member partner terms & conditions

1. definitions and interpretations

1.1 In these Conditions the following words shall have the following meanings:

"Application Form" means the form accessible on the NOTHS Website to a prospective Member Partner which requires to be completed and agreed by the prospective Member Partner as a part of the application process, to include the appropriate Joining Fee and any Subscription Fee by way of an offer to form a Contract with NOTHS.

"Buyer" or “Shopper” means a person(s), firm or company who enters into or is invited to enter into any transaction to purchases Product(s) from the Member Partner by means of the Service.

"Charges" means the charges detailed in Schedule 2 (Charges).

"Charges List" means NOTHS's list of Charges detailed in Schedule 2 or any amended version of it brought into effect from time to time in accordance with Clause 2.5.

“CMS” means the content management system provided by NOTHS to each Member Partner for management by the Member Partner of its Dedicated Marketplace Area and associated orders and transactions;

"Commission Fee" means the fee detailed as 'Commission Fee' in the Charges List, to be paid by a Member Partner in respect of all sales of Products made through the Online Marketplace;

“Conditions" means these terms and conditions, including the Schedules attached to it and the Policies referred to in it, or any amended versions of it or them brought into effect from time to time in accordance with Clause 2.5. "Contract" means a contract between NOTHS and a Member Partner comprising these Conditions and the Application Form.

"Contract Term" means a period of twelve months, unless another period is advised in writing by NOTHS, from either (a) the date when NOTHS accepts the Member Partner's offer in accordance with clause 2.1 below, or (b) a subsequent Renewal Date.

"Dedicated Marketplace Area" means an area of the Online Marketplace dedicated for use by the Member Partner to promote itself and its Products.

"Documentation" means any user guide, information or other material provided by NOTHS to prospective or actual Member Partners, in hard copy or electronic form, relating to the Service.

"Information Policy" means any policy on the content and form of information that may be brought into effect from time to time in accordance with Clause 2.5. "Intellectual Property" means an invention, discovery, literary work, dramatic work, musical work, artistic work, 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 without limitation in an electronic or transient medium).

"Intellectual Property Rights" means all the rights conferred by the law of any country or jurisdiction in the world (including by statute) as amended or re-enacted (common law, civil law, equity or otherwise) in relation to any Intellectual Property, including all applications for such rights as well as all extensions and renewals of such rights.

"Joining Fee" means the fee detailed as 'Joining Fee' in the Charges List, to be paid by a Member Partner at the time it submits its Application Form to NOTHS. The Joining Fee is a one-off, non-refundable payment.

"Member Partner" means the person who applies to NOTHS for the provision to it of the Service and with which NOTHS enters into a Contract on the basis of the details the Member Partner provides about itself and its Products to NOTHS. "Member Partner Information" means information, data or content provided by the Member Partner in any form of medium, whether or not such information is owned by the Member Partner, contained in the Application Form or given by the Member Partner or on its behalf to NOTHS for use or publication on the NOTHS Website or in NOTHS's publicity and promotional material, or uploaded directly or on its behalf to the Member Partner's Dedicated Marketplace Area.

"NOTHS" means Notonthehighstreet Enterprises Limited (a company incorporated and registered in England and Wales with company number 5591382) whose registered office is at: 12-13 Aaron House, 6 Bardolph Road, TW9 2LS

"NOTHS Website" means the NOTHS website whose worldwide web address is or will be http://www.notonthehighstreet.com or such other worldwide web address that NOTHS, for whatever reason and its discretion, selects as a replacement.

"Online Marketplace" means the online marketplace provided or to be provided by NOTHS through the NOTHS Website to facilitate the promotion and sale of Member Partners' Products.

"Notonthehighstreet.com" means the trading name of the NOTHS Website.

"Operational Service Date" means the date when the Service or any part of it is first made available to a Member Partner.

"Policies" means the policies published by NOTHS from time to time to which Member Partners are obliged to observe and perform including without limitation the Standards of Service Policy.

"Products" means the goods, services or information which Member Partners wish to promote and Partner through the Online Marketplace.

"Renewal Date" means twelve months from the date NOTHS accepts the Member Partner offer, or other such period as advised in writing, and each anniversary, or other such period advised in writing, thereafter.

"Service" means the Online Marketplace and other services described in Schedule 1 attached to these Conditions.

"Software" means any software installed by or on behalf of NOTHS that permits Member Partners to access and trade through the Online Marketplace.

"Standards of Service Policy" means NOTHS's policy on the levels of service to be provided by Member Partners to prospective and actual Buyers (including without prejudice to the generality of the same, in relation to postage and packing, customer relations, order processing information, return and refunds of unwanted and faulty Products, pricing, stock availability), as detailed in Schedule 3 or any amended versions of it brought into effect from time to time in accordance with Clause 2.5.

"Subscription Fee" means the fee detailed as 'Subscription Fee' in the Charges List or as may be notified to the Member Partner from time to time.

"Transaction Fee" means the fee detailed as 'Transaction Fee' in the Charges List or as may be notified to the Member Partner from time to time, to be paid by a Member Partner in respect of all sales of Products made through the Online Marketplace.

"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 to intercept or access without authority or expropriate any system, information or data.

1.2 The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Conditions or the Contract.

1.3 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 includes an individual, company, corporation, firm or partnership.

1.4 References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

1.5 All references in these Conditions to Clauses and Schedules are to the clauses in and schedules to these Conditions unless otherwise stated.

2. basis and duration of contract

2.1. A Contract shall not come into existence between NOTHS and a prospective Member Partner unless and until:

2.1.1 NOTHS has received an Application Form from the prospective Member Partner completed to the satisfaction of NOTHS together with the Joining Fee and any Subscription Fee due for the Contract Term; and

2.1.2 NOTHS has notified the prospective Member Partner concerned by e-mail or otherwise in writing indicating its acceptance of the request for Service comprised in the Application Form and its agreement on the basis of the information set out in the Application Form to supply the Service to such prospective Member Partner.

2.2 It shall be entirely within the discretion of NOTHS whether or not to conclude a Contract with a prospective Member Partner.

2.3 Without prejudice to either party's right to terminate the Contract early in accordance with these Conditions, the duration of a Contract shall be for the initial Contract Term and the Contract shall thereafter be automatically renewed for successive Contract Terms on the Renewal Date unless and until either party notifies the other in writing at least 30 days prior to the expiry of the current Contract Term. Once a Contract has been concluded between NOTHS and a Member Partner, it shall continue in force and effect until it lapses or it is terminated in accordance with these Conditions or otherwise under common law or equity.

2.4 Subject to any amendment or variation brought into effect in accordance with Clause 2.5, the Contract will be subject to these Conditions to the exclusion of any terms and conditions implied by statute or otherwise and to any terms or conditions which the Member Partner purports to apply under any document whatsoever and whenever unless expressly agreed in writing by NOTHS.

2.5 NOTHS shall be entitled to update and amend from time to time the Conditions, the Charges and the Policies or all or any of them (a) either by sending amended versions of them to Member Partners by e-mail or by mail, or (b) by posting amended versions of them on the NOTHS Website.

3. provision of the service

3.1 Once a Contract has been entered into between NOTHS and a Member Partner, NOTHS will:

3.1.1 provide estimated production timings for the construction of a Dedicated Marketplace Area;

3.1.2 conditional upon receipt from the Member Partner of the Joining Fee, and any Subscription Fee due for the Contract Term, provide a password so that the Member Partner may construct a Dedicated Marketplace Area and update the Dedicated Marketplace Area whenever they wish.

3.1.3 use reasonable endeavours to commence provision of the Service by Operational Service Date agreed with the Member Partner, but on the basis that any such date is only an estimate and that neither NOTHS nor any service provider it engages in the provision of the Service has any liability for any failure to meet such date;

3.1.4 as from the Operational Service Date, provide the Service with reasonable skill and care;

3.1.5 use reasonable endeavours to restore any faults in the Service as soon as reasonably practicable, it being accepted by the Member Partner that: using the Internet for any business purpose is an inherently unstable means of communication, 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 NOTHS's control, and that it is technically impossible to provide the Service entirely free of fault at all times.

4. Member Partner's obligations

4.1 Performance of NOTHS's obligations towards a Member Partner whose application to receive Service has been accepted is conditional upon due performance of and/or compliance with, the following obligations and restrictions by the Member Partner, which the Member Partner hereby undertakes to perform or comply with:

4.1.1 to establish and maintain access to the World Wide Web at their own cost, including a computer and modem or other access device;

4.1.2 to ensure that at all times all computer hardware and software it uses to access and interoperate with the Online Marketplace is equipped and functions with up-to-date software, up-to-date internet browser software and up-to-date protection against Viruses;

4.1.3 to ensure that all information supplied electronically to NOTHS and to the NOTHS Website is submitted free from Viruses;

4.1.4 to ensure that all Member Partner Information provided about itself and the Products it wishes to promote through the Online Marketplace is true, accurate, current and complete and to update the information contained within the CMS promptly with any changes to such information;

4.1.5 to comply at all times with NOTHS's current Policies;

4.1.6 to comply with NOTHS's reasonable instructions from time to time in respect of the form and content of any Member Partner Information concerning the form and content of information, including product imagery, which may be submitted for posting on the Dedicated Marketplace Area;

4.1.7 not to include within the Member's Dedicated Marketplace Area any direct or indirect link to other websites including the Member Partner's own website;

4.1.8 to keep the access password to its Dedicated Marketplace Area secure and confidential and not easily ascertainable by third parties;

4.1.9 to ensure that any and all Member Partner technical and administration systems relating to NOTHS, including the running of the Dedicated Marketplace Area, the dispatch of goods and the response to all customer enquiries regarding products sold through NOTHS, be maintained effectively for the duration of contract in accordance with, but not limited to, the Standards of Service Policy set out in Schedule 3;

4.1.10 to accurately provide and frequently check such details of their business banking account as are required or requested by NOTHS in order that payment may be processed to the Partner in respect of product sold through the Online Marketplace.

4.1.11 recognising that the Intellectual Property Rights in the same are owned entirely by NOTHS, to use the NOTHS name, logo or branding on any promotional material, packaging or elsewhere, whether in hard or electronic format, only in accordance with the express prior written consent of NOTHS;

4.1.12 to permit NOTHS to access and use any content that appears on the Member Partner's Dedicated Marketplace Area or other promotional material in NOTHS's own editorial content or promotional activity relating to the Member Partner, its business and Products;

4.1.13 to permit, comply with and cooperate with all activities undertaken by NOTHS to promote, sell or market the Member Partners products, whether directly from the NOTHS website of through websites or offline publications not owned or operated by NOTHS.

4.1.14 to ensure that all Intellectual Property in the data, photographs and/or other materials are owned by the Member Partner and or the Member Partner has obtained the relevant transferable licenses to use the same to enable NOTHS to use these on the Dedicated Marketplace Area and as otherwise agreed in these conditions.

4.1.15 to ensure that all items offered for sale by the Member Partner are not replica or design copies of any other brand, designer or manufacturer, and that no brand name or trademark not owned by the Member Partner is used in connection with a product, whether by implication or actual use, unless written permission is provided to NOTHS prior to offer for sale.

4.1.16 to sell their products only through such similar or competitive online marketplaces as are specifically approved by NOTHS. For the avoidance of doubt, Member Partners may sell through their own websites, and through the website known as Ebay.co.uk, and through the website known as Amazon.co.uk. Member Partners may not otherwise sell their products through any other markeplace-type website unless expressly approved by NOTHS. Such approval and permission is likely to be withheld if NOTHS deems the website in any way competitive to the NOTHS website. Request must be made in writing and permission will be granted in writing. No other permissions will apply.

4.1.17 to sell their products only through their own paper catalogue or through the paper catalogue produced and distributed through NOTHS. The Member Partner may not sell or promote their products through any other catalogue.

4.2 Without prejudice to the Member Partner's obligation comprised within Clause 4.1.7 to comply with any Information Policy to which NOTHS may subsequently give effect, the Member Partner agrees and undertakes with NOTHS that none of its Member Partner Information nor any of the Member Partner's activities or use of the NOTHS Website (including in particular its use of its Dedicated Marketplace Area), will:

4.2.1 be false, inaccurate or misleading;

4.2.2 be offensive, indecent, obscene, pornographic, menacing, abusive, defamatory or in poor taste;

4.2.3 be in breach of copyright, confidence, privacy or any other rights and, in particular, will not infringe any third party's Intellectual Property Rights, trade secrets or other proprietary rights or rights of publicity or privacy;

4.2.4 be fraudulent or involve the sale of counterfeit or stolen items;

4.2.5 be in breach of any applicable laws or regulations (including, but not limited to, laws or regulations governing e-commerce, distance Partning, data protection, export control, consumer protection and advertising);

4.2.6 create, or be likely to create, liability for NOTHS or cause NOTHS to lose (in whole or in part) the services of its internet service or other suppliers;

4.2.7 contain any Virus;

4.2.8 cause the NOTHS Website or the Online Marketplace or their functionality to be interrupted, damaged or impaired in any way.

4.3 The Member Partner hereby acknowledges that NOTHS:

4.3.1 has entire discretion whether to invite or select prospective Member Partners to subscribe to use of the Service and whether to conclude a Contract with a prospective Member Partner;

4.3.2 may terminate a Contract with a Member Partner should that Member Partner's eligibility to receive the Service and be listed on the Online Marketplace change;

4.3.3 may immediately suspend or terminate the Member Partner's subscription and use of the Service in the event NOTHS reasonably believes or suspects that any Member Partner Information is in breach of NOTHS's Information Policy or the provisions of clause 4.2 above;

4.3.4 has absolute discretion as to the look, feel and content of the NOTHS Website (including without limitation all Dedicated Marketplace Areas) as well as full and final say in the inclusion, positioning, location and all other presentation of Member Partner Information (including without limitation in NOTHS' sole discretion the right to remove any Member Partner Information from the NOTHS Website at any time during the contractual term);

4.3.5 shall be under no obligation to refund any Charges in the event of termination of the Contract by the Member Partner, for whatever reason;

4.3.6 has no responsibility for the formation and performance of any contract concluded between the Member Partner and any Buyer of Products from it and that the terms and conditions relating to any such contract shall be entirely a matter between the Member Partner and such Buyer, except in relation to the obligations of NOTHS under clause 6 of this Agreement;

4.3.7 has no responsibility for the provision, support and maintenance of any of the Member Partner's hardware or software used to provide the Member Partner with access to the internet or the NOTHS Website or any related hardware or software (including without limitation any IP router, proxy server, firewall or anti-virus software), the responsibility for which shall remain exclusively with the Member Partner.

4.4 The Member Partner acknowledges that it is its responsibility to check the NOTHS Website on a regular basis to make and keep itself aware and notified of any changes made by NOTHS to the Conditions, the Charges and the Policies or all or any of them pursuant to clause 2.5.

4.5 If the Member Partner wishes to promote the same product and/or service on the NOTHS website as another Member Partner, it shall be solely the responsibility of the Member Partners to resolve between themselves any conflict arising in this respect. NOTHS shall have no responsibility or liability for any such scenario or any issues arising from any such scenario.

5. security

5.1 The Member Partner:

5.1.1 is responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Service to it and access to the Dedicated Marketplace Area (which responsibility shall include the obligation to change passwords on a regular basis) and shall take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised third parties;

5.1.2 shall inform NOTHS 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;

5.1.3 shall inform NOTHS immediately if the Member Partner forgets or loses a password and must satisfy such security checks as NOTHS may operate.

5.2 NOTHS reserves the right:

5.2.1 to suspend access to the Service if at any time NOTHS considers that there is or is likely to be a breach of security, in which event NOTHS will notify the Member Partner of the suspension and any steps to be taken by it as soon as reasonably practicable;

5.2.2 to require the Member Partner to change any or all of the passwords used by the Member Partner in connection with the provision of the Service and access to the Dedicated Marketplace Area, in which event NOTHS will notify the Member Partner of the requirement to change passwords and any steps to be taken by it as soon as reasonably practicable.

6. charges and payment terms

6.1 The Member Partner shall pay the Joining Fee which is a non-refundable one-off payment, and any Subscription Fee due, and the Commission Fee and the Transaction Fee all in accordance with these terms and conditions. All Fees and Charges are subject to VAT.

6.2 The times stated for payment of the Charges shall be of the essence.

6.3 Payment for goods and/or services on the NOTHS Website shall be made directly by a customer to NOTHS, once the Member Partner has confirmed acceptance of the order using the Member Partner CMS and the relevant transaction shall be recorded on the Member Partner’s designated CMS. The Member Partner must daily check the CMS for alerts of new orders.

6.4 In addition NOTHS shall notify the Member Partner by email of orders awaiting acceptance by the Member Partner, but NOTHS does not warrant the reliability of email communications, reference clause 3.1.5.

6.5 Following receipt of such notification the Member Partner shall confirm each and every order with the customer, using the Member Partner’s Designated CMS, and provide an estimated dispatch date.

6.7 Upon dispatch of each order, the Member Partner shall further confirm with the customer, through their designated CMS, the expected delivery date in accordance with the timetable set out in the Standards of Service Policy.

6.8 NOTHS shall pay the Member Partner for the relevant transaction less the Commission Fee and the Transaction Fee and less the applicaple VAT fortnightly on all orders confirmed through the CMS as dispatched by the Member Partner on the first applicable payment date (which is normally alternate Tuesdays) following the date on which NOTHS receives payment from the customer for the relevant goods or services. The Member Partner shall provide to NOTHS all banking details by entering them into the correct area of the CMS and provide any other information as may be required by NOTHS in order to make such payment. the Member Partner shall ensure that such bank details are kept up to date and shall immediately notify NOTHS of any changes. The Member Partner shall be responsible for paying any banking charges or other administrative expenses incurred by NOTHS as a result of any inaccuracies in the bank details notified to NOTHS.

6.9 The Member Partner shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.

6.10 Unless specified otherwise, all Charges detailed in the Charges List are shown exclusive of any value added tax or other similar taxes or levies all of which amounts the Member Partner shall pay, where appropriate, at the rate prevailing at the relevant tax point in addition to the Charges themselves. Unless specified otherwise, all charges are subject to value added tax.

6.11 If any sum due from the Member Partner to NOTHS under the Contract is not paid on or before the due date for payment then all sums then owing by the Member Partner to NOTHS shall become due and payable immediately and, without prejudice to any other right or remedy available to NOTHS, NOTHS shall be entitled to:

6.11.1 cancel or suspend its performance of the Contract or any order including suspending provision of the Service until arrangements as to payment or credit have been established which are satisfactory to NOTHS;

6.11.2 charge the Member Partner 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.

Returns and refunds

6.12 Any requests for refunds for any goods and/or services shall be dealt with directly between the Member Partner and the relevant customer.

6.13 Following receipt of a request for a refund by a customer, the Member Partner shall, subject to the Member Partner’s reasonable agreement to the request, initiate the refund directly using the Member Partner’s designated CMS

6.14 Subject to the provisions of NOTHS’ policy relating to returns and refunds, as displayed on the NOTHS Website from time to time, NOTHS shall approve such refund.

6.15 NOTHS will charge the Member Partner an administration fee of 5% of any amount refunded to the customer. Relevant commission fees will be returned to the Member Partner.

7. intellectual property rights

7.1 All Intellectual Property Rights in the Service and in any Software and/or Documentation are and will remain the absolute property of NOTHS or its licensors as appropriate.

7.2 Any Intellectual Property Rights created by NOTHS in the course of the performance of the Contract or otherwise in the provision of the Service shall remain NOTHS's property.

7.3 NOTHS hereby grants to the Member Partner a non-exclusive non-transferable licence for the duration of the Contract only to use any Software or Documentation for the sole purpose of accessing and using the Service. Subject thereto, nothing in the Contract shall be deemed to have given the Member Partner a licence or any other right to use any of NOTHS's Intellectual Property Rights.

8. confidentiality

8.1 Both parties will keep in confidence any information (whether written or oral) of a confidential nature obtained under the Contract and except in accordance with the Contract will not disclose that information to any person (other than their employees or professional advisers or their suppliers who need to know the information) without the written consent of the other party. For the avoidance of doubt, the Member Partner authorises NOTHS (including its employees, agents and contractors) to hold and process Member Partner Information.

8.2 The obligations of confidentiality under the Contract shall not extend to any matter which either party can show:

8.2.1 is in, or has become part of, the public domain other than through a breach of the Contract;

8.2.2 was lawfully in the possession of the recipient before the disclosure under the Contract took place;

8.2.3 was independently disclosed to it by a third party entitled to disclose the same;

8.2.4 is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

8.3 The obligations of confidentiality under the Contract shall remain in effect for two (2) years after the termination or expiry of the Contract.

9. exclusion and limitation of liability

9.1 Nothing in these Conditions or under the Contract excludes or limits the liability of NOTHS for death or personal injury caused by NOTHS's negligence, or for fraudulent misrepresentation.

9.2 NOTHS'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 Contract shall be limited to a maximum of £10,000.

9.3 NOTHS shall not be liable to the Member Partner 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) which arises out of or in connection with the Contract, or for any liability incurred by the Member Partner to a Buyer or to any other person for any economic loss, claim for damages or awards howsoever arising from the provision of the Service or otherwise.

10. member partner intellectual property rights warranty and indemnity

10.1 The Member Party warrants to NOTHS that it is the legal beneficial owner of all the Intellectual Property Rights and or possesses a valid licence to use the Intellectual Property Rights in the materials which include the data, information, photographs, logos and images it has provided or uploaded to NOTHS and to the best of its knowledge, information and belief the use of its Intellectual Property Rights by NOTHS pursuant to these Conditions will not infringe Intellectual Property Rights owned by any third party and that there is and will be no claim against NOTHS by any third party arising in relation to its Intellectual Property Rights.

10.2 The Member Partner acknowledges that NOTHS is likely to use any of the content that appears on the Member Partner's Dedicated Marketplace Area for publication in NOTHS material and in publications not owned or affiliated with NOTHS and in recognition of the significance of this the Member Partner shall indemnify and hold NOTHS harmless against any damages (including costs) arising out of or relating to any Intellectual Property Rights belonging to the Member Partner in respect of any claim or action that the normal operation possession or use of those Intellectual Property Rights ('Intellectual Property Infringement') by NOTHS.

10.3 Should NOTHS become aware of any Intellectual Property Infringement they shall notify the Member Partner as soon as reasonably practicable;

10.4 At the request of NOTHS, the Member Partner shall take the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of NOTHS, such instructions not to be unreasonably withheld or delayed.

10.5 The Member Partner shall give NOTHS 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.

10.6 The Member Partner shall reimburse NOTHS its reasonable costs incurred in reliance of the Member Partner's warranty expressed in clause 10.1 above.

10.7 The Member Partner shall have no liability to NOTHS in respect of an Intellectual Property Infringement if the same results from any unauthorised and intentional alteration modification or adjustment to the Intellectual Property Rights without the prior written consent of the Member Partner.

10.8 In the event of an Intellectual Property Infringement the Member Partner shall forthwith make without charge to NOTHS such alterations modifications or adjustments to the Intellectual Property Rights as shall be necessary to make them non-infringing.

10.9 This clause shall survive termination or expiration of these Conditions

11. subcontracting, assignment and third party rights

11.1 The Member Partner shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of NOTHS.

11.2 NOTHS may assign, charge, subcontract or transfer the Contract or any part of it to any person.

11.3 No term of the Contract shall be enforceable by any third party (which for these purposes includes any employee, officer, agent, representative or sub-contractor of either NOTHS or the Member Partner) under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

12. matters beyond the reasonable control of NOTHS

12.1 NOTHS reserves the right to suspend or to cancel the Contract in whole or in part (without liability to NOTHS) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, Acts of God, fire, flood, lightning, war, revolution, acts of terrorism, 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 NOTHS 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 Contract.

13. breach of contract of insolvency

13.1 NOTHS may immediately suspend further provision of the Service or cancel any outstanding provision of the Contract or by notice in writing to the Member Partner terminate the Contract without liability to NOTHS if the Member Partner:

13.1.1 commits a material breach of the Contract (including without limitation a material breach of any of the Policies), which is capable of remedy, and fails to remedy the breach within fourteen (14) days of a written notice to do so;

13.1.2 commits a material breach of the Contract (including without limitation a material breach of any of the Policies) which is incapable of remedy;

13.1.3 fails to pay any sum payable to NOTHS under the Contract within seven working days of its due date for payment in accordance with these Conditions;

13.1.4 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 Member Partnner;

13.2 Notwithstanding any such termination or suspension in accordance with the foregoing Clause 12.1, the Member Partner shall pay NOTHS all Charges due for the provision of the Service up to and including the date of suspension or termination, and the termination of the Contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any such owing or to become owing to the other.

14. general

14.1 The waiver by either party of any breach of the Contract 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.

14.2 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 Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.

14.3 Notices given under the Contract 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 NOTHS, to its registered address or any alternative address NOTHS notifies to the Member Partner in accordance with this provision and, in the case of the Member Partner, to the address which it provides in the Application Form or any alternative address the Member Partner notifies to NOTHS in accordance with this provision.

14.4 Notices may be sent by email provided that, to be effective, the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a return receipt.

15. law and jurisdiction

15.1 The Contract shall be governed by English law.

15.2 The Contract shall be subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.

Schedule 1

(Description of the Service)

The NOTHS Website http://www.notonthehighstreet.com is owned by NOTHS and through it NOTHS can provide its Member Partners with access to a range of on-line resources, including a selling forum (the Online Marketplace), marketing support, various communications tools, branded programming and personalised content.
NOTHS reserves the right to revise or alter the Service at any time. Any variation in Service will be subject to the Conditions.
In order to use the Service, Member Partners must establish and maintain access to the world wide web at their own cost, including a computer and modem or other access device. All Member Partner computer equipment must have up-to-date protection against Viruses and all information supplied electronically to NOTHS must be submitted free from Viruses.
The NOTHS Website is only a venue and marketplace which acts as a venue to allow registered Member Partners to offer and Partner their products and services direct to potential buyers. Accordingly:

NOTHS acts solely as agent on behalf of disclosed principals, namely the registered Member Partners;
any contract to Partner and buy Member Partner Products is concluded directly between the Member Partner and Buyer concerned;
NOTHS does not systematically review listings provided by users of the NOTHS Website;
Products offered for sale through the NOTHS Website are neither owned nor come into the possession of NOTHS at any time; and
NOTHS cannot and does not accept any responsibility for ensuring that Member Partners and potential Buyers conclude any transaction or perform their respective obligations under any contract concluded between them to Partn and buy Products.

The Service allows Member Partners to offer their Products as part of an 'always on' detailed electronic online catalogue containing categories and sub-categories, which allows Member Partners to display their Products in the most appropriate categories, and with product information, pictures and promotions uploaded by them.
Member Partners can amend and update information about their Products displayed on the Online Marketplace and are responsible for designing, creating, managing and amending any bespoke graphics or product images, subject to NOTHS's general content regulations.
In its roles as a facilitator and agent for disclosed principals, NOTHS cannot be involved in the conclusion or fulfillment of any transaction between Member Partners and prospective Buyers.

Schedule 2

(Charges)

Joining Fee

The Joining Fee to be paid once at the time of submission of the Application Form is the relevant amount agreed in writing between NOTHS and the Member Partner and is subject to VAT. The Joining Fee is not refundable under any circumstances.

Subscription Fee

If it is due, the Subscription Fee is to be paid at the time of submission of the Application Form and thereafter within 7 days of the date of invoice for each subsequent Contract Term. The amount of any Subscription fee due shall be notified in writing by NOTHS to the Member Partner at the time of joining and prior to each Renewal Date and is subject to VAT.

Transaction Fee

A fee of such percentage as may be notified to the Member Partner from time to time is payable by a Member Partner on the value of each transaction made through the NOTHS Website or telephone order-line between a Member Partner and a Buyer in respect of the costs of sale of NOTHS in respect of such transaction. The Transaction Fee is subject to VAT.

Commission Fee

A Commission Fee is payable by the Member Partner on the value of sales (exclusive of VAT and shipping costs) made through the NOTHS Website by a Member Partner, in accordance with clause 6.6 of the Agreement.* The Commission Fee is calculated as a percentage of the value of goods sold at a rate agreed in writing between NOTHS and the Member Partner at the time of joining or at the time of renewal. The Commission Fee is subject to VAT.

*NOTHS will refund monies paid and received by them in respect of sold goods which are subsequently returned by the customer and authorised for refund using the designated CMS for good reason by the Member Partner in accordance with clauses 6.11 to 6.14 of the Agreement, less any deductions and retentions described in clause 6.14

Schedule 3

(Standards of Service Policy)

The aim of NOTHS's Standards of Service Policy is simply to provide all Buyers, that visit and use the NOTHS Website to buy Products, with a good service that produces the absolute minimum of complaints.

Member Partners are solely responsible for ensuring that their businesses are compliant with all appropriate legislation. As such, NOTHS highly recommends that Member Partners take appropriate legal advice to ensure that the standards of service set out in this Policy are fully complied with.

Note: As used in this Policy, the terms: * 'you' and 'your' refer to Member Partners. * 'your home page(s)' refers to the Member Partner's home page(s) within the Dedicated Marketplace Area * 'we' refers to NOTHS

1. post & packing/delivery

A range of delivery/post & packing options will be available for you to choose to display on your Dedicated Marketplace Area. You may choose to offer any appropriate option for your products.

The site will automatically ‘cap’ postage & packing charges on any order to override individual Partner limits so that

i) you may charge no more than £2.45 for postage & packing/delivery for any standard order.

ii) if an order is for a value of £30 or more (excluding VAT and any other applicable sales taxes), you may not make any charge for postage & packing/delivery. The Website will automatically show this charge as zero at the checkout.

You may also charge the appropriate additional ‘next day delivery’ charge for special delivery, but this must be done with prior approval of NOTHS.

These post & packing/delivery terms can be varied in non-standard cases at the discretion of NOTHS where, for instance, goods are heavy, fragile, bulky or precious or perishable. Please contact us to arrange this.

2. payment

Payment for goods and services by Buyers of your products through the NOTHS Website will be through one of a range of credit and debit cards using the SECPay online payment processing system.

3. refunds

Refunds must, for legal reasons, be made ONLY through the CMS and NOTHS payment provider SECPay. Do NOT issue refunds by cheque or other means. You must ONLY process a refund using the system and instructions as laid out in the Member Partners designated CMS.

4. customer relations

The order notification email that is sent to your Customer will include sufficient contact information so that they may contact you by post, email or telephone.
You will display your terms and conditions (which will include terms to reflect this Standards of Service Policy) with particular reference to returns, on the appropriate areas of your Dedicated Marketplace Area.
You will display your expected delivery times and post & packing costs on the appropriate areas of your Dedicated Marketplace Area.
If you produce personalised or specially-made items, you must clearly display the specific delivery times, order cancellation and returns policy for these.
You will respond to any enquiries or complaints in the first instance within one working day.
You will conform to all applicable legislation and regulations including without limitation those which relate to distance Partnering, data protection and e-commerce regulations in your own policy on customer service, dispatch, returns.
Any and ALL correspondence sent to a shopper MUST include reference to notonthehighstreet.com. Material is available and will be supplied to you from time to time to assist you in the fulfilment of this obligation.
Any and ALL correspondence sent to a shopper must NOT include reference to your own website, email address or other promotion of services outside of NOTHS. Any such reference is in direct contravention of your contract with NOTHS.
You may NOT contact the shopper by email or any other means for any other reason than to discuss the processing and progress of the NOTHS order. The shopper has subscribed and/or registered with notonthehighstreet.com ONLY and a Partner who used the shopper’s email contact details to promote their business apart from NOTHS without gaining the shopper’s express permission would be in breach UK privacy legislation.

5. order processing information

Once you have confirmed acceptance of an order through the CMS:

You are obliged to fulfil the order.
You are obliged to confirm time and method of dispatch.
You are obliged to dispatch the order for receipt by the Buyer within three to five days unless the item is being specially made or ordered.
You must notify the Buyer promptly through the CMS at each of the following stages:
Receipt of order notification.
Dispatch of order with expected delivery date.
Any problems relating to the order.
Receipt of an item that has been returned to you.
Processing of an exchange or refund.
You must include with all orders the appropriate NOTHS co-branded dispatch letter, and such additional documentation as may be provided by NOTHS.
You must not include any other material with the package.

6. return and refund of unwanted goods and faulty products

Whilst you are naturally required to conform to the appropriate legislation that gives consumers the statutory right to a full refund on faulty items, it is obviously good business sense to improve on the minimum. As such, the NOTHS minimum is:

That you give the shopper a cooling off period of 28 days from the receipt of goods, in which shoppers can cancel their order.
If personalised items are being specially made, or products are exempt in other ways, any limit or variation on your refunds and returns policy must be necessary and legal and stated clearly before orders are placed and accepted.
Request for refund on dispatched goods must be made to NOTHS within 7 days of receipt of the returned goods.
Where goods are faulty and returned, post and packing costs must be refunded along with the cost of the goods.
28 days must be allowed after receipt of goods for customers to return products to you for refund or replacement.
Refer to contract clauses 6.11 to 6.16 for further return and refund terms.

7. pricing

Prices must be fully inclusive of all taxes and additional charges. The only exception to this is post and packing, which will be shown separately.
If you are VAT registered, the VAT rate should be set at 17.5% unless a special different rate applies, in which case you must notify NOTHS of the special rate prior to setting your pages live on the Website.
Pricing should be consistent over a reasonable period of time. Reducing your price for speedy or improved sale is acceptable, but changing prices frequently and unnecessarily is not.

8. stock availability

Stock availability should be displayed accurately for all products and should be updated regularly using the ‘out of stock’ and ‘is available’ options on the CMS.
Where stock is due within four weeks, you must state the expected availability time.
Once the final piece of stock has been sold of any item and will no longer be available, you must mark that item as discontinued.
If a product is out of stock you must specify this on a product page so that orders cannot be taken for it. If a shopper places an order for an item which is in fact out of stock, and consequently requires a refund, then you may be charged the Commission Fee on that order.
Product listings that are awaiting stock for prolonged periods (of four weeks or more) should be removed from the site until they become available.

9. promotion of your own website

You MAY NOT include a link to your website.
You may not include your email address anywhere on the site.
You may not bid on notonthehighstreet.com’s name, or variations of NOTHS brand or brand name, on Google or any other search engines.
You may not send emailers or catalogues or other promotional material to shoppers introduced to you by notonthehighstreet.com, other than those which are branded solely as from notonthehighstreet.com or to discuss an order placed on the notonthehighstreet.com website.

10. product listing

All products can be found by the customer through a system of ‘tags’. The following are necessary for the ease and reliability of the Buyers' experience and service on the NOTHS Website:

You may associate your product with the correct number of appropriate tags in order to appear within a single 'product line' on the NOTHS website. The product line tag you choose for your product MUST be the most appropriate.
You may not appear in more than one product line, unless you have requested and been granted permission by NOTHS.
You may not feature more than 30 products at any one time, unless written permission is first granted by NOTHS.
Tags which are incorrectly associated with your products will be removed by NOTHS without further notice.
If your business or product is service-led, you may still appear in product pages or gift pages by offering gift vouchers or a relevant product.
A single item only may appear in each product listing. Multiple different products within a single product listing are not permitted.
A single item may appear only once on the site. You may not re-list identical items under a different title or stock code or colourway.
Each listing must contain all the information required and such information must be accurate. 'Dummy' box filling to circumnavigate required fields is not permitted.
Keyword spamming in listings is not permitted ('keyword spamming' is when inappropriate keywords are used or placed in a title or description to gain attention or divert users to another listing).
You must not create titles for your listings that do not accurately describe the items for sale.
You must conform with the guidelines that are set out in the Style Guide, accessible as a download on the CMS.
You must not change the name of a product after it has been made live on the Website.