A. These terms and conditions (the “Conditions”) apply between you (the “Seller”) and DONKEY LIFESTYLE PRIVATE LIMITED (“we”, “us”, “Donkey”) in connection with the provision of the Service to you by us.
B. It is important that you read and understand these terms and conditions before agreeing to them.
C. Donkey shall be entitled to amend the Conditions, the Charges or all or any of them from time to time by posting such amended versions of them on the Donkey Website. The Seller acknowledges that it is its responsibility to check the Donkey Website on a regular basis to make and keep itself aware and notified of any changes made by Donkey to the Conditions, the Charges or all or any of them.
In these Conditions, the following words shall have the following meanings only and shall not affect the interpretation or construction of the Conditions:
"Application Form" means the form accessible on the Donkey Website to a prospective Seller which must be completed and agreed by the prospective Seller as a part of the application process;
“Cancellable Product” means any Product other than a Non-Cancellable Product;
"Charges" means the charges detailed in clause 11 of these Conditions and notified to you by Donkey in writing;
"Conditions" means these terms and conditions and any document referred to in them, or any amended version of them brought into effect from time to time in accordance with these Conditions;
“Confidential Information” means any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, operations, processes, product information, know-how, designs, trade secrets or software of either party;
"Customer" means a person(s), firm or company who enters into or is invited to enter into any transaction to purchases Product(s) from the Seller through the Online Marketplace;
"Customer Feedback" means any and all information provided to us by a Customer via our customer feedback service regarding any goods and/or services provided by the Seller in respect of a particular transaction with that Customer (including in respect of any communications with the Seller), which may include any opinions about the Seller;
"Customer Terms" means the terms and conditions relating to a Customer.
"Documentation" means any user guide, information or other material provided by Donkey to prospective or existing Sellers, in hard copy or electronic form, relating to the Service;
"IPR" means all the intellectual property rights conferred by the law of any country or jurisdiction in the world (including by statute) as amended or re-enacted (by common law, civil law, equity or otherwise) in relation to any invention, discovery, literary work, dramatic work, musical work, artistic work, copyright, database, trade mark, service mark, design (whether two dimensional or three dimensional), patents, semiconductor topography, confidential information, know-how, trade secret, and in each case whether or not it has been reduced to a material form, and howsoever it may be recorded, stored or embodied (including in an electronic or transient medium), including all applications for such rights as well as all extensions and renewals of such rights;
“Non-Cancellable Product” has the meaning ascribed to it in paragraph A.vi of the Services Standards (Clause 15);
"Online Marketplace" means the online marketplace provided by Donkey through the Donkey Website to facilitate the promotion and sale of Sellers' Products;
"Policies" means any policy (including any guides relating to content and style) which may be notified and made available to the Seller by Donkey through the Seller Portal or any other means from time to time;
"Products" means the goods, services or information that Sellers wish to promote and sell through the Online Marketplace;
“Product Page” means the particular web page on the Seller’s shop on which an individual Product is displayed and the relevant information relating to that Product is provided;
"Refund Fee" has the meaning ascribed to it in Clause 11 of these Conditions;
"Renewal Date" means twelve months from the commencement of these Conditions in accordance with Clause 3, or such other period as may be advised by Donkey in writing, and each anniversary thereafter;
“Response” means a response by the Seller to any Customer Feedback;
"Returns & Refunds Procedures" means the procedures set out in the ‘Services Standards’ section of these Conditions or as may be updated by Donkey from time to time and displayed within the Customer Terms;
"Seller" means a person whose application to the Online Marketplace has been accepted by Donkey, and who sells its Products through the Online Marketplace;
"Seller Information" means information, data or content provided by the Seller in any form or medium, whether or not such information is owned by the Seller, contained in the Application Form, uploaded to the Seller’s Shop or given by the Seller to Donkey for whatever purpose, whether directly or on the Seller’s behalf;
"Seller Portal" means the content and order management system provided by Donkey to each Seller for management of its shop pages and associated transactions;
"Service" means the Online Marketplace and other services provided by Donkey, as further described in these Conditions;
"Service Fee" has the meaning ascribed to it in Clause 11.D of these Conditions;
"Services Standards" means Donkey policy on the levels of service to be provided by Sellers to prospective and existing Customers as further described in Clause 15 of these Conditions;
"Shop" means an area of the Online Marketplace dedicated for use by the Seller to promote itself and its Products;
"Software" means any software installed by or on behalf of Donkey that permits Sellers to access and trade through the Online Marketplace;
"Value Added Tax" means value added, sales or services tax, or GST or any similar tax imposed in any jurisdiction;
"Virus" means any computer virus, macro virus, trojan horse, worm or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or network, or to intercept or access without authority or expropriate any system, information or data;
“Working Day” means any day other than a Saturday or Sunday on which banks are open for business in Mumbai.
" Donkey " means Donkey Lifestyle Private Limited (a company incorporated and registered in India) whose registered office is at: 124, Master Mind -1, Royal Palms Estate, Goregaon East, Mumbai 400065 INDIA.
"Donkey Website" means http://www.donkeyonline.in or such other worldwide web address that Donkey in its sole discretion selects as a replacement;
"DonkeyOnline.in" means the trading name of the Donkey Website;
The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Conditions.
Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender.
References to a person include an individual, company, corporation, firm or partnership.
References to any statute or statutory provision shall include:
i. any subordinate legislation made under it;
ii. any provision which it has modified or re-enacted (whether with or without modification); and
iii. any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
All references in these Conditions to clauses are to the clauses in these Conditions unless otherwise stated.
References to the words "include", "includes", "including", "in particular" or any similar words do not limit the words proceeding or following.
A. The term of these Conditions (the “Term”) shall commence after:
i. Donkey has received an Application Form from the prospective Seller completed to the satisfaction of Donkey; and
ii. Donkey has notified the prospective Seller in writing of its acceptance of the Seller’s Application Form. It shall be entirely at the discretion of Donkey whether or not to accept a Seller’s Application Form;
B.Without prejudice to either party's right to terminate the Conditions under the remainder of this clause 3, these Conditions shall continue in force unless and until either party notifies the other in writing of account closure.
C. Donkey may immediately suspend provision of the Service or terminate the Conditions without liability to Donkey by notifying the Seller in writing if:
i. the Seller commits a material breach of the Conditions (including a material breach of any of the Policies) and, if capable of remedy, fails to remedy the breach within fourteen (14) days of a written notice to do so;
ii. the Seller fails to pay any Charges payable to Donkey within seven working days of its due date for payment under these Conditions;
iii. the Seller is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any relevant jurisdiction occurs to the Seller; or
iv. in Donkeys’ sole discretion, a Seller's eligibility or suitability to be listed on the Online Marketplace, or otherwise receive the Service, changes.
D. Notwithstanding any such termination or suspension in accordance with the foregoing clause:
i. the Seller shall pay Donkey all Charges due up to and including the date of suspension or termination; and
ii. termination of this agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force, or the continuance in force, of any provision hereof which is expressly or by implication intended to come into or continue in force after such termination.
A. Following commencement of the Term, Donkey will:
i. provide a password so that the Seller may update their Shop whenever such functions are made available by Donkey;
ii. provide the Service with reasonable skill and care; and
iii. use reasonable endeavours to restore any faults in the Service as soon as reasonably practicable. The Seller acknowledges that the transmission of information via the internet is not completely secure, there is always a risk that communications by electronic means may not reach their intended destination, or may do so much later than intended, for reasons outside Donkeys’ control, and that it is technically impossible to provide the Service entirely free of fault at all times.
B. Donkey reserves the right to revise or alter the Service at any time. Any variation in the Service will be subject to the Conditions.
C. The Online Marketplace provides a platform to allow Sellers to offer and sell their Products directly to Customers. In doing so, the Seller authorises and appoints Donkey as its commercial agent to directly negotiate and/or conclude the sale and/or purchase of Products between the Seller and Customers via the Donkey Services and Donkey accepts this appointment on the terms of these Conditions. As part of this process:
i. any contract to sell and buy Products is made only between the Seller and Customer concerned and Donkey is not a party to any such contract;
ii. Donkey facilitates the negotiation of the sale of Products between Customers and Sellers through the use of the Seller Portal and e-mail communication services operated and managed by Donkey, together with the Donkey Services that contribute to increasing the Seller’s goodwill, promote the Seller’s Products and generally encourage Customers to place order with Sellers;
iii. Donkey does not systematically review listings provided by users of the Donkey Website;
iv. Products offered for sale through the Donkey Website are neither owned nor come into the possession of Donkey at any time.
D. The Seller hereby acknowledges that Donkey has sole and complete discretion whether to invite or select prospective Sellers to subscribe to use of the Service.
E. The Online Marketplace provides a system of Customer Feedback, which may be obtained and/or facilitated by a third party service provider selected by Donkey (the “Third Party”). By using the Online Marketplace and Service the Seller agrees that:
i. Donkey and/or the Third Party may, in its discretion, post on the Seller’s relevant Product Page and on the Third Party website any and all Customer Feedback relating to the transaction in question for a period of up to two (2) years after Donkey and/or the Third Party receives such Customer Feedback;
ii. Following the provision of any Customer Feedback, Donkey shall make such Customer Feedback available to the Seller via the Seller Portal. The Seller may submit a Response to any negative Customer Feedback via the facility provided by Donkey on the Seller Portal, and Donkey and any Third Party will display any such Response with reasonable prominence and proximity to the corresponding Customer Feedback. The Seller agrees that it shall not contact any Customer directly, whether via the Seller Portal through an order or product enquiry or otherwise in response to any Customer Feedback.
iii. The Seller 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.
iv. Donkey may, in its sole discretion and in accordance with the applicable terms and conditions of any Third Party elect to amend, or not to post, any Response that Donkey and/or the Third Party consider, in their sole discretion, to be offensive, defamatory, unlawful or otherwise inappropriate.
F. Donkey may from time to time introduce a Seller to third parties with whom special terms have been arranged unique to Sellers. Any contract entered into between Sellers and any such third party is concluded directly between the Seller and the third party concerned and, except as expressly set out in these Seller Terms, Donkey cannot be involved in the fulfilment or liability for any such contracts.
The Seller warrants that:
a) it is incorporated and/or established (whether as a company, partnership, unincorporated association, or sole trader) in the Republic of India; and
b)it has a trading (operating) address in the Republic of India.
i. The Seller hereby undertakes to:
a. establish and maintain access to the World Wide Web at their own cost, through use of a computer and modem or other access device;
b. ensure that at all times all computer hardware and software it uses to access and interoperate with the Online Marketplace is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against Viruses; and
c. to ensure that information supplied electronically to Donkey and to the Donkey Website is submitted free from Viruses;
ii. Donkey has no responsibility for the provision, support and maintenance of any of the Seller's hardware or software used to provide the Seller with access to the internet or the Donkey Website, or any related hardware or software (including any IP router, proxy server, firewall or anti-virus software), the responsibility for which shall remain exclusively with the Seller.
i. The Seller:
a. is responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Service and access to the Shop (which responsibility shall include the obligation to change passwords on a regular basis);
b. shall take all necessary steps to ensure that passwords and other security devices remain confidential, secure, used properly and not disclosed to unauthorised third parties;
c. shall inform Donkey 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;
d. shall inform Donkey immediately if the Seller forgets or loses a password and must satisfy such security checks as Donkey may operate in order to obtain a new password; and
e. shall ensure that the Seller Portal and its content remains entirely confidential, and that no other person beside those in the Seller's employment has sight of the Seller Portal or any of its content.
ii. Donkey reserves the right:
a. to suspend access to the Service if at any time Donkey considers that there is or is likely to be a breach of security, in which event Donkey will notify the Seller of the suspension and any steps to be taken by it as soon as reasonably practicable; and
b. to require the Seller to change any or all of the passwords used by the Seller in connection with the provision of the Service and access to the Shop, in which event Donkey will notify the Seller of the requirement to change passwords and any further steps to be taken by the Seller as soon as reasonably practicable.
C. YOUR SHOP
i. Donkey has absolute discretion as to the look, feel and content of the Donkey Website (including all Shops) as well as full and final say in the inclusion, positioning, location and all other presentation of Seller Information (including in Donkeys’sole discretion the right to remove any Seller Information from the Donkey Website at any time during the Conditions Term), and reserves the right to remove any Product from the Donkey Website at its sole discretion.
ii. Quality of Presentation
a. The Seller shall:
i. ensure that its Shop maintains a high standard of presentation and at all times accords with any applicable guidelines notified to it from time to time by Donkey, including in relation to the form and content of copy and product imagery;
ii. comply with reasonable instructions from Donkey concerning its Shop.
b. Any failure to maintain suitably high standards of page presentation may result in the de-activation of the relevant Product Page(s) in the first instance. Donkey reserves the right, in its sole discretion, to de-activate the Seller’s Shop until standards have been improved.
iii. Seller and Product Information
a. The Seller shall ensure that all Seller Information provided about itself and the Products on its Shop is and remains true, accurate, current and complete;
b. Without prejudice to the Seller's obligation to comply with any Policies, the Seller undertakes and agrees that none of its Seller Information nor any of the Seller's activities or use of the Donkey Website (including its use of its Shop), will:
i. be false, inaccurate or misleading;
ii. be offensive, indecent, obscene, pornographic, menacing, abusive, defamatory or in poor taste;
iii. be in breach of copyright, confidence, privacy or any other rights and will not infringe any third party's IPR, or other proprietary rights or rights of publicity or privacy;
iv. be fraudulent or involve the sale of counterfeit or stolen items;
v. be in breach of any applicable laws or regulations (including, but not limited to, laws or regulations governing e-commerce, distance selling, data protection, export control, tax, consumer protection, advertising and requirements of Trading Standards);
vi. be in breach of the Policies;
vii. adversely affect the reputation of Donkey or the Donkey brand;
viii. create, or be likely to create, liability for Donkey or cause Donkey to lose (in whole or in part) the services of its internet service or other suppliers;
ix. contain any Virus; and
x. cause the Donkey Website or the Online Marketplace or their functionality to be interrupted, damaged or impaired in any way.
c. The Seller shall not include within its Shop, on the Seller Portal, any other place on the Donkey Website or in any other means of communication with the Customer:
i. any direct or indirect link to other websites including the Seller's own website;
ii. its email address; or
iii. any other means by which a Customer could communicate directly with the Seller, other than through the Seller Portal.
d. Sellers may amend and update information about their Products displayed on the Online Marketplace and are responsible for designing, creating, managing and amending any bespoke graphics or product images in accordance with the applicable Policies.
iv. Stock Information
a. The Seller shall accurately display stock availability for all Products and shall update such stock availability regularly using the 'inventory’ and ‘availability’ options on the Seller Portal.
b. Once the final piece of stock of any Product has been sold and will no longer be available, the Seller must mark that item as disabled on its Shop.
c. The Seller shall disable Products from its Shop that are awaiting stock for prolonged periods (four weeks or more) until they become available again.
d. If a Customer places an order for an item which is in fact out of stock and has not been displayed as such and the Customer consequently requires a refund, then at Donkey discretion the Seller may be charged the Service Fee on that order by Donkey.
a. The Seller's prices must be fully inclusive of all taxes and additional charges. The only exception to this is postage and packing which, if such charges apply in accordance with the Standards of Service, the Seller will show separately and in accordance with the Standards of Service (at Clause 15.B of these Conditions).
b. If the Seller is GST registered, the Seller should set the GST rate at the level which is currently in force in the INDIA with respect to the Seller's Products.
c. The Seller is solely responsible for ensuring that it fully complies with current GST regulations and accounting for GST correctly.
d. The Seller has complete discretion over how it wishes to price its Products however the prices on Donkey must not exceed the retail prices available on the Seller's own website or other channels where the Seller sells directly to consumers.
vi. Product listing and categorisation
a. The Service allows Sellers to offer their Products on the Donkey Website as part of an 'always on' detailed electronic online catalogue containing categories and sub-categories, so that Sellers may display each Product in the single most appropriate category, and with Product information, pictures and promotions uploaded by them.
b. The Seller may apply for a Product to be featured in one or more online categories, and Donkey shall retain absolute discretion as to which category is the most appropriate for a given Product.
c. Donkey shall make available to the Seller up to 30 Product Pages on your Shop. If you wish to feature more than 30 Products on the Online Marketplace at any one time, the Seller shall make the appropriate request to Donkey who may provide the Seller with further Product Pages at their sole discretion.
d. The Seller shall ensure that a single Product may appear only once on the Shop. Variations of a Product such as colour or size do not constitute separate Products and should not be listed as such.
e. The Seller shall ensure that each of the Seller's Product listings contains all the information required by a Customer to make a purchase, and that such information is wholly accurate. 'Dummy' box filling to circumnavigate required fields is not permitted.
f. The Seller shall not make use of 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.
D. COMPLIANCE WITH LAWS
i. The Seller shall comply at all times with all applicable laws, regulations (including food safety laws and regulations) and Trading Standards requirements in respect of the manufacture, packaging, marking, certification and delivery of the Products it sells.
ii. Where required by applicable laws and regulations, appropriate instructions shall be included with the Product to ensure the safe use of the Products.
iii. Products promoted on the Donkey Website that are perishable or edible may not be delivered to any address outside of the INDIA.
iv. The Seller shall inform Donkey as soon as reasonably practicable upon becoming aware of any claim against Donkey or the Seller arising out of or in connection with any defect in its Products, or any failure by the Seller to ensure that the Products are appropriately marked or certified in accordance with applicable laws or regulations.
v. The Seller shall indemnify and hold harmless Donkey against any and all liabilities, costs, expenses, fines, damages and losses (including any direct, indirect or consequential losses) it incurs in connection with any claim envisaged under this Clause 5.D. or paid or agreed to be paid by Donkey in settlement of the claim and all legal or other expenses incurred by Donkey in or about the defence or settlement of the claim. Donkey shall notify the Seller in writing as soon as practicable after becoming aware of the claim.
vi. The Seller shall maintain at all times, at its own expense and with reputable insurers appropriate insurance in relation to its business. The Seller shall, upon written request from Donkey, provide Donkey with any information it reasonably requires concerning the scope of such insurance together with any relevant certificates of currency.
vii. The Seller shall comply with Donkeys’reasonable instructions relating to any product recall and in any event Donkey reserves the right to take immediate and exclusive conduct of the product recall on notice to the Seller, in which case the Seller shall give such assistance as Donkey may reasonably require.
viii. The Seller shall maintain appropriate, up to date and accurate records to enable the immediate recall of any Products.
E. SUSPENSION OF SERVICE
Donkey may immediately suspend or terminate the Seller's subscription and use of the Service in the event Donkey reasonably believes or suspects that any Seller Information does not comply with the provisions of this clause.
A. THE CONTRACT OF SALE
i. The Seller acknowledges and agrees that following acceptance of an order through the Seller Portal, such an acceptance is also deemed to be an irrevocable instruction by the Seller to Donkey to conclude a contract of sale between the Seller and the Customer. The contract of sale between the Seller and the Customer is concluded when Donkey (acting as the commercial agent of the Seller) sends an order confirmation email to the Customer, and Donkey has no responsibility for the performance of any such contract.
ii. The Seller acknowledges and agrees that the terms and conditions relating to any such contract shall comprise of the Customer Terms, the email confirmation relating to the Customer's order and the applicable details on the relevant Product page. The Seller agrees to be bound by all such provisions.
B. PROCESSING CUSTOMER ORDERS
i. Donkey shall notify the Seller by email of any order awaiting acceptance by the Seller. The Seller acknowledges that Donkey does not warrant the reliability of email communications and the Seller must check the Seller Portal daily for alerts of new orders.
ii. Following receipt of such notification the Seller shall, within a maximum of one (1) Working Day, and as a matter of best practice within twenty four (24) hours, confirm its acceptance or rejection of each and every order, using the Seller Portal by changing the order status to Processing (acceptance of the order) or Declined (rejection of the order) or Back Ordered (accepted with a dispatch delay). The Seller shall use its best endeavours to accept every order.
iii. Following acceptance of an order through the Seller Portal, the Seller shall:
a. fulfil the Customer order as soon as reasonably practicable;
b. confirm to the Customer the time of dispatch by updating the order status to Dispatched;
c. dispatch the Customer order to ensure that it reaches the Customer within the delivery timelines advertised on the relevant Product page for the shipping method that they have paid for and/or in accordance with any subsequent correspondence with the Customer;
d. notify the Customer promptly through the Seller Portal at each of the following stages:
i. receipt of order notification;
ii. dispatch of an order;
iii. any enquiries relating to the order;
iv. receipt of an item that has been returned to the Seller; and
v. The Seller shall include with all orders the appropriate Donkey dispatch letter/ packing slip, and such additional documentation or material as may be required and/or provided by Yumbles. The Seller may not include within the order any material that contravenes Clause 6.C.
C. COMMUNICATION WITH CUSTOMERS
i. The Seller shall ensure that any and all correspondence with any Customer shall:
a. be solely for the purposes of processing and/or progressing a Customer order;
b. be via the Seller Portal or, if that is not possible, then at all times include a reference to donkeyonline.in;
c. not include any reference to the Seller's own website, email address, other correspondence address or any other promotion of services outside those offered through or by Donkey.
ii. The obligations under Clause 6.C.i shall include any material included with the dispatch of a Customer’s order. Donkey shall make relevant materials available to purchase on the Seller Portal to help the Seller to fulfil this obligation.
iii. Any breach of these Clauses 6.C.i or 6.c.ii shall constitute a material breach of these Conditions and, further, may constitute a breach of data protection legislation laws.
iv. The Seller shall respond to any Customer enquiries or Customer complaints promptly and courteously in the first instance within one (1) Working Day through the Seller Portal, and shall advise Donkey of any escalated unresolved Customer enquiries as soon as reasonably practicable.
i. The Seller shall not:
a. use the Seller Portal or Donkey Website beyond the scope of use set out in these Conditions;
b. access the Seller Portal unlawfully, modify or make derivative works based on the Seller Portal nor attempt to reverse engineer or access the Seller Portal with the intention of creating a competitive product or service nor to copy or build any concepts, features, functions or graphics based on the Seller Portal. The Seller acknowledges that damages may not provide an adequate remedy for breach of this clause and that Donkey shall be entitled to seek injunctive relief to prevent the occurrence or continuance of any alleged breach of this clause.
ii. The Seller fully acknowledges that the IPR in the Seller Portal are vested exclusively in Donkey and nothing in the Conditions shall be deemed to vest any rights in the Seller Portal in the Seller.
A. The Seller shall conduct itself at all times in its relations with Donkey and Donkey' staff, Customers 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 channel be tolerated and Donkey reserves the right to immediately suspend a Seller's Shop and/or terminate the Conditions in the event of any breach by the Seller of this clause.
A. DONKEYS' IPR
i. The Seller recognises that the IPR in the Donkey name, logo or branding are owned entirely by Donkey, and agrees that it may only use the Donkey name, logo or branding on any promotional material, packaging or elsewhere, whether in hard or electronic format, in accordance with these Conditions or with the prior written consent of Donkey.
ii. All IPR in the Service and in any Software and/or Documentation are and will remain the absolute property of Donkey or its licensors as appropriate.
iii. Any IPR created by Donkey in the course of the performance of these Conditions or otherwise in the provision of the Service shall remain the property of Donkey.
iv. Donkey hereby grants to the Seller a non-exclusive, non-transferable revocable and limited licence for the duration of the Conditions only to use any Software or Documentation for the sole purpose of accessing and using the Service. Subject thereto, nothing in the Conditions shall be deemed to have given the Seller a licence or any other right to use any of Donkeys' IPR.
v. Where photographs or images of the Seller's Products are produced by Donkey or its agents, any such images may not be used by the Seller for any purpose other than for display on the Donkey Website or in printed material produced by Donkey. Donkey reserves the right to charge the Seller a licence fee in respect of any use of such photographs or images in contravention of this clause.
vi. The Seller may not bid on the Donkey Website name, Donkey brand or brand name, or variations of them, on Google or any other search engines.
B. IPR IN AND RELATING TO YOUR PRODUCTS
i. The Seller warrants that:
a. it is the legal beneficial owner of all of the IPR 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 it provides or uploads to Donkey, and/or that it possesses a valid licence to use any and all such IPR; and
b. the making of Products available for sale on the Online Marketplace, and consequent use of the Seller’s IPR by Donkey as referred to in Clause 10.B.ii will not infringe any IPR owned by any third party, and there is and will be no claim against Donkey by any third party arising in relation to the use of such IPR;
c. all items offered for sale by the Seller are not replica or design copies of any other brand, designer or manufacturer.
ii. The Seller permits Donkey to access and use any content that appears on the Seller's Shop or in any other promotional material in Donkey's own editorial content or promotional activity relating to the Seller, its business and Products.
iii. The Seller shall indemnify and hold Donkey harmless against any and all damages, liabilities, costs, expenses and/or losses arising out of or relating to any breach of Clause 9.B.i in respect of any claim or action that the normal operation, possession or use of those IPR by Donkey infringes a third party's rights ("IPR Infringement Claim").
iv. In the event of an IPR Infringement Claim the Seller shall forthwith make without charge to Donkey such alterations, modifications or adjustments to the IPR as shall be necessary to make them non-infringing.
v. Donkey shall notify the Seller as soon as reasonably practicable if it becomes aware of any IPR Infringement Claim by a third party.
vi. Donkey shall be entitled to take sole conduct of the defence to any claim or action in respect of any IPR Infringement Claim and may settle or compromise such claim or action at is sole discretion. The Seller shall give Donkey such assistance as it shall reasonably require in respect of the conduct of the said defence including, without prejudice to the generality of the foregoing, the filing of all pleadings and other court process and the provision of all relevant documents.
vii. At the request of Donkey, the Seller shall take the conduct of the defence to any claim or action in respect of any IPR Infringement Claim. The Seller shall not at any time admit liability or otherwise settle or compromise, or attempt to settle or compromise, such claim or action except upon the express written instructions of Donkey, such instructions not to be unreasonably withheld or delayed.
C. USE OF YOUR INFORMATION
i. The Seller grants to Donkey a non-exclusive, perpetual, irrevocable, royalty-free and worldwide licence to use, disclose and distribute any information (including Seller Information), data, comments or images provided by the Seller to Donkey for any purpose. The Seller hereby waives their rights to be acknowledged as the author of their Seller Information and to object to the use, in whatever form, of their Seller Information by Donkey.
D. SURVIVAL OF TERMINATION
This Clause 9 shall survive termination or expiry of these Conditions howsoever arising.
A. From time to time Donkey may run promotions on all or part of the Donkey Website. Any such promotions shall be separate, and in addition to, any promotions operated by Sellers in their Shops, and may involve offering Customers either free delivery, discounted prices or other promotional activity relating to some or all Products on the Donkey Website. Donkey shall, where relevant and applicable to the Seller and/or its Products, inform the Seller of the nature and terms of any promotion and, at Donkeys’ sole discretion:
i. Donkey shall bear the costs of any such promotion; or
ii. where Donkey requires the Seller to bear the costs of any promotion, the Seller shall inform Donkey in writing whether or not it wishes to participate in the relevant promotion.
B. The Seller shall permit, comply and co-operate with all activities undertaken by Donkey to promote, sell or market the Seller’s Products, in such form and manner as Donkey in its sole discretion deems appropriate, whether directly through the Online Marketplace or the Donkey Website, through any offline publications produced by Donkey, or through websites or offline publications not produced, owned or operated by Donkey.
i. The Seller shall pay any and all Charges in accordance with these Conditions.
ii. The relevant Charges shall be as notified to the Seller and updated by Donkey from time to time in accordance with these Conditions.
iii. Unless specified otherwise, all Charges are subject to GST or other similar taxes or levies, all of which amounts the Seller shall pay, where appropriate, at the rate prevailing at the relevant tax point, and in addition to the Charges themselves.
iv. The Seller shall make all payments to Donkey due under the Conditions without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
v. If any sum due from the Seller to Donkey under these Conditions is not paid on or before the due date for payment, then all sums then owing by the Seller to Donkey shall become due and payable immediately and, without prejudice to any other right or remedy available to Donkey, Donkey shall be entitled to:
a. cancel or suspend its performance of the Conditions or any order, including suspending provision of the Service, until arrangements as to payment or credit have been established which are satisfactory to Donkey; and
b. charge the Seller the cost of obtaining judgement or payment, to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
B. BREAKDOWN OF THE CHARGES
i. The Charges comprise, as relevant and applicable:
a. the Service Fee;
b. the Refund Fee;
c. the Account Fee.
C. SERVICE FEE
i. The Service Fee payable by the Seller shall be as notified to the Seller by Donkey in writing at the time of inviting the Seller to participate in the Online Marketplace, or as may be amended in accordance with this Clause 11.D and/or Clause 1.C of these Conditions.
ii. A Service Fee is payable by the Seller on the value of the total amount payable by a Customer in relation to a Product sold through the Donkey Website by the Seller. The Service Fee is calculated as a percentage of the value of a Product, including the delivery charges applying to that Product, plus a flat fee.
iii. If applicable, the Service Fee may be reduced from time to time by agreement with Donkey in writing, subject to the availability of any such reduction.
iv. Donkey will refund monies paid and received by them in respect of sold Products that are subsequently returned by the Customer and authorised for refund by the Seller using the designated Seller Portal.
D. REFUND FEES
i. At Donkeys’ sole discretion, the Seller shall pay a Refund Fee to Donkey where the price paid for a Product sold through the Donkey Website is refunded to the Customer. Where levied, the Refund Fee is not refundable under any circumstances.
ii. The Refund Fee will be notified to the Seller by Donkey, and will not exceed the equivalent value of the Service Fee.
E. ACCOUNT FEES
i. The Account Fee payable by the Seller shall be as notified to the Seller by Donkey in writing at the time of inviting the Seller to participate in the Online Marketplace, or as may be amended in accordance with this Clause 11.E and/or Clause 1.C of these Conditions.
ii. The Account Fee is charged to the seller's Donkey account balance at the end of each calendar month, from the first full calendar month after the seller's products have been first publicly listed on the site. For example, if a seller's account is launched with their products first listed on the site on the 18th September, then the first Account Fee will be for the month of October, charged at the end of October.
iii. The Account Fee amount is determined by a calculation each month of the last 12 months of sales.
iv. The Account Fee is charged every month that a seller's account status is Active. An account is deemed to be Active while they continue to have a shop front/ company page visible and public on Donkey and ongoing access to the Seller Portal. A seller's account is either Active or Closed. There is no "pause" status.
v. If a seller does not have any products available to buy on the site for a period of time but their account remains Active as defined by Clause 11E.iv then the Account Fee will continue to be charged to their account.
vi. Sellers must notify Donkey that they wish to close their account in writing. Donkey will then endeavour to close the Seller's account by the end of that calendar month if there are no outstanding orders to be fulfilled and no remaining account balance. Otherwise the account will be closed after all orders have been fulfilled and the final payment has been made to the Seller.
F. HOW PAYMENT IS MADE TO YOU
i. As part of the Seller’s appointment of Donkey as its commercial agent (as set out in clause 4C of these Conditions), the Seller agrees that Donkey also acts as the Seller's exclusive agent for the purpose of accepting, refunding and/or otherwise processing payment(s) related to the sale of Product(s) by the Seller via the Online Marketplace (or any other sales channel which Donkey may offer to the Seller from time to time). The Seller and Donkey acknowledge and agree that except as otherwise provided in these Conditions (and in acknowledgement that both parties are businesses), that the duties of an agent implied under the common law are expressly excluded. For the avoidance of doubt, Donkey, acting as the Seller's commercial agent, is neither the buyer nor the seller of the Product(s) and is not a party to the contract of sale of Product(s) between the Seller and the Customer.
ii. Payments for Product(s) will be made directly by a Customer to Donkey (acting as commercial agent of the applicable Seller), following the Seller confirming its acceptance of the order using the Seller Portal and the relevant transaction being recorded on the Seller’s designated Seller Portal. The Seller must check the Seller Portal daily for alert of new orders. The Seller agrees that the Customer’s obligation to pay the Seller for Product(s) is satisfied when the Customer validly pays Donkey for the applicable Product(s). The Seller further agrees that it will not seek recourse (legal or otherwise) against a Customer for payment of a Product if the Customer has validly paid Donkey in the manner referred to in this clause.
iii. Payment for Products by Customers through the Donkey Website will be through one of a range of credit and debit cards, using Donkeys' current online payment processing system.
iv. Donkey shall pay the Seller for the relevant transaction less the Service Fee monthly, 15 to 46 days in arrears following acceptance of an order by the Seller through the Seller Portal. Unless otherwise agreed by Donkey and the Seller, any payments made by Donkey to the Seller will be in GBP.
v. From time to time Donkey may retain a portion of the payment due to the Seller in order to provide for refunds due or expected to be due to a Customer in the ensuing period. Each such retention will be held for no longer than eight weeks before being repaid to the Seller.
vi. The Seller shall provide such of their banking details as are required or requested by Donkey, in order that payment may be processed to the Seller in respect of any Products sold.
vii. The Seller shall ensure the banking details referred to in Clause 11.H.vi are kept up-to-date, and shall notify Donkey of any changes on the next Working Day. The Seller shall be responsible for paying any banking charges or other administrative expenses incurred by Donkey as a result of any inaccuracies in any such information.
A. The parties agree that they shall keep in confidence any Confidential Information and, except in accordance with these Conditions, 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, the Seller authorises Donkey (including its employees, agents and contractors) to hold and process Seller Information.
B. The obligations of confidentiality under the Conditions shall not extend to any matter which either party can show:
i. is in or has become part of the public domain, other than through a breach of the Conditions or other confidentiality obligations;
ii. was lawfully in the possession of the recipient before the disclosure under the Conditions took place;
iii. was independently disclosed to it by a third party entitled to disclose the same;
iv. was disclosed in accordance with Clause 9.C.i; or
v. is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
C. The obligations of confidentiality under the Conditions shall remain in effect for two (2) years after the termination or expiry of the Conditions, howsoever arising.
A. Nothing in these Conditions excludes or limits the liability of Donkey for death or personal injury caused by Donkeys' negligence, for fraudulent misrepresentation, or any other liability that cannot be excluded by law.
B. Subject to Clause 13.A, Donkeys' total liability in contract, tort (including negligence) or breach of statutory duty, misrepresentation or otherwise, arising in connection with the provision of the Service and performance or contemplated performance of the Conditions, shall be limited in aggregate to a maximum of INR 1,000.
C. Subject to Clause 13.A, Donkey shall not be liable to the Seller for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) that arises out of or in connection with the Conditions, or for any liability incurred by the Seller to a Customer, or to any other person howsoever, arising from the provision of the Service or otherwise.
A. The Seller shall not be entitled to assign, charge, subcontract or transfer this agreement or any part of it without the prior written consent of Donkey. For example, and this does not in any way constitute an exhaustive list, if the Seller wishes to subcontract its obligations under this agreement to a third party service provider, or the Seller wishes to sell all or part of its assets to a third party, the prior written consent of Donkey shall be required in order to do so.
B. Donkey may assign, charge, subcontract or transfer this agreement or any part of it to any person.
C. Except with respect to the persons referred to in clause 9.C.i., no term of these Conditions shall be enforceable by any third party (which includes for these purposes any third party: employee, officer, agent, representative or sub-contractor or either Donkey or the Seller) under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Nothing in this clause excludes the rights of Donkey when acting as payment agent of any seller.
D. Donkey reserves the right to suspend or to cancel the Conditions in whole or in part (without liability to Donkey) if it is prevented from or delayed in the carrying on of its business and its obligations under the Conditions due to circumstances beyond its reasonable control, including acts of God, fire, flood, lightning, severe weather conditions, war, revolution, acts of terrorism, IT or internet outage, industrial disputes (whether of its own employees or others) or acts of local or central government (including the imposition of legal or regulatory restrictions). If any such event beyond the reasonable control of Donkey continues for a continuous period of more than 30 days, either party shall be entitled to give notice in writing to the other to terminate the Conditions.
E. A waiver by either party of any breach of the Conditions, or delay in enforcing any breach, shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
F. If at any time any one or more of these Conditions (or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable, for any reason under any applicable law, the same shall be deemed omitted from the Conditions and the validity and/or enforceability of the remaining provisions of the Conditions shall not in any way be affected or impaired as a result of that omission.
G. Notices given under the Conditions must be in writing and may be delivered by hand or by courier, or sent by prepaid first class or registered mail to, in the case of Donkey, to its registered address, or any alternative address notified by Donkey to the Seller in accordance with this provision; and, in the case of the Seller, to the address which it provides on the Seller Portal, or any alternative address notified by it to Donkey in accordance with this provision.
H. Notices may be sent by email provided that, to be effective, the addressee acknowledges receipt of the communication, such acknowledgement to take the form of a return receipt or acknowledging e-mail.
I. Except as set out in clauses 4C, the relationship of Donkey (and its employees) to the Seller will be that of independent contractor and nothing in the Conditions shall render Donkey (nor its personnel) as an employee, worker, any other form of agent, or partner of the Seller or Customer. Subject to any express provision in the Conditions to the contrary or at Donkeys’ reasonable discretion, neither party shall have any right or authority to, and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the other party or bind the party in any way.
J. This agreement, and any documents referred to in it, constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
K. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
L. Nothing in this clause shall limit or exclude any liability for fraud.
M. This agreement and any non-contractual obligations relating to or arising under these Conditions shall be governed by English law, and the parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any dispute relating to or arising under it.
For the avoidance of doubt, these Services Standards are placed at the end of this document for convenience and accessibility only, and form part of the legally binding Conditions.
A. RETURNS AND REFUNDS
i. Any requests (whether by phone, e-mail, fax or letter) for refunds or returns for any Products provided by the Seller to a Customer shall be dealt with directly between the Seller and the relevant Customer through the Seller Portal.
ii. Following receipt of a request for a refund or return by a Customer (directly or via the Returns Form), the Seller shall initiate the refund directly in accordance with the Returns & Refunds policy using the Seller's designated Seller Portal.
iii. Subject to the provisions of the Returns & Refunds policy, Donkey shall approve such refund.
iv. The Service Fee paid in respect of the refunded Products will be returned to the Seller minus, at Donkey discretion, the Refund Fee, which when taken is not refundable under any circumstances.
v. For legal reasons, the Seller must only process refunds through cancelling the customer’s order in the Seller Portal in accordance with the instructions as laid out in the Seller's designated Seller Portal or as provided through other means by Donkey. The Seller shall not issue refunds by cheque or other means.
vi. The Seller shall ensure that returns and refunds to the Customer shall be processed in accordance with the following terms and conditions:
a. by law, the Customer may not cancel, return or obtain a refund in relation to the following Products (each a "Non-cancellable Product"), unless such Product is faulty:
i. personalised items that are specifically made to a Customer's specification, except where the Customer has chosen items from pre-determined upgrade options or standard off-the-shelf components. Donkey shall determine in its sole discretion as to whether a Product is or is not a personalised item;
ii. perishable items, including food.
b. subject to paragraph c of these Services Standards, the Seller shall provide Customers with a 14 day period from the receipt of a Cancellable Product in which Customers can cancel their order and return the Product to the Seller and obtain a full refund, including delivery charges;
c. for the purposes of a monthly gifting Product, a Cancellable Product shall be the first of the series of Products sent to the recipient by the Seller;
d. if the Customer requests a refund for a Cancellable Product then such refund shall be processed by the Seller (or Donkey, in line with paragraph 15.A.j below) as soon as possible and in any case no later than:
i. 14 days after the day the returned product is received by the Seller; or
ii. if earlier, 14 days after the date the Customer provides evidence that they have returned the product to the Seller;
e. if the Customer requires a refund because a Product is faulty, postage and packing costs must be refunded to the Customer along with the full cost of the Product within: (i) 24 hours if the Customer notifies the Seller within 28 days of the Customer receiving the Product; (ii) 14 days if the Customer notifies the Seller between 29 days to 6 months of the Customer receiving the Product;
f. subject to paragraph e. above of these Services Standards, a Customer shall be required to return a Product which it has cancelled or is faulty, and in relation to a Cancellable Product the Customer will be responsible for payment of the delivery, postage and packaging charges relating to the return of such Cancellable Product (unless the Cancellable Product has not arrived, in which case such costs shall not apply). If the Customer fails to return the Product, the Seller (or Donkey) may charge the Customer for the direct costs of recovery of such Product;
g. if the value of a returned Product is diminished because the Customer has handled that Product in any way other than what is necessary to establish the nature, characteristics and functioning of that Product the Seller is entitled to deduct a reasonable amount from the refund to cover the diminished value of the Product;
h. the Seller shall provide to the Customer via the Seller Portal an address in the United Kingdom to which a Customer may return a Cancellable Product;
i. a Refund Fee may be charged to the Seller by Donkey, at their discretion, for any item returned and refunded in accordance with this policy. The Refund Fee is not refundable;
j. Donkey may cancel an order and process a refund for a Product as the Seller’s payment agent to a Customer where:
i. the Seller asks Donkey to process such refund to a Customer from funds of the Seller held by Donkey, or upon payment of such refund amounts to Donkey by the Seller (including the applicable Refund Fee); or
ii. in Donkeys’ opinion, a Seller has not acted in accordance with the Returns & Refunds Policy or the Conditions, in which case Donkey shall be reimbursed from funds of the Seller held by Donkey or the Seller shall be obliged to reimburse Donkey for such refund (including the applicable Refund Fee).
B. DELIVERY, POST AND PACKING
i. All Products shall be properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
ii. A range of delivery options will be available for the Seller to choose to display on its Shop, and it may choose to offer any appropriate option for the Seller's Products.
iii. Donkey may at their sole discretion limit delivery charges on any order to override individual Seller limits so that the Seller's charges comply with the Delivery Policy and the Seller may charge no more than the delivery charges set out in the Delivery Policy or such other charges as may be notified to you (by means of a direct communication and/or in the Seller Portal from time to time). These delivery charges can be varied in exceptional cases only at the discretion of Donkey where, for instance, Products are heavy, fragile, bulky or precious. Permission must be requested from Donkey for charges outside of the Delivery Policy.