Terms Of Sale
– LAST UPDATED 20/01/2024
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- Introduction
- About Us
- Using theluckydrinker.com
- Setting Up Your Account
- Technical
- Prices and Product Description
- Commission and Charges
- Payments Made to You
- Terms and Termination
- Vat Information
- Compliance with Our Instructions and Applicable Laws
- Contracts with Buyers
- Intellectual Property Rights
- Data Protection
- Marketing and Promotions
- Confidentiality
- Liability
- Legal Dispute and Covering Law
- Miscellaneous
- Privacy Policy
- Cookies Policy
- Prohibited and Restricted Items
Please read these Terms of Sale carefully.
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all users and others who access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
1. Introduction
1.1. Welcome to theluckydrinker.com (https://theluckydrinker.com/) (the “Website” or “Platform”), an online marketplace operated by theluckdrinker.com Limited (“theluckydrinker.com”, “us”, “we” or “our”) with its registered office in England.
1.2. These terms and conditions (the “Terms” or “Agreement”) is a legally binding agreement between Sellers (“you” or “your”) and us when you sell goods, Services and/or digital content via the Website.
1.3. By using, accessing or signing-up to the Website or using our Services, you agree to be bound by these Terms.
1.4. You must read these Terms carefully and comply with them. If you do not agree to these Terms, wholly or in part, you must not use the Website or any of the Services offered by our Website.
1.5. These Terms have the aim to protect both you, the “Seller” and the Buyers. “Buyers” refers to individual members of the public who are consumers, businesses who purchase products on the Website, any other purchaser of Products on the Website or users of the Website.
1.6. We reserve the right to update, amend or make changes to the Website from time to time, including these Terms, our policies and any listings. Any changes will be posted to the Website or notified to you. Any such change or update will take effect immediately when posting the updated Terms or changes.
1.7. If we make major changes to the Website, Terms or our policies, to be decided at our discretion, we will aim to provide you with prior written notice as appropriate under the circumstances.
1.8. If the proposed changes will adversely affect you or mean that you need to make substantial technical or commercial adjustments, please notify us in order to discuss your circumstances.
1.9. If you do not agree to any changes or revisions to the Terms, our policies or the Website, you are at liberty to terminate your account in accordance with the termination provisions set out in these Terms.
1.10. Your continued use of the Website, its features and functionality is deemed to be your acceptance of the revised Terms.
1.11. When you visit the Website or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website.
1.12. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
2. About Us
2.1. theluckydrinker.com is an online marketplace that allows users to offer, list, sell and/or buy equipment and products related to the catering industry (the “Services”). These include, but are not limited to, glassware, bar equipment, tableware, kitchenware, consumables and reusables, janitorial and sanitation products, appliances, furniture, clothing, aprons & footwear and hotel supplies in a variety of pricing formats and locations.
2.2. The contract for the sale of goods and/or Services is directly between you and the Buyers, unless stated otherwise or the item is supplied directly by theluckydrinker.com. theluckydrinker.com is not a party to a contract entered into between you and the Buyer and shall give no express or implied liabilities related to the items sold online. theluckydrinker.com does not own, check or vet any items that are sold by sellers at any time and therefore shall have no responsibility to the Buyer concerning purchasing on the Platform.
2.3. While we may provide pricing, postage, listing and other guidance, such guidance is solely informational and you may decide to follow it or not. theluckydrinker.com does not review users’ listings or content. While we may help facilitate the resolution of disputes through various programmes, theluckydrinker.com has no control over, and does not guarantee the existence, quality, safety or legality of, items advertised; the truth or accuracy of users’ content, listings or feedback; the ability of sellers to sell items; the ability of Buyers to pay for items; or that a Buyer or seller will actually complete a transaction or return an item.
3. Using theluckydrinker.com
3.1. In order to use the Website, you must register an account with us.
3.2. You must be over the age of 18 to create an account with us if you are accessing our Services as an individual.
3.3. You agree that you will not operate, open or manage more than one account with The Lucky Drinker without our prior written permission.
3.4. If you are accessing our Services as a business, organisation, or other legal entity, you represent and warrant:
3.4.1. that your business is incorporated and/or established (whether as a company, partnership, unincorporated association, or sole trader) in the United Kingdom;
3.4.2. where your business is incorporated as a limited liability or public limited company, that you are listed as a registered director of that entity on Companies House;
3.4.3. or that you have the authority to legally bind that entity;
3.4.4. that all details you provide to us are true and accurate; and
3.4.5. that you have a trading address in the United Kingdom.
3.5. To access or use some of our Services, you may be asked to provide proof of identity or other methods of identity verification. You hereby agree to provide us or any third party (solely for the purposes of identifying your identity) with all requested identification documents (including but not limited to, copies of passports and/or government-issued driver’s licence) to use our Services.
3.6. How theluckydrinker.com may store and use the personal information provided by you when registering for an account and/or using the Platform and the website is set out in our Privacy Policy, a copy of which you can request by contacting us.
3.7. You agree to keep your account details up-to-date on the Website throughout your use of the Service. HMRC legislation means that we have a responsibility to ensure your VAT compliance. If we believe you are not compliant, we retain the right to suspend your storefront until your account information has been updated.
3.8. Access to the Website is permitted on a temporary basis and we reserve the right to withdraw or amend the Services we provide through the Website without notice. We will not be liable for any reason, unless permitted under law, if any of the Services are unavailable at any time or for any period.
3.9. When using the Website you agree to be polite and respectful and agree not to use product descriptions that are obscene, discriminatory, defamatory, offensive or political.
3.10. In connection with using the Website and Platform you agree to not:
3.10.1. post, list or upload content or items in in appropriate categories or areas on the Website;
3.10.2. breach or circumvent nay laws, third-party rights or our systems or policies;
3.10.3. sell any counterfeit items or otherwise infringe the copyright, trademark or other rights of third parties;
3.10.4. use our Services if you are not able to form legally binding contracts (for example, but not limited to, if you are under 18), or are temporarily or indefinitely suspended from using our Services;
3.10.5. manipulate the price of any item or interfere with any other user’s listings;
3.10.6. post false, inaccurate, misleading, defamatory, or libellous content;
3.10.7. take any action that may undermine the feedback or ratings systems
3.10.8. transfer your account (including feedback) and user ID to another party without our consent;
3.10.9. distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
3.10.10. use the contact information of other users for any purpose other than in relation to a specific theluckydrinker.com transaction on Website (which includes using this information to send marketing materials directly to theluckydrinker.com users unless the user has given explicit consent to receiving these materials);
3.10.11. distribute viruses or any other technologies that may harm theluckydrinker.com , or the interests or property of theluckydrinker.com users;
3.10.12. use any robot, spider, scraper or other automated means to access our Services for any purpose;
3.10.13. bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
3.10.14. export or re-export any of theluckydrinker.com applications or tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
3.10.15. infringe the copyright, trademark, patent, moral, database or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to theluckydrinker.com;
3.10.16. infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belongs to you;
3.10.17. commercialise any of theluckydrinker.com application or any information or software associated with such application;
3.10.18. harvest or otherwise collect information about users, such as email addresses, without their consent;
3.10.19. circumvent any technical measures we use to provide the Services
3.10.20. represent and warrant that you own, have any ownership interest in, or hold any legal rights to theluckydrinker.comr or the Website; or
3.10.21. make any false or misleading statements, either explicitly or implicitly, that you own, possess an ownership interest in, or have any legal rights to theluckydrinker.comor the Website.
3.11. You are responsible for maintaining the confidentiality of your account and password. Except to the extent caused by our breach of these Terms, you are responsible for all activities that occur under your account regardless of whether the activities are authorised by you or undertaken by you. We are not responsible for unauthorised access to or use of your password or account.
3.12. You must ensure that all details you provide to us are correct and complete and inform us of any changes. You can access and update certain information you have provided to us via your account.
3.13. If (1) we believe you are violating the policy on offers to buy or sell outside theluckydrinker.com, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees for the introduction of seller to Buyer, and recovery of expenses for policy monitoring and enforcement; and (2) you are a seller and you offer or reference your contact information or ask for the Buyer’s contact information in the context of buying or selling outside of Platform, you will be liable for all final value fees in consideration for the introduction to a Buyer for that item on the Website, even if the item does not sell.
3.14. We strongly encourage all sellers to learn about the laws in their own country as well as the countries where they plan to do business.
3.15. Sellers are responsible for making sure their transactions are lawful in both the country of the seller and the country of the Buyer.
3.16. If you are posting worldwide, please be aware that your item may not appear in the search results in countries where the item is not allowed.
3.17. You agree not to:
3.17.1. use the Site beyond the scope of use set out in these Terms and the Data Sharing Policy;
3.17.2. access the Website unlawfully, modify or make derivative works based on the Website nor attempt to reverse engineer or access the site with the intention of creating a competitive product or service nor to copy or build any concepts, features, functions or graphics based on the site. You acknowledge that damages may not provide an adequate remedy for breach of this clause and that we will be entitled to seek other legal remedies to prevent the occurrence or continuance of any alleged breach of this clause.
3.18. You agree that the Intellectual Property Rights in the Website are owned exclusively by us and nothing in these Terms will be deemed to confer any rights in the site to you.
3.19. You agree to conduct yourself at all times in your relations with us and our staff, Buyers and other Sellers strictly in accordance with a guiding principle of respect and mutual cooperation. In no circumstances will any impolite or abusive communications via any public or private channel be tolerated and we reserve the right to immediately suspend your storefront and/or terminate the Agreement in the event of any breach by you of this clause.
3.20. If we have concerns regarding your account, or activity relating to your account, or if you are in breach of these Terms, we reserve the right to suspend or terminate your account without liability to you. Additionally, we reserve the right to vary or terminate all or part of our Services and/or not provide all or part of our Services to anyone for any reason and/or period of time, at our discretion.
4. Setting Up Your Account
4.1. Following the start of the Term, we will:
4.1.1. provide you with a password so that you can set up your storefront and, once we’ve made the functions available to you, update the storefront;
4.1.2. provide the Services with reasonable skill and care; and
4.1.3. use reasonable efforts to restore any faults in the service as soon as reasonably possible. Whilst we use reasonable efforts to provide a seamless and fault-free service, this will not always be possible. We therefore cannot guarantee that you will be provided with a 100% uptime guarantee.
4.2. We reserve the right to revise or alter the Services we provide. Any variation in the service will be subject to these Terms.
4.3. The Website provides a platform to allow you to offer and sell your products directly to Buyers.
4.4. As part of this process:
4.4.1. any contract to sell and buy products is made only between you and the Buyer concerned and we are not a party to any such contract;
4.4.2. we provide the facility to negotiate the sale of products between you and Buyers through the use of the Website and email communication Services operated and managed by us, together with our Services; and
4.4.3. we may use a third party service provider to provide Buyer feedback.
4.5. By using the Website and the Services you agree that we or a third party service provider may, at our/their discretion, post on your relevant product page and on the third party website any and all Buyer feedback relating to a transaction for a period of up to two years after we and/or the third party service provider receives that Buyer feedback;
4.6. Once we have received Buyer feedback, this will be made available to you. You may submit a response to any negative Buyer feedback via the facility provided by us within five days of receipt of the negative Buyer feedback.
4.7. We may review and verify any Buyer feedback and may post this feedback on your product page or storefront.
4.8. You agree that you will not contact any Buyer directly whether via the Website or otherwise in response to any Buyer feedback without our prior written permission.
4.9. If we consent to you responding to Buyer feedback, you agree that you will ensure that any response is true and accurate and not misleading in any way, and does not contain any material that may be construed as offensive, defamatory or unlawful.
5. Technical
5.1. You agree to:
5.1.1. establish and maintain access to the internet at your own cost, through use of a computer or other access device;
5.1.2. ensure that at all times all computer hardware and software you use to access and operate with the Website is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against viruses, trojan or malware; and
5.1.3. ensure that all information you supply electronically to us and to the Website is submitted free from viruses, trojan or malware.
5.2. We have no responsibility for the provision, support and maintenance of any of your hardware or software used to provide you with access to the internet or the Website, or any related hardware or software (including any IP router, proxy server, firewall or antivirus software), the responsibility for which will remain exclusively with you.
5.3. You are responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Services and access to the storefront (which includes changing passwords on a regular basis).
5.4. You must ensure that any passwords remain confidential and not disclosed to unauthorised third parties.
5.5. You must inform us immediately if there is any reason to believe that a password or any other security device has or is likely to become known to someone not authorised to use it, or is being or is likely to be used in an unauthorised way.
5.6. If you forget your password, you can reset it via the “reset password” function.
5.7. We reserve the right to suspend access to the Website if at any time we consider that there is or is likely to be a breach of security, in which event we will notify you of any steps to be taken by you as soon as possible.
5.8. We may require you to change (or to ourselves change, and then notify you) any or all of the passwords used by you in connection with the provision of the Services and access to the storefront, in which event we will notify you of the requirement to change passwords and any further steps to be taken by you as soon as possible.
6. Prices and Product Descriptions
6.1. You must ensure that any seller information provided by you about you or your products is true, accurate, current and complete.
6.2. You must not provide information that:
6.2.1. is false, inaccurate or misleading;
6.2.2. is offensive, indecent, obscene, pornographic, menacing, abusive or defamatory;
6.2.3. is in breach of any applicable law or regulation;
6.2.4. is in any way would adversely affect our reputation or the theluckydrinker.com brand;
6.2.5. creates, or be likely to create, liability for us or cause us to lose (in whole or in part) the Services of our internet service or other suppliers;
6.2.6. represents in any way that The Lucky Drinker is the supplier or manufacturer of the products.
6.3. Where applicable, you agree to state clearly on any relevant products whether that product is a personalised or specially-made product and whether that product is non-refundable or non-cancellable.
6.4. You agree to display your expected delivery times and postage and packing costs on the appropriate areas of your storefront or on relevant products.
6.5. You will not include within your storefront or any other place on the Website or in any other means of communication with the Buyer:
6.5.1. any direct or indirect link to other websites including your own website;
6.5.2. your email address; or
6.5.3. any other means by which a Buyer could communicate directly with you, other than through theluckydrinker.com platform.
6.6. You may amend and update information about your products displayed on the Website and are responsible for designing, creating, managing and amending any bespoke graphics or product images in accordance with the applicable policies.
6.7. You agree to accurately display stock availability for all products and to update such stock availability regularly using the ‘out of stock’ and ‘is available’ options on the website.
6.8. Where new stock for ‘out of stock’ products is due to be available to the Buyer within four weeks, you must state on your storefront the date on which you expect that stock to become available.
6.9. Once the final piece of stock of any product has been sold and will no longer be available, you must mark that item as discontinued on your storefront.
6.10. You agree to remove products from your storefront that are awaiting stock for prolonged periods (four weeks or more) until they become available again.
6.11. If a Buyer places an order for an item which is in fact out of stock and has not been displayed as such and the Buyer consequently requires a refund, then we may charge you the Single Commission Fee or a Refund Administration Fee on that order.
6.12. Sellers are responsible for ensuring that any item they list on The Lucky Drinker is authentic and that the listing description doesn’t infringe on the rights of others, such as those bearing the owner’s trade mark such as a logo.
6.13. Your prices must be fully inclusive of all taxes and additional charges (excluding any VAT that may be chargeable by us if sales are deemed for VAT purposes to be made by us, and not by you, even if you are not VAT registered). The only exception to this is customs duties for which you must show it separately.
6.14. If you are VAT registered, you agree to set the VAT rate at the appropriate level which is currently applicable with respect to your products.
6.15. You are solely responsible for ensuring that you fully comply with your current VAT registrations and accounting for VAT correctly in any country that you sell to.
6.16. You have complete discretion over how you wish to price your products.
6.17. You agree to upload your product range and work cooperatively with our production team so that we are able to set your storefront live on the webSite within one month of your application and account registration and paying the Joining Fee.
6.18. If you fail to comply with our reasonable requests, we may suspend your membership and charge you a re-activation fee or such other amount as may be notified to you from time to time. We will retain sole discretion as to whether to accept your request for re-activation.
6.19. The Platform allows you to offer your products on the Website as part of an ‘always on’ detailed electronic online catalogue containing categories and sub-categories, so that you may display each product in the single most appropriate category, and with product information, pictures and promotions uploaded by you.
6.20. You may apply for a product to be featured in one or more online catalogue categories, and we will retain absolute discretion as to which category is the most appropriate for a given product.
6.21. Subject to this clause, a product will be featured in no more than one category.
6.22. We may, in our absolute discretion and where relevant and appropriate, select a product for inclusion in a second category.
6.23. You will ensure that a single product may appear only once on your storefront. Variations of a product such as colour or size do not constitute separate products and should not be listed as such.
6.24. You will ensure that each of your product listings contains all the information required by a Buyer to make a purchase, and that such information is wholly accurate.
6.25. You will not use keyword spamming (the use or placement of inappropriate keywords in a title or description to gain attention or divert users to another page) or similar techniques in product listings.
6.26. If you wish to promote the same product(s) on the website as another Seller, it will be solely yours and the relevant Sellers’ responsibility to resolve between yourselves any conflict, whether with regard to Intellectual Property Rights or otherwise, that arises in this respect. We will have no liability for any such scenario or any issues arising from it.
6.27. Sellers offering essential items must offer them at reasonable prices, and may not attempt to unreasonably profit from increased demand or decreased supply caused by emergencies or disasters.
6.28. Sellers must offer their items as brand new. The only exception is for books, vintage bar equipment and vintage glassware. It needs to be specified clearly in the description “Used” or “Vintage”.
6.29. Note that “Vintage” refers to any product older than 20 years of age.
6.30. To help us maintain our brand integrity and ensure we’re meeting Buyer expectations, you must consult the list of our Restricted and Prohibited Items Policy, available upon request
6.31. Any breach of this clause will be deemed a breach of these Terms and we reserve the right to suspend the relevant product from the website for such period as the breach continues.
7. Commission and Charges
7.1. For use of the Website or Platform and products you list with us you agree that:
7.1.1. We may take commission of the Final Sale Price (defined below) that we collect on your behalf for each product or sale concluded on our website (“Single Commission Fee”).
7.1.2. Final Sale Price means (i) all revenues received by us for the products you sell, (ii) less any amounts for discounts, refunds, the cost of any returns, cancellations, payment processing fees, VAT and/or other Taxes.
7.2. By using the Website, you agree that you will pay any and all charges in accordance with these Terms.
7.3. Charges may include but are not limited to
a) Single Commission Fee
b) Refund Administration Fee
c) Currency Conversion Fee
d) Promoted Listing Fee
e) International Selling Fee
f) Fulfilment Fee and/or Storage Fee.
7.4. A Single Commission Fee means the fee payable by you which is a percentage of the Final Sale Price which will be notified to you by us in writing at the time of inviting you to participate in the website.
7.5. We will refund monies paid and received by us in respect of sold products that are subsequently returned by the Buyer and authorised for refund by you.
7.6. We reserve the right to charge you a percentage on the total amount of the sale plus VAT.
7.7. The Refund Administration Fee is the fee you will pay to us where the price paid for a product sold through our website is refunded to the Buyer. The Refund Administration Fee is not refundable under any circumstances. The Refund Administration Fee is 2.5% plus VAT of the total amount refunded, or such other amount as we may notify you from time to time.
7.8. Where a payment from us to you involves a currency conversion, it will be completed at a foreign exchange rate determined by a financial institution, which is adjusted regularly based on market conditions and which may be applied immediately and without notice to you. This exchange rate includes a processing fee expressed as 2% plus VAT above the wholesale exchange rate at which we obtain foreign currency, and the processing fee is retained by us.
7.9.We may from time to time offer promoted listings which allows you to spotlight your listings in prominent locations across the Website and Platform to give them a visibility boost. You can promote your products and your storefront. Use of this service may incur an additional fee.
8. Payments Made To You
8.1. Payments for products will be made directly by a Buyer to us, following you confirming your acceptance of the order to us. You must check the Website daily for alerts of new orders. You agree that the Buyer’s obligation to pay you for products is satisfied when the Buyer validly pays us for the applicable products. You further agree that you will not seek recourse (legal or otherwise) against a Buyer or any third party (including, but not limited to any payment service provider or gateway) for payment of a product if the Buyer has validly paid us in the manner referred to in this clause or we have credited funds to you.
8.2. Payment for products by Buyers through the Website will be through payment methods made available from time to time, using our current online payment processing system.
8.3. We may offer gift vouchers to Buyers that are available for redemption against the website (whether by the original Buyer purchaser or their nominated Buyer beneficiary).
8.4. You acknowledge and agree that: (i) any purchase and redemption of a theluckydrinker.com gift voucher is as between the Buyer and us; (ii) you will not accept any gift vouchers as a means of payment or value; and (iii) where we accept redemption of a gift voucher we do so as principal and not as your agent. If a Buyer redeems a gift voucher, we will then apply an equivalent sum to the relevant purchase from our gift voucher funds in settlement of the amount due to you. Any shortfall will be paid for by the Buyer using our current online payment processing system.
8.5. We agree to pay you for the relevant transaction less the Single Commission Fee, 14 days from the date of acceptance of an order by you through the site. Please allow three to five business days to receive your funds.
8.6. Unless we otherwise agree with you, any payments we make to you will be in the domestic currency of the region where your bank account nominated to receive such payments is held and which may also be subject to the Currency Conversion Fee.
8.7. From time to time we may retain a portion of the payment due to you in order to provide for refunds due or expected to be due to a Buyer in the ensuing period. If refunds exceed your sales in a particular period, any future payments will be used to clear your negative balance and the difference leftover will be paid when the next payment is due. We have the right to retain a payment for up to eight weeks, for any refunds expected to be due.
8.8. You agree to provide your banking details as are required or requested by us, in order that payment may be processed to you in respect of any products sold.
8.9. You agree to ensure the banking details referred to in this clause are kept up-to-date, and you agree to notify us of any changes as soon as reasonably practicable. If there is any error or omission to update your banking details, we will not be liable or responsible for any funds not sent to your correct bank account.
8.10. You agree to be responsible for paying any banking charges or other administrative expenses incurred by us as a result of any inaccuracies in any such information.
8.11. Where we are deemed for VAT purposes to be the supplier of products to a Buyer, and believe that we are responsible for accounting for that VAT to the relevant tax authority, you agree that we will be entitled to deduct from the sums due to you an amount equal to the VAT that we reasonably believe is due in respect of the sale, and will account for such VAT to the relevant tax authority. If such an amount is found to be insufficient, you agree to pay us an amount equal to any shortfall.
9. Terms and Termination
9.1. These Terms apply throughout the period of our provision of Services to you (the “Term”).
9.2. The Term will start after we are satisfied you have fulfilled our requirements for account registration and verification, we have notified you in writing of our acceptance of your account registration and all fees applicable have been paid in full. The Term will continue until terminated by either you or us as set out below.
9.3. Both parties have a mutual right to terminate this agreement by providing at least 30 days’ written notice. We may recoup the cost of any Services provided up to the point of cancellation.
9.4. We reserve the right to restrict, suspend or terminate our provision of the Services (or any part thereof) or terminate this Agreement at any time if:
9.4.1. you significantly breach these Terms (including a significant breach of any of our policies as notified to you from time to time);
9.4.2. you fail to pay any fees payable to us within seven working days of their due date for payment;
9.4.3. you don’t have enough money to pay your debts when they fall due, or you enter into a legal process or an arrangement relating to being unable to pay your debts;
9.4.4. your account remains unconfirmed or inactive for a long time; or
9.4.5. in our sole discretion, we determine that your eligibility or suitability to be listed on the Website, or to receive our Services, changes.
9.5. If we restrict or suspend our provision of the Services (or any part of it), we aim to provide you with a clear explanation of our reasons for doing so (including referencing any specific relevant facts and circumstances, along with the applicable grounds we’re relying on to do so) by email on or before the date on which the restriction or suspension becomes effective, in order to give you the opportunity to clarify the facts and circumstances.
9.6. If we terminate the provision of the Services to you or this Agreement, we will provide you with a statement setting out our reasons for that decision (including referencing any specific relevant facts and circumstances, along with the applicable grounds we’re relying on to do so) by email at least 30 days’ before termination takes effect, except if we are obliged by a legal or regulatory obligation to terminate the provision of the Services or the Agreement.
9.7. If the Services or this Agreement are terminated or suspended:
9.7.1. you are required to pay us all charges and fees due up to and including the date of termination or suspension;
9.7.2. you will remain liable to pay any outstanding refunds to Buyers and associated Refund Administration Fees (as detailed below) following suspension or termination;
9.7.3. we will not keep copies of any information provided or generated by you following termination of the Agreement. If you need access to information you have generated, you are responsible for keeping your own copies and we suggest that you should download such information during any notice period prior to suspension or termination;
9.7.4. where the Services are terminated, you will continue to have access to the Website for 30 days in order to pay any outstanding Charges and fees and download information in accordance with the clause above; and
9.7.5. termination of this Agreement doesn’t affect any of our or your rights or liabilities, and doesn’t affect any provision set out in the Agreement which is expressly or by implication intended to come into force or continue in force after termination.
10. VAT Information
You agree to:
10.1.1. promptly provide us with any information that we may request from time to time in respect of the products in order for us to properly account for VAT where applicable. When you become aware that such information is no longer accurate, you will promptly provide us with updated information. We will use this information as the basis for our understanding of the VAT obligations we have in respect of any sales, so it is important that such information is accurate;
10.1.2. where relevant, provide to the delivery service in the prescribed format any required information in respect of any consignment of products in order to, where possible, remove the need for any import VAT to be paid by a Buyer in respect of any products; and
10.1.3. not misuse any of our VAT details.
10.2. Any Seller who is not based in the UK should consider if it is required to register for VAT in the UK where the products being sold to UK Buyers are physically located in the UK at the point of sale. You must immediately provide us with your VAT registration number where this applies to you.
10.3. Any Seller who makes sales to Buyers in the EU should consider its VAT obligations in respect of such sales, including but not limited to whether or not the Seller must register for VAT in the EU. You must immediately provide us with your VAT registration number where this applies to you.
10.4. You will compensate us in full for any loss, cost, expense, damages or penalty arising from any errors or omissions in the information provided to us, or any failure to promptly update such information, or any failure to comply with this clause.
10.5. theluckydrinker.com is not responsible for charging, collecting and paying VAT on behalf of the seller unless otherwise stated.
10.6. theluckydrinker.com will charge 20% VAT on top of selling fees on the total amount.
10.7. Seller can claim back from HMRC all the VAT where applicable.
10.8. Seller to inform us (theluckydrinker.com) when their business has been registered for the VAT so they can get the correct VAT claim back. Proof of VAT Registration is required.
10.9. No VAT claim can be made on previous sales.
10.10. For non-VAT Registered Business, the selling VAT rate will not be transferred to the seller. Only the Net amount and on top of the selling fee, a 20% VAT will be applied.
11. Compliance with Our Instructions and Applicable Laws
11.1. You agree to comply at all times with our reasonable instructions and all applicable laws and regulations including:
11.1.1. UK and EU competition laws;
11.1.2. all product safety and product marking laws and regulations, and Trading Standards requirements in respect of the manufacture, packaging, marking, certification (including, without limitation, CE marking) and delivery of the products you sell;
11.1.3. all applicable modern slavery legislation;
11.1.4. the Restricted and Prohibited Items Policy; and
11.1.5. all applicable bribery legislation.
11.2. In relation to your obligations under the UK and EU competition laws, you agree not to exchange (or attempt to exchange) any commercially sensitive information, including information on any current or future commercial strategies, costs and/or pricing, with any other Seller.
11.3. In relation to compliance with all applicable bribery legislation, you agree to:
11.3.1. not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the UK bribery legislation if such activity, practice or conduct had been carried out in the UK;
11.3.2. maintain in place throughout the Term (and enforce where appropriate) your own policies and procedures to ensure compliance with the UK bribery legislation;
11.3.3. promptly report to us any request or demand for any undue financial or other advantage of any kind received by you in connection with the performance of these Terms; and
11.3.4. ensure that you impose written terms on any subcontractor connected with the matters arising under these Terms which are at least equivalent to those imposed on you in this clause.
11.4. Where required by applicable laws and regulations, appropriate instructions will be included with the product to ensure the safe use of the products.
11.5. You agree to inform us as soon as possible upon becoming aware of any claim against us or you arising out of or in connection with any defect in your products, or any failure by you to ensure that the products are appropriately marked or certified in accordance with applicable laws or regulations.
11.6. You will compensate us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any losses that are foreseeable, as explained below) we incur in connection with any claim envisaged under this clause or paid or agreed to be paid by us in settlement of the claim and all legal or other expenses incurred by us in or about the defence or settlement of the claim. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Agreement was entered into, both parties knew it might happen, for example, if you discussed it with us during on-boarding. We will notify you in writing as soon as possible after becoming aware of the claim.
11.7. You agree to maintain at all times, at your own expense and with reputable insurers appropriate insurance in relation to your business. You will agree to, upon written request from us, provide us with any information we reasonably require concerning the scope of your insurance together with any relevant certificates confirming that it is in place.
11.8. You agree to comply with our reasonable instructions relating to any product recall and in any event we reserve the right to take immediate and exclusive conduct of the product recall on notice to you, in which case you will give us such assistance as we may reasonably require.
11.9. You will maintain appropriate, up to date and accurate records to enable the immediate recall of any products.
12. Contracts With Buyers
12.1. You acknowledge and agree that following acceptance of an order through the Website, such an acceptance is also deemed to be an irreversible instruction to us to conclude a contract of sale between the Seller and the Buyer, which once given you cannot go back on. The contract of sale between you and us is concluded when we (acting as your commercial agent) send an order confirmation email to the Buyer, and we have no responsibility for the performance of any such contract.
12.2. You acknowledge and agree that the terms and conditions relating to any such contract will comprise the Buyer terms and conditions, the email confirmation relating to the Buyer’s order and the applicable details on the relevant product page. You agree to be bound by all such provisions.
12.3. We will notify you of any order awaiting your acceptance. You acknowledge that we do not promise the reliability of email communications and you must check the Website daily for alerts of new orders.
12.4. Following receipt of such notification you agree to, within a maximum of two working days, and as a matter of best practice within 24 hours, confirm your acceptance or rejection of each and every order, using the website, and provide an estimated dispatch date. You will use your best efforts to accept every order.
12.5. Following acceptance of an order through the site, you agree to:
12.5.1. fulfil the Buyer order as soon as reasonably possible;
12.5.2. confirm to the Buyer the time and method of dispatch; and
12.5.3. dispatch the Buyer order to ensure that it reaches the Buyer within the timelines advertised on the relevant product page and/or in accordance with any subsequent correspondence with the Buyer.
12.6. You agree to notify the Buyer promptly through the Website at each of the following stages:
12.6.1. receipt of order notification, with an estimated dispatch date;
12.6.2. dispatch of an order with an expected delivery date;
12.6.3. any enquiries relating to the order;
12.6.4. receipt of an item that has been returned to you; and
12.6.5. processing of an exchange or refund.
12.7. You agree to include with all orders the appropriate theluckydrinker.com co-branded dispatch letter, and such additional documentation or material as may be required and/or provided by us.
12.8. You agree to ensure that any and all correspondence with any Buyer will:
12.8.1. be solely for the purposes of managing a Buyer order;
12.8.2. be via the Website or, if that is not possible, then at all times include a reference to us;
12.8.3. not include any reference to your own website, email address, other correspondence address or any other promotion of Services outside those offered through or by us; and
12.8.4. be undertaken in accordance with the Data Sharing Policy, available upon request.
12.9. The obligations under this clause will include any material included with the dispatch of a Buyer’s order. We will make relevant materials available to purchase on the website to help you to fulfil this obligation.
12.10. Any breach of these clauses will constitute a significant breach of these Terms and further may constitute a breach of applicable data protection laws in force.
12.11. You agree to respond to any Buyer enquiries or Buyer complaints promptly and courteously in the first instance within one working day, and to advise us of any escalated unresolved Buyer enquiries as soon as possible.
12.12. Following receipt of a request for a refund or return by a Buyer (directly or via the Cancellation Form available on the website), you agree to initiate the refund directly in accordance with the Returns & Refunds Procedures, as displayed on the website from time to time, and in accordance with the Returns and Refunds Policy.
13. Intellectual Property Rights
13.1. You recognise that the Intellectual Property Rights in the theluckydrinker.com name, logo or branding are owned entirely by us, and agree that you may only use the theluckydrinker.com name, logo or branding on any promotional material, packaging or elsewhere, whether in hard or electronic format, in accordance with these Terms or with our prior written consent.
13.2. All Intellectual Property Rights in the Services and in any software and/or documentation are and will remain our absolute property, or the property of our licensors as appropriate.
13.3. Any Intellectual Property Rights created by us in the course of the performance of these Terms or otherwise in the provision of the Services will remain our property.
13.4. We grant you permission for the duration of the Term only to use any software or documentation for the sole purpose of accessing and using the Services. This permission doesn’t prevent us or any other third parties we choose to grant permission to from using the software or documentation. You cannot transfer this permission to anyone else and we can terminate our permission at any time. Nothing in these Terms will be deemed to have given you permission or any other right to use any of our other Intellectual Property Rights.
13.5. Where photographs or images of your products are produced by us or our agents, any such images may not be used by you for any purpose other than for display on the Website or in printed material produced by us. We reserve the right to charge you a licence fee in respect of any use of such photographs or images in contravention of this clause.
13.6. You may not bid on the Website name, our brand or brand name, or variations of them, on Google or any other search engines.
13.7. You warrant that:
13.7.1. you are the legal owner of all of the Intellectual Property Rights in and relating to the products (which includes the data and information, including seller information, relating to such products), photographs, logos, images and copy that you provide or upload to the website, and/or that you possess a valid permission to use any and all such Intellectual Property Rights;
13.7.2. the making of products available for sale on the website, and consequent use of your Intellectual Property Rights by us will not infringe any Intellectual Property Rights owned by any third party, and there is and will be no claim against us by any third party arising in relation to the use of such Intellectual Property Rights; and
13.7.3. all items offered for sale by you are not replica or design copies of any other brand, designer or manufacturer.
13.8. To reinforce your proof of permission to sell branded items we might require:
13.8.1. Invoices from an authorised distributor and/or manufacturer showing the purchase of at least 10 units in total in the past 6 months.
13.8.2. The invoice must match with the brands’ details.
13.9. You permit us to access and use any content, including photos, that appear on your storefront or in any other promotional material in our own editorial content or promotional activity relating to us, you, your business and products.
13.10. You agree to compensate us in full for any and all damages, liabilities, costs, expenses and/or losses resulting from any breach of this clause in respect of any claim that the normal operation, possession or use of those Intellectual Property Rights by us infringes a third party’s rights (“Intellectual Property Rights Infringement Claim”).
13.11. In the event of an Intellectual Property Rights Infringement Claim you will immediately make without any charge to us such alterations, modifications or adjustments to the Intellectual Property Rights as will be necessary to make them non-infringing.
13.12. We will notify you as soon as possible if we become aware of any Intellectual Property Rights Infringement Claim by a third party.
13.13. We will be entitled to take sole conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim and may settle or compromise such claim or action at our sole discretion. You agree to give us such assistance as we will reasonably require in respect of the conduct of such defence including with all court procedures and the provision of all relevant documents.
13.14. At our request, you agree to take the conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim. You agree not to, at any time, admit liability or otherwise settle or compromise, or attempt to settle or compromise, such claim or action except upon our express written instructions.
13.15. You grant to us permission to use, license, disclose and distribute any information (including seller information), data, comments or images provided by you to us for any purpose (including disclosing information to third party service providers so that they can contact you directly about their products and/or Services). This permission is an ongoing permission that you cannot revoke or charge us money for and we can exercise this permission throughout the world. You agree that you have now given up your rights to be acknowledged as the author of your Seller Information and to object to the use, in whatever form, of your seller information by us.
13.16. This Clause 13 will survive termination or expiry of these Terms or Agreement regardless of how they come to an end.
14. Data Protection
14.1. “Data Protection Laws” refers to all data protections laws in force at the time, including but not limited to, the EU Regulation 2016/679 General Data Protection Regulation, the Data Protection Act 2018 and the UK GDPR, as enacted and amended from time to time.
14.2. “Personal Data” is given its normal meaning under Data Protection Laws.
14.3. Both you and us will both comply with all applicable requirements of Data Protection Laws. This Clause 14 is in addition to, and does not relieve, remove or replace, yours or our obligations under the Data Protection Laws.
14.4. We both acknowledge that for the purposes of the Data Protection Laws, and pursuant to the Data Sharing Policy we are both independent controllers (where ”controller” has the meaning as defined in the Data Protection Laws). You are free therefore to process such Personal Data relating to a Buyer as you may access via the site when such Buyer purchases a product from you through the website. You may carry out processing of Personal Data of such Buyers solely to the extent, and for such period, as is necessary for the purposes of fulfilling the relevant order of the product by the Buyer.
14.5. We will ensure that we have all necessary rights and notices in place to enable lawful transfer of the Personal Data to you for the duration and purposes of this Agreement.
14.6. You will, in relation to any Personal Data processed in connection with the performance by you of your obligations under this Agreement:
14.6.1. process that Personal Data only in accordance with the Data Protection Laws;
14.6.2. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
14.6.3. at our written direction, delete or return Personal Data and any copies of the Personal Data to the Buyer on termination of the Agreement unless required by applicable law to store the Personal Data; and
14.6.4. maintain complete and accurate records and information to demonstrate your compliance with this Clause 14 and allow for audits by us or our designated auditor.
14.7. We consent to you appointing such third-party processors of Personal Data as are required by you to fulfil your obligations under this Agreement. You confirm that you have entered or (as the case may be) will enter into a written agreement with the third-party processor which include terms which are substantially similar to those set out in this Clause 14. You agree to remain fully liable to us for all acts or omissions of any third-party processor you appoint in relation to this Clause 14, and you will promptly give us a list of all such sub-processors if we ask.
14.8. You agree to compensate us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any foreseeable losses) we incur in connection with any claim arising out of any breach by you of this Clause 14 including any legal or other expenses incurred by us in or about the defence or settlement of the claim. We will notify you in writing as soon as possible after becoming aware of the claim. This Clause 14 will survive termination or expiry of the Agreement however it comes to an end.
14.9. In operating the Platform, and providing Services to Sellers (including the Services we provide to you), we collect and have access to the data that this generates. We collect and have access to data relating to orders, Seller personal data (including relating to you) and Buyer Personal Data.
14.10. We use this data in a variety of ways and for various reasons, including:
14.10.1. managing and supporting you as a Seller;
14.10.2. for analytical purposes, including using aggregated data in marketing, communications and some public materials (e.g. on our website);
14.10.3. product listing ranking;
14.10.4. managing and supporting transactions; and
14.10.5. other operational purposes.
14.11. You have access to certain data relating to you and your orders, and shared Personal Data (as set out in the Data Sharing Policy) via the website (and other sellers can see the same in relation to them, their orders, and their shared Personal Data). However, you do not have access to any other data, and we do not share data relating to you, your orders, your shared Personal Data, or any other data, with any other Sellers.
14.12. For more information regarding data privacy and data related queries, please contact us or request a copy of our Data Sharing Policy and/or Data Privacy Policy.
15. Marketing and Promotions
15.1. From time to time we may run promotions on all or part of the Platform. Any such promotions will be separate, and in addition to, any promotions operated by you in your storefront, and may involve offering Buyers either free delivery, discounted prices or other promotional activity relating to some or all products on the website. We will, where relevant and applicable to you and/or your products, inform you of the nature and terms of any promotion and, at our sole discretion:
15.1.1. we will bear the costs of any such promotion; or
15.1.2. where we require you to bear the costs of any promotion, you will inform us in writing whether or not you wish to participate in the relevant promotion.
15.2. You will permit, comply and co-operate with all activities undertaken by us to promote, sell or market your products, in such form and manner as we in our sole discretion deem appropriate, whether directly through the website, through any offline publications produced by us, or through websites or offline publications not produced, owned or operated by us.
15.3. There are other ways which you can work with us to market or distribute products such as through pop-up stores and specific marketing campaigns. We will provide you with more information about these specific opportunities when they arise. Such opportunities will be governed by the terms and conditions set out in the ‘Campaign’ Terms, shared with any participating Seller for each campaign.
16. Confidentiality
16.1. “Confidential Information” means information that one party discloses to the other party under this Agreement, and that is marked as confidential or proprietary or would otherwise normally be considered confidential information under the circumstances.
16.2. Both you and we agree that both parties will keep in confidence any Confidential Information and, except in accordance with these Terms, will not disclose that Confidential Information to any person (other than their employees, professional advisers or suppliers who need to know the information) without the written consent of the other party. For the avoidance of doubt, you authorise us (including our employees, agents and contractors) to hold and process Seller information.
16.3. The obligations of confidentiality under these Terms will not extend to any matter which either party can show:
16.3.1. is in or has become part of the public domain, other than through a breach of the Conditions or other confidentiality obligations;
16.3.2. was lawfully in the possession of the recipient before the disclosure under these Terms took place;
16.3.3. was independently disclosed to it by a third party entitled to disclose the same;
16.3.4. is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
16.4. The obligations of confidentiality under these Terms will remain in effect for a period of two years after the termination or expiry of this Agreement, however they come to an end.
17. Liability
17.1. We try to keep theluckydrinker.com, the Website and the Platform and its Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services 100% of the time.
17.2. We (including our parent, subsidiaries, affiliates, directors, agents and employees) shall not be liable to you in contract, tort (including negligence) or otherwise for any business losses, such as loss of data, profits, revenue, business, opportunity, goodwill, reputation or business interruption or for any losses which are not reasonably foreseeable by us arising, directly or indirectly from:
17.2.1. your use of or your inability to use our Services;
17.2.2. pricing, postage or other guidance provided by theluckydrinker.com;
17.2.3. delays or disruptions in our Services;
17.2.4. viruses or other malicious software obtained by accessing, or linking to, our Services;
17.2.5. glitches, bugs, errors, or inaccuracies of any kind in our Services;
17.2.6. damage to your hardware device from the use of any theluckydrinker.com Services;
17.2.7. the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
17.2.8. a suspension or other action taken with respect to your account or breach of the abusing theluckydrinker.com section;
17.2.9. your need to modify practices, content, or behaviour or your loss of or inability to do business, as a result of changes to this Agreement or our policies.
17.3. You accept sole responsibility for the legality of your actions under laws applying to you and the legality of any items you list on any of our sites.
17.4. Although we use techniques that aim to verify the accuracy and truth of the information provided by our users, user verification on the internet is difficult. theluckydrinker.com cannot and does not confirm, and is not responsible for ensuring, the accuracy or truthfulness of users’ purported identities or the validity of the information which they provide to us or post on our sites.
17.5. Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the price of the items sold on theluckydrinker.com and its original postage costs.
17.6. Nothing in this Agreement shall limit or exclude our liability for fraudulent misrepresentation, for death or personal injury resulting from our negligence or the negligence of our agents or employees, or for any other liability that cannot be limited or excluded by law.
17.7. You will compensate us in full (and our officers, directors, agents, subsidiaries, joint ventures and employees) for any losses or costs, including reasonable legal fees, we incur arising out of any breach by you of this Agreement, your improper use of theluckydrinker.com or your breach of any law or the rights of a third party.
18. Legal Disputes and Governing Law
18.1. If a dispute arises between you and theluckydrinker.com, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Any claim, dispute or matter arising under or in connection with these Terms shall be governed and construed in all respects by the laws of England and Wales. You and theluckydrinker.com both agree to submit to the non-exclusive jurisdiction of the English courts.
18.2. Mediation is a process where a neutral third party facilitates negotiations between the parties to a dispute to help them come to an outcome that they can all agree on.
18.3. You and we both agree to notify the other in writing if one of us wishes to submit a dispute to mediation. Unless you and we agree otherwise within 14 days of that notice, the mediator will be nominated by CEDR. We will bear a reasonable proportion of the total costs of mediation. Any attempt to reach an agreement through mediation on the settlement of a dispute will not affect your or our right to initiate court proceedings at any time before, during or after the mediation process.
19. Miscellaneous
19.1. Waiver. If we fail at any time to insist upon strict performance of any of your obligations under these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under them, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any of these Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
19.2. Severability. If any of the terms contained in these Terms is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
19.3. Entire Agreement. These Terms and any documents expressly referred to in them constitute the entire agreement between us and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between us, whether written or oral, relating to its subject matter. Each of us agrees that neither we nor you shall have any remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or any documents expressly referred to in them. Neither of us shall have any claim for innocent or negligent misrepresentation based upon any statement in these Terms and any documents expressly referred to in them.
19.4. Force Majeure. Where we or a Seller are prevented from or delayed in carrying out obligations under these Terms due to circumstances beyond our or the Seller’s reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, inclement weather, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to the Seller’s workforce), or restraints or delays affecting carriers or an inability or delay in obtaining supplies of adequate or suitable materials then either our or the Seller’s (as the case may be) performance of its obligations shall be postponed for the period of time that the circumstances continue.
19.5. Rights of Third Parties. No provision of these Terms shall be enforceable by any third party (which includes for these purposes any third party: employee, officer, agent, representative or sub-contractor of either theluckydrinker.com or the Seller under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Nothing in this clause excludes the rights of theluckydrinker.com when acting for or on behalf of any Seller.
19.6. Non-Assignment. You will not be entitled to charge (e.g. by way of a mortgage), subcontract or transfer this Agreement or any part of it without our prior written consent. For example, and this does not in any way constitute an exhaustive list, if you wish to subcontract your obligations under this Agreement to a third party service provider, or you wish to sell all or part of your assets to a third party, our prior written consent will be required in order to do so.