IP router, proxy server, firewall or anti-virus software), the responsibility for which shall remain exclusively with the Seller.
5.2.1. The Seller:
18.104.22.168. is responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Service and access to the Storefront (which responsibility shall include the obligation to change passwords on a regular basis);
22.214.171.124. shall take all necessary steps to ensure that passwords and other security devices remain confidential, secure, used properly and not disclosed to unauthorised third parties;
126.96.36.199. shall inform Unearth immediately if there is any reason to believe that a password or any other security device has or is likely to become known to someone not authorised to use it, or is being or is likely to be used in an unauthorised way;
188.8.131.52. shall inform Unearth immediately if the Seller forgets or loses a password and must satisfy such security checks as Unearth may operate in order to obtain a new password; and
184.108.40.206. shall ensure that the Seller Portal and its content remains entirely confidential, and that no other person beside those in the Seller's employment has sight of the Seller Portal or any of its content.
5.2.2. Unearth reserves the right:
220.127.116.11. to suspend access to the Service if at any time Unearth considers that there is or is likely to be a breach of security, in which event Unearth will notify the Seller of the suspension and any steps to be taken by it as soon as reasonably practicable; and
18.104.22.168. to require the Seller to change any or all of the passwords used by the Seller in connection with the provision of the Service and access to the Storefront, in which event Unearth will notify the Seller of the requirement to change passwords and any further steps to be taken by the Seller as soon as reasonably practicable.
5.3. YOUR STOREFRONT
5.3.1. Unearth has absolute discretion as to:
22.214.171.124. the look, feel and content of the Unearth Website (including all Storefronts);
126.96.36.199. the inclusion, positioning, content, location and all other presentation of Seller Information (including in Unearth' sole discretion the right to remove any Seller Information from the Unearth Website at any time); and
188.8.131.52. the Product set live on the Unearth Website (including in Unearth’s sole discretion the right to remove any Product from the Unearth Website pursuant to one or more of the Policies or otherwise, or not allow a Product to be set live for sale on the Unearth Website).
5.3.2. The Seller shall at all times comply with all Policies and the Product Submission Process as updated from time to time.
5.3.3. Quality of Presentation
184.108.40.206.1. The Seller shall:
220.127.116.11.1.1. ensure that its Storefront maintains a high standard of presentation and at all times accords with any applicable guidelines notified to it from time to time by Unearth, including in relation to the form and content of copy and product imagery;
18.104.22.168.2. comply with reasonable instructions from Unearth concerning its Storefront.
22.214.171.124. Any failure to maintain suitably high standards of page presentation may result in the deactivation of the relevant Product Page(s) in the first instance. Unearth reserves the right, in its sole discretion, to de-activate the Seller’s Storefront until standards have been improved.
5.3.4. Seller and Product Information
126.96.36.199. The Seller shall ensure that all Seller Information provided about itself and the Products on its Storefront is and remains true, accurate, current and complete;
188.8.131.52. Without prejudice to the Seller's obligation to comply with any Policies, the Seller undertakes and agrees that none of its Seller Information nor any of the Seller's activities or use of the Unearth Website (including its use of its Storefront), will:
184.108.40.206.1. be false, inaccurate or misleading;
220.127.116.11.2. be offensive, indecent, obscene, pornographic, menacing, abusive or defamatory;
18.104.22.168.3. be in breach of any applicable law or regulation;
22.214.171.124.4. adversely affect the reputation of Unearth or the Unearth brand;
126.96.36.199.5. create, or be likely to create, liability for Unearth or cause Unearth to lose (in whole or in part) the services of its internet service or other suppliers;
188.8.131.52.6. contain any Virus; and
184.108.40.206.7. cause the Site or the Seller Portal or their functionality to be interrupted, damaged or impaired in any way.
220.127.116.11. The Seller shall:
18.104.22.168.1. where applicable, state clearly on the relevant Product page that a Product is a personalised or specially-made Product, and/or that such Product requires a Customer approval of proof prior to its production by the Seller, and shall display the relevant corresponding delivery times;
22.214.171.124.2. if a Product is a Non-Cancellable Product, state clearly on the relevant Product page that such product cannot be cancelled by the Customer; and
126.96.36.199.3. display the Seller's expected delivery times and postage and packing costs on the appropriate areas of the Seller's Storefront.
188.8.131.52.The Seller shall not include within its Storefront, on the Seller Portal, any other place on the Unearth Website or in any other means of communication with the Customer:
184.108.40.206.1. any direct or indirect link to other websites including the Seller's own website;
220.127.116.11.2. its email address; or
18.104.22.168.3. any other means by which a Customer could communicate directly with the Seller, other than through the Seller Portal.
22.214.171.124. Sellers may amend and update information about their Products displayed on the Site and are responsible for designing, creating, managing and amending any bespoke graphics or product images in accordance with the applicable Policies.
5.3.5. Stock Information
126.96.36.199. The Seller shall accurately display stock availability for all Products and shall update such stock availability regularly using the 'out of stock' and 'is available' options on the Seller Portal.
188.8.131.52. Where new stock for ‘out of stock’ Products is due to be available to the customer within four weeks, it must state on its Storefront the date on which it expects that stock to become available.
184.108.40.206. Once the final piece of stock of any Product has been sold and will no longer be available, the Seller must mark that item as discontinued on its Storefront.
220.127.116.11. The Seller shall remove Products from its Storefront that are awaiting stock for prolonged periods (four weeks or more) until they become available again.
18.104.22.168. If a Customer places an order for an item which is in fact out of stock and has not been displayed as such and the Customer consequently requires a refund, then the Seller may be charged the Commission Fee on that order by Unearth.
22.214.171.124. The Seller's prices must be fully inclusive of all taxes and additional charges. The only exception to this is postage and packing which, if such charges apply, the Seller will show separately.
126.96.36.199. If the Seller is VAT registered, the Seller should set the VAT rate at the level which is currently in force in the UK with respect to the Seller's Products.
188.8.131.52. The Seller is solely responsible for ensuring that it fully complies with current VAT regulations and accounting for VAT correctly.
184.108.40.206. The Seller has complete discretion over how it wishes to price its Products.
5.3.7. Product listing and categorisation
220.127.116.11. The Seller shall upload its Product range and work cooperatively with the Unearth production team so that Unearth is able to set the Seller’s Storefront live on the Unearth Website within three (3) months of the Seller paying the Joining Fee.
18.104.22.168. If the Seller fails to comply with Clause 22.214.171.124., Unearth may suspend the Seller’s membership and charge the Seller a Re-activation Fee as detailed in Clause 15.6 of these Conditions, or such other amount as may be notified to the Seller from time to time. Unearth shall retain sole discretion as to whether to accept a Seller’s request for re-activation.
126.96.36.199. The Service allows Sellers to offer their Products on the Unearth Website as part of an 'always on' detailed electronic online catalogue containing categories and sub-categories, so that Sellers may display each Product in the single most appropriate category, and with Product information, pictures and promotions uploaded by them.
188.8.131.52. The Seller may apply for a Product to be featured in one or more online catalogue categories, and Unearth shall retain absolute discretion as to which category is the most appropriate for a given Product.
184.108.40.206. Subject to paragraph 6. of this clause, a Product shall be featured in no more than one category.
220.127.116.11. Unearth may, in its absolute discretion and where relevant and appropriate, select a Product for inclusion in a second category.
18.104.22.168. The Seller shall ensure that a single Product may appear only once on the Storefront.
22.214.171.124. The Seller shall ensure that each of the Seller's Product listings contains all the information required by a Customer to make a purchase, and that such information is wholly accurate. 'Dummy' box filling to circumnavigate required fields is not permitted.
126.96.36.199. The Seller shall not make use of keyword spamming (the use or placement of inappropriate keywords in a title or description to gain attention or divert users to another page) or similar techniques in Product listings.
188.8.131.52. Subject to paragraph 10. of this clause, if a Seller wishes to promote the same Product(s) on the Unearth Website as another Seller, it shall be solely the responsibility of the relevant Sellers to resolve between themselves any conflict, whether with regard to IPR or otherwise, that arises in this respect. Unearth shall have no liability for any such scenario or any issues arising from it.
5.4. COMPLIANCE WITH LAWS
5.4.1. The Seller shall comply at all times with all applicable laws and regulations including:
184.108.40.206. UK and EU anti-trust and competition laws;
220.127.116.11. all product safety and product marking laws and regulations, and Trading Standards requirements in respect of the manufacture, packaging, marking, certification (including, without limitation, CE marking) and delivery of the Products it sells;
18.104.22.168. the Modern Slavery Act 2015; and
22.214.171.124. the Bribery Act 2010 (“Bribery Act”).
5.4.2. In relation to the Seller’s obligations under the UK and EU anti-trust and competition laws, the Seller shall not exchange (or attempt to exchange) any commercially sensitive information, including information on any current or future commercial strategies, costs and/or pricing, with any other Seller.
5.4.3. In relation to the Bribery Act, the Seller shall:
126.96.36.199. not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
188.8.131.52. maintain in place (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
184.108.40.206. promptly report to Unearth any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of these Conditions; and
220.127.116.11. ensure that it imposes written terms on any sub-contractor connected with the matters arising under these Conditions which are at least equivalent to those imposed on the Seller in this clause.
5.4.4. Where required by applicable laws and regulations, appropriate instructions shall be included with the Product to ensure the safe use of the Products.
5.4.5. Products promoted on the Unearth Website that are perishable or edible, and cosmetics designed for topical application to the skin, may not be delivered to any address outside of the UK.
5.4.6. The Seller shall inform Unearth as soon as reasonably practicable upon becoming aware of any claim against Unearth or the Seller arising out of or in connection with any defect in its Products, or any failure by the Seller to ensure that the Products are appropriately marked or certified in accordance with applicable laws or regulations.
5.4.7. The Seller shall indemnify and hold harmless Unearth against any and all liabilities, costs, expenses, fines, damages and losses (including any direct, indirect or consequential losses) it incurs in connection with any claim envisaged under this Clause 5.4. or paid or agreed to be paid by Unearth in settlement of the claim and all legal or other expenses incurred by Unearth in or about the defence or settlement of the claim. Unearth shall notify the Seller in writing as soon as practicable after becoming aware of the claim.
5.4.8. The Seller shall maintain at all times, at its own expense and with reputable insurers appropriate insurance in relation to its business. The Seller shall, upon written request from Unearth, provide Unearth with any information it reasonably requires concerning the scope of such insurance together with any relevant certificates of currency.
5.4.9. The Seller shall comply with Unearth's reasonable instructions relating to any product recall and in any event Unearth reserves the right to take immediate and exclusive conduct of the product recall on notice to the Seller, in which case the Seller shall give such assistance as Unearth may reasonably require.
5.4.10. The Seller shall maintain appropriate, up to date and accurate records to enable the immediate recall of any Products.
5.5. SUSPENSION OF SERVICE
5.5.1. Unearth may immediately suspend or terminate the Seller's subscription and use of the Service in the event Unearth reasonably believes or suspects that any Seller Information does not comply with the provisions of this clause.
6. WHERE YOU MAKE YOUR PRODUCTS AVAILABLE
6.1. The Seller may sell Products through any channel except those specified pursuant to the Product Submission Process.
6.2. Any breach of this Clause 6 shall be deemed to be a material breach and Unearth reserves the right to suspend the relevant Product from the Site for such period as the breach continues.
6.3. If the Seller chooses to mark a Product as “Exclusive” through the Site, that Product shall, for any period during which that Product is marked as “Exclusive”, be available only for purchase on an Exclusive basis, as defined in Clause 2 of these Conditions.
7. ORDERS AND YOUR RELATIONSHIP WITH THE CUSTOMER
7.1. THE CONTRACT OF SALE
7.1.1. The Seller acknowledges and agrees that following acceptance of an order through the Seller Portal, such an acceptance is also deemed to be an irrevocable instruction by the Seller to Unearth to conclude a contract of sale between the Seller and the Customer. The contract of sale between the Seller and the Customer is concluded when Unearth (acting as the commercial agent of the Seller) sends an order confirmation email to the Customer, and Unearth has no responsibility for the performance of any such contract.
7.1.2. The Seller acknowledges and agrees that the terms and conditions relating to any such contract shall comprise the Customer Terms, the email confirmation relating to the Customer's order and the applicable details on the relevant Product page. The Seller agrees to be bound by all such provisions.
7.2. PROCESSING CUSTOMER ORDERS
7.2.1. Unearth shall notify the Seller by email of any order awaiting acceptance by the Seller. The Seller acknowledges that Unearth does not warrant the reliability of email communications and the Seller must check the Seller Portal daily for alerts of new orders.
7.2.2. Following receipt of such notification the Seller shall, within a maximum of two (2) Working Days, and as a matter of best practice within twenty four (24) hours, confirm its acceptance of each and every order, using the Seller Portal. The Seller shall use its best endeavours to accept every order.
7.2.3. Following acceptance of an order through the Seller Portal, the Seller shall:
18.104.22.168. fulfil the Customer order as soon as reasonably practicable;
22.214.171.124. confirm to the Customer the time and method of dispatch;
126.96.36.199. dispatch the Customer order to ensure that it reaches the Customer within the timelines advertised on the relevant Product page and/or in accordance with any subsequent correspondence with the Customer;
188.8.131.52. notify the Customer promptly through the Seller Portal at each of the following stages:
184.108.40.206.1. receipt of order notification;
220.127.116.11.2. dispatch of an order with an expected delivery date;
18.104.22.168.3. any enquiries relating to the order;
22.214.171.124.4. receipt of an item that has been returned to the Seller; and
126.96.36.199.5. processing of an exchange or refund.
188.8.131.52. The Seller shall include such additional documentation or material as may be required and/or provided by Unearth.
7.3. COMMUNICATION WITH CUSTOMERS
7.3.1. The Seller shall ensure that any and all correspondence with any Customer shall:
184.108.40.206. be solely for the purposes of processing and/or progressing a Customer order;
220.127.116.11. be via the Seller Portal or, if that is not possible, then at all times include a reference to Unearth;
18.104.22.168. not include any reference to the Seller's own website, email address, other correspondence address or any other promotion of services outside those offered through or by Unearth.
7.3.2. The obligations under Clause 7.3.1. shall include any material included with the dispatch of a Customer’s order.
7.3.3. Any breach of these Clauses 7.3.1. or 7.3.2. shall constitute a material breach of these Conditions and, further, may constitute a breach of Data Protection Legislation.
7.3.4. The Seller shall respond to any Customer enquiries or Customer complaints promptly and courteously in the first instance within one Working Day, and shall advise Unearth of any escalated unresolved Customer enquiries as soon as reasonably practicable.
8. RETURNS AND REFUNDS
8.1. Any requests (whether by phone, online, e-mail, fax or letter) for refunds or returns for any Products provided by the Seller to a Customer shall be dealt with directly between the Seller and the relevant Customer through the Seller Portal.
8.2. Following receipt of a request for a refund or return by a Customer, the Seller shall initiate the refund directly in accordance with the Returns & Refunds Procedures.
8.3. Subject to the provisions of the Returns & Refunds Procedures, Unearth shall approve such refund.
8.4. The Commission Fee paid in respect of the refunded Products will be returned to the Seller.
8.5. For legal reasons, refunds must only be processed through the Seller Portal and Unearth's current online payment provider in accordance with the instructions as laid out in the Seller Support page hosted on the website. The Seller shall not issue refunds by cheque or other means.
8.6. The Seller shall ensure that returns and refunds to the Customer shall be processed in accordance with the following terms and conditions:
8.6.1. by law, the Customer may not cancel, return or obtain a refund in relation to the following Products (each a "Non-cancellable Product"), unless such Product is faulty:
22.214.171.124. personalised items that are specifically made to a Customer's specification (e.g. a custom-made print), except where the Customer has chosen items from pre-determined upgrade options or standard off-the-shelf components. Unearth shall determine in its sole discretion as to whether a Product is or is not a personalised item. For the avoidance of doubt, items with hygiene seals are a Cancellable Product unless they are personalised items;
126.96.36.199. perishable items, including food and flowers;
188.8.131.52. audio or video recordings or computer software which a Customer has unsealed;
184.108.40.206. newspapers, periodicals or magazines; and
8.6.2. items that by their nature cannot be returned, such as where it is physically impossible to return items or where items cannot be restored to the same physical state as they were supplied (e.g. nylon tights),
8.6.3. subject to paragraph 8.6.4. of this Clause 8, the Seller shall provide Customers with a 28 day period from the receipt of a Cancellable Product in which Customers can cancel their order and return the Product to the Seller and obtain a full refund;
8.6.4. if the Customer requests a refund for a Cancellable Product then such refund shall be processed by the Seller (or Unearth, in line with paragraph 8.6.7. below) as soon as possible and in any case no later than:
220.127.116.11. 14 days after the day the returned product is received by the Seller; or
18.104.22.168. if earlier, 14 days after the date the Customer provides evidence that they have returned the product to the Seller;
8.6.5. if a Customer rejects a Product because it is faulty, the Seller shall follow the relevant provisions of the ‘Returns & Refunds’ policy held on the Website, as updated from time to time;
8.6.6. the Seller shall provide an address in the United Kingdom to which a Customer may return a Cancellable Product;
8.6.7. Unearth may process a refund for a Product as the Seller’s payment agent to a Customer where:
22.214.171.124. the Seller asks Unearth to process such refund to a Customer; or
126.96.36.199. in Unearth’s opinion, a Seller has not acted in accordance with the Returns & Refunds Procedures or the Conditions, in which case Unearth shall be reimbursed from funds of the Seller held by Unearth or the Seller shall be obliged to reimburse Unearth for such refund.
9. DELIVERY AND FULFILMENT
9.1. The Seller shall at all times comply with the Unearth ‘Delivery & Payment’ policy found on the website.
10. YOUR USE OF THE SELLER PORTAL
10.1. The Seller shall not:
10.1. use the Seller Portal or Unearth Website beyond the scope of use set out in these Conditions;
10.1.2. access the Seller Portal unlawfully, modify or make derivative works based on the Seller Portal nor attempt to reverse engineer or access the Seller Portal with the intention of creating a competitive product or service nor to copy or build any concepts, features, functions or graphics based on the Seller Portal. The Seller acknowledges that damages may not provide an adequate remedy for breach of this clause and that Unearth shall be entitled to seek injunctive relief to prevent the occurrence or continuance of any alleged breach of this clause.
10.2. The Seller fully acknowledges that the IPR in the Seller Portal are vested exclusively in Unearth and nothing in the Conditions shall be deemed to vest any rights in the Seller Portal in the Seller.
11. YOUR BEHAVIOUR AND CONDUCT
11.1. The Seller shall conduct itself at all times in its relations with Unearth and Unearth' staff, Customers and other Sellers strictly in accordance with a guiding principle of respect and mutual cooperation. In no circumstances will any impolite or abusive communications via any channel be tolerated and Unearth reserves the right to immediately suspend a Seller's Storefront and/or terminate the Conditions in the event of any breach by the Seller of this clause.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. Unearth's IPR
12.1.1. The Seller recognises that the IPR in the Unearth name, logo or branding are owned entirely by Unearth, and agrees that it may only use the Unearth name, logo or branding on any promotional material, packaging or elsewhere, whether in hard or electronic format, in accordance with these Conditions or with the prior written consent of Unearth.
12.1.2. All IPR in the Service and in any Software and/or Documentation are and will remain the absolute property of Unearth or its licensors as appropriate.
12.1.3. Any IPR created by Unearth in the course of the performance of these Conditions or otherwise in the provision of the Service shall remain the property of Unearth.
12.1.4. Unearth hereby grants to the Seller a non-exclusive, non-transferable revocable and limited licence for the duration of the Conditions only to use any Software or Documentation for the sole purpose of accessing and using the Service. Subject thereto, nothing in the Conditions shall be deemed to have given the Seller a licence or any other right to use any of Unearth' IPR.
12.1.5. Where photographs or images of the Seller's Products are produced by Unearth or its agents, any such images may not be used by the Seller for any purpose other than for display on the Unearth Website or in printed material produced by Unearth. Unearth reserves the right to charge the Seller a licence fee in respect of any use of such photographs or images in contravention of this clause.
12.1.6. The Seller may not bid on the Unearth Website name, Unearth brand or brand name, or variations of them, on Google or any other search engines.
12.2. IPR in an relating to your products
12.2.1. The Seller warrants that:
188.8.131.52. it is the legal beneficial owner of all of the IPR in and relating to the Products (which includes the data and information, including Seller Information, relating to such Products), photographs, logos, images and copy that it provides or uploads to Unearth, and/or that it possesses a valid licence to use any and all such IPR; and
184.108.40.206. the making of Products available for sale on the Site, and consequent use of the Seller’s IPR by Unearth as referred to in Clause 12.2.2. will not infringe any IPR owned by any third party, and there is and will be no claim against Unearth by any third party arising in relation to the use of such IPR;
220.127.116.11. all items offered for sale by the Seller are not replica or design copies of any other brand, designer or manufacturer.
12.2.2. The Seller permits Unearth to access and use any content that appears on the Seller's Storefront or in any other promotional material in Unearth's own editorial content or promotional activity relating to the Seller, its business and Products.
12.2.3. The Seller shall indemnify and hold Unearth harmless against any and all damages, liabilities, costs, expenses and/or losses arising out of or relating to any breach of Clause 12.2.1. in respect of any claim or action that the normal operation, possession or use of those IPR by Unearth infringes a third party's rights ("IPR Infringement Claim").
12.2.4. In the event of an IPR Infringement Claim the Seller shall forthwith make without charge to Unearth such alterations, modifications or adjustments to the IPR as shall be necessary to make them non-infringing.
12.2.5. Unearth shall notify the Seller as soon as reasonably practicable if it becomes aware of any IPR Infringement Claim by a third party.
12.2.6. Unearth shall be entitled to take sole conduct of the defence to any claim or action in respect of any IPR Infringement Claim and may settle or compromise such claim or action at its sole discretion. The Seller shall give Unearth such assistance as it shall reasonably require in respect of the conduct of the said defence including, without prejudice to the generality of the foregoing, the filing of all pleadings and other court process and the provision of all relevant documents.
12.2.7. At the request of Unearth, the Seller shall take the conduct of the defence to any claim or action in respect of any IPR Infringement Claim. The Seller shall not at any time admit liability or otherwise settle or compromise, or attempt to settle or compromise, such claim or action except upon the express written instructions of Unearth, such instructions not to be unreasonably withheld or delayed.
12.3. Use of your information
12.3.1. The Seller grants to Unearth a non-exclusive, perpetual, irrevocable, royalty-free and worldwide licence to use, license, disclose and distribute any information (including Seller Information), data, comments or images provided by the Seller to Unearth for any purpose (including disclosing information to third party service providers so that they can contact you directly about their products and/or services). The Seller hereby waives their rights to be acknowledged as the author of their Seller Information and to object to the use, in whatever form, of their Seller Information by Unearth.
12.4. Survival of termination
12.4.1. This Clause 12 shall survive termination or expiry of these Conditions howsoever arising.
13. DATA PROTECTION
13.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2. The parties acknowledge that for the purposes of the Data Protection Legislation, Unearth is the data controller and the Seller is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Seller shall process such Personal Data relating to a Customer as may be shared with the Seller via the Seller Portal when such Customer purchases a Product from the Seller through the Unearth Website. The Seller shall carry out processing of Personal Data of such Customer solely to the extent, and for such period, as is necessary for the purposes of fulfilling the relevant order of the Product by the Customer.
13.3. Without prejudice to the generality of Clause 13.1., Unearth will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Seller for the duration and purposes of this agreement.
13.4. Without prejudice to the generality of Clause 13.1., the Seller shall, in relation to any Personal Data processed in connection with the performance by the Seller of its obligations under this agreement:
13.4.1. process that Personal Data only on the written instructions of Unearth unless the Seller is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Seller to process Personal Data (Applicable Laws). Where the Seller is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Seller shall promptly notify Unearth of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Seller from so notifying Unearth;
13.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Unearth, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
13.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
13.4.4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
18.104.22.168. Unearth or the Seller has provided appropriate safeguards in relation to the transfer;
22.214.171.124. the data subject has enforceable rights and effective legal remedies;
126.96.36.199. the Seller complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
188.8.131.52. the Seller complies with reasonable instructions notified to it in advance by Unearth with respect to the processing of the Personal Data;
13.4.5. assist Unearth, at Unearth’ cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.4.6. on becoming aware of any Personal Data Breach the Seller shall:
184.108.40.206. notify Unearth without undue delay, and in any event such notification shall occur no later than 72 hours from the Seller establishing that a Personal Data Breach has occurred;
220.127.116.11. provide timely information relating to the Personal Data Breach as it becomes known or as is reasonably requested by Unearth; and
18.104.22.168. follow Unearth’s reasonable instructions to promptly take reasonable steps to contain, investigate and mitigate any Personal Data Breach;
13.4.7. at the written direction of Unearth, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
13.4.8. maintain complete and accurate records and information to demonstrate its compliance with this Clause 13 and allow for audits by Unearth or Unearth’s designated auditor.
13.5. Unearth consents to the Seller appointing such third-party processors of Personal Data as are required by the Seller to fulfil its obligations under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business, provided that such standard terms include terms which are substantially similar to those set out in this Clause 13. As between Unearth and the Seller, the Seller shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 13, and the Seller shall promptly provide to Unearth a list of all such sub-processors upon Unearth written request.
13.6. The Seller shall indemnify and hold harmless Unearth against any and all liabilities, costs, expenses, fines, damages and losses (including any direct, indirect or consequential losses) it incurs in connection with any claim arising out of or in connection with, or otherwise envisaged under, this Clause 13 or paid or agreed to be paid by Unearth in settlement of the claim and all legal or other expenses incurred by Unearth in or about the defence or settlement of the claim. Unearth shall notify the Seller in writing as soon as practicable after becoming aware of the claim.
13.7. This Clause 13 shall survive termination or expiry of these Conditions howsoever arising.
14. MARKETING AND PROMOTIONS
14.1. From time to time Unearth may run promotions on all or part of the Unearth Website. Any such promotions shall be separate, and in addition to, any promotions operated by Sellers in their Storefronts, and may involve offering Customers either free delivery, discounted prices or other promotional activity relating to some or all Products on the Unearth Website. Unearth shall, where relevant and applicable to the Seller and/or its Products, inform the Seller of the nature and terms of any promotion and, at Unearth’ sole discretion:
14.1.1. Unearth shall bear the costs of any such promotion; or
14.1.2. where Unearth requires the Seller to bear the costs of any promotion, the Seller shall inform Unearth in writing whether or not it wishes to participate in the relevant promotion.
14.3. The Seller shall permit, comply and co-operate with all activities undertaken by Unearth to promote, sell or market the Seller’s Products, in such form and manner as Unearth in its sole discretion deems appropriate, whether directly through the Site or the Unearth Website, through any offline publications produced by Unearth, or through websites or offline publications not produced, owned or operated by Unearth.
15.1.1. The Seller shall pay any and all Charges in accordance with these Conditions.
15.1.2. The relevant Charges shall be as notified to the Seller and updated by Unearth from time to time in accordance with these Conditions.
15.1.3. Unless specified otherwise, all Charges are subject to VAT or other similar taxes or levies, all of which amounts the Seller shall pay, where appropriate, at the rate prevailing at the relevant tax point, and in addition to the Charges themselves.
15.1.4. The Seller shall make all payments to Unearth due under the Conditions without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
15.1.5. If any sum due from the Seller to Unearth under these Conditions is not paid on or before the due date for payment, then all sums then owing by the Seller to Unearth shall become due and payable immediately and, without prejudice to any other right or remedy available to Unearth, Unearth shall be entitled to:
22.214.171.124. cancel or suspend its performance of the Conditions or any order, including suspending provision of the Service, until arrangements as to payment or credit have been established which are satisfactory to Unearth; and
126.96.36.199. charge the Seller the cost of obtaining judgment or payment, to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
15.2. BREAKDOWN OF THE CHARGES
15.2.1. The Charges comprise, as relevant and applicable:
188.8.131.52. the Joining Fee;
184.108.40.206. the Commission Fee;
220.127.116.11. the Upgrade Fee;
18.104.22.168. the Subscription Fee; and
22.214.171.124. the Re-activation Fee.
15.3. JOINING FEE
15.3.1 The Joining Fee (if payable in accordance with this Clause 15.3.) is a non-refundable fee.
15.3.2. The amount of the Joining Fee shall be as agreed between the Seller and Unearth in writing at the time of inviting the Seller to participate in the Site.
15.4. COMMISSION FEE
15.4.1. The Commission Fee payable by the Seller shall be as notified to the Seller by Unearth in writing at the time of inviting the Seller to participate in the Site, or as may be amended in accordance with this Clause 15.4. and/or Clause 1.3. of these Conditions.
15. 4.2. A Commission Fee is payable by the Seller on the value of the total amount payable by a Customer in relation to a Product sold through the Unearth Website by the Seller. The Commission Fee is calculated as a percentage of the value of a Product, including VAT and any delivery charges applying to that Product.
14.4.3. If applicable, the Commission Fee may be reduced from time to time by payment by the Seller of an Upgrade Fee and by agreement with Unearth in writing, subject to the availability of any such reduction, as notified to the Seller in writing from time to time.
15.4.4. The Upgrade Fee payable for the purposes of any such reduction shall be the Upgrade Fee applicable at the time at which the Seller elects to reduce the Commission Fee, in accordance with the rates notified to the Seller in writing from time to time.
15.4.5. The Upgrade Fee is a non-refundable fee. Any applicable reduction in the Commission Fee payable by the Seller shall be effective following receipt by Unearth of the applicable Upgrade Fee.
15.4.6. Unearth will refund the Commission Fee paid and received by them in respect of sold Products that are subsequently returned by the Customer and authorised for refund by the Seller using the designated Seller Portal.
14.5. SUBSCRIPTION FEES
15.5.1. Unearth reserves the right to charge the Seller a monthly or annual Subscription Fee upon providing the Seller with 30 days’ written notice.
15.6. RE-ACTIVATION FEES
15.6.1. If the Seller:
126.96.36.199. terminates its membership and notifies Unearth at a later date that it would like to re-activate its membership with Unearth; or
188.8.131.52. fails to activate its Storefront within six months of the Seller paying the Joining Fee, in accordance with Clause 184.108.40.206., the Seller’s re-activation application shall be assessed by Unearth, in accordance with Unearth’ acceptance criteria, as applicable at the time of the Seller’s initial application or at the time of the relevant re-activation application, whichever Unearth considers to be more appropriate.
15.6.2. Unearth retains entire discretion whether to accept the Seller’s re-activation application and, should Unearth accept the Seller’s request, a Re-activation Fee will be charged by Unearth to facilitate the re-activation.
15.7. HOW PAYMENT IS MADE TO YOU
15.7.1. Unearth partners with other companies (such as Stripe) for payment processing. When you agree to these Conditions, you are also agreeing to the payment processor’s terms of service. Each payment provider is its own company, and Unearth isn’t responsible for its performance.
15.7.2. As part of the Seller’s appointment of Unearth as its commercial agent (as set out in Clause 4.3. of these Conditions), the Seller agrees that Unearth’s payment partners also act as the Seller's exclusive agent for the purpose of accepting, refunding and/or otherwise processing payment(s) related to the sale of Product(s) by the Seller via the Site (or any other sales channel which Unearth may offer to the Seller from time to time).
15.7.3. The Seller and Unearth acknowledge and agree that except as otherwise provided in these Conditions (and in acknowledgement that both parties are businesses), that the duties of an agent implied under the common law are expressly excluded. For the avoidance of doubt, neither Unearth nor its payment partners, acting as the Seller's commercial agent, is neither the buyer nor the seller of the Product(s) and is not a party to the contract of sale of Product(s) between the Seller and the Customer.
15.7.4. Payments for Product(s) will be made directly by a Customer to Unearth’s payment partners (acting as commercial agent of the applicable Seller) and the relevant transaction will be recorded on the Seller’s designated Seller Portal. The Seller must check the Seller Portal daily for alerts of new orders. The Seller agrees that the Customer’s obligation to pay the Seller for Product(s) is satisfied when the Customer validly pays Unearth’s payment partners for the applicable Product(s). The Seller further agrees that it will not seek recourse (legal or otherwise) against a Customer or any third party (including, but not limited to any payment service provider or gateway) for payment of a Product if the Customer has validly paid the Seller in the manner referred to in this clause.
15.7.5. Payment for Product(s) by Customers through the Unearth Website will be through payment methods made available from time to time, using Unearth's current online payment processing system.
15.7.6. The Seller will be paid by Unearth’s payment partners for the relevant transaction less the Commission Fee. Payouts are made weekly and contain payments processed in the seven calendar days prior. Unless otherwise agreed by Unearth and the Seller, any payments made to the Seller will be in the domestic currency of the region where the Seller’s bank account nominated to receive such payments is held and which may also be subject to any currency conversion fees charged by Unearth’s payment partners.
15.7.7 The Seller shall provide such of their banking details as are required or requested by Unearth’s current online payment processing system, in order that payment may be processed to the Seller in respect of any Products sold.
15.7.8. The Seller shall ensure the banking details referred to in Clause 15.7.7. are kept up-to-date.
16.1. The parties agree that they shall keep in confidence any Confidential Information and, except in accordance with these Conditions, will not disclose that Confidential Information to any person (other than their employees, professional advisers or suppliers who need to know the information) without the written consent of the other party. For the avoidance of doubt, the Seller authorises Unearth (including its employees, agents and contractors) to hold and process Seller Information.
16.2. The obligations of confidentiality under the Conditions shall not extend to any matter which either party can show:
16.2.1. is in or has become part of the public domain, other than through a breach of the Conditions or other confidentiality obligations;
16.2.2. was lawfully in the possession of the recipient before the disclosure under the Conditions took place;
16.2.3. was independently disclosed to it by a third party entitled to disclose the same;
16.2.4. was disclosed in accordance with Clause 12.3.1.; or
16.2.5. is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
16.3. The obligations of confidentiality under the Conditions shall remain in effect for two (2) years after the termination or expiry of the Conditions, howsoever arising.
17. EXCLUSION AND LIMITATION OF LIABILITY
17.1. Nothing in these Conditions excludes or limits the liability of Unearth for death or personal injury caused by Unearth's negligence, for fraudulent misrepresentation, or any other liability that cannot be excluded by law.
17.2. Subject to Clause 17.1., Unearth's total liability in contract, tort (including negligence) or breach of statutory duty, misrepresentation or otherwise, arising in connection with the provision of the Service and performance or contemplated performance of the Conditions, shall be limited in aggregate to a maximum of £10,000.
17.3. Subject to Clause 17.1., Unearth shall not be liable to the Seller for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) that arises out of or in connection with the Conditions, or for any liability incurred by the Seller to a Customer, or to any other person howsoever, arising from the provision of the Service or otherwise.
18.1. The Seller shall not be entitled to assign, charge, subcontract or transfer this agreement or any part of it without the prior written consent of Unearth. For example, and this does not in any way constitute an exhaustive list, if the Seller wishes to subcontract its obligations under this agreement to a third party service provider, or the Seller wishes to sell all or part of its assets to a third party, the prior written consent of Unearth shall be required in order to do so.
18.2. Unearth may assign, charge, subcontract or transfer this agreement or any part of it to any person.
18.3. Except with respect to the persons referred to in Clause 12.3.1., no term of these Conditions shall be enforceable by any third party (which includes for these purposes any third party: employee, officer, agent, representative or sub-contractor or either Unearth or the Seller) under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
18.4. Unearth reserves the right to suspend or to cancel the Conditions in whole or in part (without liability to Unearth) if it is prevented from or delayed in the carrying on of its business and its obligations under the Conditions due to circumstances beyond its reasonable control, including acts of God, fire, flood, lightning, severe weather conditions, war, revolution, acts of terrorism, IT or internet outage, industrial disputes (whether of its own employees or others) or acts of local or central government (including the imposition of legal or regulatory restrictions). If any such event beyond the reasonable control of Unearth continues for a continuous period of more than 30 days, either party shall be entitled to give notice in writing to the other to terminate the Conditions.
18.5. A waiver by either party of any breach of the Conditions, or delay in enforcing any breach, shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
18.6. If at any time any one or more of these Conditions (or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable, for any reason under any applicable law, the same shall be deemed omitted from the Conditions and the validity and/or enforceability of the remaining provisions of the Conditions shall not in any way be affected or impaired as a result of that omission.
18.7. Notices given under the Conditions must be in writing and may be delivered by hand or by courier, or sent by prepaid first class or registered mail to, in the case of Unearth, to its registered address, or any alternative address notified by Unearth to the Seller in accordance with this provision; and, in the case of the Seller, to the address which it provides on the Seller Portal, or any alternative address notified by it to Unearth in accordance with this provision.
18.8. Notices may be validly served by email provided that, to be effective, such email is sent to the email address most recently provided by the addressee to the sender of the relevant notice.
18.9. Except as set out in Clauses 4.3. and 15.1., the relationship of Unearth (and its employees) to the Seller will be that of independent contractor and nothing in the Conditions shall render Unearth (nor its personnel) as an employee, worker, any other form of agent, or partner of the Seller or Customer. Subject to any express provision in the Conditions to the contrary or at Unearth’s reasonable discretion, neither party shall have any right or authority to, and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the other party or bind the party in any way.
18.10. This agreement, and any documents referred to in it, constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
18.11. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
18.12. Nothing in this clause shall limit or exclude any liability for fraud.
18.13. This agreement and any non-contractual obligations relating to or arising under these Conditions shall be governed by English law, and the parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any dispute relating to or arising under it.
Last amended: 29 July 2020