TERMS AND CONDITIONS
1.ABOUT BIKEEXCHANGE AND THESE TERMS
1.1 BikeExchange.co.uk is an online marketplace facility that enables users to transact directly with each other to buy and sell bike and bike related items, services, holidays and events, and can be accessed at URL www.bikeexchange.co.uk (the “Site”).
1.2 The Site is operated by BikeExchange Marketplace Limited (“BikeExchange”, “we”, “us”, “our”), a company registered in England and Wales with company number 09978389 whose registered office is c/-Incisive Accounting Netwise House, 24 Old Jamaica Rd, Bermondsey, SE16 4AW. Our registered VAT number is 246 7896 50.
1.3 How you may contact us. You can contact us at any time by e-mailing us at firstname.lastname@example.org.
1.4 How we may contact you. If we have to contact you, we will do so by writing to you at the postal address or e-mail address that you provided to us, or by calling you on the number you provided to us.
You recognise that personal information has been given to us for the purposes of making a purchase and/or, obtaining ancillary services such as general news and updates. For these purposes you authorise us to retain and use such personal information and to transmit it to our own offices, government agencies or the providers of the above mentioned services. Your personal information will not be used for marketing activities without your prior permission and you shall have the option to elect if you wish to receive such communications from us.
These Conditions set out the ways that you may make use of the Site and our services and they form the basis of a binding contract between you and us. We may at any time update these Conditions and any aspects of the Site or our services. Any changes we make to these Conditions will be effective immediately on publishing the new Conditions on the Site. We strongly recommend that you read the current Conditions when using the Site. You acknowledge and agree that it is your responsibility to ensure that you are aware of the current Conditions and your continued use of or access to the Site shall be deemed to be an acceptance of the updated Conditions.
1.6 If you do not agree to these Conditions, please immediately stop using the Site and/or our services or any part of them. You will not be able to sell or purchase anything using the Site until you have accepted these Conditions, and agree to comply with the obligations that they place on you.
1.7 “Writing” includes e-mails. Please note that when we use the words “writing” or “written” in these Conditions, this includes e-mails.
1.8 Certain sections of these Conditions will apply to Buyers only, Sellers only or both Buyers and Sellers. Please ensure to read the section that relates to your use of the Site. Unless stated otherwise, the section will apply to all parties.
1.9 Any person who wishes to use the Site should be domiciled in the United Kingdom. If you are domiciled in any other country or jurisdiction, you access or use the Site at your own risk.
1.10 For the purposes of these Conditions, BikeExchange will be the merchant of record.
2.1 The definitions in this clause apply to these Conditions.
Advert: a particular webpage on the Site on which an individual Product is advertised.
Advertisement Fee: the fee payable by a Private Seller to advertise a Product on the Site.
Applicable Laws: means all regional, national and international laws, regulations and standards applying to the person or circumstances in question, including standards imposed by or notices issued by any governmental or regulatory authorities and all generally applicable industry standards, including those attributable to self-regulation.
Buyer: any person who uses the Site and who purchases or is seeking to purchase Products from a Seller through the Site.
Commission Fee: shall mean a minimum sum of 5% (plus VAT thereon) or as otherwise agreed between the parties of the proceeds from the sale of a Retail Seller’s Product through the Site, excluding any delivery or other carriage charges, payable by a Retail Seller to us.
CMS: the content management system operated by us for the management of the Site.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.
Private Seller: an individual who is not a Retail Seller.
Product: the goods, service, event, holiday, bike maintenance or information made available by a Seller on the Site.
Retail Seller: an individual, firm or company who uses the Site in the course of conducting a trade of selling products or services in the UK.
Sellers: Private Sellers and Retail Sellers.
Users: any person, firm or company who accesses and uses the Site.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
3. OUR CONTRACT WITH YOU
3.1 Users, Buyers and Private Sellers. The contract between you and us will come into existence when you access and use the Site.
3.2 Retail Sellers. The contract between you and us will come into existence when you register as a Retail Seller on the Site. These Conditions apply to the contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4. THE SITE
4.1 Access to the Site is permitted on a temporary basis. You accept that we may withdraw or amend the Site or our services (including access to them) without notice to you. If we amend the Site or services, any amendment will be subject to these Conditions. We will not be liable to you for any reason if the Site and/or our services are unavailable or inaccessible to you at any time or for any period.
4.2 In using the Site and our services (whether as a Buyer or a Seller), you may have to register on the Site.
4.3 Buyers and Private Sellers. When registering on the Site as a Buyer or Private Seller, or purchasing Products as a Buyer, we will require you to provide certain personal data including your real name, your home, delivery and billing addresses (if different), bank or credit card or direct debit details, telephone number and an e-mail address which you access regularly.
4.4 Retail Sellers. When registering as a Retail Seller, we will require you to provide data about your business such as the business name, the legal entity of the business, your VAT number, your point of sale setup, your registered office address, your website and your contact telephone number and e-mail address.
4.5 All information provided by you (whether as Buyer or Seller) must be truthful, accurate and complete. You must correct or update any information as soon as practicable if it changes. We reserve the right at any time and at our sole discretion to reject any registration or to suspend or remove any registration. We will not be required to give any reasons for such.
4.6 Unless we otherwise consent in writing, you may not register more than one account on the Site. You may not transfer your account to another party without our prior consent in writing.
4.8 You acknowledge that you may be required to set a password for your account, or we may assign to you a user identification code. Any password, user identification code, or other security information must be treated by you as confidential. You must not disclose such information to any third party. We at all times reserve the right to disable any User information code or password (whether chosen by you or us). You acknowledge and agree that you are responsible for all consequences arising from the use or misuse of your account, password and/or user identification code. In particular, you acknowledge and agree that instructions and actions transmitted on the Site via your account will be deemed to have originated from you if your account details have been utilised. Any user name chosen by you shall not be misrepresentative, vulgar, offensive, defamatory, contain any profanity, promote illegal activity, violate any Intellectual Property Rights of any third party or misleadingly impersonate someone.
4.9 You will be responsible for any electronic communications and content sent from your computer or other internet access device using your log-in details whether or not actually performed by you.
4.10 You acknowledge that information transmitted via the internet is not completely secure and we cannot guarantee that any communication by electronic means will reach its intended destination on time (or at all).
4.11 We (or a third party appointed by us) may be required to carry out maintenance on the Site from time to time. Whilst we will try to notify Users of any upcoming maintenance where possible, we may carry out emergency maintenance on the Site without notice to you. We shall not be liable for any loss or damage suffered as a result of any maintenance or work on the Site.
4.12 We reserve the right (at our sole discretion) to limit or otherwise restrict access to the Site or our services for any reason whatsoever.
4.13 There may be links on our Site to third party websites. We have not reviewed these third party websites. You acknowledge and agree that we do not have any control over such sites or resources. If you decide to use the third party websites, you do so at your own risk. We will not be liable for any loss or damage that may arise from or in connection with your use of such websites.
5. GENERAL: BUYING AND SELLING ON THE SITE (IMPORTANT – PLEASE READ)
This section applies to both Buyers and Sellers.
5.1 The Site is a platform to facilitate the advertising, buying and selling of Products as between Buyers and Sellers. There are a number of ways to buy on the site, options of which are determined by each Seller. These include credit card online, credit card over the phone, or click and collect.
5.2 When you sell or buy Products through the Site the binding legal contract will be between the Buyer and the Seller. We are not a party to any contract of sale concluded for Products through the Site.
5.3 Any contract of sale between a Buyer and a Seller concluded through the Site will be subject to the Seller’s terms and conditions (if any) as may be provided by the Seller.
5.4 Please note that the responsibility for compliance and enforcement of any rights under the contract of sale between the Buyer and Seller shall be between you both, and not be the responsibility of BikeExchange.
5.5 Any person who wishes to buy on the Site must be domiciled in the United Kingdom. If you are domiciled in any other country or jurisdiction, you use the Site at your own risk.
5.6 We do not and cannot make any warranty, guarantee, representation, undertaking or otherwise that the Products will be of a satisfactory quality, fit for purpose, conform to description, exist, comply with any Applicable Laws, comply with safety regulations or will be otherwise legal or legitimate. Any warranties (whether express or implied) in respect of the Products are disclaimed by us absolutely to the fullest extent that may be permitted by law. Nothing in these Conditions will affect a Buyer’s rights against a Seller.
5.7 You acknowledge that we do not and will not at any stage of the Order process have possession of any of the Products listed on the Site for sale, unless we expressly state otherwise.
5.8 Whilst we will provide the technical means enabling Sellers to upload Adverts on the Site, we are not responsible in any way for the content of the Adverts provided by the Sellers. You acknowledge and agree that we do not check each Advert uploaded and therefore cannot make any warranty as to their quality or content.
5.9 You may not buy or sell any Products whose sale, distribution, import or export is prohibited or restricted by any Applicable Laws in the United Kingdom, or that otherwise would apply to you as Buyer or Seller. The Buyer and Seller will be jointly responsible for checking whether any restrictions apply to the Products that are bought and sold on the Site and for any legal consequences. Sellers must comply with all Applicable Laws in connection with the sale or distribution of the Products, including any applicable trading standards, manufacture, packaging, marketing, certification and delivery.
5.10 You may not use the Site or our Services for any activity that is unlawful in the United Kingdom or the country that you are domiciled or using the Site (if different).
5.11 You must not do or omit to do anything that causes the Site or our services to be interrupted, damaged or impaired.
5.12 You must not do anything that imposes or may impose (in our opinion) an unreasonable or disproportionately large load on our infrastructure or that amounts to a denial of service attack.
5.13 You must not establish a link to the Site in any way that may damage our reputation or suggest association, approval or endorsement with or by us unless we give you express written consent.
5.14 You must also:
(a) establish and maintain internet access through the use of a suitable computer and modem or similar device;
(b) ensure that any computer hardware and/or software used is properly equipped and functions with up-to-date software and up-to-date protection against Viruses;
(c) ensure that any communication with or data transmitted to us does not contain or transmit any Viruses, and is not (in our sole opinion):
(d) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or
(e) facilitating any illegal activity.
5.15 Sellers only. Whilst we hope to maximise sales through the Site, we do not guarantee, warrant or represent that you will attain any minimum quantity of sales of the Products through the Site.
6. BUYERS: INFORMATON AND REQUIREMENTS
This section applies to Buyers.
6.1 All transactions on the Site will be processed in pound sterling (£). All prices for businesses are listed without VAT, sales tax or similar charges, which must be added to the cost. Delivery charges will be shown separately and may vary depending on location or the type of delivery method chosen. Some banks may charge you an additional fee for certain transactions, and you agree that you will pay any additional fee together with the price for the Products.
6.2 Your order to purchase a Product from a Seller will be placed when you click “Pay Now” to complete the check-out process. Your order is an offer to the Seller to purchase the Product, and not necessarily an acceptance of the order. We will send to you an e-mail acknowledging and confirming the order. Please note that prior to placing the order, you will be able to amend, edit, vary or withdraw from the order at any time.
6.3 When purchasing from a Private Seller. When you purchase from a Private Seller, the Private Seller will direct how he or she wishes payment to be made (for example, bank transaction, PayPal etc.). We will not process any payment on your behalf and it will be the responsibility of the Private Seller to collect payment from you and to arrange delivery. In the event that the Product is not available, it will be for the Private Seller to contact you to arrange for a full refund to be made. We will not be liable to pay any such refund or compensation in these circumstances.
6.4 When purchasing from a Retail Seller. Once you have placed an order, you authorise us to immediately charge by your method of payment for the purchase price (as specified when you checked-out). You may only pay for the Product from a Retail Seller using the payment methods on the Site. We may rely on your placing of an order as an instruction to us to take your payment. Please note that you may not use any card that you know, or ought to know, is invalid or expired. Any payment made by you for a Product on the Site will satisfy your obligation to pay for the Product. If your payment is not authorised by your credit card issuer or bank, we will inform the Seller and your order will be rejected. If a Product ordered from a Retail Seller is not available or whether the Retail Seller is unable to fulfil your order, the Retail Seller will contact you within 5 business days of your order to arrange an alternative product, backorder or a full refund.
6.5 We may send you other e-mails to update you on the progress of the order (including an estimated date of delivery or on the dispatch of the Product), or to invite feedback.
6.6 You acknowledge and agree that we may pass your personal details and data to the Seller to enable them to contact you and to carry out their obligations to you under these Conditions. We cannot be responsible for the content of any communication that you receive from Sellers.
6.7 Whether purchasing from a Private or a Retail Seller, we may at our sole discretion refuse to process a transaction for any reason or refuse the services at any time. We will not be liable to you or any third party in these circumstances.
6.8 Standard delivery time frames are approximately between 3 – 10 business days. You must state a delivery location based within the United Kingdom. Any delivery times provided by a Seller are estimates only. Please note that if the delivery address is not based in mainland UK, these delivery time estimates may be significantly longer. If there is any delay or non-performance of delivery, please contact the Seller or use the dispute resolution procedure set out at clause 14 below. The method of delivery will be determined by each Seller however, it is likely to be via standard postage, courier service or delivery by the Seller themselves. In the case of purchases outside of the United Kingdom, shipping time frames are likely to take longer than two days. Consumers should seek further clarification from the bike store selling the goods.
Click and Collect
6.9 The click and collect feature on the Site enables you to purchase the Product online and collect it in store from the relevant Retail Seller. This service is only available where Products feature the “click and collect” icon. It is your responsibility to ensure that you order from the correct shop and have properly entered all of your details. You will be notified by the Retail Seller approximately within 24 – 48 hours after placing the order to confirm when the Product will be ready for collection. You must present photographic identification and a receipt of your purchase when collecting from the Retail Seller’s shop.
Events and Ticketing
6.10 Events and tickets advertised on the Site enables Buyers to purchase or reserve entry to specific events advertised by a Seller. Please note that, unless stated otherwise, we have no involvement in the organisation, management or running of the event and any queries should be directed to the Seller. We strongly recommend that you review the event terms and conditions, which will apply to your attendance of the event, before purchasing.
6.11 You may upload a review onto the Site in respect of a particular Product or transaction. Any material that is uploaded to the Site must not be:
(b) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(c) infringe any Intellectual Property Rights of any person;
(d) used to promote or facilitate illegal activity;
(e) used to impersonate any person or misrepresent your identity.
6.12 The material that you upload onto the Site will be considered non-confidential and non-proprietary. We shall be entitled to use, copy, distribute, disclosure or otherwise make use of any such material for any purpose. You will be liable for the content, accuracy or interpretation of any material that you upload onto the Site. We shall not be liable for any loss or damage that may arise from or in connection with any such material. You agree to indemnify us for all claims brought by third parties against BikeExchange arising out of or in connection with any material that is uploaded by you or on your behalf that infringes on another party’s Intellectual Property Rights.
6.13 We reserve the right to remove or suspend any User from the Site if he or she breaches this clause. We also reserve the right to remove any material (for any reason whatsoever) from the Site that has been uploaded by a User.
6.14 You acknowledge and agree that all title, rights and interest to or in the Intellectual Property Rights arising out of or in connection with the Site or our services shall be owned by us.
6.15 You agree that you will not extract, copy, reproduce, modify, create derivative works from or utilise any or all of the content on the Site and/or our services for any purpose, unless we otherwise consent in writing.
6.16 You grant an irrevocable, non-exclusive, royalty-free licence to use any material that you upload to the Site or provide to us, and will indemnify us for any claims brought by third parties against us that arise out of or in connection with any such material.
6.17 We hope that you have a successful and enjoyable experience when using the Site. However, if you have a complaint about the Site or our services, please contact us using the contact details set out at the beginning of these Conditions. Please note that if you have any complaints regarding your order or a transaction carried out with a Seller using the Site, you should contact the Seller initially to attempt to resolve the problem. If unresolved, you may use our formal dispute resolution procedure (set out below).
6.18 Alternatively, you are entitled to complain to the Consumer Ombudsman. Details can be found at: http://www.consumer-ombudsman.org/.
7. PRIVATE SELLERS: INFORMATION AND OBLIGATIONS
This section applies to Private Sellers only.
7.1 These obligations are in addition to the other obligations on Private Sellers as set out in these Conditions.
7.2 On receiving notification of the order from the Buyer for your Product, you will contact the Buyer to confirm if the order is accepted and if so, the estimated delivery date of the Product. You will use your best endeavours to meet the estimated delivery date.
Further, you will be entirely responsible for collecting and administering payment for the Product, and communicating with the Buyer to facilitate any such payment.
7.3 Following acceptance of the order and payment to you by the Buyer, you will fulfill the order as soon as reasonably practicable.
7.4 If the Product that the Buyer has ordered is unavailable for sale or delivery, you must contact the Buyer directly as soon as possible (and in any event no later than 2 business days after the order) to arrange for a full refund to be made.
7.5 If the Buyer requests to return and obtain a refund for the Product sold, the Buyer will contact you directly. You must respond to any such request as soon as possible (and in any event no later than 2 business days after the request). If the Buyer requests a return and refund within 14 days of placing the order of the Product, you must arrange for the return and full refund of the purchase price to be made. If the Buyer requests a return and refund after 14 days of placing the order, and the Product was damaged, faulty, not as described, not fit for purpose or otherwise defective, you must refund the full purchase price for the Product.
7.6 You will be entirely liable for any Products that are lost, damaged or destroyed during the delivery process. We recommend that all Products sold are delivered via a tracked carriage or courier service.
8. RETAIL SELLERS: INFORMATION AND OBLIGATIONS
This section applies to Retail Sellers only.
8.1 These obligations are in addition to the other obligations on Retail Sellers as set out in these Conditions.
8.2 A Retail Seller must be registered for VAT in the United Kingdom.
8.3 The Retail Seller will appoint us to act as its exclusive payment agent to process transactions for the Products through the Site including (without limitation) accepting, refunding or accounting for such payments. The Seller acknowledges and agrees that any duties or obligations of an agent implied by law are expressly excluded, unless otherwise provided by these Conditions.
8.4 The Buyer will make payment for the Product directly to us (acting as commercial agent of the Seller). The Retail Seller acknowledges and agrees that any obligation by the Buyer to make payment for the Product shall be satisfied upon full payment in cleared funds (including delivery charges or any other associated changes) to BikeExchange. The Buyer will make payment to us for the Product through the Site by the payment methods that may be stated on the Site, or as we otherwise notify Buyers from time to time.
8.5 Following acceptance of an order, you will:
(a) fulfil the order as soon as reasonably practicable;
(b) confirm to the Buyer the method of dispatch and any relevant tracking number; and
(c) notify us promptly in writing at each of the following stages:
(d) dispatch of an order; and
(e) processing the physical element of an exchange or refund.
8.6 If the Product ordered by the Buyer is not available or if you are otherwise unable to fulfill the order, you must contact the Buyer directly within 2 business days of your order to arrange an alternative product, backorder or a full refund.
8.7 You will be entitled to include your trade name and/or brand on any packaging that is sent with the dispatched Products. You may not include any promotional materials including (without limitation) any discount vouchers or promotional codes relating to your business with any dispatched Products. When delivering the Products, you must not do anything or act that does or has the potential to divert business or custom away from the Site.
8.8 You may not use the Site at any time to promote any other website, product, service or shop outside those provided on the Site.
8.9 A Retail Seller shall be liable for any dispatched Products that are lost, damaged or destroyed during the delivery process. We recommend that you deliver all Products via a tracked carriage or courier service.
8.10 The Retail Seller warrants and represents that it has and will maintain an appropriate return and refund policy that is compliant with all Applicable Laws. The Seller will upload the return and refund policy or details of it on its account page through the CMS. We shall not be responsible for the compliance of your return and refund policy with all Applicable Laws. In the event that you fail to comply with this clause, we shall be entitled to suspend our services, suspend, remove or cancel (at our discretion) any Adverts that are currently on the Site and disable your password and account.
8.11 Your return and refund policy shall include the following terms and conditions: (a) provide Buyers with a 14 day period from receipt of a Product (that is capable of being returned or refunded) in which Buyers may cancel their order and return the Product to you to obtain a full refund (including, where applicable, delivery charges); and
(b) process the refund as soon as possible upon receiving a request and in any event, no later than 14 days of the date upon which it receives the returned Product from the Buyer or evidence that the Buyer has returned the Product (whichever is the earlier).
This section applies to Sellers only, unless specified otherwise.
9.1 Sellers (whether Private or Retail) may advertise their Products on the Site, subject to these Conditions.
9.2 All Products advertised on the Site must be cycling related and fall within the categories as listed on the Site (unless we agree otherwise).
9.3 If the Product advertised is not cycling related, does not fall within one of our recognised categories or is not relevant to the Site, we reserve the right at any time at our sole discretion without notice to remove, suspend or cancel the relevant Advert. In doing so, we will not be liable to you for any loss caused and you shall not be entitled to a refund.
9.4 To avoid an Advert being removed, suspended or cancelled, we strongly recommend that you review the Site to ensure that the product or service that you wish to advertise falls within one of the categories within the Site.
9.5 We reserve the right to refuse to publish an advertisement for a Product. We may change the category or categories in which the Advert is listed if (in our reasonable opinion) we deem a different category or categories appropriate. In these circumstances, we shall not be liable to you for any loss caused and you shall not be entitled to claim a refund if you wish to remove the Advert as a result of any change of category.
9.6 We may place any other third party advert (whether cycling related or otherwise) on any page of the Site without the need for consent.
9.7 The fees payable to publish an Advert will vary depending on the type of Seller. Advertisements Fees will apply to any Adverts published by a Private Seller (as set out below). Subscription Fees and/or VOE Fees (as defined below) will apply to Retail Sellers.
Removing an advert.
9.8 If, in our sole opinion, we believe that the Advert is inappropriate for the Site, otherwise in breach of these Conditions or that you have breached these Conditions in any way, we shall be entitled to remove an Advert without notice or liability to you.
9.9 You may remove an Advert at any time by using the remove function on the CMS. If you remove an Advert, you will not be entitled to any refund.
Pricing of adverts.
9.10 The Advert must set out the price to be charged for the Product. The Seller may determine the price at its or his or her sole discretion. The price for the Product will be shown on the Site in pounds sterling (£), and will be fully inclusive of all taxes (including for the avoidance of doubt any VAT, sales tax or similar charges or levies), save for any delivery charges, which must be shown separately.
9.11 The Seller may vary the price set for the Product from time to time by using the CMS.
Standard of adverts.
9.12 The Product listed in the Advert must exist and be available for sale to Buyers. We reverse the right to verify the existence and availability of the Products offered for sale on the Site. You agree that we may access your records and systems and/or contact you for the purposes of such verification or clarification. You agree to provide any additional information as we may reasonably request to enable us to do so within a reasonable timeframe. Should you fail to provide to such information, or in the event that we cannot verify the existence or availability of the Product in question, we may remove the Advert and/or suspend (or cancel) access to our service and/or the Site without notice and without any liability to you.
9.13 All Adverts must comply with any Applicable Laws, including any relevant advertising standards. In the event that you become aware that the Advert does not comply with any Applicable Laws, you will immediately remove the Advert and notify us of the details of the non-compliance.
9.14 All Adverts (including any information relating to the Product) must be true, accurate, current, complete and provide adequate information about the type, nature and specification of the Product. You are entirely responsible for the information and content in your Advert (or any part of it) and you acknowledge and agree that we shall not have any responsibility or liability for your Advert or the content of it. You acknowledge that we upload the Advert without checking it first and operate the Site based on the good faith of Sellers.
9.15 Retail Sellers only. Any Adverts published by Retail Sellers will not include (whether directly or indirectly) any link or URL to other websites including the Retail Seller’s own website, its e-mail address, its telephone or fax number, its postal address or address of its shop or a shop stocking its Products, or any other means or method by which the Buyer could directly or indirectly communicate with the Seller or to promote its Products outside of the Site. To ensure compliance with legislation, the Retail Seller’s relevant contact details, trade organisation and VAT number will be made available.
9.16 Retail Sellers only. Retail Sellers must ensure that the Products set out in each of its Adverts are in stock. If the applicable Product is low in stock, not in stock or is otherwise unavailable to purchase, you must notify us immediately. We will be entitled to remove or suspend the Advert in question until such time as the Product is back in stock. We will not be liable for any loss or to pay any compensation or refund to you in these circumstances.
10. ADVERTISEMENT FEES
This section applies to Private Sellers only.
10.1 Private Sellers who wish to advertise Products on the Site will be required to pay an Advertisement Fee. The Advertisement Fee (if any) that will apply to a particular Product will depend on the value of the Product. A list of our current Advertisement Fees and payment structure can be found here. Private Sellers will also have the option (subject to availability) to upgrade their Advert to a “Feature Ad” for an additional fee from time to time.
10.2 The Advertisement Fee must be paid by the payment methods listed on the Site in advance.
10.3 Providing that the Private Seller has paid the relevant Advertisement Fee, we shall not charge any commission on the sale of Products by Private Sellers.
10.4 Adverts published on behalf of Private Sellers will remain published on the Site for 60 days from the date of payment of the Advertisement Fee, and on expiry of this period, they will automatically be removed from the Site. Private Sellers have the option to renew an Advert, and upon doing so, reduced Advertisement Fees will apply.
10.5 We are entitled to charge an appropriate administrative fee in connection with any administration time or costs
11. RETAIL SELLER FEES
This section applies to Retail Sellers only.
11.1 Retail Sellers who wish to advertise Products on the Site will be required to pay standard billing fees in one of two ways:
(a) a monthly Subscription Fee; or
(b) (subject to availability) a monthly fee based on the value of enquiries (sales leads) received from potential buyers for Retail Seller’s Products through the Site (“VOE Fee”), which Retail Sellers may elect when registering on the Site as a Retail Seller.
11.2 Subscription Fee (Standard Billing). If you choose to pay a £199 + VAT Subscription Fee (for unlimited Sales Leads), you agree to make fixed monthly payments to us for a minimum term of 12 months. Following a two-month trial period costing £1 + VAT per month you will be automatically rolled over to this standard subscription fee billing. Depending on the nuances of the agreement verbally made between you and the BikeExchange representative, there could be exceptions to this fee structure. Regardless, the amount is negotiated with BikeExchange and subsequently confirmed by us to you in writing.
11.3 VOE Fee. If you choose to pay a monthly VOE Fee, you agree to make monthly payments to us for a minimum term of 12 months based on the value of the enquiries that we receive in respect of your Products. The sales leads fee structure commences at a monthly cost of £99 + VAT for up to £19,999 worth of enquiry, and moves up in increments of £50 + VAT for every £10,000 worth of leads. Following a two-month trial period costing £1 + VAT per month you will be automatically rolled over to this form of VOE. Depending on the nuances of the agreement verbally made between you and the BikeExchange representative, there could be exceptions to this fee structure. Regardless, the amount is negotiated with BikeExchange and subsequently confirmed by us to you in writing.
11.4 All prices referred to in this clause 11 are exclusive of VAT, sales tax or similar charges.
11.5 Unless agreed otherwise by both parties, any payments made as Subscription Fees or VOE Fees will be made by credit card or direct debit on a monthly basis on the date (or nearest possible date) in each month as the day that you registered on the Site as a Retail Seller.
11.6 We reserve the right to increase the monthly payments shown on our price list in our absolute discretion, provided that we will give you at least one month’s notice of the increase. If you do not agree with the increase, you are entitled to terminate your subscription by giving one month’s notice in writing (providing always that you have paid all outstanding sums to us).
11.7 To enable us to make the monthly payments, you must provide valid, up-to-date credit card or direct debit details. By providing these details, you authorise us to bill your credit card or direct debit account each month for the monthly Subscription Fee or VOE Fee (as the case may be).
11.8 If you fail to make any monthly payment, we will be entitled to suspend our services, suspend, remove or cancel (at our discretion) any Adverts that are currently on the Site and disable your password and account until payment is made. If you fail to make any payment within 14 days of its due date, we shall be entitled to delete your account and any profile on the Site, together with the actions set out in the preceding sentence.
11.9 Payment of the Subscription Fee or the VOE Fee or will entitle you to advertise an unlimited number of Products on the Site (subject to bandwidth and infrastructure availability).
11.10 Please note that we shall, in addition to the Subscription Fees and VOE Fees, also charge a commission fee on each Product sold on the Site (as set out below).
11.11 All amounts and fees referred to in this clause 11 shall be non-refundable and payable in pounds sterling (£).
11.12 You may opt to cancel your subscription at any time by giving one month’s notice in writing, or by paying the fee for one month in advance, subject to any minimum, non-cancellable term agreed between the parties
11.13 Upon expiry of the 12 month term in respect of payment for Subscription Fees or VOE Fees, the term shall automatically renew for a further 12 months unless you give us one month’s notice in writing that you do not wish the subscription to renew.
12. ACCOUNTING TO RETAIL SELLERS AND COMMISSION
This section applies to Retail Sellers only.
12.1 We shall hold all monies received from Buyers from the sale of Retail Seller’s Products through the Site within a separate bank account.
12.2 Within 5 – 10 days of confirmation of dispatch of the Product, we will transfer the proceeds from the sale of your Product to a bank account nominated by you from time to time, less the merchant fee, our Commission Fee and any other administrative fees (for example, charge backs or transfer fees) that we reasonably incur in transferring the proceeds to you. Public holidays and weekends may extend this timing estimate. If your bank details change, you will notify us immediately and shall be liable to pay any fees incurred in connection with the change. In the case of an event, we will transfer the proceeds from the sale at the conclusion of the event.
12.3 All monies accounted you under this clause shall be in pound sterling (£).
12.4 If, for whatever reason, we have transferred to the sale proceeds to you without full deduction of our Commission Fee or any other fees, we shall be entitled to invoice you for those fees such invoice to be paid within 14 days of the date of the invoice.
12.5 We shall at any time, without notice to you, be entitled to set off, withhold, counterclaim, discount or abate any fees due from you against or from any monies that are due to you under these Conditions.
13. REFUNDS, EXCHANGES AND RETURNS
Purchasing from Private Sellers.
Where a Buyer has purchased a Product from a Private Seller and wishes to return, exchange or get a refund for the Product, you must contact the Private Seller directly to request the return, exchange or refund (as the case may be).
Purchasing from Retail Sellers.
13.1 Where a Buyer has purchased a Product through the Site from a Retail Seller and wishes to return, exchange or get a refund for the Product, the Retail Seller’s terms and conditions and its return and refund policy will apply to the sale. You will be able to access the Retail Seller’s return and refund policy through its webpage on the Site.
13.2 You must contact the Retail Seller directly using the contact details on its webpage on the Site. The Retail Seller will inform you how to return the Product and if it requires any further information. The Retail Seller shall make the return and/or refund in accordance with its return and refund policy. We strongly recommend that you check the Seller’s return and refund policy before returning a Product and obtain proof or a postage receipt for any Products that you return to a Seller, as the return of the Product will be your responsibility.
13.3 If the Product is defective, faulty, damaged or not as described, you must ensure to include this information in any communication with the Retail Seller. Any Products must be returned in accordance with the Retail Seller’s return and refund policy.
13.4 Delivery charges may be refunded to you in certain circumstances, please check the relevant return and refund policy for details.
13.5 In the event that a refund is to be made for a Product, the Retail Seller will refund the applicable amount to you directly to the payment method used to purchase the Product.
14.1 If you, as a Buyer, have any complaints and/or questions with respect to a sale transaction, please direct these to the Seller (Private or Retail) in the first instance using the contact details provided during the order process. We suggest that you provide full particulars of any complaint, together with any supporting evidence (if applicable) to the relevant Seller.
14.2 The Seller will be required to respond to a Buyer who complains directly as soon as reasonably practicable, and in any event, within 5 business days of receipt of the complaint.
14.3 The Seller and the Buyer will use all reasonable endeavours to resolve the issue giving rise to the complaint in good faith. The parties must communicate in the English language.
14.4 If the complaint has not been resolved within 14 business days of the Seller receiving the complaint, we may (but are not obligated to) contact the Seller directly to determine whether it has acted in accordance with its returns and refunds policy and/or these Conditions.
14.5 We may review the complaint within a reasonable timeframe. To enable us to do so, we may request that either party provide us with further information. You (whether Buyer or Seller) must respond to any request for further information within 5 business days.
14.6 Following any review of your complaint in accordance with the procedure set out in this clause, we may determine whether or not the Buyer and/or Seller has breached its returns and refunds policy and/or these Conditions. Accordingly we may:
(a) dismiss the complaint; or
(b) require the Seller to process the return and refund or exchange. In the event that the Seller fails to comply, we shall be entitled to suspend our service to them, to suspend, remove or cancel any of the Seller’s Adverts currently on the Site (without refund or liability) and disable their account and password.
15. INTELLECTUAL PROPERTY RIGHTS
This section applies to Sellers (whether Private or Retail) only.
15.1 The Seller acknowledges and agrees that subject to clause 15.2, all Intellectual Property Rights in or arising out of or in connection with the Site shall be owned by BikeExchange.
15.2 The Seller hereby grants to us a non-exclusive ongoing irrevocable royalty free worldwide licence to use any photographs, images, text or other content (including for the avoidance of doubt the Seller’s logo and/or brand name) provided in connection with an Advert or any other use of the Site or our services.
15.3 The Seller warrants that:
(a) it is the legal beneficial owner of or has the right to use the Intellectual Property Rights in and relating to the Products (which includes the data and information), and any photographs, images, text or other content that it provides to us under these Conditions; and
(b) the making of Products available for sale on the Site, and consequent use of the Intellectual Property Rights as granted by clause 15.2 by us will not infringe any Intellectual Property Rights of any third party.
15.4 The Seller shall indemnify and hold BikeExchange harmless against any and all damages, liabilities, costs, expenses and/or losses arising out of or relating to any breach of this clause 14 in respect of any claim or action that the normal operation, possession or use of those Intellectual Property Rights by BikeExchange infringes a third party's rights.
15.5 Please note that payment of an Advertisement, Subscription, VOE or Commission Fee shall not give you any right, title or interest in any of the Intellectual Property Rights in the Site, and shall not give you the exclusive right to any particular webpage.
16.1 Buyers. You may terminate your account by giving us written notice at any time. We reserve the right to suspend or terminate this contract immediately without notice if in our sole opinion you are in breach of these Conditions.
16.2 Sellers. Without affecting any other right or remedy available to it, we may suspend our Services, suspend, remove or cancel any Adverts, disable your account or terminate this contract with immediate effect by giving written notice to the Seller if:
(a) the Seller commits a material breach of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
(b) the Seller repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions;
(c) the Seller fails to pay any amounts due to us;
(d) the Seller fails to put in place and/or maintain a refund and return policy that is compliant with all Applicable Laws;
(e) the Seller receives a high number of complaints from Buyers;
(f) the Seller is, in our sole opinion, not suitable or eligible to be listed on its Site (for any reason whatsoever);
(g) the Seller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(h) the Seller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Seller (being a company);
(j) the Seller (being an individual) is the subject of a bankruptcy petition order;
(k) a creditor or encumbrancer of the Seller attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(l) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Seller (being a company);
(m) a floating charge holder over the assets of the Seller (being a company) has become entitled to appoint or has appointed an administrative receiver;
(n) a person becomes entitled to appoint a receiver over the assets of the Seller or a receiver is appointed over the assets of such;
(o) any event occurs, or proceeding is taken, with respect to the Seller in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(g) to clause 16.2(n) (inclusive);
(p) the Seller suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
(q) the Seller (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs.
17. EFFECT OF EARLY TERMINATION
17.1 Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
17.2 Termination of the contract shall not affect any rights, remedies, obligations or liabilities of BikeExchange that have accrued up to the date of termination, including the right to receive payment for any amounts due to us or claim damages in respect of any breach which existed at or before the date of termination.
18. INDEMNITIES AND INSURANCE
This section shall apply to Retail Sellers only.
18.1 The Retail Seller shall indemnify BikeExchange against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by BikeExchange arising out of or in connection with:
(a) any breach of these Conditions by the Retail Seller; or
(b) any claim against BikeExchange arising out or in connection with any defect in the Retail Seller’s Products or any failure by the Retail Seller to comply with Applicable Laws.
18.2 The provisions of this clause 18 shall survive termination of the Contract.
19. RETAIL SELLERS: LIMITATION OF LIABILITY
This section shall apply to Retail Sellers only.
19.1 Nothing in these Conditions shall limit or exclude Bike Exchange’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation.
19.2 Subject to clause 19.1:
(a) BikeExchange shall under no circumstances whatsoever be liable to the Retail Seller, 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 these Conditions; and
(b) BikeExchange’s total liability to the Retail Seller in respect of all other losses arising under or in connection with these Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total fees paid in the previous twelve three months.
20. BUYERS AND PRIVATE SELLERS: LOSS AND DAMAGE SUFFERED BY YOU
This section applies to Buyers and Private Sellers only.
20.1 You acknowledge that cycling is a potentially dangerous activity and participation is entirely at the risk of the rider. Nothing on the Site is intended to be a recommendation as to techniques or safety regarding cycling. If the Product is delivered in a disassembled state, we strongly recommend that you review any manufacturer’s manual or take professional advise when assembling.
20.2 Nothing in these Conditions shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation.
20.3 Subject to clause 20.2 and 20.4:
(a) we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of data, loss of opportunity, loss of anticipated savings, or any indirect or consequential loss arising under or in connection with the contract between you and us; and
(b) our total liability to you in respect of all other losses arising under or in connection with the contract between you and us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount that you have paid to us under this contract. For the avoidance of doubt, any money paid for Products purchased through the Site shall not be included in calculating this sum.
20.4 If you are a consumer and not acting in the course of business, nothing in this clause shall limit your statutory rights.
21. DATA PROTECTION COMPLIANCE
21.1 How we will use your personal information. We will use the personal information that you provide us to:
(a) provide the services to you;
(b) to process payment in accordance with these Conditions;
(c) to enable the Seller to contact you as permitted under these Conditions;
(d) if you agreed to this during the order process; or
(e) as may be otherwise agreed by you.
21.2 We will only give your personal information to third parties other than the Seller where the law either requires or allows us to do so.
21.3 We will not be liable to you in the event that the Seller processes your personal information in any way that is unlawful or otherwise in breach of data protection legislation.
22. EDITORAL CONTENT
22.1 In the event that you contribute to any editorial content on the Site, you hereby agree that all Intellectual Property Rights in that editorial content are assigned to us. You warrant that all Intellectual Property Rights in any submitted editorial content is owned by you and that you are legally entitled to assign the Intellectual Property Rights to us. We shall be entitled to use the editorial content submitted by you and assigned to us in any way that we choose without the need for your prior consent.
23.1 Assignment. You may not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under the contract without our prior written consent (such consent not to be unreasonably withheld or delayed). We may assign, transfer, mortgage, charge, declare a trust over or deal with this contract or any part of it to or with any person.
23.2 No partnership or agency. Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.3 Entire agreement. These Conditions constitute 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.
23.4 Rights of third parties. No one other than you and us shall have any right to enforce these Conditions.
23.5 Waiver. If we do not insist immediately that you do anything you are required to do under these Conditions, or if we delay in taking steps against you in respect of your breaching this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
23.6 Events outside our control. If the provision of the Services and/or the Site is delayed by an event outside our control, then we will contact you to let you know (where possible). In any event, we will not be liable for delays caused by the event outside of control, but if there is a risk of substantial delay you may contact us to end the contract.
23.7 Severance. If any provision or part-provision of these Conditions 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 shall not affect the validity and enforceability of the rest of these Conditions.
23.8 Applicable laws and jurisdiction. The contract between you and us and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims).
23.9You may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us. Details of this service can be found at http://ec.europa.eu/consumers/odr/”.