Conditions of Use
Conditions of Using Our Website & Open to Export Store (“Conditions”)
PLEASE READ THE FOLLOWING CONDITIONS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND REMEDIES AND WILL FORM THE BASIS OF THE CONTRACT UNDER WHICH WE WILL PROVIDE YOU WITH CERTAIN SERVICES. BY REGISTERING FOR, OR USING, OUR WEBSITE OR OPEN TO EXPORT STORE, YOU AGREE TO BE BOUND BY THESE CONDITIONS.
1. Some Useful Definitions. In these Conditions:
“Affiliate”, in relation to any company, means any company it controls or is controlled by or with which it is under common control.
“Buyer” means someone who browses, offers to buy or buys products or services on Our Website.
“Comments” means comments, suggestions, ideas, concepts, know-how, techniques, or materials (including without limitation original or creative materials and Content).
“Content” means any and all textual and graphical content including, without limitation, text, code, graphics, images, logos, photographs, sounds, music, video, animation, characterization, URL, trademarks, data, media and other content in any form.
“IP” means (a) all copyrights, patents, rights in trademarks, design rights, database rights, rights in know-how, trade secrets, service marks, domain names, rights in confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, renewal, extension, division or reissue, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
“Laws” means laws, regulations, rules, orders, codes of practice or other requirements of any governmental authority or regulatory body of competent jurisdiction from time to time.
“Malware” means any software designed to infiltrate, interfere with, intercept, expropriate or damage a computer system, data or personal information, without the owner’s informed consent, including, but not limited to, “trojans”, “worms”, “logic bombs” and “cancelbots” as the same may be generally understood within the computing industry from time to time and any other malicious and unwanted software.
“Open to Export Store” means the part of Our Website designed to bring Buyers and Sellers together for the purpose of exporting from the UK.
“Our Advertising Policy” is the policy that governs the products and services that can be advertised, offered for sale and sold on the Open to Export Store and the way in which those products and services can be listed and advertised.
“Our Data” means any and all data or other information generated by or in connection with the Open to Export Store, the Services or your use of the Services, or acquired by you or your Affiliates from us or our Affiliates, including, without limitation, Order Details.
“Our IP” means IP in Our Property.
“Our Policies” means all standards, policies (including without limitation Our Advertising Policy), practices, specifications, technical requirements, schedules, terms, conditions, guidelines, rules and other information on Our Website or the Open to Export Store or such other website as may be notified to you from time to time, and as such documents may be amended from time to time by us in our sole discretion.
“Our Property” means any and all:
(a) software, code, scripts, functionality, hardware, technology and documentation developed by or on behalf of us at any time, or provided by us as part of, or in connection with the Services;
(b) interfaces, protocols, databases, data formats, structured XML formats, grammars, glossaries, libraries, specifications and other similar materials developed by or on behalf of us at any time, or provided by us as part of, or in connection with the Services;
(c) our trademarks, service marks, logos, insignia, domain names, trade names, trade dress (including any “look and feel”) whether now known or created in the future;
(d) Our Content;
(e) Our Website;
(f) ideas, processes, procedures, systems, methods of operation, concepts, principles and discoveries of any kind made or developed at any time; and
(g) Our Data.
“Our Website” means the website with the top level domain of www.opentoexport.com, including the Open to Export Store available on it, and, in relation to each, any replacement or successor website in place from time to time.
“Prohibited Products” means the products or services we do not allow to be advertised, offered for sale or sold on Our Website, as listed in Our Advertising Policy.
“Seller” means someone who advertises, offers to sell or sells products or services on Our Website.
“Services” means the Open to Export Store services and/or any other services offered by us on Our Website.
“Taxes” means any and all value added, sales, use, excise, import, export and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any product, service or transaction carried out on Our Website.
“us,” “we” and “our” refers to hibu (UK) Limited, a company registered in England and Wales under company number 04205228 whose registered office is at One Reading Central, Forbury Road, Reading, Berkshire, RGI 3YL, United Kingdom, our successors and assigns.
“Your Account” means the administration account we set up for you as part of the Services to manage your seller information page, Your Products and Services, your shipping profile, your refunds and returns policy, Your Taxes, your orders, Your Transactions, etc.
“Your Data” means any and all information or data you give to us about you and data input by you, for the purposes of using Our Website or facilitating your use of Our Website.
“Your Products” means all products that you advertise, offer for sale or sell through the Services.
“Your Products and Services” means Your Products and Your Services.
“Your Services” means all services that you advertise, offer for sale or sell through the Services.
“Your Taxes” means any and all value added, sales, use, excise, import, export and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services, or otherwise in connection with any action, inaction or omission of you or your Affiliates or your or their respective employees, agents, contractors or representatives.
“Your Transactions” means any of the following, conducted through or via the Services:
(a) the sale of products by you to Buyers; or
(b) the submission of a request for an appointment by a Buyer to you.
Please note Open to Export website at www.opentoexport.com (including the Open to Export Store) is provided by us in partnership with the Secretary of State for Business, Innovation and Skills acting through UK Trade and Investment (UK T&I).
2. Introduction. If you do not agree with any part of these Conditions, do not visit or use Our Website. If you decide to enter into a transaction on our Website, additional terms and conditions may apply, and, in the event of any conflict, those additional terms and conditions will prevail. Use of Our Website is limited to users who can lawfully enter into and form contracts under the Laws of England and Wales. You must agree to these Conditions when you register. You can only buy or sell on our Open to Export Store if you have agreed to them. For the avoidance of doubt, our physical sales force will not solicit sales on behalf of any Seller.
3. Minimum Age. You must be at least 18 years of age to use Our Website or to buy products or services on our Open to Export Store. Although we allow the sale of products and services intended for children, these listings are directed at adults. At Our Website, we make no active effort to collect personal information from individuals under the age of 18. Although we require that Our Website users must be at least eighteen (18) years of age or older, you must nonetheless ensure that Content you provide is acceptable for viewing by Our Website users who might not be adults.
4. Changes to these Conditions. We reserve the right, in our sole discretion, to modify, alter or otherwise update these Conditions or any of Our Policies at any time for any reason, and by visiting or using Our Website after the posting of a modification, you accept the modification. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.
5. Registration Information. If you elect to register on Our Website, you must provide your real name, address, phone number, and email address. You must ensure that all registration information you give us is complete, accurate and truthful and that you keep such information up to date at all times. We reserve the right to reject any registration and to refuse service to anyone for any reason, in our sole and absolute discretion. We reserve the right to terminate Your Account immediately and without notice to you at any time and for any reason, including, without limitation, if you provide false or incorrect information when you register or if you don’t keep your information up to date. Currently, we are not charging a fee for registering on Our Website, but we reserve the right to do so in the future.
6. Passwords. Shortly after you have accepted and agreed to these Conditions, the password that you create will be activated to enable you to access the password-protected portions of Our Website. You must not share your password with anyone else. It is your responsibility to remember and protect your password and you must not disclose it to any other person. Remember to choose a strong password, including numbers, capital letters, special characters, etc., and one that is not typically found in a dictionary. You shall not access or use Our Website by means of any automated program, expert system, electronic agent or “bot,” and shall not give any person or entity access to Our Website. You may never use someone else’s account, username or password without permission. You are responsible for maintaining the confidentiality of your password and Your Account, and you shall be fully responsible for all activities that occur under your password or Your Account. You agree to notify us immediately if you discover any unauthorized use of your password or Your Account or any other breach of security.
8. The Services on Our Website. We reserve the right to change Our Website and any or all of the services available on or through it at any time from time to time or to discontinue Our Website or any or all of the services available through it at any time. We make no guarantees that Our Website is available and free of bugs and other errors. We may suspend all or part of Our Website or your access to it from time to time, for various reasons, including, but not limited to, (i) maintenance procedures or repairs performed by us; (ii) equipment failures; (iii) congestion of the network; or (iv) interruption of telecommunication or digital transmission links. You acknowledge and agree that we are not liable for these periodic interruptions in Our Website. For security reasons, we may limit the number of transactions or the total value of the transactions that you perform within a certain period of time.
9. Our IP.
9.1 You acknowledge that we, our Affiliates or licensors, own all IP in Our Property. We, or our Affiliates, legally own a wide range of IP rights used in and relating to Our Website, including (without limitation): (a) each of the trademarks “hibu”, “YELL”, “OPEN TO EXPORT STORE” and related logos; (b) the business-listings, product and service databases (‘the databases’) which you can get access to using Our Website; (c) the design, text, graphics, articles, blogs and other Content of the web pages on Our Website (excluding any Content and/or Comments you provide to us as referred to in section 12 below), together with all the web addresses associated with those web pages, other than those which we use under license; (d) in all the software used in relation to Our Website, other than that which we use under license; and (e) in patents 12/321,620 (pending) and 61/452,775 (pending).
9.2 All IPR in Content, data or other materials provided by us, shall be owned by us, our Affiliates or licensors. We hereby grant you a non-exclusive, non-transferable, personal and limited license to access and use Our Website. Subject to Our Policies, you may link to the homepage of the Open to Export Store. However, you must not use our trademarks, service marks, trade names, logos, trade dress, meta-tags or other hidden text without our express written permission (which may be granted or withheld in our absolute direction).
10. Prohibited Actions.
10.1 You must not: (a) decompile, reverse engineer, disassemble, modify, reduce Our Website to human perceivable form or create derivative works based upon Our Website or any part thereof; (b) except to the extent permitted by law or under these Conditions, copy, modify, duplicate, frame, mirror, republish, download (other than for the purposes of page caching), display, transmit or reproduce any portion of Our Website in any form or by any means or exploit Our Website for commercial purposes, without our express written permission (which may be granted or withheld in our absolute discretion); (c) disable any licensing or control features of Our Website or in any way interfere with features which enforce limitations on use of Our Website; (d) introduce into Our Website any Malware; (e) merge Our Website with another program; (f) remove, obscure, or alter any notice of the copyright or other proprietary legends on Our Website; (g) sublicense, assign, translate, rent, lease, lend, resell for profit, distribute or otherwise assign or transfer access to Our Website to any third party not authorized under these Conditions; (h) use, or allow the use of, Our Website in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (i) use ‘screen scraping’, any automated algorithm, device, method, system, software or manual process to access, use, search, copy, monitor or extract material (in whole or in part) from Our Website unless we have given our express written permission (which may be granted or withheld in our absolute discretion); (j) artificially increase the number of click counts or click-throughs for any listing or seller, including by any manual means (such as repeatedly clicking on adverts or refreshing pages), any automated means (such as computer-generated search requests or similar devices) or asking someone to carry out these activities (including by offering any benefit or incentive); (k) otherwise act in a fraudulent, illegal, malicious or negligent manner when using Our Website; or (l) use the information of other users of Our Website for the purposes of solicitation, advertising, unsolicited marketing, spam or harassment.
10.2 We have the right to investigate your online activities for ‘click-fraud’ or any similar activity, and you agree to provide reasonable help with these matters. Except as expressly provided herein, we reserve all rights with respect to Our Website, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
10.3 You must not use Our Website: (a) for any unlawful purpose; (b) to harm, threaten, abuse or harass another person, or in a way that invades someone’s privacy or is (in our reasonable opinion) offensive or is unacceptable or damaging to us or our Affiliates; (c) to create, check, confirm, update or amend your own or someone else’s databases, records, directories, customer lists, mailing or prospecting lists; (d) to provide any kind of commercial information service; (e) as a source of material or contact data for any kind of marketing activity; (f) to tamper with, update or change any part of Our Website; (g) in a way that affects how Our Website is run; (h) in a way that imposes an unreasonable or disproportionably large burden on our communications and technical systems as determined by us; or (i) using any automated means, to monitor or copy Our Website or its Content, or to interfere with or attempt to interfere with how Our Website works.
10.4 You must not systematically extract and/or re-use any or all of Our Website or its Content without our express written permission (which may be granted or withheld in our absolute discretion). In particular (and without limiting the generality of the foregoing), you may not use any data mining, robots, or similar data gathering and extraction tools to extract for re-use (whether once or many times) all or a substantial part of Our Website.
11. No Endorsement. Disclaimer. We will have no liability whatsoever to you or to any third party for your use of Our Website. You understand and agree that we do not approve or endorse any of the products, services or Content which you access, offer to buy or buy or which is listed on or through Our Website, notwithstanding the “local picks” which we may suggest.
12. Content and Comments you provide to us.
12.2 After posting or emailing your Content or Comments to Our Website, you continue to own that material, and you continue to have the right to use your Content and Comments in any way you choose.
12.3 Please choose carefully any Content and Comments you post on Our Website, as it will be available for public viewing. By providing any Content or Comments to Our Website, and for us to be able to use it, you confirm you and the Content and Comments comply with all obligations set out in these Conditions, and in particular that: (a) your Content and Comments are your own original work or you are authorised to provide them to Our Website; (b) your Content and Comments are not defamatory (that is, they do not damage someone’s good reputation), and do not contain any material which is harassing, threatening, obscene, offensive, hateful, abusive or inflammatory; (c) your Content and Comments do not take away or affect any other person’s privacy rights, contract rights or any other rights, and do not otherwise break any applicable Laws; (d) your Content and Comments comply with Our Policies and the Community Rules; (e) your Content and Comments do not promote any illegal activity or discrimination; (f) you have the right to give us permission to use your Content and Comments for purposes specified above and that such use will not infringe the IP, privacy or other rights of a third party; (g) your Content and Comments are not in any way liable to mislead others or otherwise be detrimental to or inconsistent with our good name or reputation; (h) your Content and Comments do not contain any Malware; (i) if your Content or Comments are intended to promote your own business, products or services, you will clearly and openly state your association with the particular business, products or services; (j) you will not falsify or delete any author attributions, legal or other proprietary notices, designations or labels; and (k) your Content and Comments do not contain any form of mass-mailing or spam.
12.4 You acknowledge that we do not have a duty to publish any Content or Comments you have provided and we can remove or edit Content or Comments at our discretion.
12.5 We have the right to: (a) reject or refuse to post any Content or Comments you have provided; (b) remove any Content or Comments from Our Website, whether or not the Content or Comments go against any of these Conditions; or (c) restrict, suspend or stop your access to all or any part of Our Website at any time.
12.6 You must not leave Comments for products or services that you own, sell, rent, provide or otherwise make available to Buyers.
12.8 If you do not want to grant us the permission set out above on these terms, please do not provide any Content or Comments to Our Website.
12.9 Disclaimer: The opinions expressed within Comments are those of the author and not our views or opinions. We do not endorse any Comments posted on Our Website.
13. Claims of Defamation or IP Infringement. It is not practical for us to check all information (for example, information about Sellers, products, services or Buyers) posted to Our Website. Instead, we offer a notice and take down procedure. If you believe that any information posted on Our Website is defamatory, please notify us immediately via our Defamation, Copyright and Trademark Infringement Policy. If you believe that any information posted on Our Website infringes your IP rights in any way, please notify us immediately via our Defamation, Copyright and Trademark Infringement Policy. We will then review the information and, where we deem it appropriate, remove it within a reasonable time.
14. Prices; Taxes.
14.1 Unless otherwise indicated, and subject to legal requirements of the location of both the Buyer and the Seller:
(a) all items offered by Sellers are for sale at a fixed price and not for auction;
(b) prices do not include federal, state and local sales, use, excise or gross receipts taxes, value added or similar taxes, if applicable. Taxes and duties will be shown separately.
15. Our role in transactions between Buyers and third party Sellers.
15.1 We allow third party Sellers to advertise, offer for sale and sell their products and services on Our Website. The name of the Seller will be provided in each listing and you can find more details about each Seller by clicking on the Seller’s name (this will take you to the seller information page). We merely provide the platform that allows Buyers and Sellers to transact (ie we facilitate the transactions that are carried out on Our Website). We are not the Buyer or the Seller of products or services advertised, offered for sale or sold by a third party Seller. The contract formed for third party products or services is solely between the Buyer and Seller. We are not a party to this contract and we assume no responsibility for it. We act as the limited representative of Buyers for the purposes of concluding contracts for such Buyers directly with Sellers and Buyers authorize us to do this. We are not an agent for any third party Seller and we expressly disclaim all liability of any kind arising out of, or in connection with, each and every contract between a Buyer and a third party Seller. The third party Seller is solely responsible for the advertisement, offer for sale and sale of its products and services and for dealing with any Buyer claims or any other disputes arising out of, or in connection with, the contract between the Buyer and the third party Seller.
15.2 We are not responsible for examining or evaluating, and we do not warrant or endorse the products or services of any third party Sellers. We do not assume any responsibility or liability for the actions, products or services of, or the information provided by, any of these third party Sellers.
15.3 We are not responsible for determining whether Taxes are applicable to the sales or any products or services by Sellers and we are not responsible for collecting, remitting or reporting any such Taxes.
15.4 We will share Buyer information with third party Sellers where it is related to a transaction between the Buyer and Seller. Buyers should carefully review Sellers’ privacy statements and other conditions of sale (if any). These are available on the Seller’s seller information page.
16. General conditions related to sales
16.1 Order Notification. When an order is placed, we will notify the Buyer and the Seller.
16.2 Warranties. Sales of products and services are subject to all terms and warranties implied by applicable Law.
16.3 Governing Law. The contract between the Buyer and Seller will be governed by the laws of England. All disputes arising out of or in connection with the contract between the Buyer and the Seller (whether contractual or non-contractual) will be subject to the non-exclusive jurisdiction of the courts of England and Wales.
16.4 Right to Cancel. Buyers may have the right to cancel the contract for the purchase of products or services within a period of seven (7) working days, beginning with the day after the day on which the relevant product is delivered. This would not apply to contracts for the purchase of video, DVD, audio, video games and software products where the relevant product has been unsealed. Nor does it apply to digital products once downloading has commenced. Buyers also cannot cancel a contract for services after the services have commenced. Please note, where a cancellation right applies, Buyers will be responsible for the costs of returning any products (unless the product is faulty or it was delivered to the Buyer by mistake).
17. Obligations for Buyers
17.1 Payments. A Buyer must pay for the products and services purchased via the Open to Export Store, in the currency in which they are listed via PayPal. After the charge is approved, and the Buyer’s order is confirmed to the Seller, the Seller is obliged to dispatch the item sold in accordance with these Conditions.
17.2 Shipping Charges and Taxes. All shipping/delivery charges and Taxes will be paid by the Buyer.
17.3 Prohibited acts. Buyers must not manipulate transactions in ways that are unfair to other users of Our Website; or use Our Website or Open to Export Store in violation of any applicable Law, nor permit or assist others to do so.
17.4 Inspection of items. Buyers must inspect any product purchased from a Seller immediately upon receipt to ensure that it accords with any description given by the Seller in the product listing and to ensure that the product is safe.
17.5 Disputes and Refunds. The Buyer must resolve any dispute directly with the Seller. Sellers are prohibited from invoicing Buyers, and Buyers must not accept Seller’s invoices, off the Open to Export Store, unless the Buyer has purchased Your Services following a referral/appointment request only and we do not provide a mechanism to directly purchase the same via the Open to Export Store. All refunds for purchases made via the Open to Export Store must be initiated by the Seller and may only be accepted by Buyers via PayPal.
18. Obligations for Sellers. Sellers must agree to the Online Services Terms and Conditions, which incorporates these Conditions in order to advertise, offer for sale or sell goods or services through Our Website.
18.1 Products and Services. Sellers may list products and services on Our Website, subject always to Our Policies, including, without limitation, Our Advertising Policy, which includes a list of Prohibited Products which are not allowed to be listed on Our Website. Sellers must keep sufficient inventory to fulfill all orders.
18.2 Shipping/Delivery Charges. Sellers must set up their shipping/delivery profile in their account by choosing from the various options provided by us and permitted on our Open to Export Store. Shipping/delivery charges will be displayed on each listing. For each product you list on the Open to Export Store, you must tell us the state or country from which it is shipped.
18.3 Taxes. The Seller is responsible for the proper determination, collection and remittance of all Taxes associated with its products, services and transactions, for filing all associated returns and for issuing VAT invoices/credit memos (or local equivalent), when applicable.
18.4 Sellers’ Warranties. Sellers represent and warrant to prospective Buyers that: (a) they are the owners of the item and are able to transfer good title to the item free from any third party claims, liens or encumbrances; (b) their listings are accurate, current and complete, in compliance with all Laws; and (c) all items are safe for the advertised uses, that they bear all required markings and labels, and that they are legal for sale to the location of the Buyers.
18.5 Prohibited acts. Sellers must sell all items on Seller’s own account and must not represent that Seller is selling on behalf of any third party. Seller must not use Our Website or Open to Export Store in contravention of any applicable Law or permit or assist others to do so.
18.6 Dispatch of Products for Delivery. Unless the Seller has stated otherwise in a particular listing, the Seller must dispatch products for delivery within two working days of us confirming the order.
18.7 Collection of Products via In-store Pickup. Buyers who choose the In-store Pickup option will have 7 days in which to pickup products in-store.
18.8 Notification of Dispatch/Collection. Sellers must notify us promptly through their account when a product has been dispatched or collected in-store or when a service has been provided. If you fail to notify us, we may cancel the order.
18.9 Invoices. Sellers shall not invoice buyers off the Open to Export Store, unless the Buyer has purchased Your Services following a referral/appointment request only and we do not provide a mechanism to directly purchase the same via the Open to Export Store.
18.10 Refunds. If the Buyer has paid and the Seller cannot fulfill the order for any reason, the Seller must provide a full refund. All Seller-initiated refunds or adjustments for purchases must be made via the Open to Export Store must be initiated by the Sellers via the Open to Export Store or PayPal. The Seller must make all such refunds promptly and, in no event, any later than thirty (30) days from the date we confirm the order.
18.11 Our fees. Our fees are payable in accordance with the Online Services Terms and Conditions. Unless otherwise stated our fees do not include federal, state and local sales, use, excise or gross receipts taxes, VAT or similar taxes and you agree to pay or reimburse us for all such taxes. You agree that we can take payments due to us by periodically charging your credit card or bank account via direct debit. You agree to accept value added or other applicable tax invoices via email or other electronic means, determined by us in our sole discretion.
19. Disclaimer of Warranties; Limitation of Liability; Release.
19.1 OUR WEBSITE, THE OPEN TO EXPORT STORE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, DATA AND INFORMATION PROVIDED OR MADE AVAILABLE IN CONNECTION THEREWITH, ARE PROVIDED “AS IS.” YOU USE OUR WEBSITE, THE OPEN TO EXPORT STORE AND THE SERVICES AND ANY ONLINE FUNCTIONALITY OR TOOLS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES AND THE UK T&I, HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, DECLARATIONS OR GUARANTEES REGARDING THIS AGREEMENT, OUR WEBSITE, THE OPEN TO EXPORT STORE OR THE SERVICES OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL EXPRESS AND IMPLIED CONDITIONS, TERMS AND/OR WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) ANY AND ALL IMPLIED WARRANTIES ARISING OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (C) ANY AND ALL OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT (WHETHER OR NOT ARISING FROM OUR, OUR AFFILIATES’ OR THE UK T&I’S, NEGLIGENCE).
19.2 YOU USE OUR WEBSITE AT YOUR OWN RISK. WE ADVISE YOU TO MAKE SURE YOU ARE SATISFIED WITH THE EXACT TYPE AND NATURE OF PRODUCTS OR SERVICES BEING OFFERED BY ANY SELLER. WE ALSO RECOMMEND THAT YOU CHECK THE QUALIFICATIONS OF SELLERS. YOU SHOULD NOT RELY ON OUR WEBSITE FOR ADVICE. OUR WEBSITE CONTAINS HYPERLINKS TO WEBSITES RUN BY COMPANIES OTHER THAN US AND OUR AFFILIATES. WE DO NOT CONTROL, AND ARE NOT RESPONSIBLE FOR, ANY OTHER WEBSITES MADE AVAILABLE FROM OR THROUGH OUR WEBSITE. WE DO NOT GIVE ANY GUARANTEES ABOUT THEIR CONTENT OR HOW THEY WORK. YOU ACCESS AND USE THESE SITES AT YOUR OWN RISK AND WILL NEED TO KEEP TO ANY CONDITIONS OF USE THAT APPLY TO THOSE WEBSITES. WE DO NOT APPROVE OR SPONSOR OR ENDORSE ANY PRODUCTS, SERVICES OR CONTENT YOU ACCESS OR BUY THROUGH OUR WEBSITE OR ANY THIRD PARTY WEBSITE WE LINK TO, NOTWITHSTANDING THE “LOCAL PICKS” WHICH WE MAY SUGGEST.
19.3 NEITHER WE, OUR AFFILIATES, NOR THE UK T&I, WARRANT THAT THE FUNCTIONS CONTAINED ON OUR WEBSITE, IN THE OPEN TO EXPORT STORE OR IN THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
19.4 SOME JURISDICTIONS’ LAWS DO NOT ALLOW THE EXCLUSION OF AN IMPLIED WARRANTY, IN WHICH CASE ALL OR PART OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND WE, OUR AFFILIATES AND THE UK T&I, DISCLAIM TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR QUIET ENJOYMENT.
19.5 UNLESS WE ARE SPECIFICALLY IDENTIFIED AS THE SELLER OF THE PRODUCT OR SERVICE YOU ARE BUYING, NEITHER WE, OUR AFFILIATES, NOR THE UK T&I, ARE INVOLVED IN YOUR TRANSACTIONS, NOR ARE WE INVOLVED IN YOUR DEALINGS WITH OTHER USERS OF OUR WEBSITE, THE OPEN TO EXPORT STORE AND/OR THE SERVICES (COLLECTIVELY, “USERS”). ACCORDINGLY, IF A DISPUTE ARISES BETWEEN YOU AND ONE OR MORE USERS, YOU HEREBY RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUBCONTRACTORS (AND THOSE OF OUR AFFILIATES AND THE UK T&I), FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
19.6 NEITHER WE, OUR AFFILIATES NOR THE UK T&I, WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY) FOR: (a) LOSS OF REVENUES, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF, OR DAMAGE TO, OR CORRUPTION OF, DATA OR SOFTWARE, OR WASTED EXPENDITURE, IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL; or (b) ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES. THE AGGREGATE LIABILITY OF US, OUR AFFILIATES AND THE UK T&I TO YOU AND YOUR AFFILIATES IS LIMITED TO AMOUNTS PAID TO US BY YOU FOR THE PARTICULAR SERVICES GIVING RISE TO THE CLAIM IN THE 3 MONTH PERIOD PRIOR TO THE CLAIM ARISING. REMEDIES SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS YOU MAY HAVE UNDER THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF US, OUR AFFILIATES AND THE UK T&I, ARISING OUT OF THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, our liability is limited to the greatest extent permitted by law or £100, whichever is the greater. Nothing in this Agreement excludes our liability for death or personal injury caused by negligence; or for fraud or fraudulent misrepresentation.
19.7 NOTWITHSTANDING ANYTHING IN SECTION 12 OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND WITHOUT LIMITING ANYTHING IN SECTION 12, NEITHER WE, OUR AFFILIATES NOR THE UK T&I, SHALL HAVE ANY LIABILITY WHATSOEVER WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHERWISE AND WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING OUT OF OR RELATED TO ANY BETA FEATURES. “BETA FEATURE” MEANS ANY SERVICE FEATURE THAT IS EXPRESSLY IDENTIFIED AS “BETA”, “ALPHA”, “EXPERIMENTAL”, “PILOT”, “EVALUATION”, “PRE-RELEASE”, OR SOME SIMILAR DESIGNATION OR THAT IS OTHERWISE EXPRESSLY IDENTIFIED AS UNSUPPORTED.
20. Indemnification. You shall indemnify, hold harmless and defend us, our Affiliates, our and our Affiliates’ directors, officers, employees, agents and subcontractors, our licensors and assigns from all claims, liabilities, losses, damages, settlements, costs and/or expenses, whether or not partially attributable to our negligence or that of our affiliates, including reasonable attorneys’ fees and expenses, and third party claims or liability (collectively, “Liabilities“) arising out of or in connection with: (a) your use of Our Website; (b) your breach or alleged breach of these Conditions or of any of Our Policies; (c) your Content or Comments or any use of it by us or our Affiliates, agents, service providers or sub-licensees, including, but not limited to, claims of defamation; (d) any claim or allegation that Content or Comments or any use of them by us or our Affiliates, agents, service providers or sub-licensees infringes or is alleged to infringe a third party’s intellectual property rights; (e) any personal injury, death or property damage caused by you; and (f) your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified claim, and we may elect to participate in the defense at our expense. If at any time we reasonably determine that any indemnified claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a claim without our prior written consent, which may not be unreasonably withheld. Your defense and indemnification obligation will survive the Term of these Conditions.
21. Force Majeure. We shall not be liable for any default or delay in the performance of any of our obligations under these Conditions if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, power outages, supply shortages or the failure of you or any third party to perform any commitment relating to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
22. Suspension or Termination.
22.1 We reserve the right to deny, terminate, or suspend Our Website and/or your access to it without notice if, in our sole discretion, for any reason, including without limitation, if you breach these Conditions or Our Policies, and/or you use Our Website in a manner that violates or may violate any applicable custom, use, practice, or Law. If the Open to Export Store or any Seller is suspended or terminated, all accepted orders placed prior to the suspension or termination must still be processed. We reserve the right to cancel orders, in our sole discretion, without cost to you.
22.2 We reserve the right, in our sole discretion, to halt any sale or prevent or restrict access to Our Website and/or the Open to Export Store. We further reserve the right to take any action to restrict access to or remove any objectionable Comments or other material or items that violate these Conditions or Our Policies.
22.3 The Seller may terminate its involvement with the Open to Export Store at any time for any reason by giving notice to us.
23. Consequences of Termination. Upon termination of this Agreement for any reason, all rights and licensed granted hereunder shall cease, save to the extent necessary to fulfill any orders outstanding on the effective date of termination and to pay our fees.
24. Governing Law and Jurisdiction. This Agreement shall be governed by, and interpreted in accordance with, the laws of England and the courts of England and Wales shall have exclusive jurisdiction over all disputes (whether contractual or non-contractual) arising out of or in connection with this Agreement.
25. Notices. We will give you notices (including contractual notices) electronically, by emailing you or posting the notice on Our Website. You hereby consent to receiving notices and other communications from us in this manner and agree that such notices are “in writing”.
26. Third Party Rights. The parties to these Conditions do not intend that any term should be enforceable by any person who is not a party to these Conditions other than our Affiliates which shall be entitled to any actions and rights as us. Each of our Affiliates shall be entitled to enforce the terms of these Conditions in its own right. For the avoidance of doubt, we may vary the terms of these Conditions so as to extinguish or vary the rights of our Affiliates without requiring additional consent from such affected Affiliates. We are not your fiduciary or trustee.
27. Ethical Standards. You shall, and shall make sure that your officers, employees, agents and service providers shall: (a) at all times comply with all anti-corruption laws applicable to you; and (b) not, directly or indirectly offer, promise or give (or agree to offer, promise or give) any financial or other advantage with respect to any matters which are the subject of these Conditions and/or to obtain any benefit for us which would violate any anti-corruption laws applicable to you or us. If you become aware of any breach or suspected breach of this Condition, you must notify us promptly. We may immediately suspend operation of these Conditions on written notice, pending investigation. You must assist us in any such investigation. If, in our reasonable opinion, you have breached this Condition: (a) we may immediately terminate these Conditions by giving you written notice; and (b) you shall indemnify us and hold us harmless on demand against any and all claims, demands, actions, proceedings, awards, compensation costs (including legal costs and disbursements on a full indemnity basis), expenses, damages, losses, fines, fees, costs and other liabilities of whatsoever nature brought against us arising out of or in connection with such breach.
28. Miscellaneous. These Conditions, Our Policies and any documents referred to in them constitute the entire agreement of the parties with respect to the subject matter hereof and supersede and cancel all prior agreements claims, representations and understandings of the parties in connection with the subject matter hereof. If any provision of these Conditions is held to be unenforceable, such holding shall in no way invalidate any other provision hereof, and these Conditions shall remain in full force and effect. Nothing in these Conditions will be construed to create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. We are not an auctioneer, neither are we an intermediary between the Buyer and the Seller. Our failure to enforce and right or to require the strict performance of these Conditions shall not act as a waiver of our ability to do so in the future or in respect of any future breach.
Last updated: 18 January 2013.
© hibu (UK) Limited, January 2013.