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© 2023 Netcrate Ltd. Registered in England & Wales as company number 11526181. Netcrate™.

Terms & Conditions

The Authorised User is asked to carefully read the Terms & Conditions of Use provided to them by the Platform before accepting it and completing the registration form. They are asked to download a hard copy of it.

Download a copy of these terms.

This global inventory sourcing platform is provided by Netcrate Ltd, a limited company governed by United Kingdow law, with the registered office of which is located at 13 New Mill Court, Swansea Enterprise Park, Swansea, United Kingdom, SA7 9FG

Terms and Conditions of Use 

The version of 10 September 2019

Background (all capitalised terms are defined below)

 

(i) Netcrate™ is the owner of the global inventory sourcing Platform which facilitates the business to business sale of goods.

 

(ii) All sales of Products between the Supplier and any Buyer shall be made directly in accordance with the terms and conditions of sale as may be amended and agreed from time to time between the Buyer and the Supplier.

 

(iii) These Conditions shall be deemed accepted by the Supplier and Buyer upon the submission of the Netcrate™ Registration Form. The date of acceptance of the Registration Form by Netcrate™ (Effective Date) shall be the date that the Contract comes into force. These Conditions and all Mandatory Policies listed on our website apply to the use of the Netcrate™ website and Platform and provision of the Services. They apply to the exclusion of any other terms (whether being sought to be imposed or incorporated in any manner) or which are implied by trade, custom, practice or course of dealing.

 

(iv) The Platform is an intermediary site and does not fulfil the role of an auctioneer or agent.

 

(v) The additional rules of interpretation contained in clause 30 apply throughout these Conditions.

2. Definitions

2.1 The definitions set out in this clause apply in terms and conditions.

'Authorised Users' - those employees, agents and independent contractors that are authorised by the Supplier to use the Services and the Documentation, as further described in clause 4. 

'Agreed Purpose' - has the meaning provided to it in clause 7.3

'Business Day' - a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

'Buyer' - means a business user of the platform that purchases a Product from the Supplier.

 

'Commission' -means a percentage of the Product price, net of VAT and shipping costs, at the rate published by Netcrate™.

 

'Conditions' - means these terms and conditions for Suppliers.

 

'Confidential Information' - information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.6 or clause 13.7.

'Contract' - means the agreement for Services entered into by the Supplier and Buyer with Netcrate™ in accordance with these Conditions and the Mandatory Policies.

 

'Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures' - as defined in the Data Protection Legislation.

 

'Data Protection Legislation' - the Data Protection Legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications). For Netcrate™ , a company registered in England, the legislation identified as UK Data Protection Legislation will apply.

 

'Documentation' - the documents made available to the Supplier and Buyer by Netcrate™ via the Platform which sets out a description of the Services, the Mandatory Policies and the user instructions for the Services.

'Effective Date' -means the date of acceptance of the Registration Form by Netcrate™ .

 

'Group' - in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.

 

'Mandatory Policies' - business policies and codes as listed on the Platform and updated by Netcrate™ from time to time, which the Supplier shall be required to comply with at all times during the term of the Contract in order to maintain Member status.

 

'Member' - means the Suppliers or Buyers business which complies with the Mandatory Policies and meets the Eligibility Criteria. Each Member will be a single legal entity and not a Group.

 

'Membership Application' - means the Membership Application process provided on the Platform which the Supplier or Buyer shall be required to complete and submit to Netcrate™ in order for the Suppliers or Buyers business to be assessed against the Eligibility Criteria in order to become a Member.

 

'Eligibility Criteria' - means the membership criteria set out in the Mandatory Policies which the Supplier is required to meet in order to become a Member.

 

'Netcrate™' - means Netcrate Ltd (company number 11526181) with its registered office at 3 New Mill Court, Swansea Enterprise Park, Swansea, United Kingdom, SA7 9FG. Our VAT number is GB308836584.

 

'Normal Business Hours' - means 9.00 am to 5.00 pm local UK time, each Business Day.

  

'Platform' - the online software application provided by Netcrate™ as part of the Services via www.netcrate.com or any other website notified to the Supplier by Netcrate™ from time to time, which facilitates the sale of goods between business users as more particularly described in the Documentation.

 

'Product' - means the products owned or distributed by the Supplier via the Platform.

 

'Services' - the services provided by Netcrate™ to the Supplier or Buyer in accordance with these Conditions via the Platform.

 

'Shared Data' -has the meaning provided in clause 7.4

 

'Supplier' - means the party that enters into a Contract with Netcrate™ to sell Products to Buyers via the Platform.

 

'Supplier or Buyer Data' - means data inputted into the Platform by the Supplier or its Authorised Users.

 

'Registration Form' - means the registration form which is required to be submitted by the Supplier or Buyer in order to be granted access, with information relating to the Suppliers or Buyers identity, contact details, and compliance with Netcrate™ KYC vetting procedures.

 

'Support Services Policy' - the policy for providing support to Suppliers in relation to the Services as made available on the Platform.

 

'Transaction' - means the sale of a Product by a Supplier to the Buyer via the Platform. A transaction will be deemed to have occurred upon the Suppliers acceptance of the Buyers offer to purchase the Product via the Platform.

'UK Data Protection Legislation' - all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

'User Profile' - means the Platform profile of each Authorised User.

 

'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. Membership

 

3.1 The Supplier or Buyer shall make a Membership Application to Netcrate™ via the Platform prior to being able to buy or sell any Products via the Platform.  

 

3.2 Netcrate™ shall assess the information provided by the Supplier or Buyer in the Application against the Eligibility Criteria. Netcrate™ shall, at its sole discretion, determine whether the Supplier’s or Buyer’s business meets the Eligibility Criteria.  If the Supplier or Buyer fails to submit the Application or meet all the Eligibility Criteria, then Netcrate™ will disable the Suppliers or Buyers account until all the Eligibility Criteria have been met to the satisfaction of Netcrate™.

3.3 The specifics of the Eligibility Criteria, and details of the searches and checks that will be performed as a result of the submission of the Membership Application are contained in the Mandatory Policies provided on the Platform, which may be updated by Netcrate™ from time to time.  

3.4 Netcrate™ shall provide an email confirmation of whether Supplier’s or Buyer’s business shall be granted Member status, within two (2) Business Days of submission of the Membership Application Form. The decision by Netcrate™ shall be final and the Supplier shall have no right to appeal any decision.

 

4. User subscriptions

 

4.1 Subject to the restrictions set out in the terms of the Contract, Netcrate™ hereby grants to the Supplier and Buyer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation solely for the Supplier's internal business operations.

4.2 The Supplier or Buyer shall be required to apply for one Membership per legal entity.  The Supplier or Buyer shall not allow or suffer any Membership to be used by more than one legal entity in its Group.

4.3 The Supplier or Buyer shall permit Netcrate ™, or its designated representative, to monitor (including but not limited to account monitoring and audit) the Supplier’s or Buyer’s account and use of the Services and the Supplier's or Buyer’s data processing facilities to audit compliance with these Conditions.  If any of the monitoring referred to in this clause reveal that the Supplier or Buyer has allowed a legal entity who is not a Member, then Netcrate™ will email the Member and, without prejudice to its other rights contained in these Conditions, Netcrate™ have the option of promptly disabling the Suppliers or Buyers account and terminating the Contract.

4.4 In relation to the Authorised Users, the Supplier or Buyer undertakes that:

 

4.4.1 it will not allow or suffer any User Profile to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User;

 

4.4.2 each Authorised User shall keep a secure password for their User Profile for the use of the Services and Documentation, and that each Authorised User shall keep his password confidential;

 

4.4.3 each Authorised user will not share its User Profile with any other person;

 

4.4.4 it shall maintain an up-to-date list of current Authorised Users and provide such list to Netcrate™ within five (5) Business Days of a request by Netcrate™ at any time;

 

4.5 The Supplier or Buyer shall not, and shall procure that its Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the Trial Period or during the course of its use of the Services that:

4.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

 

4.5.2 facilitates illegal activity;

4.5.3 depicts sexually explicit images;

4.5.4 promotes unlawful violence;

4.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

4.5.6 is otherwise illegal or causes damage or injury to any person or property;

 

and Netcrate™ reserves the right, without liability or prejudice to its other rights to the Supplier or Buyer, to disable the Supplier's or Buyer’s access to the Services in the event that any material breaches the provisions of this clause.

4.6 The Supplier or Buyer shall not, and shall procure that its Authorised Users shall not:

 

4.6.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Conditions:

 

4.6.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

 

4.6.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

 

4.6.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

 

4.6.3 use the Services and/or Documentation to provide services to third parties; or

 

4.6.4 subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

 

4.6.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; and

 

4.7 The Supplier or Buyer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Netcrate™.

4.8 The rights provided under this clause 5 are granted to the Supplier or Buyer only and shall not be considered granted to any other entity in the Suppliers or Buyers Group.

 

5. Services

 

5.1 Netcrate™ shall provide the Services and make available the Documentation to the Supplier on and subject to the terms of these Conditions.

 

5.2 Netcrate™ shall use commercially reasonable endeavours to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for:

 

5.2.1 planned maintenance carried out during the maintenance window of 3am to 5am UK time; and

 

5.2.2 in the case of a critical need, Netcrate™ shall use reasonable endeavours to give the Supplier or Buyer reasonable advanced notice of this when however, Netcrate™ shall not be liable in the event that such notice is unable to be provided.

 

5.3 Support Services: Netcrate™ will, as part of the Services at no additional cost to the Supplier or Buyer, provide the Supplier or Buyer with support services during Normal Business Hours in accordance with the Support Services Policy in effect at the time that the Services are provided, which Netcrate™ may amend in its sole and absolute discretion from time to time.

 

5.4 Complaints: If the Supplier or Buyer wishes to make a complaint regarding a problem, or if the Supplier or Buyer is dissatisfied with the Services, or any element of the Platform, the Supplier or Buyer shall refer to the Complaints Policy.

 

6. Sale of Products

 

6.1 All Products sold by the Supplier via the Platform shall be sold in accordance with the Suppliers terms and conditions of sale. The Supplier shall ensure that its terms and conditions of sale are listed on the Platform with the Product for the Buyer to review and accept or negotiate. The Suppliers conditions of sale shall adhere to, and be in full compliance with, all applicable laws relating to the sale of the Product to the Buyer.

 

6.2 The Supplier shall immediately notify the Buyer of the order and or any change the status or date including the dispatch of the Product through the Platform. The Supplier will be responsible for the all the products under the condition of sale to be available for collection at the agreed date. The supplier shall be responsible for any damages, costs, losses, liabilities or expenses, or failure to meet the estimated or stated date for collection.

 

6.3 Unless otherwise explicitly agreed between the Buyer and the Supplier through the Platform, the Buyer shall be fully liable for the risk of shipping and transportation of the Product from the Supplier, whether or not any damages, costs, losses, liabilities or expenses, or failure to meet the estimated or stated delivery date, or any damage caused to the Product which occurs during delivery, was caused through the fault of the Supplier or any third party.

 

6.4 The contract for provision of shipping services shall be directly between the Buyer and the Shipping Company, unless otherwise explicitly agreed with Buyer through the Platform. Netcrate™ shall not be liable for any acts, omissions, damages, liabilities, expenses or costs howsoever arising which result from the shipping services facilitated through the Platform.

 

6.5 The Supplier shall be fully responsible for providing an accurate Product description, including any photograph of the Product contained in the Product listing must be complete and accurate in all respects, contain the main characteristics of the Product including any requirement or need for service or repair, size and/or dimensions, does not hide any material information relating to the Product, addresses any Product safety requirements required to transportation or use of the Product, regulatory reporting, consumer requirements (e.g. CE marking, EU REACH Regulation, EU RoHS Directive, EU CLP Regulation etc.) as required by the trade between the Supplier and the Buyer, and the overall presentation of the Product is not presented in such a manner that deceives, or is likely to deceive any Buyer. The Product must match the Product listing accurately;

 

6.6 The Supplier shall at all times comply with the Mandatory Policies which include the Trade Better Principles and the Anti-Counterfeit Policy.

 

6.7 All disputes between the Supplier and any Buyer in relation to a Transaction shall be dealt in accordance with the Disputes Resolution Procedure Policy set out in the Mandatory Policies.

 

6.8 In the event of a Product recall by a Supplier, the Supplier shall immediately contact all Buyers who have purchased the Product to notify the Buyer and shall immediately remove all relevant Product listings from the Platform.

 

7. Data protection

7.1 Netcrate™ shall, in providing the Services, comply with its Privacy Policy set out in the Mandatory Policies relating to the personal data provided by the Supplier to Netcrate™ . The Privacy Policy may be amended from time to time by Netcrate™ at its sole discretion. Netcrate™ shall act as the Data Controller (i.e. determines the purpose and means of personal data processing) of all personal data of the Supplier.

 

7.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

 

7.3 In accordance with the purpose of facilitating a Transaction between the Buyer and Supplier (“Agreed Purpose”), Netcrate™ will not transfer any personal data belonging to the Buyer to the Supplier and from the Supplier to the Buyer.

 

7.4 The data transferred by Netcrate™ between the parties under the Contract for the Agreed Purpose, will be confined to details that cannot identify the other party, either directly or indirectly.  Transferred data (“Shared Data”) will only include (i) business name, (ii) business address, and (iii) non-personal business email address (e.g. sales@businessname.com).

 

7.5 Netcrate™ accepts no responsibility or liability for Buyers and Suppliers sharing personal data between themselves for any reason and has assumed that should they do so that they have ensured that the other party has all necessary consents and notices in place to enable lawful transfer of the personal data for the Agreed Purpose. In the event that personal data is transferred between a Buyer and a Supplier, the parties must:

 

7.5.1 Compliance. comply with Data Protection Legislation applicable to the parties;

 

7.5.2 Mutual Assistance. each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation and in particular, each party shall:

 

7.5.2.1 promptly inform the other party about the receipt of any data subject access request;

 

7.5.2.2 provide the other party with reasonable assistance in complying with any data subject access request;

 

7.5.2.3 not disclose or release any personal data in response to a data subject access request without first consulting with and obtaining the consent of the other party.

 

7.5.2.4 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

 

7.5.2.5 notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

 

7.5.2.6 at the written direction of the data discloser, delete or return personal data and copies thereof to the data discloser on termination of the Contract unless required by law to store the personal data;

 

7.5.2.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 10; and

 

7.5.3 Indemnity.  Each party shall indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a Buyer in respect of any loss, damage or distress caused to them as a result of any breach by the other party of the Data Protection Legislation by that party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. 

8. Third-party providers

The Supplier acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  Netcrate™ makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Supplier, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Supplier and the relevant third party, and not the Supplier. Netcrate™ recommends that the Supplier refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Netcrate™ does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

9. Obligations of Netcrate™

 

9.1 Netcrate™ undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

 

9.2 The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to instructions from Netcrate™ , or modification or alteration of the Services by any party other than Netcrate™ or duly authorised contractors or agents of Netcrate™ . If the Services do not conform with the foregoing undertaking, Netcrate™ will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Supplier's or Buyer’s sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.

 

9.3 Notwithstanding the foregoing, Netcrate™:

 

9.3.1 does not warrant that the Supplier's or Buyer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Supplier through the Services will meet the Supplier's requirements; and

 

9.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Supplier or Buyer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

9.4 Netcrate™ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.

 

9.5 Netcrate™ shall ensure that all Buyers and potential Buyers have notice that all sales of the Products by the Supplier shall be:

9.5.1 at the Supplier’s list prices, or as agreed with the Buyer via the Platform; and

 

9.5.2 on the Supplier’s terms and conditions, or as agreed with the Buyer via the Platform.

 

10. Supplier's and Buyer’s obligations

 

10.1 The Supplier or Buyer shall:

10.1.1 provide Netcrate™ with:

10.1.1.1 all necessary co-operation in relation to the Contract; and

10.1.1.2 all necessary access to such information as may be required by Netcrate™ in order to provide the Services;

10.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

 

10.1.3 at all times comply with the Mandatory Policies when performing its obligations under the Contract, including the sale of a Product;

10.1.4 notify Netcrate™ immediately if at any time they no longer meet the Eligibility Criteria;

 

10.1.5 comply with the Electronic Commerce (EC Directive) Regulations 2002 and the Provision of Services Regulations 2009 (SI 2009/2999), or jurisdictional equivalent, which apply to business to business sales;

10.1.6 ensure that the Authorised Users use the Services and the Documentation in accordance with the Contract and shall be responsible for any Authorised User's breach of the Contract;

 

10.1.7 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Contract, including without limitation the sale of the Product to the Buyer;

 

10.1.8 ensure that its network and systems comply with the relevant specifications provided by Netcrate™ from time to time in order to be able to utilise the Services; and

10.1.9 be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's or Buyer’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Supplier's or Buyer’s network connections or telecommunications links or caused by the internet.

 

10.2 If the Supplier or Buyer fails to fulfil any obligation listed in clause 6 or clause 10.1 (“Default”) without limitation to the other rights of Netcrate™ contained in these Conditions, Netcrate™ shall be entitled to:

 

10.2.1 suspend the Suppliers or Buyers account and remove the Product listing(s) from the Platform until the Default has been remedied. In certain circumstances the Default may entitle the Supplier or Buyer to terminate the account permanently under clause 16 (Termination);

 

10.2.2 Netcrate™ shall not be responsible for any costs or losses sustained or incurred arising directly or indirectly from termination or suspension of the Suppliers or Buyers account.

11. Charges and payment

11.1 The Supplier shall on the Effective Date provide to Netcrate™ valid, up-to-date and complete contact and billing details from a designated bank account.

11.2 The Supplier shall pay to Netcrate™ a Commission for each Transaction, which shall become immediately payable upon a Transaction being entered into.

11.3 The level of Commission will be determined in accordance with the published commissions available at www.netcrate.com/pricing.

11.4 The Commission shall be invoiced to the Supplier within seven (7) days of the Transaction taking place.

11.5 Escrow: The Supplier and Buyer may elect for Netcrate™ to collect payment for a Transaction being entered into via its escrow service. Both parties agree to comply with the Escrow Terms (as set out at www.netcrate.com/escrow-terms) in relation to the collection and payment of Commission.

11.6 If Netcrate™ has not received payment within thirty (30) days after the due date (of any invoice, payment or otherwise), and without prejudice to any other rights and remedies of the Supplier:

11.6.1 Netcrate™ may, without liability to the Supplier, disable the Supplier's password, account and access to all or part of the Services and Netcrate™ shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

11.6.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.7 For any failed or cancelled payments, a £20 administration charge will be levied.

11.8 All amounts and fees stated or referred to in these Conditions:

 

11.8.1 shall be payable in pounds sterling;

11.8.2 are non-cancellable and non-refundable;

11.8.3 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate; and

11.8.4 must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

11.9 Netcrate™ shall be entitled to increase the rate of Commission upon thirty (30) days' prior notice to the Supplier.

12. Proprietary rights

 

12.1 The Supplier or Buyer acknowledges and agrees that Netcrate™ and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Supplier any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

 

12.2 Netcrate™ confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Conditions.

 

12.3 The Supplier or Buyer confirms that they own all intellectual property rights including any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), images, or any other rights or licences in the Product and the product description.

13. Confidentiality and compliance with policies

 

13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Conditions. A party's Confidential Information shall not be deemed to include information that:

 

13.1.1  is or becomes publicly known other than through any act or omission of the receiving party;

13.1.2 is publically listed on the Platform;

13.1.3 was in the other party's lawful possession before the disclosure;

13.1.4 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

13.1.5 is independently developed by the receiving party, which independent development can be shown by written evidence.

13.2 Subject to clause 13.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Contract.

13.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Conditions.

13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.6 The Supplier or Buyer acknowledges that details of the Services constitute the Supplier's or Buyer’s Confidential Information.

13.7 Netcrate™ acknowledges that the Supplier or Buyer Data is the Confidential Information of the Supplier or Buyer.

 

13.8 The above provisions of this clause 13 shall survive termination of the Contract, however arising.

14. Indemnity and Insurance

 

14.1 The Supplier or Buyer shall defend, indemnify and hold harmless Netcrate™ against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:

 

14.1.1 the Supplier's or Buyer’s use of the Services and/or Documentation; or

14.1.2 damage to property, death or personal injury arising from any fault or defect in the materials or workmanship of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability; or

14.1.3 the Suppliers or Buyers (or any Authorised Users) Default or breach of the Contract;

 

14.2 The Supplier shall maintain product liability insurance for the duration of the Contract at such level as is customarily maintained in the Suppliers industry, at a sufficient level required to sell the Product, with a reputable insurer and shall provide a copy of the insurance policy and proof of payment of the current premium to Netcrate™ or the Buyer upon request.

14.3 This clause 14 shall survive termination of the Contract.

15. Limitation of liability

 

15.1 Except as expressly and specifically provided in these Conditions:

15.1.1 the Supplier or Buyer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Supplier or Buyer, and for conclusions drawn from such use. Netcrate™ shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Netcrate™ by the Supplier or Buyer in connection with the Services or Products, or any actions taken by Netcrate™ at the Supplier's or Buyer’s direction;

15.1.2 the Supplier assumes the sole responsibility for the sale of the Product to the Buyer. Any liability arising in connection with the supply of the Product to the Buyer shall be as set out in the Suppliers standard terms and conditions of sale, or as amended in agreement with the Buyer; 

15.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions; and

15.1.4 the Services and the Documentation are provided to the Supplier on an "as is" basis.

15.2 Nothing in these Conditions excludes the liability of the Supplier or Buyer:

15.2.1 for death or personal injury caused by the Supplier's or Buyer’s negligence; or

15.2.2 for fraud or fraudulent misrepresentation.

15.3  Subject to clause 15.1 and clause 15.2:

 

15.3.1 Netcrate™ shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of sales or business, loss of agreements or contracts; loss of anticipated savings; depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

15.3.2 Netcrate’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 10% of the sum of the last Commission paid for a Transaction.

16. Term and termination

 

16.1 The contract shall, unless otherwise terminated as provided in this clause 17 (or terminated in accordance with clause 3.7), commence on the Effective Date and shall continue thereafter unless either party notifies the other party of termination in advance, in writing, by at least sixty (60) days or as otherwise terminated in accordance with the provisions of these Conditions.

                

16.2 Without affecting any other right or remedy available to it, Netcrate™ shall have the right to terminate the Contract with immediate effect by giving written notice if the Supplier or Buyer:

16.2.1 fails to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;

16.2.2 commits a breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;

16.2.3 sells a Product via the Platform that does not meet the Product requirements as provided for in the Mandatory policies; or is on the Banned Product List (available at www.netcrate.com/banned-products)

16.2.4 allows a business that is not a Member to use the Services;

16.2.5 fails at any time to meet, or falls below, the standard required by the Eligibility Criteria;

16.2.6 repeatedly breaches any of the terms of the Contract 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 the terms the Contract;

16.2.7 take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

16.2.8 suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

 

16.3 On termination of the Contract for any reason:

16.3.1 all licences granted under these Conditions shall immediately terminate and the Supplier or Buyer shall immediately cease all use of the Services and/or the Documentation;

16.3.2 Netcrate™ may destroy or otherwise dispose of any of the Supplier or Buyer Data in its possession, unless Netcrate™ receives, no later than ten (10) days after the date of the termination of the Contract, a written request for the delivery to the Supplier or Buyer of the then most recent back-up of the Supplier or Buyer Data. Netcrate™ shall use reasonable commercial endeavours to deliver the back-up to the Supplier or Buyer within thirty (30) days of its receipt of such a written request, provided that the Supplier or Buyer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Supplier or Buyer shall pay all reasonable expenses incurred by Netcrate™ in returning or disposing of Supplier or Buyer Data; and

16.3.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

17. Force majeure

Netcrate™ shall have no liability to the Supplier or Buyer under the Contract if it is prevented from or delayed in performing its obligations under these Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.

18. Variation

Netcrate™ may update the Contract from time to time. The Supplier or Buyer will have the right to Termination in accordance with clause 17 otherwise the updated version of the Contract will have been deemed accepted by the Supplier.

19. Waiver

No failure or delay by a party to exercise any right or remedy provided under the Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

20. Rights and remedies

Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

 

21. Severance

21.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions.

 

21.2 If any provision or part-provision of these Conditions is deemed deleted under clause 22.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

22. Entire agreement

 

22.1 These Conditions and all Mandatory Policies 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.

 

22.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions.

 

22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.

 

22.4 Nothing in this clause shall limit or exclude any liability for fraud.

23. Assignment

 

23.1 The Supplier or Buyer shall not, without the prior written consent of Netcrate™ , assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

 

23.2 Netcrate™ may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

24. No partnership or agency

 

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

25. Third-party rights

These Conditions do not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

26. Notices

 

26.1 Reference to "in writing" in these Conditions includes email (enquiry@netcrate.com).

26.2 Any notice or other communication given by either party under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, email (enquiry@netcrate.com only), or via the Platform.

 

26.3 A notice or other communication is deemed to have been received:

 

26.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;

26.3.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or

26.3.3 if sent by email (service@netcrate.com), at 9.00 am the next working day after transmission.

 

26.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee (enquiry@netcrate.com).

 

26.5 The provisions of this clause 26 will not apply to the service of any proceedings or other documents in any legal action.

 

27. Governing law

The Contract 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.

 

28. Jurisdiction

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).

 

29. Interpretation

29.1 Clause and paragraph headings shall not affect the interpretation of these Conditions.

 

29.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

 

29.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

 

29.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

 

29.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

 

29.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

29.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

29.8 A reference to writing or written includes e-mail unless otherwise expressly stated herein.

29.9 References to clauses and schedules are to the clauses and schedules of these Conditions; references to paragraphs are to paragraphs of the relevant schedule to these Conditions.

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