Merchant agreement
PARTIES
- LOLLISHOP LTD incorporated and registered in England and Wales on 18 January 2023 with company number 14601532 (“Lollishop” or “we”); and
- [MERCHANT] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (“Merchant” or “you”).
BACKGROUND
(A) Lollishop operates the Marketplace, and the Merchant instructs Lollishop under this Contract to act as its agent to facilitate the sale of the Products through the Marketplace in accordance with the Contract
1. Interpretation
The following definitions and rules of interpretation apply in this Merchant Agreement.
1.1. Definitions:
Business Day, means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commission, means the percentage of the amount received by Lollishop for any Product sale resulting from a Customer Order retained by Lollishop as set out in the Service agreement form.
Commencement Date, has the meaning given in clause 2.2.
Customer Order, a customer order for a Product made via the Marketplace.
Customer Sale Terms, means the terms, and conditions which govern Customer Orders.
Merchant Agreement, means these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract, means this Merchant Agreement, SBL Terms (if relevant) and the Service Level Agreement Form.
Controller, processor, data subject, personal data, personal data breach, processing, and appropriate technical measures, means as defined in the Data Protection Legislation.
Data Protection Legislation, means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Intellectual Property Rights, means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Payment Day, means the day of Merchant Payment.
Permitted Recipients, means the parties to this Contract, the employees of each party and any third parties engaged to perform obligations in connection with the Contract.
Product, means the Merchant’s products to be sold via the Marketplace.
Product Descriptions, full and accurate details, description, technical specification, and images of Products suitable for use by Lollishop for display on the Marketplace.
Product Pricing, accurate details of pricing for each Product as provided by the Merchant to Lollishop.
Marketplace, means http://lollishoplive.com/
Service level agreement means the merchant confirmation agrees and accepts all terms of services outlined.
Merchant Payment means payment from Lollishop to the Merchant of the sum received from a Product sale resulting from a Customer Order minus the Commission.
Unsuitable Product, means a Product:
(a) that is defective, damaged, or lacking required label(s);
(b) the labels for which were not properly registered with Lollishop before shipment or do not match the Product that was registered.
(c) that does not comply with the Merchant Agreement; or
(d) that Lollishop determines is otherwise unsuitable.
SBL Terms, means ‘shipped by Lollishop’ terms and conditions.
SBL Services, as defined in the SBL Terms.
Services, means the services to be provided by Lollishop to the Merchant as set out in the Service Level Agreement Form.
Shared Personal Data, the personal data to be shared between the parties under the Contract.
UK Data Protection Legislation, means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2. Interpretation:
1.2.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes email.
- Basis of contract
2.1. The Contract shall be formed on the acceptance by the merchant to Lollishop marketplace.
2.2. The order of precedence of this Contract shall be as follows: Service level agreement form, SBL Terms and Merchant Agreement.
2.3. The parties agree that the SBL Terms shall be incorporated into the Contract if, and to the extent, the parties agree that Lollishop will provide SBL Services.
2.4. The Contract applies to the Merchant to the exclusion of any other terms that the Merchant seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
3. Supply of Services
3.1.Lollishop shall supply the Services to the Merchant in accordance with the Contract in all material respects.
3.2. Lollishop reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Lollishop shall notify the Merchant in any such event.
3.3. Lollishop shall provide the Services with reasonable care and skill.
3.4. Lollishop shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.4.1. any planned maintenance; and
3.4.2. any unplanned maintenance performed outside normal business hours of 9am - 5pm (GMT) Monday to Friday (“Normal Business Hours”).
3.5. Lollishop does not warrant that:
3.5.1. the Merchant’s use of the Services will be uninterrupted or error-free; or
3.5.2. that the Services, or the information obtained by the Merchant through the Services will meet the Merchants requirements; or
3.5.3. the Services will be free from vulnerabilities.
3.6. Lollishop is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data, including over the internet, and the Merchant acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.7. Lollishop may have to suspend the Services to:
3.7.1. deal with technical problems or make minor technical changes; or
3.7.2. update the service to reflect changes in relevant laws and regulatory requirements.
3.8. Lollishop may, upon request of the Merchant, introduce the Merchant to providers of warehousing space and/or shipping services. The Merchant acknowledges that, should it engage any such provider upon introduction by Lollishop, it shall be subject to a separate contract with those providers and Lollishop shall have no liability in respect of the services provided by such providers.
4. Merchant's obligations
4.1. The Merchant shall:
4.1.1. co-operate with Lollishop in all matters relating to the Services.
4.1.2. provide Lollishop with such information and materials as Lollishop may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.3. obtain and maintain all necessary licences, permissions and consents which may be required for the Products and Services before the Commencement Date;
4.1.4. comply with all applicable laws and regulatory requirements, including health and safety laws and such UK, European and local laws as applicable to the Products; and
4.1.5. hold product liability insurance with a limit of at least £10 million for claims arising from a single event or a series of related events in a single calendar year.
4.2. Throughout the duration of the Contract the Merchant may submit prospective Products to Lollishop for its review and consideration to be listed on the Marketplace. Lollishop may, in its sole discretion, reject any prospective Product with or without reason.
4.3. As part of its submission in accordance with clause 2, the Merchant will provide Lollishop with Product Descriptions and Product Pricing.
4.4. The Merchant will ensure all Product Descriptions contain full and accurate descriptions of the Products including Product Pricing and any other information it considers necessary to provide or as requested by Lollishop.
4.5. The Merchant shall accept full responsibility and liability for the Product Descriptions and Product Pricing and acknowledges that Lollishop will display the Product Descriptions and Product Pricing provided to it on the Marketplace and rely on its accuracy.
4.6. The Merchant agrees and understands that:
4.6.1 Lollishop has no responsibility or liability to the Merchant in respect of any incorrect Product Descriptions or incorrect Product Pricing provided to it and the Merchant alone shall bear any financial loss resulting from such.
4.6.2. Lollishop shall have sole control over the content it chooses to publish and display on the Marketplace; and
4.6.3. Lollishop may, in its sole discretion and without prior notice to you, immediately and for any reason, remove any Product from the Marketplace.
4.7. You will hereby indemnify and hold Lollishop harmless from and against any and all actions, proceedings, claims, liabilities, costs, charges, expenses, damages and losses suffered or incurred by Lollishop arising out of or in connection with any breach of:
4.7.1. clauses 1.3 and 4.1.4; and
4.7.2. clause 4.
4.8. You will promptly notify us of any recalls or threatened recalls of any of your Products and cooperate and assist us in connection with any recalls. You will be responsible for all costs and expenses you, we, or any of our or your affiliates incur in connection with any recall or threatened recall of any of your Products.
4.9. You hereby indemnify and hold Lollishop harmless from and against any and all actions, proceedings, claims, liabilities, costs, charges, expenses, damages and losses suffered or incurred by Lollishop arising out of or in connection with any recalls or threatened recalls of any of your Products.
4.10. The Merchant agrees to:
4.10.1. ensure that an accurate description and price of the Product(s) is provided in the package dispatch information for customs purposes.
4.10.2. despatch all consumer orders received and accepted by 1.00pm GMT will be despatched the same day. If an order is received after 1pm it will be dispatched the following day on the chosen service, if an order is received after 1pm on a Friday it will be dispatched on Monday being the next working (excluding bank holidays).
4.10.3. respond to all Lollishop enquiries within 24 hours Monday – Friday (excluding bank holidays).
4.11. If Lollishop’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Merchant or failure by the Merchant to perform any relevant obligation (“Merchant Default”):
4.11.1. without limiting or affecting any other right or remedy available to it, Lollishop shall have the right to suspend performance of the Services until the Merchant remedies the Merchant Default, and to rely on the Merchant Default to relieve it from the performance of any of its obligations in each case to the extent the Merchant Default prevents or delays Lollishop performance of any of its obligations;
4.11.2. Lollishop shall not be liable for any costs or losses sustained or incurred by the Merchant arising directly or indirectly from Lollishop failure or delay to perform any of its obligations under the Contract; and
4.11.3. the Merchant shall reimburse Lollishop on written demand for any costs or losses sustained or incurred by Lollishop arising directly or indirectly from the Merchant Default.
4.12. The Merchant undertakes not to solicit or accept Product orders from Lollishop Marketplace customers or provide them with marketing literature or incentives to purchase items directly from the Merchant.
5. Charges and transfer of funds
5.1. Subsequent to each Customer Order the Commission shall be retained by Lollishop in consideration for the Services provided in accordance with the Contract.
5.2. Lollishop reserves the right to:
5.2.1. Increase the Commission on providing the Merchant with 30 days’ prior written notice. The Merchant, upon receiving such notice, may terminate the Contract in accordance with clause 1. Any failure by you to terminate the Contract will be deemed as acceptance of the increased Commission; and
5.2.2. charge for additional services as may be requested by the Merchant from time to time and which are outside of the scope of the Services.
5.3. Subsequent to each Customer Order Lollishop shall make the Merchant Payment on the Friday of each week. During the first three months of trading on Lollishop payments will be made a maximum of 30 days following the successful delivery of your products. This will reduce to 14 after the successful trial period and low returns rate (full details on request). We reserve the right to withhold funds relating to particular orders if the consumer has an outstanding purchase. Payouts are made for successfully delivered orders, minus returns, 15% commission of the total order value plus £3.50 for delivery per order. You will receive notification of the payout and have 5 days from payment received to dispute or raise any issues.
5.4. All amounts payable by Lollishop under the Contract are exclusive of amounts in respect of VAT chargeable from time to time. Where any taxable supply for VAT purposes is made under the Contract by Lollishop to the Merchant, the Merchant shall, on receipt of a valid VAT invoice from Lollishop, pay to Lollishop such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6. Customer returns
6.1. Merchants must agree to adhere to our refunds and returns policy.
6.2. If using Lollishop’s returns centre will conduct general inspection on returned Products through visual check only. Returned Products generally are checked according to Product manufacturer model/part/SKU number, GTIN number, Product description, and Product pictures provided by Merchants. Lollishop’s return centre does not conduct any Product functional test, nor does it verify Product serial numbers on each individual Product to match Merchant’s original Product from the inventory. Receiving returned Products into Lollishop’s return centre does not indicate returned Products are the original Products from the inventory or that such Products are free of any defects or damages.
6.3. If using Lollishop’s returns centre and we receive a returned Product (for any reason) or Unsuitable Product you agree and accept that we may dispose of it and that such returned Product or Unsuitable Product is not suitable for resale via the Marketplace. The Merchant will solely bear the financial loss of any such returned product or Unsuitable Product.
6.3.1. If a Product is returned for any reason other than as covered by clause 4, or if the wrong Product was delivered or was damaged or lost and we determine in our sole discretion that this was caused by you or any of your employees, agents, contractors, or any other third parties, then the parties agree as follows:
6.3.2. Lollishop will, if applicable, dispose of the Product in accordance with clause 2;
6.3.3. Lollishop will refund the customer in accordance with its Terms of service.
6.3.4. Merchant will within fifteen (15) days of notification pay to Lollishop:
(a) the Commission due; and
(b) any customer return shipping costs incurred by the customer as indicated by Lollishop where it has agreed to reimburse a customer in accordance with its Terms of service.
6.4. If the wrong Product was delivered or was damaged or lost and we determine in our sole discretion that the circumstances fall outside of clause 3, we will as your sole and exclusive remedy and at our option:
6.4.1. if applicable, dispose of the Product in accordance with clause 2;
6.4.2. refund the customer in accordance with our Customer Sale Terms; and
6.4.3. make payment by way of reimbursement to the Merchant in respect of the Product in accordance with the Product Pricing.
6.5. Title and risk in the Products will at all times remain with the Merchant subject to clause 6.
6.6. Title to each Product or Unsuitable Product disposed of will transfer to Lollishop at no cost to us upon receipt of such request to dispose of a Product or other entitlement to do so under the Contract. Lollishop will retain all proceeds, if any, received from the disposal of any Product.
- Intellectual property rights
7.1. The Merchant warrants that the Merchant and its licensors own all Intellectual Property Rights in the Products, Product Descriptions, and any other materials it may provide to Lollishop in connection with Services.
7.2. The Merchant grants Lollishop a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Merchant to Lollishop for the purpose of providing the Services.
7.3. The Merchant hereby indemnifies and holds Lollishop harmless from and against any and all actions, proceedings, claims, liabilities, costs, charges, expenses, damages and losses suffered or incurred by Lollishop arising out of or in connection with any claim made against Lollishop for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the provision of the Services including the display of Products and Product Descriptions on the Marketplace.
8. Data protection
8.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove, or replace, a party's obligations or rights under the Data Protection Legislation.
8.2. The parties acknowledge that for the purposes of the Data Protection Legislation both Lollishop and the Merchant are independent data controllers.
8.3. Without prejudice to the generality of clause 8.1 each party shall:
8.3.1. ensure that it has all necessary consents and notices in place to enable lawful transfer of Shared Personal Data for the purpose of the Contract;
8.3.2. give full information to any data subject whose personal data may be processed under the Contract of the nature such processing.
8.3.3. not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
8.3.4. ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality);
8.3.5. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
8.3.6. not transfer any personal data received under the Contract outside the EEA unless the transferor ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
8.4. The Merchant agrees that it shall not use the Shared Personal Data for any purpose other than for the fulfilment of Customer Orders and in accordance with the Contract.
8.5. The Merchant shall indemnify and shall keep indemnified Lollishop against all liabilities, losses, demands, damages, costs, claims, expenses (including payment of compensation to a third party and Lollishop expenses in settling such third party claim) as a result of any failure by the Merchant to comply with its obligations in accordance with this clause 8.
8.6. Any material breach of the Data Protection Legislation shall, if not remedied within thirty (30) days of written notice from the other party, give grounds to the other party to terminate the Contract with immediate effect.
9. Indemnity and limitation of liability
9.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.1.1. death or personal injury caused by negligence;
9.1.2. fraud or fraudulent misrepresentation; and
9.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2. Liability:
9.2.1. Lollishop shall not be liable to the Merchant, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2. Lollishop’s total liability to the Merchant for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to any aggregate Commission received under this Contract in the 12 months prior to any claim being made.
9.3. The Merchant shall indemnify Lollishop and keep Lollishop indemnified in respect of any losses, claims, damages, or costs (including all legal costs) suffered or incurred in respect of any third party or customer claims relating to any and all Products and/or Customer Orders.
9.4. This clause 9 shall survive termination of the Contract.
10. Termination
10.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months' written notice.
10.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.2.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
10.2.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.2.4. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3. Without affecting any other right or remedy available to it, Lollishop may suspend the supply of Services under the Contract or terminate the Contract if the Merchant becomes subject to any of the events listed in clause 2.2 to clause 10.2.4, or Lollishop reasonably believes that the Merchant is about to become subject to any of them.
11. Consequences of termination
11.1. On termination of the Contract the Merchant shall immediately pay to Lollishop all of Lollishop outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Lollishop shall submit an invoice, which shall be payable by the Merchant immediately on receipt; Any outstanding funds owed to the Merchant by Lollishop will be paid into the Merchant’s account within 30 Business Days of the date of termination.
11.2. Termination of the Contract shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12. General
12.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2. Assignment and other dealings
12.2.1. Lollishop may at any time assign, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.2.2. The Merchant shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
12.3. Confidentiality
12.3.1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business affairs and clients of the other party.
12.3.2. Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
12.4. Entire agreement
12.4.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4.3. Nothing in this clause shall limit or exclude any liability for fraud.
12.5. Variation. Except as set out in this Merchant Agreement, no variation of the Contract shall be effective unless it is in writing to the affected parties (or their authorised representatives).
12.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.7 shall not affect the validity and enforceability of the rest of the Contract.
12.8. Notices
12.8.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and sent via email to the main contacts email address supplied. It is the merchant’s responsibility to ensure this information is up to date.
12.8.2. Any notice or communication shall be deemed to have been received:
(a) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.8.3. This clause 8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9. Third party rights
12.9.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
12.11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Last updated 6th December 2023