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BUYFAIR LIMITED

TERMS AND CONDITIONS OF USE OF BUYFAIR ONLINE TRADING WEBSITE

FOR BUYERS AND SELLERS

 

 

1.            INTERPRETATION

2.            CORE TERMS

3.            CONTRACT BETWEEN BUYER AND SELLER

4.            OBLIGATIONS OF BUYER AND SELLER

5.            RELATIONSHIP BETWEEN SELLER AND BUYFAIR

6.            RELATIONSHIP BETWEEN BUYER AND BUYFAIR

7.            SUSPENSION OR CANCELLATION OF ACCOUNT OR LISTING

8.            BREACHES

9.            ASSERTION OF IPR INFRINGEMENT OF GOODS ON WEBSITE: TAKE DOWN

10.          NON ENDORSEMENT

11.          NON CIRCUMVENTION

12.          DATA PROTECTION

13.          ACCESSIBILITY AND DISCONTINUANCE OF WEBSITE

14.          BUYFAIR’S LIMITATION OF LIABILITY

15.          SELLER’S INDEMNITY FOR IPR INFRINGEMENT

16.          HYPERLINKS OR ADVERTISEMENT

17.          AMENDMENTS TO BUYFAIR FEES, PERSONAL DATA USE POLICY AND BIDDING SYSTEM

18.          SEVERABILITY

19.          THIRD PARTY RIGHTS

20.          ENTIRE AGREEMENT

21.          ALTERNATIVE DISPUTE RESOLUTION

22.          DISPUTE OVER QUALITY OR DESCRIPTION OF GOODS

23.          FORCE MAJEURE

24.          WAIVER

25.          NOTICE

26.          LAW AND JURISDICTION

 

 

BUYFAIR TERMS OF USE

INTRODUCTION

(A)               This Agreement sets out the terms and conditions that apply to the use of the Buyfair online trading platform

(B)               The BuyFair trading platform is a platform website operated by BuyFair Limited that allows a seller and prospective buyer(s) to enter into contracts with each other for the purchase of goods that the seller is offering on the BuyFair platform

(C)               The contract of sale and purchase is entered into between the seller and the buyer and BuyFair is not a party to that contract

(D)               This agreement sets out

(a)            The terms and conditions of sale and purchase between the buyer and seller

(b)           The terms and conditions between BuyFair and the seller concerning the offer for and exposing for sale by the seller of goods on BuyFair’s platform

(c)            The terms and conditions between BuyFair and the buyer concerning the purchase of goods from a seller on BuyFair’s platform

 

IT IS AGREED

1.                   Interpretation

1.1                expressions shall have the following meanings:

 

Bespoke Terms special terms and conditions that a Seller advertises in a prominent and accessible manner in a Listing as being applicable to the sale of Goods and which will, unless prohibited by Clause 3.4, apply to the Contract for Sale of those Goods

Bidding System    the system devised by BuyFair whereby a Buyer and Seller enters into a binding contract for the sale and purchase of Goods offered for sale by the Seller whereby a Buyer makes one or more bids for all or some of the Goods offered for sale by the Seller and whose precise modus operandi is displayed on the Website and which BuyFair may vary from time to time in accordance with this Agreement;

Buyer  a person who uses the Website to buy Goods from a Seller using the Bidding System;

BuyFair Fees  the commission fees that BuyFair charges to Sellers upon entering into a binding contract for the sale and purchase of Goods as displayed on the Website and which BuyFair may vary from time to time in accordance with this Agreement. Such may include time to pay;

Business Days   any weekday which is not a bank or public holiday in the United Kingdom

Claim any proceedings or threatened proceedings in a court, tribunal or via arbitration whereby a Buyer or Seller asserts a cause of action or a number of causes of action whether in contract, tort, misrepresentation or otherwise against BuyFair and/or seeks remedial relief whether by way of damages, account of profits, injunctive relief or any other remedy against BuyFair in connection with a Wrongful Act or series of Wrongful Acts. For the avoidance of doubt, if more than one set of proceedings is brought or threatened in relation to Wrongful Acts where those Wrongful Acts can be fairly considered as being connected or associated with each other, such shall be considered as one Claim.

Content text, graphics, images, audio, video, audiovisual, software or files or any computer file used to convey information in a Listing of a Seller;

Contract for Sale  a legally binding agreement between a Buyer and Seller for the sale of Goods by operation of the Bidding System whose terms and conditions are those set out in this Agreement

Delivery Terms     The delivery terms as set out on the Website that shall apply by default to any Contract for Sale unless amended by Bespoke Terms;

Expert a person who is independent of the Buyer and Seller;  has knowledge and experience of the Goods and is suitable for resolving a dispute under Clause 22;

GDPR  the General Data Protection Regulation (EU Reg.2016/679)

Goods goods offered by the Seller on a Listing on the Website for purchase by a Buyer.

Intellectual Propertyh Rights all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights and shall include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

Listing an advertisement or offer for sale by the Seller which sets out the nature of the Goods being offered for sale, a description of them and any bespoke terms and conditions that shall apply to their sale

Payment Scheme The scheme whereby a Buyer pays for the purchase of Goods from the Seller as publicised and shown on the Website

BuyFair Data Use Policy the policy that BuyFair has regarding the use of personal data of Buyers and Sellers within the meaning of the Data Protection Directive and when it comes into force, the GDPR that is available for inspection on the Website and which may be updated from time to time.

Seller   a person who is offering for sale goods on the Website to Buyers.                      

Website the online trading platform at www.buyfair.global

Wrongful Act any act, error or omission committed by a party to this Agreement in connection with or arising out of this Agreement     .

2.                   Core Terms

2.1                This Agreement governs the relationship between

(a)            Buyer and Seller;

(b)           Seller and BuyFair;

(c)            Buyer and BuyFair;

with regards to the use by a Buyer or Seller of the Website for the purpose of or connected with trading in goods on the Website or any Content posted by a Buyer or Seller on the Website.

2.2                BuyFair hosts the Website which is an online marketplace which allows Buyers and Seller to buy and sell goods and enter into a binding contract between themselves for the sale and purchase of Goods.

2.3                BuyFair is not a party to the Contract for Sale between Buyer and Seller.

2.4                BuyFair’s contractual relationship with Buyer and Seller is set out hereinbelow.

3.                   Contract between Buyer and Seller

3.1                A Contract for Sale of Goods will come into force between Buyer and Seller for the sale of Goods offered by the Seller on the Website in such manner and form as determined by the Bidding System.

3.2                BuyFair is not a party to the Contract for Sale of Goods. It merely provides a marketplace for Buyers and Sellers to do business with each other and the rules pertaining to how Contracts for Sale are concluded and the terms and conditions on which they are concluded.

3.3                BuyFair does not act as an agent for the Buyer or Seller.

3.4                The terms and conditions of the Contract of Sale shall be as follows:

(a)            The quantity of goods and price shall be that agreed between the Buyer and Seller applying the Bidding System;

(b)           The price shall include VAT or any other sales tax that is applicable (but prices shall be quoted as ex-VAT) unless the Seller states that VAT or sales tax does not apply to the offer of Goods in its Bespoke Terms;

(c)            The Seller warrants that the advertisement, promotion, offer for sale or sale of the Goods, the use of the Goods by the Buyer or the subsequent disposal or sale by the Buyer of the Goods do not infringe any Intellectual Property Rights of any third party;

(d)           The Goods conform in all material respects to the description of them in the Listing;

(e)            The Goods are of “satisfactory quality” within the meaning of s.14 Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994 or otherwise amended). Such includes where appropriate fitness for all the purposes for which goods of the kind in question are commonly supplied; appearance and finish, freedom from minor defects, safety and durability (s.14(2B) Sale of Goods Act) but shall not apply where the Buyer’s attention is specifically drawn to the quality of the goods in the Listing (s.14(2C) Sale of Goods Act);

(f)             The Goods will be delivered by the Seller to the Buyer in accordance with the Delivery Terms unless otherwise stated in the Bespoke Terms;

(g)           The Buyer shall pay to the Seller the monies for the purchase of the Goods  in accordance with the Payment Scheme;

(h)           Time shall not be of the essence unless otherwise stated in the Bespoke Terms;

(i)             Title in the Goods shall not pass to the Buyer until via the Payment Scheme, the Buyer has transferred all sums owing in cleared funds to the Seller for the Goods;

(j)             Import tax, customs duties or other levies which arise because of the importation of the Goods into the United Kingdom or the country of the Buyer shall be the responsibility of the Buyer unless otherwise stated in the Bespoke Terms;

(k)           Any Bespoke Terms provided that if such terms conflict with Clause 3.4(a), (b), (c), (d), (e), (g) or (i), they shall be treated as null and void.

4.                   Obligations of Buyer and Seller

4.1                A Buyer and Seller must be a business and not a consumer or end-user. The sale of any goods on the Website must be solely business-to-business.

4.2                A Buyer or Seller must not

(a)            Use the Website in any way or take action that causes, or may cause, damage to the Website or impair the performance, availability or accessibility of the Website;

(b)           Use the Website in any way that is unlawful, fraudulent or harmful or in connection with any unlawful, fraudulent or harmful purpose or activity;

(c)            Use the Website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) malware, viruses, Trojan horses, worms, keystroke logger or other malicious software;

(d)           Conduct any systematic data mining or scraping of the Website.

4.3                A Buyer or Seller must not post or publish on the Website any comment or statement or Content which

(a)            Is libellous or knowingly or recklessly false;

(b)           Is obscene indecent or violent;

(c)            Is likely to incite racial or religious hatred;

(d)           Contravenes any law of the United Kingdom or European Union;

(e)            Is false, inaccurate or misleading as to the nature of the Goods that the Seller is offering for sale;

(f)             Consists of a review of a Buyer or Seller or any third party that does not represent an honest and good faith review and there are facts and matters which justify the review.

4.4                The above obligations are obligations owed to both BuyFair and any other Buyer or Seller who is adversely affected by the posting or publication.

5.                   Relationship between Seller and BuyFair

5.1                A contract to use the Website to sell Goods shall come into effect between Seller and BuyFair upon the latter accepting an application by the former to be a Seller.  BuyFair is not bound to accept the application and may refuse it for any reason. For the avoidance of doubt, but without prejudice to the foregoing, it will not accept an application unless the Seller

(a)            Is 18 years old or more (if a natural person);

(b)           Has a good credit rating with a reputable credit agency ;

(c)            Is a business which trades in the Goods;

(d)           Has accepted the terms and conditions of this Agreement.

5.2                The Seller agrees

(a)            To use the Bidding System to sell Goods and not seek to deal or sell Goods on the Website other than via the Bidding System;

(b)           To pay the BuyFair Fees as and when they fall due;

(c)            To comply with the terms and conditions of the Contract for Sale (for the avoidance of doubt, this obligation is owed to BuyFair only as a third party to the Contract for Sale with a  vested reputational interest in ensuring that Buyers and Sellers who use the Website honour their obligations).

(d)           To comply with the other terms and conditions of this Agreement.

5.3                Without prejudice to the terms of any individual Contract for Sale between Buyer and Seller, the Seller warrants to BuyFair that any Goods that it offers for sale on the Website

(a)            It is the absolute unencumbered owner of the same;

(b)           Do not infringe the Intellectual Property Rights of any third party.

6.                   Relationship between Buyer and BuyFair

6.1                A contract to use the Website to buy Goods shall come into effect between Buyer and BuyFair upon the latter accepting an application by the former to be a Buyer.  BuyFair is not bound to accept the application and may refuse it for any reason. For the avoidance of doubt, it will not accept an application unless the Buyer

(a)            Is 18 years old or more (if a natural person);

(b)           Has a good credit rating with a reputable credit agency;

(c)            Is a business which trades in the Goods;

(d)           Has accepted the terms and conditions of this Agreement.

6.2                The Buyer agrees with BuyFair

(a)            To use and comply with the Bidding System to buy Goods from a Seller;

(b)           To comply with the terms and conditions of the Contract for Sale between Buyer and Seller for any Goods that it purchases through the Website;

(c)            To comply with the terms and conditions of the Contract for Sale (for the avoidance of doubt, this obligation is owed to BuyFair only as a third party to the Contract for Sale with a vested reputational interest in ensuring that Buyers and Sellers who use the Website honour their obligations).

(d)           To comply with the terms and conditions of this Agreement.

7.                   Suspension or Cancellation of Account or Listing

7.1                BuyFair may suspend, cancel or terminate the Seller’s or Buyer’s account with BuyFair and remove any Listings from the Website that the Seller has posted as follows

(a)            Forthwith if the Seller or Buyer has breached the terms of this Agreement unless the breach is capable of remedy and such has not been remedied within 5 Business Days of notification by BuyFair

(b)           By the giving of 20 Business Days’ notice without cause

8.                   Breaches

8.1                Without prejudice to BuyFair’s legal remedies under this Agreement for breach of the agreement, if the Seller or Buyer breaches these terms and conditions in any way, or if BuyFair reasonably suspect that a Seller or Buyer has breached these terms and conditions in any way, BuyFair may:

(a)        send the Seller or Buyer one or more formal warnings;

(b)        temporarily suspend the Seller’s or Buyer’s access to the Website;

(c)        permanently prohibit the Seller or Buyer from accessing the Website;

(d)        block computers using the Seller’s or Buyer’s IP address from accessing the Website

(e)        suspend or delete the Buyer or Seller’s account with BuyFair (without prejudice to Clause 7).

9.                   Assertion of IPR Infringement of Goods on Website: Take Down

9.1                This clause applies where a third party asserts that Goods offered for sale by a Seller on the Website infringes Intellectual Property Rights of the third party.

9.2                The Seller recognises that in certain situations, BuyFair may be required under EU and UK law (in particular the Electronic Commerce (EC) Directive Regulations 2002 to cancel or suspend a Listing promptly where a third party asserts that Goods in that Listing infringe the Intellectual Property Rights of that third party.  The Seller recognises that BuyFair will often be unable to determine the merits of such an assertion and thus, as a matter of caution, may be obliged to take down the Listing pending resolution of the dispute between the Seller and the third party.

9.3                The following procedure shall apply where a third party asserts that Goods offered for sale in a Listing infringe the Intellectual Property Rights of a third party:-

(a)            Where, in the absolute and unfettered opinion of BuyFair, the assertion by a third party is bona fide and gives rise to reasonable grounds to believe that the Goods do infringe the Intellectual Property Rights of the third party, BuyFair may, in its absolute discretion, suspend the Listing for those Goods with no obligation to reinstate them;

(b)            BuyFair may, if it chooses to do, notify the third party of the name, address and contact details of the Seller;

(c)            BuyFair shall promptly forward the assertion or complaint to the Seller;

(d)           The  resolution of the dispute shall be a matter for the third party and the Seller. BuyFair shall have no obligation to resolve this dispute or take any steps to resolve the dispute;

(e)            BuyFair shall restore the Listing for the Goods if it receives from the Seller and the third party a written and signed agreement from both parties that the third party consents to the Seller restoring the Listing

(f)             Without prejudice to Clause 9.3(a) and its right thereunder to suspend a Listing, and Clause 14, BuyFair shall have no liability of any nature to the Seller where it suspends a Listing as a result of an assertion of infringement of Intellectual Property Rights by a third party unless it acts in a fraudulent or dishonest or wilfully malicious manner.

10.                Non Endorsement

10.1             No  listing of a Seller shall in any way seek, whether by the use of trade marks or brands of BuyFair or otherwise,  imply or seek to suggest that BuyFair has endorsed the Seller or is any way associated with the Seller or endorsed or approved the Goods offered for sale by the Seller.

11.                Non Circumvention

11.1             A Seller shall not seek to circumvent the payment of BuyFair Fees in any manner whatsoever whether by

(a)            concluding a private deal with a Buyer which does not make use of the Bidding System or which does not otherwise involves not paying BuyFair Fees;

(b)           artificially reducing the price of the Goods to the Buyer;

(c)            Taking any step so as to reduce materially the BuyFair Fees that would be payable to that which would be payable to BuyFair if a contract for sale and purchase had been concluded between Buyer and Seller negotiating at arm’s length.

11.2             If there is any breach of the above, the Buyer and Seller shall be liable jointly and severally to pay three times the BuyFair Fees that would otherwise have been owing. The Buyer and Seller accept that it is in the legitimate interest of BuyFair to charge such because of the ease of circumvention and the need to act a deterrent to deliberate contract-breakers which is unfair and detrimental to those that are not contract-breakers and that if such practice was widespread, it would mean that BuyFair would have to increase the BuyFair Fees to all Sellers.

12.                Data Protection

12.1             BuyFair shall be entitled to process any data including personal data of the Buyer or Seller within the meaning of the GDPR provided that such complies with

(a)            the BuyFair Data Use Policy.

(b)           Any UK or EU data protection laws.

13.                Accessibility and Discontinuance of Website

13.1             BuyFair does not warrant or represent that the Website shall be accessible all the time via the Internet. BuyFair shall use reasonable endeavours to ensure that it is publicly accessible by users of the Internet.

13.2             BuyFair has the right to discontinue the Website or alter any of its website services by giving 10 Business Days’ notice to Buyers or Sellers. The discontinuance of the Website shall not affect the validity of any Contract for Sale and Purchase that was entered into between a Seller and Buyer prior to the effective date of discontinuance of the Website

14.                BuyFair’s limitation of liability

14.1             This clause only limits BuyFair’s liability for breach of this agreement. It does not apply to limit the liability of a Buyer or Seller to each other under a Contract of Sale for the sale and purchase of Goods. If a Buyer or Seller wishes to limit their liability under a Contract of Sale, such shall be done as a Bespoke Term.

14.2             Nothing in these terms and conditions shall:

(a)        limit or exclude any liability for death or personal injury resulting from negligence;

(b)        limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)        limit any liabilities in any way that is not permitted under applicable law; or

(d)        exclude any liabilities that may not be excluded under applicable law,

14.3             The limitations and exclusions of liability set out in this section and elsewhere in these terms and conditions:

(a)        are subject to Clause 14.1; and

(b)        govern all liabilities arising under these terms and conditions or relating to the subject matter of these terms and conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these terms and conditions.

14.4             BuyFair will not be liable to the Seller or Buyer in respect of any special, indirect or consequential loss or damage.

14.5             In respect of any Claim which does not fall within Clause 14.1 and is not excluded under Clause 14.4, BuyFair’s aggregate liability to the Seller or Buyer shall not exceed:

(a)        £10,000; or

(b)        in respect of any offer for sale of Goods in a Listings, the reserve price multiplied by the quantity of goods

whichever is the lowest.

15.                Seller’s Indemnity for IPR Infringement

15.1             The Seller indemnifies BuyFair, and undertake to keep it indemnified, against any and all losses, damages, costs, liabilities and expenses arising out of any claim by a third party that Goods offered for sale or Content posted by the Seller on the Website infringes the Intellectual Property Rights of a third party or is otherwise actionable by a third party provided that

(a)            BuyFair promptly informs the Seller of any claim made against BuyFair by a third party;

(b)           BuyFair does not enter into any settlement that is unreasonable;

(c)            BuyFair allows the Seller to defend or settle the claims against BuyFair provided that BuyFair is satisfied that in the event of the Seller losing, it will have sufficient monies to meet any award of damages, account of profits and/or adverse costs order awarded against BuyFair.

15.2              This clause shall not affect and is without prejudice to Clause 9.

16.                Hyperlinks or Advertisement

16.1             No Content of any Seller may include any information including third party promotions, advertisements, hyperlinks (save to the Seller’s own business trading website) which is not relevant to the Listing.

17.                Amendments to BuyFair Fees, Personal Data Use Policy and Bidding System

17.1             BuyFair may by giving 10 Business Days’ notice, revise

(a)            the BuyFair Fees;

(b)           The Company Data Use Policy;

(c)            The Bidding System;

(d)           The Payment Scheme

17.2             Notice need not be given individually to each Buyer or Seller or Brower but may be given by a posting on a webpage on the Website which is dedicated to changes to the above.

17.3             The changes to the above shall only take effect at the end of the expiry of the notice period and shall not affect any contracts for sale and purchase concluded prior to the expiry of the notice period.

17.4             If the variation in the terms and conditions are not acceptable to a Seller or Buyer, they shall inform BuyFair that such is the case and promptly cease to use the Website and take down any Listings (if a Seller). If a Seller or Buyer continues to use the Website or maintain any Listings after the expiry of the notice period referred to at Clause 17.1 above, they shall be deemed to have accepted the amendments

18.                Severability

18.1             If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

18.2             If any unlawful and/or unenforceable provision of these terms and conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

19.                Third party rights

19.1             A contract under these terms and conditions is for our benefit and your benefit, and is not intended to benefit or be enforceable by any third party.

19.2             The exercise of the parties' rights under a contract under these terms and conditions is not subject to the consent of any third party.

20.                Entire agreement

20.1             These terms and conditions shall constitute the entire agreement between the Buyer, Seller, Browser and BuyFair in relation to

(a)            The use of the Website

(b)           The sale and purchase of goods on the Website.

20.2             Nothing in this clause shall prevent the implication of a term by a court where

(a)            This Agreement fails to deal expressly with a matter; and

(b)           It is necessary and reasonable to imply a term in order to make business sense of the legal relationship between any two (or more) parties to this Agreement

21.                Alternative Dispute Resolution

21.1             If any dispute arises out of or in connection with this Agreement which shall include any liability arising whether contractually, tortiously or otherwise, the parties agree to seek to resolve the dispute in good faith between them. Such shall not affect the right of a party to terminate the Agreement.  The parties may agree in writing to dispense with the provisions set out in this section. The following provisions shall be without prejudice to this clause.

21.2             Upon one party notifying the other party in writing that it wishes to invoke the resolution procedure in this section (the “Notifying Party”) and setting out the nature of the dispute, the parties agree in good faith to enter into discussions with each other for a period of 10 Business Days (or such longer period as the parties may agree in writing) from receipt of the notice (which shall include at least one face to face meeting between principals of the parties).

21.3             If, after the expiry of the period set out in the previous clause, the dispute has not been resolved, the Notifying Party shall refer the matter for a mediation to take place within 20 Business Days of the expiry of the period set out in the previous subclause

21.4             The parties shall agree the mediator in the following manner:

(i) the Notifying Party shall forward to the other party the names of three mediators that it believes are suitable for resolving the dispute;

(ii) the other party shall select the mediator from the list provided to it pursuant to Clause 21.4(i) which it wishes to use;

(iii) if the other party rejects the names of all three mediators, the mediator shall be appointed by CEDR (Centre for Effective Dispute Resolution) by written notification by the Notifying Party to CEDR. 

21.5             Nothing in this section shall affect a party’s right to seek any urgent protective or interim measures. at any time from any court of competent jurisdiction to prevent or restrain the violation of any obligation of confidentiality under this Agreement and/or any breach (or attempted breach) of this Agreement.

22.                Dispute over quality or description of Goods

22.1             This clause governs any dispute where upon or within 10 Business Days of delivery of the Goods to the Buyer, the Buyer asserts that the Goods do not comply with Clause 3.4(d) or Clause 3.4(e). It is without prejudice to the resolution of such a dispute through other means as set out in this Agreement. Rather, it is a dispute resolution mechanism that the Buyer may wish to make use of where the purchase monies for the Goods are equal to or less than £50,000.

22.2             If the Buyer wishes to invoke the dispute resolution mechanism of this clause, the Buyer shall promptly but in any event within 10 Business Days of delivery of the Goods

(a)            notify in writing the Seller and BuyFair that the Goods as delivered do not comply with 3.4(d) or 3.4(e) setting out in sufficient detail the nature of the complaint for BuyFair and the Seller to understand it;

(b)           ensure that the Goods are kept in a safe and secure place and shall not tamper with or dispose of them.

(c)            Inform Buyfair and the Seller that it wishes to invoke the dispute resolution mechanism set out in Clause 22.3

22.3             The following mechanism shall where the Buyer has satisfied the conditions set out in Clause 22.2

(a)            BuyFair shall consider whether the dispute is suitable to and should be resolved in the manner set out in this clause. If it chooses to appoint an Expert, the decision of the Expert shall be binding upon Buyer and Seller. If it chooses not to appoint an Expert, the following provisions shall not apply.

(b)           The Expert shall determine the dispute in a final manner that shall be binding on the parties without recourse to the courts (save as mandated by the Arbitration Act 1996 or other UK legislation).

(c)            The Buyer and Seller shall be jointly responsible for the payment of the reasonable fees of the Expert which shall be paid in advance on a 50:50 basis to BuyFair for payment to the Expert upon delivery of his opinion. The fees of the Expert shall not exceed a reasonable sum bearing in mind the total sale price of the Goods. A failure by a Buyer or Seller to pay its share of the expert fee within the period set out by BuyFair shall mean that the dispute shall be resolved in favour of the other party on a binding final basis.

(d)           The Expert shall have control of the procedures to be applied and the quality and nature of any evidence to be submitted to him and the Buyer and Seller agree to comply with the instructions of the Expert;

(e)            The Expert may impose any of the following remedies on the parties to the dispute depending on whether the complaint of the Buyer is wholly, partly justified or not justified at all;

(i)             The Buyer be refunded any sums paid (if paid by the Buyer) and return the Goods to the Seller;

(ii)           The Buyer do pay the Seller and the Goods remain with the Seller;

(iii)         Where the complaint relates to some but not all of the Goods, the above options shall apply to those goods where those goods;

(iv)          The Buyer retains the Goods but the contract sale price be adjusted downwards to reflect compensation due to to the Buyer for the breach of Clause 3.4(d) or (e)

(v)           The losing party refund the winning party its cost of instructing the Expert;

(vi)          Where none of the remedies above provide a right fitting and just solution, any other remedy that the Expert considers right and fitting.

22.4             Where there is an urgency about the resolution of the dispute, a party may request the procedure in this clause to be adopted without first using the alternative dispute resolution mechanism.

23.                Force majeure

23.1             BuyFair shall have no liability to the Seller or Buyer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, utility service or transport or telecommunications network, act of God, war, riot, pandemic, flood, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of BuyFair or its sub-contractors, provided that the Seller or Buyer is promptly notified of such an event and its expected duration.

24.                Waiver

24.1             A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. 

24.2             Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

25.                Notice

25.1             Any reference to notice in this Agreement shall mean written notice given by one of the following means:-

(a)            Notification on a part of the Website that is designated for notification to all Buyers and Sellers 

(b)           Any form of written communication including email, facsimile, registered post, mail which comes to the attention of the receiving party or it is reasonable to assume that such has come to the attention of the receiving party.

26.                Law and jurisdiction

26.1             These terms and conditions shall be governed by and construed in accordance with English law.

26.2             Any disputes relating to these terms and conditions shall be subject to the non-exclusive jurisdiction of the courts of England. No party shall issue proceedings without first making use of the alternative dispute resolution procedure set out in Clause 21. If the procedure in Clause 22 is applicable and applied to a dispute, then neither Buyer nor Seller shall be entitled to issue proceedings but shall be bound by the decision of the Expert.

 

Buyfair Trading Limited Company Number: 11483223

 

 

 

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