1. DEFINITIONS AND INTERPRETATION
1.1 Definitions:
In this Terms and Conditions, the following terms have the meanings set out in this clause unless the context otherwise indicates:
“Bid”
means an irrevocable offer by a Buyer to purchase the Stock on condition that the said Bid exceeds any reserve or minimum price place on the Stock by the Seller and meets any other conditions of sale;
"Britcom"
means BRITCOM UK LIMITED (Company No. 05861645) whose registered office is
: Buckingham Street, Birmingham, B19 3HS and BRITCOM DIRECT ROMANIA (Company registered number: J40 / 3407 / 1996) of 52-54 Nicolae Caramfil Street, sector 1, Bucharest, Romania
“Buyer(s)”
prospective and actual Buyers who have registered with the Website to purchase Stock from Sellers;
“Delivery Charges”
the charges imposed by Britcom on both the Seller and the Buyer following the making of a contract for the sale of Stock as more specifically detailed in clause 6 below to include all transport costs, fuel, duties, fees, taxes, storage costs and insurance payable thereon;
“Delivery Period”
the period immediately following the expiration of the Offer Period which shall apply in the event that the Seller accepts a Bid from a Buyer;
“Incoterms”
the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force as at the date of this agreement;
“Listing(s)”
the listings of the Stock on the Website;
"Member"
means Buyers and Sellers who have registered as users of the Website;
“Offer Period”
the period of time that the Stock is offered for sale on the Website which will expire upon Bid being accepted or upon the removal of the Listing from the Website whichever is the earlier;
"Services"
means the provision of the Website which is an online marketplace which allows Members to buy and sell Stock;
“Seller(s)”
Sellers who have entered into a Sellers Agency Agreement and who have registered with the Website to sell their Stock on the Website. From time to time Britcom will also use the Website to sell its Stock and when acting in its own capacity and where the context so permits shall also be described as a Seller for these purposes;
“Sellers Agency Agreement”
agreement between Britcom and a Seller which appoints Britcom to act as the Seller’s agent to sell Stock on its behalf on the Website.
"Stock"
means goods uploaded by the Seller which are available to be bought or sold on the Website;
“Terms and Conditions”
these terms and conditions;
"Website"
means the website with the URL www.britcomdirect.com or such other URL through which the Services are offered;
"we", "us" and "our"
are references to Britcom;
"you" and “your”
is a reference to you as a Member of the Website as the context permits.
1.2 Interpretation:
In the interpretation of these Terms and Conditions, unless the context or subject matter otherwise requires:
(i) singular includes plural and vice versa and any gender includes every gender;
(ii) a reference to a person includes limited companies, limited liability partnerships, partnerships, Government authorities, local authorities and other legal entities, and where necessary, includes successor bodies;
(iii) references to statutes include all and any amendments thereto, consolidated statutes, Statutory Instruments, regulations and orders, rules made under those statutes;
(iv) headings are used for convenience only and are to be disregarded in the interpretation of these Terms and Conditions;
(v) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has the equivalent meaning;
(vi) each paragraph or sub-paragraph in a list is to be read independently from the others in the list, unless otherwise indicated;
(vii) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
(viii) a reference to a Party includes that Party's authorised executors, agents administrators, substitutes, successors and permitted assigns.
2.1 Deemed acceptance of Terms and Conditions:
These Terms and Conditions contain the terms on which Britcom offers you access to the Website and the Services. You are deemed to accept these Terms and Conditions by registering on the Website. If you do not accept these Terms and Conditions, you must refrain from using the Services, including listing Stock on the Website.
2.2 Amendments to Terms and Conditions:
These Terms and Conditions may be amended in whole or in part by Britcom from time to time. Amendments will be effective immediately upon posting of the amended Terms and Conditions on the Website. You are responsible for ensuring you are familiar with the latest Terms and Conditions. Your continued use of the Website represents your agreement to be bound by the Terms and Conditions as amended.
3.1 Britcom's Services:
3.1.1 Britcom provides an online marketplace to enable Seller to sell their Stock to Buyers. Britcom also use the Website to market sell its own Stock.
3.1.2 Britcom acts as an agent for the Seller and is authorised by the Seller to enter into contracts with the Buyers for the sale of the Stock.
3.1.3 All Stock listed for sale is listed on an “invitation to treat” basis. A contract will only be formed between the Buyer and the Seller when the Seller accepts the Buyer’s offer to purchase the Stock;
3.1.4 If an offer to purchase the Stock is accepted by a Seller, a contract of sale will be formed between the Buyer and the Seller directly;
3.1.5 We have the authority to enter into contracts with the Buyers to sell the Stock on these Terms and Conditions on behalf of the Sellers and to take payment for the Stock on their behalf.
3.1.6 We will arrange the transit of the Stock between the Buyer and the Seller. Clause 6 of these Terms and Conditions sets out the delivery terms.
3.2 Your liability for transactions conducted:
3.2.1 Transactions and all other contact between you and other Members are conducted entirely at your own risk. You agree that Britcom takes no responsibility or liability for the misconduct of any of its Members including, without limitation, Members that have registered under false pretences or who attempt to defraud you.
3.2.2 Britcom gives no undertakings, representations, or warranties in relation to the Stock sold or listed on the Website, including:
(a) about ownership of the Stock;
(b) as to the content, safety, description, worthiness, quality, or legality of the Stock that is listed on the Website;
(c) as to the accuracy or truth of Listings;
(d) that any item of Stock will meet your requirements or expectations;
(e) about the ability of Members to complete a transaction.
3.3 No Warranty:
3.3.1 You expressly understand and agree that:
(a) Your use of the Services is at your sole risk. The Website and Services are provided on an "as is" and "as available" basis. To the maximum extent permitted by law and without limiting clause 3.2.2, Britcom disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of quality, fitness for a particular purpose, and non-infringement;
(b) Britcom does not warrant that:
(i) the Services provided will be uninterrupted, timely, secure, or error free; or
(ii) that any information (including feedback) provided on the Website is error-free or reliable;
(c) no advice or information that is obtained by you from Britcom or anyone else shall create any warranty by Britcom that is not expressly stated in the Terms and Conditions; and
3.4 Indemnity:
You agree to release, indemnify and keep us indemnified from and against all actions, claims, costs (including legal costs and expenses) losses, proceedings, damages, liabilities, or demands suffered or incurred by us to any person arising out of or in connection with your failure to comply with these Terms and Conditions, your failure to complete a transaction, or arising out of any content or item you submit, post, transmit, or make available through the Website.
3.5 No liability:
You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Britcom to you or any other person under or in connection with these Terms and Conditions, or in connection with the Services, the Website, another Member's acts or omissions, or your use of or inability to use, the Services or the Website is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Britcom's liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
3.6 Use of Website at sole discretion of Britcom:
Without limiting any other rights and remedies available to Britcom, Britcom may limit your activities on the Website in its sole discretion, including removing your Listings, warning other Members of your actions, issuing a warning to you, suspending or terminating your membership, or refusing to provide Services to you if you breach these Terms and Conditions or where Britcom considers it appropriate.
4.1 General:
(a) All Listings, Bids or communications made through the Website shall be made in good faith.
(b) You must not attempt to damage, interfere or harm the Website or Services, or any network, or system underlying or connected to them, including by using a robot, spider, scraper or other automated means to access the Website or information feature on it for any purpose.
(c) Where you are permitted by us to upload your own Listings, you shall not list your email address, phone number or any other contact details within the Listings, Listing comments and/or questions or in your Member profile.
(d) You must list auctions and classifieds in pounds sterling or Euro or US Dollars. All tax obligations are the responsibility of the Seller and/or the Buyer (as the parties determine).
(e) You must not complete a transaction outside of the Website. Attempts by you to avoid fees, including through multiple memberships, premature auction withdrawal, direct payments (other than as permitted by us in accordance with clause 4.2(f)) or otherwise, may result in Britcom suspending or terminating your access to the Website at the discretion of Britcom.
(f) You must not use the Services or the Website to promote Stock for sale outside the Website.
(g) Britcom Memberships are not transferable and therefore cannot be sold or traded.
4.2 Seller's obligations:
(a) You will only enter Listings that comply with the Britcom Seller listing policy set out in clause 5.5 below.
(b) You must ensure your Listings are accurate, current and complete;
(c) You will only place Listings for Stock that exist and are available for sale during the Offer Period and in the event of accepting a Bid made available for delivery during the Delivery Period. You will not list Stock that you are not legally entitled to sell or which is not in your possession or control. You must ensure that the Stock is available for inspection during the Offer Period and following a successful Bid during the Delivery Period either by us or by a prospective Buyer.
(d) You must not sell illegal, stolen, or unsafe Stock, Stock which has been illegally imported or which would require illegal import or export in order to complete the transaction, or any Stock which is prohibited by, or violates any, law. You are responsible for ensuring that any item of Stock listed by you does not breach this clause. You agree that Britcom may disclose your personal information, including your name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of this clause at any time.
(f) Listings are not pre-screened for content. Britcom reserves the right to remove and/or alter any Listing that it deems unsuitable or in breach of the Terms and Conditions.
(g) You warrant that the Stock will correspond with the description in the Listing. Further and save where the Seller gives other warranties in the Listing or elsewhere in this Agreement, all other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(h) Save where we have agreed exclusive agency terms with the Seller, the Seller shall be entitled to place its Stock for sale elsewhere, other than on the Website. However, in the event that the Stock is sold before the close of bidding on the Website, the Seller must inform us within 1 hour and we will remove the Stock for sale from the Website as soon as reasonably practicable. For the purposes of this provision, the Seller will be deemed to have agreed to a sale elsewhere where someone has offered to buy the Stock and the Seller has accepted this.
(i) Where exclusive agency terms have been agreed with a Seller, the Stock must not be placed for sale elsewhere other than on the Website.
(j) The Sellers obligations under this clause 4.2 are in addition to the Sellers obligations contained within the Sellers Agency Agreement.
(k) You shall not receive a payment from the Buyer other than via the Website without our prior written consent. In the event that we give our consent you will be liable to pay the commission due under the Sellers Agency Agreement on demand and in any event prior to us providing the delivery services in accordance with clause 6 below.
4.3 Buyer's obligations:
(a) You must only place a Bid for the Stock if you intend to buy the Stock at the price offered and meet the Delivery Charges.
(b) If you are notified that your Bid has been accepted, you must complete the transaction and make full payment to Britcom for the price agreed for the Stock (without set off or deduction) within 24 hours of you receiving the final proforma invoice including delivery charges & if applicable insurance & VAT. If your payment is not received by Britcom within 3 working days of you receiving the final proforma invoice then your bid will be cancelled. In this case we will also have the right to demand from you any successful sale fees or commission that the seller is liable to pay Britcom as a result of a binding contract of sale being made, unless it is specifically proven that a bank is responsible for the non-arrival of funds. This is without prejudice to your obligation to indemnify us in accordance with clause 3.4 above and without prejudice to the right of both us and the Seller to being a claim against you for damages and/or specific performance for breach of contract; In addition no payment shall be made directly to the Seller without our prior written permission. By making an offer to purchase the Stock, you warrant and represent that you have the legal right to enter into and complete the transaction.
(c) You warrant that you are a trader/ business and not a consumer;
(d) Your Bid to purchase the Stock is an irrevocable offer which cannot be withdrawn without our consent and the consent of the Seller. Upon acceptance of the Bid you will be legally obliged to purchase the Stock at the price Bid and accepted and at no other price.
(e) If your Bid is successful and you do not pay for the Stock, Britcom may terminate or suspend your Membership at its sole discretion without notice to you. Furthermore we have the right to demand from you any successful sale fees or commission that the Seller is liable to pay Britcom as a result of a binding contract of sale being made. This is without prejudice to your obligation to indemnify us in accordance with clause 3.4 above and without prejudice to the right of both us and the Seller to being a claim against you for damages and/or specific performance for breach of contract;
(f) You will not whilst a Member of the Website and thereafter for a period of 3 years following the termination of this Agreement directly or indirectly, contact, deal with, negotiate or attempt to negotiate with, enter into or attempt to enter into any agreement and or transaction with or attempt to transact with or otherwise become involved with any Member or entity or any other entities or parties introduced, directly or indirectly, by or through us without our prior written approval.
(g) Should you act in breach of clause 4.3(f) aforesaid you shall pay to us within five days of demand, liquidated damages calculated as follows:
D = A x B x C
A = the value of the total sales made between the Buyer and a Member of the Website at any time in breach of 4.3(f) above;
B = 3;
C = 75% representing a 25% discount for accelerated payment, our duty to mitigate our loss and us not being obliged to perform our obligations under this Agreement. Where payment is not made within five days of demand this discount shall be revoked and “C” shall then be 100%;
D = payment due from the Seller.
(h) For the avoidance of doubt we shall also be entitled to demand liquidated damages from the Member with whom you have had dealings for acting in breach of it’s obligations under the terms and conditions for the use of the Website. Notwithstanding the fact that we might recover liquidated damages from the Buyer, you shall not be entitled to any discount or reduction in the level of liquidated damages you are obliged to pay to us pursuant to clause 4.3(f) above.
(i) Should you arrange to resell the Stock or any part thereof before receiving it, you do so at your own risk.
(j) You must comply with any of the Seller’s restrictions on re-sale as set out in the Listing (e.g. restrictions on territories, branding etc);
(k) You are entitled to inspect the Stock during the Offer Period but only with our permission and at a date and time convenient to us. In deciding whether or not grant permission for the inspection we reserve the right to take a deposit from you which will be refunded in the event that you do not wish to purchase the Stock, less our reasonable costs of and associated with the inspection. Notwithstanding the granting of our permission you shall not be entitled to act in any manner which may breach clause 4.3(f) above. In the event that you are guilty of a breach of clause 4.3(f) in addition to liquidated damages as aforesaid, you will forfeit any deposit paid to us pursuant to this clause 4.3(l) in any event and regardless of whether a contract of sale for the Stock is formed.
5.1 General requirements:
(a) General requirements:
5.1.1 To become a Member of the Website, you must:
be a bona fide trader or company and not a consumer;
where you are a sole trader, be over the age of 18 and not be under any legal disability;
where you are a partnership of company, be solvent;
have the legal capacity to form legally binding contracts.
Pay and maintain any applicable membership fees
5.1.2 The fees and the manner of payment associated with being a Member and maintaining Membership of the Website shall be set out on the Website and payable in full prior to any transaction being permitted. Membership fees are non-refundable.
5.1.3 You agree to receiving Britcom e-mail newsletters. If your e-mail address is bouncing or blocking these e-mails we reserve the right to terminate your Membership.
5.1.4 In the event that you wish to contact Britcom please follow the 'contact us' link from the Website.
5.1.5 You agree to pay for the Stock and the Delivery Charges using the payment methods stated by us on the Website.
5.2 Warranty as to information provided:
You warrant that you have provided complete, accurate and current personal information when registering as a Member. You must maintain and update your personal information held by Britcom to ensure it is kept current at all times. You must not register as a Member under multiple identities or personas (whether false or not). Britcom may phone or mail you to verify these details.
5.3 Britcom ability to terminate Membership:
Britcom reserves the right to decline to register or to terminate your Membership in its sole discretion without entering into further discussions with you. Members who have registered under multiple aliases will have all of their aliases disabled.
5.4 Your security:
You are responsible for keeping your login information, including your email address and password, secret and secure. Without limiting the foregoing, you agree:
(a) not to permit any other person to use your user name or Membership; and
(b) not to disclose, or provide to any other person, your password, email address, or any information that may allow them to gain access to your Membership.
5.5 LISTING POLICIES
5.5.1 As a Seller it is your responsibility to ensure you are legally allowed to sell the Stock you list, this includes ensuring that the Stock does not breach of any copyrights, trademarks or intellectual property rights.
5.5.2 All Sellers must also abide by the following listing policies:
· the Stock must be accurately represented;
· Listings must be for the sale of Stock and must not be purely for advertising purposes including offering Services;
· 'Keyword spamming' to manipulate search results is not allowed;
· all prices should be expressed in sterling, US Dollars or Euros and including (where applicable) VAT;
. you must state any re-sale restrictions in the Listing;
· the Listing of Stock for sale is a commitment to sell it through the Website.
· You may not withdraw the Stock during the Offer Period.
6.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms and Conditions, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
6.2 The Buyer shall be responsible for clearing the Stock through customs and to arrange for any vehicle carrying the stock or any container holding the stock to be unloaded immediately upon arrival. In the event that the Buyer delays in unloading the vehicle / container, the Buyer shall be liable for all demurrage imposed by any third party.
6.3 In all cases the Seller must ensure that prior to collection all of the Stock has been securely packed and placed on pallets whose dimensions shall be agreed with us, and that it will agree to load the agreed form of transport within the agreed time frames. Should the Seller fail to comply with its obligations under this sub-clause, it shall be responsible for all and any additional costs incurred by us, our agents, third parties and the Buyer arising from the failure and in addition shall indemnify us in accordance with clause 3.4 above.
6.4 The Buyer is entitled to be present at the point of loading for the purposes of inspecting the Stock and to check that the Stock has been packed securely. If the Buyer inspects the Stock at this juncture the Buyer shall be obliged to notify us of any mis-description and/or defect in the Stock prior to the Stock being loaded. Thereafter the Buyer shall have no right to reject the Stock (including no right to reject under clause 6.5 below) and neither we nor the Seller shall have any liability for any claim in respect of any defect in the Stock or any mis-description in the Listing which would be apparent on inspection.
6.5 Save where the Buyer inspected the Stock at the point of loading in accordance with clause 6.4 above the Buyer shall inspect the Stock immediately upon delivery to its premises. Unless the Buyer notifies us of any mis-description or defect in the Stock supplied within 48 hours of the time of delivery to the Buyers premises neither we nor the Seller shall have any liability for any claim in respect of any defect in the Stock or any mis-description in the Listing which would be apparent on inspection or in respect of any damage during transit.
6.6 The Buyer shall have no right to reject the Stock save in the event that it has been materially mis-described in the Listing. Neither we nor the Seller gives the Buyer any warranty as to quality, description fitness for purpose.
6.7 Subject to anything to the contrary in the Listing, the Buyer shall be liable for all Delivery Charges.
6.8 We shall use our reasonable endeavours to advise the Buyer (and/or the Seller in the even that the Seller has assumed responsibility for the Delivery Charges) of the Delivery Charges for the transit of the Stock at the point that the contract for the sale of the Stock is made. In the event that there is a variation in the amount of these Delivery Charges we shall advise you as soon as is practicable. No variation in the amount of the Delivery Charges will entitle Buyer the right to rescind the contract of sale or treat the same as discharged.
6.9 The Delivery Charges imposed by Britcom shall be calculated by reference to prevailing market rates together with a reasonable mark up thereon to take into account Britcom’s reasonable administration fees for facilitating the delivery arrangements in accordance with this clause 6. If requested Britcom will also arrange risk insurance for the goods in transit on behalf of the Buyer at prevailing market rates together with a reasonable mark up thereon to take into account Britcom’s reasonable administration fees for facilitating the delivery arrangements in accordance with this clause 6.
7.1 General:
(a) Britcom collects personal information about you through your use of the Services and the Website, including:
- your registration details; and
- information relating to your use of the Website and the content you access.
(b) You agree that Britcom may use this personal information to assist us to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other Britcom products and Services to you, and for any other use that you authorise.
(c) We will not sell or allow third parties to access your personal information without your consent, however you agree that Britcom may disclose your personal information, including your name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of these Terms and Conditions at any time.
7.2 Britcom privacy guidelines:
(a) Use of information
Britcom does not sell your personal identification to third parties.
We release account and other personal information only when we believe release is appropriate to comply with law, enforce or apply our Terms and Conditions, or protect the rights, property, or safety of Britcom Limited, our users, or others.
(b) Email
It is the policy of Britcom to send our Members email throughout the Offer Period and other email they elect to receive, in addition to customary business communications (payment confirmations, etc.). Further, it is our policy to immediately remove any Member from any mailing list upon the Member's request.
(c) Membership details
Our site's registration form requires you to provide us contact information. We may use your contact information from the registration form to send you information about our company and promotional material from some of our affiliated partners. Your contact information is also used to contact you when necessary.
(d) Profile updates
Britcom provides you with ways in which you can alter your personal data, including changing your email address, password, phone number.
(e) Password security
You are responsible for all actions taken with your user name, email address and password, including fees. Therefore we do not recommend that you disclose your Website password to any third parties. If you choose to share your user name, email address and password or your information with third parties to provide you additional Services, you are responsible for all actions taken with this information and therefore you should review that third party's privacy policy.
(f) Membership termination
If you wish to terminate your Membership of the Website for any reason, simply send us an email requesting to be removed. Membership fees are non-refundable.
(g) Pictures
You are entitled to upload to the Website a picture or pictures of the Stock being offered for sale. Britcom will in its absolute discretion determine the maximum size of picture file which can be submitted. Britcom will use its reasonable endeavours to apply a watermark to the said picture file.
8.1 Service availability:
Britcom will use its reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance. However, Britcom takes no responsibility for any system unavailability, or for any loss that is incurred as a result of the Website or Services being unavailable. Further, Britcom assumes no responsibility for the corruption of any data or information held by Britcom.
8.2 Duty not to involve Britcom in disputes:
(a) As we are the Seller’s agent any dispute between the Buyer and the Seller should be notified to us immediately. We are not obliged to offer a dispute resolution service and reserve the right to withdraw our involvement in the dispute at any time save where the dispute is solely related to the Service provided.
8.3 Severance:
If any provision of these Terms and Conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining Terms and Conditions, which shall continue in full force and effect.
8.4 Legal jurisdiction:
These Terms and Conditions are governed by the laws of England and Wales. You submit to the non-exclusive jurisdiction of the Courts of England and Wales. The parties agree and acknowledge that any legal dispute arising out of these Terms and Conditions will be dealt with by the High Court of Justice.
8.5 Force Majeure:
We shall not be responsible for any breach of these Terms and Conditions caused by circumstances beyond our reasonable control.
8.6 No Waiver:
If we do not exercise or enforce any right available to us under these Terms and Conditions, it does not constitute a waiver of those rights.
8.7 Protection of intellectual property:
Britcom (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights in the Website (including text, graphics, logos, icons and sound recordings).
You may not without our prior written permission, in any form or by any means:
(a) adapt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of the Website; or
(b) commercialise, copy, or on-sell any information, or items obtained from any part of the Website.
8.8 Entire agreement:
These Terms and Conditions and in the case of the Seller, the Sellers Agency Agreement supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these Terms and Conditions.
