Terms and Conditions for the Sellermania Service
As applicable on 26th June 2009
ARTICLE 1 - PREAMBLE - INFORMATION ABOUT SELLERMANIA
This online service is only accessible on the SELLERMANIA website (hereinafter referred to as the « SITE ») at the following URL: http://www.sellermania.co.uk
Details regarding the SELLERMANIA company are as follows:
|Tél : (33) 01.79.75.53.00 – Fax : (33) 01.78.76.63.85||Société SELLERMANIA – Siège social : 104 rue Eugène Labiche – 92500 Rueil Malmaison (France) – Société Anonyme au capital de 68.543 euros – Immatriculée au RCS Nanterre sous le numéro 483.181.483|
SELLERMANIA is legally and financially separate to and independent of AMAZON.
ARTICLE 2 - NECESSARY CONDITIONS FOR SUBSCRIBING TO THE SERVICE
2.1 The MERCHANT does hereby declare:
– that they are the holder of a « Pro Merchant » account with Amazon, and that they have a username and a password granting them legal access to AMAZON Marketplace services. Please note that some parts of this SERVICE will not work if the MERCHANT is not registered as a Pro Merchant with AMAZON; – that they regularly sell products, meaning that they make over 30 sales per month on the AMAZON platform and/or that they carry out this activity on that platform in a professional capacity; – that they have agreed to the General Conditions on the AMAZON website, as well as the Marketplace Participation Agreement, and that they are fully aware of the rules governing sales and the setting of prices as set out by the aforementioned AMAZON platform; – that they fully understand what they can get from using the SERVICE offered by SELLERMANIA as set out in these terms and conditions and on the SITE; – that they agree to pay SELLERMANIA solely by credit/debit card; – that they are of legal age and that they enjoy full legal competence.
2.2 The MERCHANT undertakes to provide accurate information about their identity, their address and the items they wish to sell on the AMAZON platform. They also undertake to promptly make any updates that may arise regarding this information.
2.3 As an overriding condition of these Terms and Conditions, the MERCHANT:
a) undertakes not to use the SERVICE to offer products for sale on the AMAZON platform that are illegal or which infringe the rights of third parties (including intellectual property rights), which undermine public order and decency, or which are offered under conditions, including price conditions, that breach the provisions of the Consumer Code or the Intellectual Property Code; b) guarantees that they hold the necessary rights to place the aforementioned products on sale and to advertise them freely; c) guarantees that no text introduced alongside the products offered for sale shall run contrary to the applicable laws and regulations, that such text shall not be obscene, defamatory, threatening and shall not contain any computer virus or serve as the basis of any form of bulk mailing (« Spam »).
2.4 In order to subscribe to the SERVICE offered by SELLERMANIA and to be able to use this SERVICE, the MERCHANT must read and agree to all these Terms and Conditions and give their free and full consent as follows:
By clicking the box next to « I agree to the Terms and Conditions » that appears on the account creation page, the MERCHANT acknowledges that they fully understand and unreservedly agree to all the provisions contained in these Terms and Conditions for the SELLERMANIA service.
|By clicking the box next to « I agree to the Terms and Conditions » that appears on the account creation page, the MERCHANT acknowledges that they fully understand and unreservedly agree to all the provisions contained in these Terms and Conditions for the SELLERMANIA service.|
ARTICLE 3 - PURPOSE
The aim of the Terms and Conditions is to set out the conditions under which SELLERMANIA provides the MERCHANT, as part of a subscription, access to the SERVICE. This provision shall be non-exclusive, personal and non-transferable, for their own requirements and with the sole aim of helping to manage their business on the AMAZON Marketplace and Seller Central platforms.
ARTICLE 4 – DESCRIPTION OF THE SELLERMANIA PRICING SERVICE
The SELLERMANIA SERVICE consists of providing the MERCHANT with a tool enabling them to optimise the price of the products they wish to offer on sale on the AMAZON website. This optimisation is performed using a pricing strategy defined by the MERCHANT, amongst other things bearing in mind the positioning they choose in relation to their competitors, of the status of the products, the « feedback » they gain on the AMAZON SITE, as well as the minimum price set by the MERCHANT below which they do not wish to sell.
The MERCHANT will monitor and check the suitability of the optimum prices proposed by the SELLERMANIA system, and will make any necessary adjustments to these proposals. They will then, under their own responsibility, choose the products and prices that will be ultimately put online for buyers on AMAZON, by clicking on the « push online to Amazon » button. The prices will not appear on the Amazon website unless this button is clicked.
The MERCHANT will provide SELLERMANIA with their AMAZON username and password, and authorise SELLERMANIA to use them in order that it can change the MERCHANT’s prices and put new prices online on his or her behalf .
ARTICLE 5 - SUBSCRIPTION PROCEDURE
Any MERCHANT that wishes to subscribe to the SERVICE should click on the « Your account » section on the SITE, where they should provide all the information necessary to obtain a username and a password. This username and password will enable them to access their user account (hereinafter referred to as the « USER Account ») on the SITE.
SELLERMANIA will send a confirmation e-mail to the MERCHANT as soon as their subscription has been approved.
The MERCHANT undertakes to update their personal information on their USER Account regularly.
5.2 – Username and password
The username and associated password attributed to the MERCHANT as part of these Terms and Conditions are private, and as such the MERCHANT undertakes not to disclose them or allow any other party to use them. If the MERCHANT is a legal entity, a single individual person representing the legal entity shall be authorised to hold the username and the associated password.
If the MERCHANT has more than one AMAZON account, they may open several separate accounts (with separate usernames and passwords), each subject to separate Terms and Conditions. One SELLERMANIA merchant account is only valid for a single MERCHANT AMAZON account. Any use of the SERVICE made using the MERCHANT’s username and password shall be deemed to have been made by the MERCHANT.
In the event of the loss, theft or fraudulent use of their username and/or password, the MERCHANT must inform SELLERMANIA immediately in writing. Upon receipt of this notification, this latter shall allocate a new username and password. Until such allocation, the MERCHANT shall remain the sole party responsible for the consequences of any usage of their username.
ARTICLE 6 - FREE TRIAL PERIOD
The MERCHANT shall have a 15-days non-renewable trial period starting from the creation of their SELLERMANIA account. They will have free use of this SERVICE for the duration of the trial period (excluding Internet connection costs).
If the MERCHANT would like to subscribe to the SERVICE beyond the trial period, they must – prior to the end of the trial period – have (i) correctly completed all the information relating to the payment of their subscription in their USER ACCOUNT, (ii) provided their credit/debit card details for use as a valid method of payment, in accordance with the demands set out by SELLERMANIA, (iii) chosen a subscription to sign up to, and (iv) paid the amount owed for activating their subscription.
The MERCHANT’s subscription will be terminated by default at the end of the trial period and their USER ACCOUNT and the data listed therein shall be deleted.
Sellermania reserves the right to reset the MERCHANT’s prices to their former amount at any time during or at the end of the free trial period.
ARTICLE 7 - SUBSCRIPTION DURATION - TERMINATION - CANCELLATION
If the MERCHANT has undertaken the required formalities listed in article 6 above, their paid subscription will begin on the day following the last day of the trial period, for the initial subscription period previously selected by the MERCHANT in their USER ACCOUNT, it is being understood that the duration of the initial subscription period shall not be less than three (3) months or more than twelve (12) months. At the end of this initial subscription period, unless otherwise stated by either of the parties in accordance with these Terms and Conditions, the Terms and Conditions shall be renewed by tacit agreement for successive periods of a duration equal to the initial subscription period.
However, prior to the end of each subscription period, the MERCHANT may opt to subscribe for a period of time other than that arranged for their current subscription period, in accordance with the methods detailed in this document, on the SITE and/or in their USER ACCOUNT. Their subscription to the SERVICE for a further period shall take effect at the end of the previous subscription period. If the duration of the subscription period is longer than that currently underway, the duration of the new subscription will be calculated as of the date of changing the subscription (and not as of the renewal date).
7.2 ? Notification of End of subscription – Termination
The MERCHANT may decide terminate their subscription at any time but at the latest 15 days prior to the expiry of the current subscription period by indicating that they do not wish to renew their subscription after the expiry of the current subscription period in their online USER ACCOUNT. They will continue to enjoy the SERVICE until the end of the current period.
Irrespective of the date when the MERCHANT indicates their wish not to renew their subscription, SELLERMANIA shall not owe the MERCHANT any compensation or amounts owed for any monthly subscription, in accordance with article 9 below, the payment of which must be made up to the end of the current subscription period, even if the SERVICE is not used.
7.3 – Cancellation
In the event that the MERCHANT fails to perform some or all of their obligations under these Terms and Conditions, SELLERMANIA may cancel these Terms and Conditions as of right and at any time, with or without formal notice being made to the MERCHANT to fulfil their obligations. SELLERMANIA shall send any formal notice by any means of its choice, including by simple electronic mail (e-mail).
The performance of the rights granted by this article is without prejudice:
– to any damages and interest to which SELLERMANIA may have a right, or any other means or recourse which it may use, and/or,
– to fees owed to SELLERMANIA on the cancellation date, as part of the current subscription (including minimum subscription fees of 9 euros, excluding tax), which shall become immediately payable.
7 .4 – Consequences of expiry
In the event of the expiry of these General Conditions for any reason whatsoever, the MERCHANT accepts that their USER Account will be closed by SELLERMANIA and that the data contained in this account will be deleted.
ARTICLE 8 - PRICE
8.1 – Calculation
In return for the SERVICE provided by SELLERMANIA, the MERCHANT undertakes to pay SELLERMANIA the fees as defined in the fee section of the website.
8.2 – Conditions and methods of payment
– activation fees are payable upon opening the MERCHANT’s USER ACCOUNT, which must occur before the end of the free trial period, failing which SELLERMANIA may simply decide to close the MERCHANT’s account. These activation fees shall under no circumstances be reimbursed, even if the MERCHANT cancels their subscription for any reason whatsoever.
– Commission is invoiced on the first day of the month, depending on the total number of items ordered made by the merchant the previous month, and will be payable within 10 days following the date of invoicing.
– All fees owed to SELLERMANIA are payable by credit/debit card, plus VAT.
– the MERCHANT will provide SELLERMANIA with a valid credit/debit card number on the latter party’s banking partner’s secure server, and authorises SELLERMANIA’s banking partner to debit their credit/debit card by the amounts owed, at agreed intervals. SELLERMANIA does not have access to the bank details given by the MERCHANT, which are given directly by the MERCHANT to the banking partner responsible for electronic payments.
8.3 – Non-payment
By explicit agreement, any non-payment at the agreed time shall, notwithstanding the cancellation of the General Conditions, lead to the following as of right and without prior warning:
– the immediate payment of all remaining owed amounts;
– the invoicing of interest at the legal rate, plus one and a half (1.5) percent – interest being owed due to the expiry of the contractually-agreed time – calculated prorata temporis by periods of one month;
– a halt to all ongoing services of whatever type and/or state of progress;
– the termination of authorisations granting access to and use of the SERVICE.
Any debt collection proceedings that SELLERMANIA is required to take out against the MERCHANT shall be at the expense of the MERCHANT.
8.4 – Optional services
Optional services may be offered to the MERCHANT by SELLERMANIA, using price conditions differing from those detailed in these Terms and Conditions.
ARTICLE 9 - INTELLECTUAL PROPERTY
9.1 – Property
All intellectual property rights and other rights relating to (i) the SITE and/or (ii) the SERVICE (i and ii hereinafter jointly referred to as the « TOOL ») shall remain the exclusive property of SELLERMANIA. The only rights awarded to the MERCHANT shall be those set out in these Terms and Conditions, exclusively for the purpose of the MERCHANT’s internal requirement. These rights shall not under any circumstances be transferred to the MERCHANT because of the General Conditions.
The trading names, symbols and logos « AMAZON » and « SELLERMANIA » are trademarks registered by their respective owners and may not be reproduced, imitated or used without their explicit consent.
9.2 – Limitations
As far as is permitted by French law, the MERCHANT may only use all or part of the TOOL as an end user. In particular, the MERCHANT may not make any copy of all or part of the SITE, and nor may they sell all or part of the TOOL user rights to a third party. The MERCHANT may neither modify nor reproduce the TOOL, either permanently or temporarily, in whole or in part, by any means and in any form.
In particular, the MERCHANT is not authorised to use the TOOL to directly develop or to have developed indirectly and/or to subsequently market an identical or similar product or technology.
9.3 – Guarantee of compliance
Subject to usage under normal conditions, SELLERMANIA guarantees that the TOOL will comply with the features listed on the SITE’s help pages, as of communication of the passwords. The MERCHANT acknowledges that at the current level of technology, it is not possible to guarantee that the TOOL will operate without any major or minor faults, without any service interruptions, or that it will meet the MERCHANT’s conditions for performance or results.
SELLERMANIA’s shall under no circumstances be held liable if it arises:
– that the MERCHANT is not using the TOOL in accordance with its documentation, as detailed on the SITE help pages;
– that the TOOL becomes problematic (or even impossible) to use either wholly or partially as a result of the MERCHANT’s computer equipment or of their software, or due to an Internet connection problem.
Subject to the imperative legal provisions, SELLERMANIA refuses to make any guarantee or condition, explicit or implicit, including any guarantee or condition over the trading capacity or suitability of the TOOL for the MERCHANTS’ needs, as only this latter is capable of judging this.
SELLERMANIA reserves the right to block access to the SITE for maintenance reasons, on rare occasions and for a limited period of time, for which the MERCHANT shall not have the right to any compensation. The MERCHANT explicitly acknowledges that they know and agree that during the maintenance period, prices will not be updated and will stay at their old value.
ARTICLE 10 - LIABILITY
10.1 – Principle
a/ The MERCHANT explicitly acknowledges and agrees that SELLERMANIA has a simple due care obligation for all its obligations arising from the Terms and Conditions.
b/ Except in the event of proven gross or intentional misconduct, the overall liability of SELLERMANIA to the MERCHANT by virtue of these Terms and Conditions, irrespective of the legal grounds may not, if applicable, exceed the amounts already paid by the MERCHANT for their last monthly payment. Furthermore, the MERCHANT may not claim any compensation in this regard if a claim is not made by registered post with return receipt sent to SELLERMANIA within one (1) week as of the date when the underlying event happens.
c/ The MERCHANT explicitly agrees that SELLERMANIA and/or its representatives have only limited liability (in accordance with article 10.1 /b above) to it for (1) any indirect damages arising through the poor performance or non-performance by SELLERMANIA of its obligations by virtue of this document resulting in, but not limited to, any losses of profits or income and/or any damage arising from the impossibility of using all or part of the SERVICE, interruptions to business or other, even if SELLERMANIA or its representatives have been informed of the possibility of such damage, (2) any service or assistance no specifically included in these Terms and Conditions, (3) any damages arising, directly or indirectly, from the inaccuracy of the information coming from the use of the SERVICE.
d/ The MERCHANT acknowledges that they alone are responsible for the information they hold and/or own, as well as that arising from the use of the SERVICE, and assume sole responsibility for keeping such information.
e/ The MERCHANT acknowledges that it alone is responsible for forecasting and calculating any damage it is liable to suffer in the event of any problem arising in the performance of the Terms and Conditions whose terms (including financial measures) have been set with regard to the liability limitations and exemptions enjoyed by SELLERMANIA. As a consequence, the MERCHANT acknowledges and accepts that it is their own responsibility to insure themselves against all risks and that they alone deem appropriate with regard to their own individual situation and under the terms of the Terms and Conditions.
f/ All sales made by the merchant on the AMAZON platform, particularly where SELLERMANIA puts optimum prices online on the MERCHANT’s behalf as part of the role with which the latter has entrusted it in Article 4, are made directly between the merchant and the buyers on AMAZON. As a consequence, (i) SELLERMANIA is under no circumstances a contractual party to agreements signed between the MERCHANT and the buyers on AMAZON, and (ii) The merchant undertakes to respect the applicable legislative and regulatory provisions and particularly those aimed at consumer protection and mail order sales.
10.2 – Reliance on AMAZON third party technology
a/ The MERCHANT explicitly acknowledges that it is aware of and agrees to:
– the SERVICE relying on « web service » technology developed by AMAZON and made available to Marketplace merchants. The MERCHANT undertakes only to use information obtained thanks to the SERVICE with the aim of optimising their prices on AMAZON, in accordance with these General Conditions and with the provisions of the Terms and Conditions and the AMAZON Marketplace and Seller Central Participation Agreements.
– some changes made by AMAZON could render the SERVICE obsolete, independently of the monitoring and the desires of SELLERMANIA, and that this latter may under no circumstances be held responsible for developments governed by AMAZON and their consequences, whether they arise with or without warning and irrespective of the consequences of these changes.
b/ SELLERMANIA acquits itself of all responsibility as to the integrity, exhaustiveness, precision, accuracy, and updating of information and data provided by the SERVICE depending on AMAZON and its software and databases. SELLERMANIA holds no intellectual property or other rights over AMAZON information and data. This information and data remain the exclusive property of AMAZON, as is explicitly acknowledged by the MERCHANT, who shall take this into account in their usage.
c/ SELLERMANIA shall make every effort available to it to make sure the SERVICE provides the most up-to-date possible information. However, the MERCHANT explicitly acknowledges and agrees that:
– the information relating to prices are by their very nature volatile, and therefore that the optimum prices proposed as part of this SERVICE may no longer be up to date when the MERCHANT puts their prices online on Amazon;
– by clicking on the « Send to Amazon » button, the MERCHANT takes responsibility for the prices the put online
The abovementioned guarantee and liability limitations constitute essential and overriding factors of the TERMS AND Conditions between SELLERMANIA and the MERCHANT.
ARTICLE 11 - FORCE MAJEURE
Force majeure events shall suspend the obligations of the Parties as regards the Terms and Conditions. However, if the force majeure event continues for over two (2) months, each party will have the option of putting an end to the Terms and Conditions by registered post with return receipt sent to the other party.
ARTICLE 12 - TERMS AND CONDITIONS DEVELOPMENT
If SELLERMANIA decides to apply new Terms and Conditions or to change the existing ones, SELLERMANIA will inform the MERCHANT of the new conditions applicable to the upcoming subscription period at least two (2) weeks prior to the end of the ongoing subscription period. A letter or an e-mail sent to the MERCHANT shall count as valid communication. The Terms and Conditions will be renewed as the new conditions, unless cancelled by the MERCHANT in accordance with article 7.2.
ARTICLE 13 - CONFIDENTIALITY
All communication and/or publications in any form whatsoever of data or information arising from the use of the SERVICE for reasons other than sale price optimisation for the MERCHANT shall be subject to prior, written authorisation from SELLERMANIA.
SELLERMANIA reserves the right to inform its employees, temporary workers or co-contractors any confidential information relating to the MERCHANT if such communication is necessary or desirable for SELLERMANIA’s performance of its obligations arising from these Terms and Conditions, it being understood that SELLERMANIA will bring the confidential nature of this aforementioned information to such persons.
ARTICLE 14 - DATA PROTECTION - SECURITY - COOKIES
14.1 – Data Protection and Civil Liberties Law
The MERCHANT explicitly acknowledges and agrees that SELLERMANIA will collect and store information concerning them and more particularly private data (e.g.: information on the USER ACCOUNT, IP address, SELLERMANIA and AMAZON username and password, etc.). Private data collected in this way is necessary to enable the management of the SERVICE and its improvement. Such information is only dealt with by SELLERMANIA.
In compliance with the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003, the MERCHANT has the right to access and to correct information concerning them. The MERCHANT may exercise this right at any time and, if necessary, may correct or delete information relating to them, by asking SELLERMANIA at the contact details listed in article 1 above.
14.2 – Security
SELLERMANIA will take all appropriate measures to protect the security of the MERCHANT’s private data gathered on the SITE, including through the use of a firewall, an antivirus programme, the use of a secure SSL protocol certified by Verisign, along with physical security measures.
14.3 – Cookies
The MERCHANT acknowledges being aware, and agreeing, that cookies are installed on their computer’s hard disk. A cookie saves information relating to your computer browsing on the site (pages viewed, date and time of viewing, etc.) which may be read by SELLERMANIA in subsequent visits by the MERCHANT.
The MERCHANT is informed that they may reject cookies by modifying their browser settings. The MERCHANT is informed that certain functions of the SERVICE may not operate normally if they reject cookies.
ARTICLE 15 - MISCELLANEOUS
15.1 – Agreement on proof
In the event of any disputes over the use of the SERVICE and/or the SITE, the MERCHANT and SELLERMANIA agree that the data saved on SELLERMANIA equipment and particularly the use of the MERCHANT’s private usernames and passwords shall constitute valid proof between the parties. It is explicitly agreed that all the technical information regarding the MERCHANT, particularly saved data and statistics will be kept and archived by SELLERMANIA for probative reasons.
15.2 – Comprehensiveness
These Terms and Conditions give the full obligations of the parties. The fact that either party does not take advantage of any shortcoming or any failure to perform any of its obligations or any other breach by the other party of any of its obligations under the Terms and Conditions shall not be interpreted as a waiver of the obligation in question or of any of the other provisions contained in the Terms and Conditions. Similarly, any delay or failure by either party to perform the rights and prerogatives granted to them under these Terms and Conditions shall not be interpreted as a waiver of these rights and prerogatives.
15.3 – Contractual documents
These Terms and Conditions constitute a full and exclusive whole of the terms of the agreement entered into between SELLERMANIA and the MERCHANT.
15.4 – Partial non-validity
In the event that any of the Terms and Conditions clauses are declared null and void, this clause shall be deemed not to have been written. This shall not lead to the cancellation of the Terms and Conditions in their entirety.
15.5 – Sale
SELLERMANIA reserves the right to sell the Terms and Conditions to any legal entity of its choice, without notice.
15.6 – Applicable law – Competent jurisdiction
These Terms and Conditions are subject to signature, interpretation and performance under French law. Any dispute between SELLERMANIA and the MERCHANT relating to the existence, validity, interpretation or performance of the Terms and Conditions or of any of their clauses that the parties are unable to resolve amicably shall be ruled by the Paris courts.