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Unique fashion from the best independent brands
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SilkFred - Brand E-Commerce and Warehousing Terms

September 2023

Introduction

  1. SilkFred Limited, a company registered in England with company number 07557982 and registered office at Old Truman Brewery, 91 Brick Lane, London E1 6QL (“SilkFred”, “we” or “us”) provides e-commerce services to fashion retailers through its Website, a proprietary e-commerce platform that it has developed for that purpose.
  2. These Brand E-Commerce Terms ("Terms") set out the basis upon which Brands may: (i) offer and sell their Products directly to Customers through the Website, (ii) use SilkFred's warehousing services.
  3. SilkFred reserves the right to amend these Terms (or any part of them) at any time. We will notify you of any such changes by email, and will give you at least fifteen (15) days’ notice of any changes, and longer if the change(s) mean you may have to make significant technical or commercial adjustments. We will make it clear in the notification the date from which the changes will take effect (the “Effective Date”).
  4. If you do not agree to the change(s), you may terminate these Terms (and your contract with us), and must notify us by email if you wish to do so, before the relevant Effective Date. Your notice of termination will be effective on the relevant Effective Date. If you do not notify us that you wish to terminate before the relevant Effective Date, or you take a clear affirmative action before the relevant Effective Date, such as accepting the amended Terms, or using the Website (including, for example, by submitting a Product for sale) during the relevant notice period, you will be deemed to have accepted the changes with effect from the Effective Date. This will not apply where we have provided you with a longer notice period because the changes to the Terms require you to make technical or commercial adjustments.
  5. The minimum 15 (fifteen) day notice period in Clause 1.4 above will not apply where:
    1. we are subject to a legal or regulatory obligation which requires us to change the Terms in a way which does not allow us to give you that length of notice period; and/or
    2. we need to change the Terms to address an unforeseen and imminent threat that relates to defending the Website, Customers or Brands from fraud, malware, spam, data breaches or other cybersecurity risks. If you have any questions about these Terms or your rights under them, please contact us at legal@silkfred.com.
  6. These Terms apply to the exclusion of any other terms (including any proposed by Brand) and supersede any previous terms between the parties relating to the subject matter as set out in these Terms.
  7. SilkFred may from time-to-time purchase Products from the Brand for SilkFred to sell directly to customers on a wholesale basis (“Wholesale Purchases”). These Terms do not apply to any Wholesale Purchases, and there are separate terms and conditions which apply in relation to Wholesale Purchases.
  8. If required by applicable law the parties agree and acknowledge that these Terms (and any other terms and conditions entered into between the parties) may need to be amended to reflect changes in applicable law and the parties agree to work together to effect any such changes and update these Terms and any others accordingly.

Interpretation

  1. In these Terms:
    "Agreement" means the agreement between SilkFred and Brand made pursuant to these Terms.
    "Bank Account" means the bank account details entered by the Brand in the Dashboard and updated by the Brand from time to time.
    "Boomerang Returns Fee(s)" means the fee(s) payable by Brand to SilkFred for the Boomerang Returns Service.
    "Boomerang Returns Service" means the service provided by SilkFred to Brand whereby SilkFred processes the Centralised Product Returns and returns such Product(s) to the Brand.
    "Boutique" means the Brand's online boutique on the Website where potential Customers can view information about the Brand and its Products.
    "Brand" means the person or entity that SilkFred provides e-commerce and warehousing services to under these Terms.
    "Brand Payment" means the Gross Revenue less the Seller’s Fee, and any other fees which may be payable by the Brand from time to time in accordance with these Terms.
    "Business Day" means any day which is not a Sunday or a public holiday in England.
    "Centralised Product Returns" means Products which Customers return to the Premises.
    "Chargeback" means a reversal of a prior payment from a Customer for Products which has been forcibly issued by the Customer’s issuing bank.
    "Contract" is defined in clause 5.3.
    "Seller’s Fee" means a fee payable to SilkFred in respect of each Product sold through the Website, which shall be the higher of: (i) twenty five percent (25%) of the Gross Revenue or (ii) the Minimum Seller’s Fee, each plus VAT at the prevailing rate, where applicable.
    "Customer" means an end-user of the Website who purchases a Product(s).
    "Dashboard" means the interface on the Website where Brand can upload information relating to Products, confirm Customer orders and view reports.
    "Delivery" and “Delivered” means the point at which Products are accepted by a courier delivery service for despatch to the Brand or Customer, as appropriate.
    “EU Brand” means that the Brand is an International Brand established in the EU.
    "EU" means the European Union and its members from time to time.
    "Fulfilled by SF Fee(s)" means the fee(s) payable by Brand to SilkFred for the Fulfilled By SF Service.
    "Fulfilled By SF Service" means the service provided by SilkFred to Brand which includes: (i) receipt of inbound deliveries of Product from Brand; (ii) put away and storage of Product in the Premises; (iii) making good any packaging or labelling in accordance with clause 11.2 (iv) despatch of orders to Customers; (v) processing the Centralised Product Returns back into stock at the Premises; (vi) fulfilling subsequent orders for such Product(s) in accordance with clause 8.
    "Free Delivery Threshold" means the Contract value threshold and/or any associated terms on which free delivery of Products is offered to Customers, as set out on the Website from time to time.
    "Goods In" means the point at which a delivery of Products from the Brand is accepted at the Premises, as evidenced by a signature from a representative at the Premises.
    "Goods Returned" means the point at which a delivery of returned Products from the Customer is accepted at the Premises, as evidenced by a signature from a representative at the Premises.
    "Gross Revenue" means the gross revenue received by SilkFred from a Customer for the Product(s) under a Contract, being the price actually charged to the relevant Customer for the Product(s) including any sales tax (including VAT or GST) and customs duties. Gross Revenue does not include any delivery costs for the relevant Customer Contract.
    "Holiday Mode Setting" means the temporary setting in the Dashboard for Brand to notify that they are on holiday or otherwise not available.
    "Intellectual Property Rights" 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. "International Brand" means the Brand that is established outside of the UK.
    “International Sales Policy” means the policies set by SilkFred from time to time that relate to:
    (i) UK Brands selling to the Rest of the World;
    (ii) EU Brands selling Worldwide;
    (iii) Non EU Brands selling Worldwide,
    from 1 January 2021 (post Brexit).
    Minimum Seller’s Fee means a minimum seller’s fee (in GBP or such other currency as may otherwise be applicable to the Brand), as may be set by SilkFred and notified to the Brand from time to time.
    “Non EU Brand” means that the Brand is an International Brand established outside of the EU and the UK.
    "Northern Irish Customer" means a Customer whose delivery address is in Northern Ireland.
    "Payment Date" means the date on which any applicable Brand Payment falls due, in accordance with clause 13.5.
    Photography Service means the creation of product image(s) by SilkFred exclusively for use on the Website, and in accordance with clause 17.2.
    "Premises" means the warehousing premises for the Products as notified by SilkFred to Brand from time to time.
    "Products" means the Brand's goods which it offers for sale from time to time.
    "Refunds" means refunds provided to Customers either: (a) in accordance with the Terms of Supply or these Terms; (b) in accordance with applicable law (including the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013); (c) where Products have not been supplied by Brand to Customer under a Contract.
    "Rest of the World" means any territory in the world to which the Website permits sales to be made to Customers other than the UK;
    "Returns Period" means the period of time in which Customers may make a return request for an Order, currently set (a) for UK orders, at 21 days from the date on which the order is marked as shipped by the Brand in the Dashboard; and (b) for international orders, at 26 days from the date on which an international order is marked as shipped by the Brand in the Dashboard.
    "Returns Policy" means the terms and conditions which apply to the returns of Products by Customers, as updated from time to time and available at: http://www.silkfred.com/shipping_and_returns.
    "Terms of Supply" means the terms and conditions that apply to the sale of Products through the Website as updated from time to time and available at: http://www.silkfred.com/terms_of_supply.
    "Tracking Code" is defined in clause 7.2(e).
    "UK Brand" means a Brand established in the UK.
    "VAT" means value added tax or sales tax as applicable at the relevant time.
    "Website" means www.silkfred.com and any other associated and any other associated applications or website owned by SilkFred from time to time.
    "Worldwide" means any territory in the world to which the Website permits sales to be made to Customers including the UK.
  2. Any reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

Appointment and Basis of Sale, Compliance

  1. Brand appoints SilkFred as an authorised disclosed agent on a non-exclusive basis to: (i) promote, market, conclude and enter into contracts on behalf of Brand with Customers for the sale and supply of Products through the Website, (ii) receive the Customer's payment, and (iii) process Centralised Product Returns and Refunds.
  2. Brand also appoints SilkFred to provide the Boomerang Returns Service and/or Fulfilled By SF Service, in accordance with these Terms in respect of Products sold directly by Brands to Customers only.
  3. Any contract to sell and buy Products is made between Brand and Customer and SilkFred is not a party to any such contract. Brand is responsible for delivery of any and all Product(s) and any after sale care. SilkFred's role is limited to its appointment under clauses 3.1, 3.2 and these Terms. SilkFred is not responsible in any way for the performance of the contract by the Customer or Brand or for the quality or safety of any Product sold by the Brand. Products offered for sale by the Brand through the Website are not owned by SilkFred at any time.
  4. Brand shall comply at all times with all applicable laws and regulations in respect of the performance of any and all of its obligations under these Terms in any and all jurisdictions in which its Product(s) may be made available through the Website, including (without limitation):
    1. UK and EU competition laws, and competition laws of any other jurisdiction which may apply to Brand from time to time;
    2. all product safety and product marking laws and regulations, and Trading Standards requirements in respect of the manufacture, packaging, marking, labelling, certification and delivery of the Products Brand sells;
    3. all applicable anti-bribery legislation; and
    4. any other laws which may be applicable governing e-commerce, selling to consumers and/or advertising.

Dashboard and creating a Boutique

  1. Brand may create a public-facing online Boutique for its Products on the Website based on information provided by Brand through the Dashboard.
  2. Brand shall comply fully with all SilkFred guidelines and reasonable instructions from SilkFred regarding the creation of Boutiques and the form and presentation of Products. When added to a Boutique, Brand shall include all information and content that a potential Customer requires to make an informed decision as to whether to make a purchase of Products, including any mandatory information required by SilkFred and/or by any applicable laws and/or regulations.
  3. Save where otherwise prevented by applicable law, Brand shall ensure that the prices it sets for Products are no less favourable than those offered by Brand through its own website(s) and any other online channel through which the Products are made available and that all offers and promotions available through the Brand's own website(s) and any other online channel(s) are also made available, on like terms, through the Website. The Brand shall be solely responsible for ensuring prices its sets are correct.
  4. Brand warrants that any information it submits through the Dashboard including in respect of itself, the Product(s) and/or the fulfilment of orders and the Boutique will not:
    (a) be false, inaccurate or misleading;
    (b) infringe the intellectual property rights of any third party or data protection, privacy or other rights of any other person, be defamatory or in breach of any contractual duty or any obligation of confidence;
    (c) be in accurate with reference to the location of the Brand and/or the address from which the Products are stored and shipped in fulfilment of any Contract created on the Website;
    (d) impersonate any person or entity or otherwise misrepresent Brand's relationship with any person or entity;
    (e) be fraudulent or relate to the sale of illegal, counterfeit or stolen items;
    (h) be identified on the Dashboard or Boutique as being able to be sold through the Website to the Rest of the World for Brands based in the UK or Worldwide for International Brands, if: (i) they do not meet the relevant regulations or requirements for sales internationally; (ii) they do not comply with the International Sales Policy; or (iii) subject to having SilkFred's permission to sell internationally, Brand does not wish for them to be made available or sold internationally; or
    (i) adversely affect the reputation of SilkFred and its brand, or have the potential to do so.
  5. Where required and applicable, any commodity code for any Product which the Brand supplies will be accurate.
  6. Brand agrees to fully indemnify and hold harmless SilkFred and keep it indemnified at all times against any and all costs, claims, liabilities, damages, expenses and/or losses incurred by SilkFred or for which SilkFred may become liable, in connection with: (a) any claim that any Product advertised or sold via the Boutique and/or the Website by SilkFred infringes a third party's Intellectual Property Rights; (b) any breach of the provisions of clauses 4.4(a), 4.4(c) and 4.4(d).
  7. Save as may be permitted pursuant to clause 7.2(c), any and all communications with any Customer shall be made through SilkFred. Brand may not contact or communicate with the Customer directly in any circumstances. Brand shall not include within its Boutique or on any other place on the Website or in any other means of communication with a Customer or potential Customer:
    (a) any direct or indirect link to other websites including Brand's own website;
    (b) its email address; or
    (c) any other means by which a Customer could communicate directly with the Brand.
  8. SilkFred reserves the right to omit, suspend or exclude a Product, Boutique or any information provided by the Brand from the Website at any time at its discretion, including to ensure compliance with these Terms. Any such omission, suspension or exclusion shall be notified to Brand as soon as possible. If SilkFred exercises its rights under this clause at any time, subject to clause 21.1 SilkFred shall not be liable for any losses and liabilities suffered or incurred by Brand as a result.
  9. SilkFred has absolute discretion as to the look, feel and content of the Website (including all Boutiques) as well as full and final say in the inclusion, positioning, location and presentation of Products (including in SilkFred’s sole discretion the right to amend or remove any Brand Materials (as defined in clause 18.2) from the Website at any time).
  10. We apply a number of factors (at our discretion) to rank the order in which Products are displayed on the Website. These may include, without limitation, relevance to the search term entered by a user, and the popularity and/or availability of a Product, and the application of any factor(s) may vary from time to time.
  11. Brand acknowledges that by uploading Products and information to its Boutique that it will be possible for third parties to repost that content.
  12. SilkFred may mystery shop any Product(s) from the Brand as a means of determining whether the Brand is performing its obligations under these Terms, and in full compliance with this Agreement.

Contract of Sale

  1. When a customer places an order for Products on the Website, SilkFred shall notify Brand by email of the requested order. Brand acknowledges that SilkFred does not warrant the reliability of such email communications and Brand is advised to check the Dashboard at regular intervals (and in any case at least daily) for alerts of new orders.
  2. Each Customer order for Products becomes binding once confirmed by Brand in the Dashboard. Brand must accept or reject the order using the Dashboard as soon as reasonably possible and, in any event, within a maximum of one Business Day. Where an order is not confirmed by Brand within three Business Days of the order being placed, SilkFred may cancel the order and refund the Customer but the Seller’s Fee shall be charged on the order in full.
  3. Brand acknowledges and agrees that by confirming an order through the Dashboard, it authorises and irrevocably instructs SilkFred to conclude a contract of sale between Brand and the Customer in respect of that order. The contract of sale between Brand and the Customer in relation to the Product(s) ordered ("Contract") will only be formed when payment has been made by the Customer and SilkFred sends an order confirmation email to the Customer.
  4. Brand acknowledges and agrees that: (a) the Terms of Supply shall apply to all Contracts between Brand and Customers; and (b) payment by the relevant Customer to SilkFred of the Contract value will discharge such Customer's liability to Brand in respect of the Contract.
  5. For the purposes of VAT only and subject to, and only in, the scenarios set out in clause 5.6, the relevant Brand will make a deemed supply of the Products to SilkFred and SilkFred will be responsible for making a deemed supply of the Products to the UK Customer or EU Customer (as applicable) and shall collect and account for VAT (where required) in accordance with applicable legislation. Nothing in this clause affects title to the Products or the Brand’s relationship as seller to the relevant UK Customer.
  6. The provisions in clause 5.5 apply in the following circumstances:
    1. Sales by Non-EU Brands and EU Brands to UK Customers where the total value of the Products sold to the UK Customer, exclusive of VAT and delivery costs, is £135 or less (or Euros equivalent, where applicable) and the sale is fulfilled using Products which are situated outside the UK at the time the Contract is formed;
    2. Sales by UK Brands to UK Customers where the total value of the Products sold to the UK Customer, exclusive of VAT and delivery costs, is £135 or less and the sale is fulfilled by using Products which are situated outside of the UK at the time the Contract is formed;
    3. Sales by Non-EU Brands and EU Brands to UK Customers where the sale is fulfilled using Products which are situated in the UK at the time the Contract is formed;
    4. Sales by Brands to EU Customers where the total value of the Products sold to the EU Customer, exclusive of VAT and delivery costs, is €150 (or GBP equivalent, where applicable) or less and the sale is fulfilled by using Products which are situated outside of the EU at the time the Contract is formed; or
    5. Sales by Non EU Brands to EU Customers where the sale is fulfilled using Products which are situated in the EU at the time the Contract is formed.
  7. Where any of the scenarios in clause 5.6 above apply and the Brand is registered for VAT in the EU country to which a Product is being sold, or is registered under Import One Stop Shop ("IOSS"), the Brand shall not separately account for VAT on the supply to the EU Customer.
  8. Notwithstanding the above provisions, the Brand will remain responsible for accounting to HMRC for VAT in respect of the following sales of Products which are: (i) located in Northern Ireland and sold to a Northern Irish Customer; or (ii) located in the EU and sold to a Northern Irish Customer.

Delivery

  1. Brand shall be responsible for the cost of all shipping charges relating to each Contract, save where the Contract value is less than the Free Delivery Threshold, where the Customer or Brand (if it so chooses) shall be responsible for the cost of all shipping charges.
  2. In all orders where the Contract value is over the Free Delivery Threshold, the Brand shall be responsible for all shipping charges.
  3. SilkFred reserves the right to change the value of the Free Delivery Threshold on Customer orders.
  4. Sales of Products by UK Brands to the EU or by EU Brands to the UK will not be permitted without SilkFred's prior permission, and those Brands will not indicate or select on the Dashboard that any of its Products could be sold into any such jurisdictions without such permission.

Fulfilment, Returns and Refunds

  1. Subject to any contribution to the costs of return delivery which may be made by Customers in accordance with any relevant SilkFred policy from time to time, the cost of return delivery for all Customer returns shall be payable by the Brand, including where a returns address label is provided by SilkFred. The cost of any such returns label shall either (at SilkFred’s discretion) be automatically deducted from any Brand Payment paid to Brand on the Payment Dates, or invoiced by SilkFred to the Brand.
  2. Unless using the Fulfilled by SF Service:
    (a) Brand shall promptly fulfil Contracts (and in any case within three Business Days of an Order being placed) in accordance with the Terms of Supply and these Terms. Where the relevant Product(s) are not dispatched by Brand within three Business Days of the order being placed, SilkFred may cancel the Contract and refund the Customer but the Seller’s Fee shall be charged on the Contract in full. For the avoidance of doubt, this clause 7.2 shall not apply where longer shipping periods are stated on the relevant Product page prior to the order being placed by Customer;
    (b) Brand shall not include any of its own flyers, leaflets or other marketing materials with the Products being shipped to Customer in any circumstances. SilkFred reserves the right to charge the Brand for any reasonably foreseeable losses that it incurs if Brand breaches this clause, and such losses are currently estimated to be in the region of £1,000;
    (c) if SilkFred provides Brand with contact numbers or other personal data relating to the Customer (the "Personal Data") in order to fulfil Orders, Brand (i) acknowledges that they will be the data controller of the version of the Personal Data that they receive, and (ii) agrees that they will only use the Personal Data to fulfil the Order, and will not use the Personal Data for any other purpose, including contacting the Customer in any way to promote the Brand. Any breach of this clause is a material breach of this Agreement;
    (d) Brand shall include such SilkFred documentation and materials with all Product(s) shipments to be delivered to Customers under these Terms as may be required by SilkFred and notified to Brand from time to time;
    (e) Brand shall promptly upload details of tracking codes relating to any Product(s) shipment under a Contract ("Tracking Codes") in the Dashboard as soon as the Product(s) is dispatched. Brand shall provide to SilkFred such information reasonably required by SilkFred regarding dispatch, order status and tracking in relation to a Contract as SilkFred may request from time to time;
    (f) All EU deliveries made by Brands based in the UK will be made 'Delivered Duty Paid' (DDP); and
    (g) All Worldwide deliveries made by Brands based in the EU will be made 'Delivered Duty Paid' (DDP) where so required by SilkFred.
  3. Brand agrees to fully compensate SilkFred for all costs, losses and liabilities SilkFred may suffer or incur, howsoever caused (and including in connection with retaining Customer goodwill), arising out of or in connection with any Customer complaints relating to their Product, order or delivery or non-delivery of any Product, and/or otherwise relating to any acts or omission of Brand relating to any Product or its delivery. Any such compensation shall be payable by the Brand, and shall either (at SilkFred’s discretion) be reflected as a deduction from a Brand Payment relating to the relevant period, or the Brand shall be invoiced by SilkFred for the relevant sum.
  4. Save in respect of International Brands, Brand may use the Boomerang Returns Service or the Fulfilled By SF Service. If Brand wishes to use the Boomerang Returns Service or Fulfilled By SF Service, it will need to elect to do so by informing SF in writing. For International Brands, the Boomerang Returns Service is mandatory and the Brand may elect to use the Fulfilled By SF Service by informing SF in writing.
  5. On all Product orders where the Brand is using either the Boomerang Returns Service or Fulfilled by SF Service, Customers will be provided with a single returns address which shall be the Premises.
  6. Brand shall pay the Fulfilled by SF Fee(s) or the Boomerang Returns Fee(s) (if applicable), in accordance with clause 14.
  7. Brand may request the return of any stock held at the Premises at any time subject to Brand's payment of such fee as may be notified by SilkFred to Brand from time to time and SilkFred's process for such returns in place from time to time. SilkFred shall be entitled to return all or part of the stock held at the Premises to Brand at any time and in accordance with SilkFred's process for such returns in place from time to time, which may involve the payment of such fee as may be notified by SilkFred to Brand from time to time and payable by Brand to SilkFred.
  8. Where Brand is not using the Boomerang Returns Service or Fulfilled By SF Service, it shall process returns on all Product orders within 4 days (including Saturdays but not including Sundays). SilkFred shall automatically approve requests made by a Customer to return a Product and receive a Refund where Brand has not complied with its obligations in this clause 7.8. For the avoidance of doubt, this clause shall apply fully to Brands who are using the Holiday Mode Setting.
  9. Refunds in respect of returned Products shall be processed by SilkFred. SilkFred shall automatically approve requests made by a Customer to return a Product and receive a Refund where such request is made in compliance with applicable law and/or the Returns Policy within the Returns Period. Brand shall be fully liable for all Refunds approved by SilkFred. SilkFred shall be entitled to charge the Brand the full Refund amount, inclusive of any applicable VAT or other sales taxes, regardless of whether the Brand is entitled to recover in full any such VAT or other sales taxes.

Dual Stock System and Inventory

  1. Brand agrees to enter accurate stock levels for Products it holds through the Dashboard and to ensure such stock levels are updated promptly and regularly if that stock of Products is sold by any means other than through the Website. Brand shall be responsible for all information about the Products uploaded to the Dashboard and acknowledges that where it identifies that the Product can be sold to the Rest of the World for UK based Brands or Worldwide for International Brands, it accepts that the taxes and duties payable on international sales and returns may affect the total amount of any Refund which it is entitled to receive.
  2. SilkFred shall maintain records of stock levels for Products it holds at the Premises. When a Product is shown as being in stock on the Website, Brand acknowledges that SilkFred is authorised to take payment on Brand's behalf in respect of an order for such Product(s) from a Customer.
  3. When a Contract is concluded on the Website, it shall be fulfilled from: (i) stock of the Product(s) held by SilkFred at the Premises; and/or (ii) stock of the Product(s) held by the Brand, as notified by SilkFred to Brand and determined by factors such as stock availability at the Premises and of the Brand and the fulfilment option which will generate the least number of packages of Product(s) to the relevant Customer.
  4. If a Customer places an order for multiple Products comprising: (i) Products stocked at the Premises; and (ii) Products not stocked at the Premises, then the Contract will be fulfilled by delivery in instalments by each of SilkFred and Brand as applicable, as notified by SilkFred to Brand and determined by factors such as stock availability at the Premises and of the Brand and the fulfilment option which will generate the least number of packages of Product(s) to the relevant Customer.
  5. All deliveries of Products under a Contract fulfilled by Brand shall be completed in accordance with its obligations under these Terms. Where deliveries of Products under a Contract are fulfilled by SilkFred from the Premises, SilkFred shall complete such deliveries in accordance with Brand's applicable obligations under these Terms.
  6. Once the final item of stock of a Product has been sold and is no longer available or will take more than four (4) weeks to be re-stocked, the Brand must remove the Product from the Boutique and Website using the Dashboard.
  7. Where Brand fails to update its stock levels for Products and Customer places an order for a Product that is out of stock, Brand may still be charged the Seller’s Fee on that order.
  8. SilkFred may allow Brand to offer Products for pre-order using functionality available on the Website. In such cases, Brand authorises SilkFred to take payment for pre-orders from Customer on receipt and the order will be processed in accordance with the provisions in clause 5 above. Any payment for pre-orders may be held by SilkFred until Delivery of the pre-ordered Product, at which time the payments will be processed in accordance with clause 13.3 below.

Title and Risk

  1. Title to and/or or ownership of the Products shall not pass to SilkFred at any time. Title to the Products shall remain with Brands until title passes to the Customer in accordance with the terms of Contract.
  2. Where Brand has chosen the Fulfilled by SF Service, risk in the Products shall pass to SilkFred from Goods In and shall continue up to Delivery. Otherwise (where the Brand has not chosen the Fulfilled by SF Service), Brand shall hold risk in any Product until it passes to the Customer in accordance with the Contract.
  3. Notwithstanding clause 9.2, risk in the Products shall pass to SilkFred from Goods Returned and shall continue up to the point of any subsequent Delivery.

Warehousing Services

  1. SilkFred shall provide the Fulfilled by SF Service and the Boomerang Returns Service (as applicable) using reasonable skill and care.
  2. Brand acknowledges that SilkFred uses third party providers to help supply the Fulfilled by SF Service and the Boomerang Returns Service and that, accordingly, SilkFred may sub- contract all or part or of the Fulfilled by SF Service or the Boomerang Returns Service Services at its discretion. Subject to clause 21.1, SilkFred shall not be liable for any costs, charges and/or losses sustained or incurred by Brand that arise directly or indirectly from any act or omission of SilkFred’s sub-contractors, save to the extent that any such costs, charges and/or losses arise as a result of SilkFred’s default or failure to comply with these Terms.

Brand Delivery to Premises

  1. This clause 11 shall apply when Brand has chosen the Fulfilled by SF Service.
  2. The Product categories and stock levels to be held by SilkFred for Brand at the Premises shall be as agreed by the parties from time to time.
  3. Brand shall ensure and procure that prior to Goods In the Products are securely and correctly packaged and labelled for safe handling and in compliance with any guidelines issued by SilkFred from time to time, any applicable statutory regulations, and these Terms. SilkFred shall be entitled at its discretion to either (a) make good or (b) refuse to handle or distribute Products which are not securely and correctly packaged and ready for sale. If SilkFred chooses to make good the packaging and labelling in respect of the relevant Products, it shall charge the Brand the relevant costs (including without limitation for bar coding, poly bagging, labelling as applicable) in line with the costs notified by SilkFred to Brand from time to time. Any such charge shall either (at SilkFred’s discretion) be reflected as a deduction from a Brand Payment relating to the relevant period, or the Brand shall be invoiced by SilkFred for the relevant sum.
  4. SilkFred reserves the right to return to Brand at the Brand’s cost any Products not supplied in compliance with clause 11.2 above, including any faulty Products.

Promotions

  1. SilkFred may run promotions on all or part of the Website from time to time. Any such promotions shall be separate, and in addition to, any promotions operated by Brand in its Boutique, and may involve offering potential Customers either free delivery, discounted prices or other promotional activity relating to some or all Products on the Website.
  2. SilkFred shall, where relevant and applicable to the Brand and/or its Products, inform Brand of the nature and terms of a promotion and may invite the Brand to participate. Following any such invitation, Brand shall be required to comply with, and sell Products on the terms of, the promotion unless it notifies SilkFred in writing within one Business Day of receipt of a notification about the promotion that it does not wish to participate.

SilkFred Seller’s Fee and Brand Payment

  1. SilkFred will earn a Seller’s Fee on all sales of Products through the Website.
  2. The Minimum Seller’s Fee shall not apply to the sale of any Products that are subject to a discount by virtue of invitation to participate in a SilkFred promotion, as referred to in clause 12. For the avoidance of doubt, the Minimum Seller’s Fee will apply if the Brand chooses to apply a discount to any Product in circumstances other than in connection with a SilkFred promotion.
  3. SilkFred will pay the Brand any applicable Brand Payment on the relevant Payment Date to the Bank Account. SilkFred shall make available a statement showing the Gross Revenue and the Seller’s Fee together with a full VAT invoice for the Seller’s Fee charges, and any other fees and charges which may be payable by Brand to SilkFred in accordance with these Terms, save where the same have been invoiced to the Brand separately.
  4. Brand shall be responsible for ensuring the Bank Account is correct and that the details are up to date.
  5. Where the date of conclusion of a Contract is on or before 16th December 2023, any Brand Payment shall be payable as follows:
    (i) if a Contract is concluded between the first day (inclusive) of a given month, and the 15th day (inclusive) of that month, the Payment Date shall be on or around the first Business Day of the following month; and
    (ii) if a Contract is concluded between the 16th day (inclusive) of a given month and the final day (inclusive) of that month, the Payment Date shall be on or around the 16th day of the following month.
  6. Where the date of conclusion of a Contract is on or after 17th December 2023, any Brand Payment shall be payable as follows:
    (i) if a Contract is concluded between the first day (inclusive) of a given month, and the 15th day (inclusive) of that month, the Payment Date shall be on or around the 16th day of the following month; and
    (ii) if a Contract is concluded between the 16th day (inclusive) of a given month and the final day (inclusive) of that month, the Payment Date shall be on or around the first Business Day of the month after the month following the month in which the Contract was concluded.
  7. The parties acknowledge and agree that the calculation of the Seller’s Fee and Brand Payment will contain certain estimate items owing to the fact that not all Refunds and/or Chargebacks will have been processed by the date of payment. To the extent such estimates are incorrect SilkFred may set off Refunds and/or Chargebacks against future Brand Payments or may invoice Brand for Refunds or Chargebacks to be payable immediately. SilkFred further reserves the right to make corrections or adjustments to Brand Payments at any time in order to address any calculation errors or otherwise which SilkFred may have made in respect of any given Brand Payment.
  8. SilkFred reserves the right to introduce new fees for the provision of its services under these Terms on reasonable notice to Brand including, for example, a fee for the provision of the Boutique. Prior to the introduction of any such fees, SilkFred shall provide the Brand with not less than thirty (30) days’ prior written notice. If Brand does not wish to accept such fees, Brand shall be entitled to terminate this Agreement following receipt of the notice, such notice to be provided to SilkFred not later than thirty (30) days from the date of the notice. If Brand does not provide such notice it shall be deemed to have accepted the fees and shall be liable to pay them, where applicable.

SilkFred Fees

  1. The Fulfilled by SF Fee(s) and Boomerang Returns Fee(s) are charged on a per Product unit basis and shall be advised by SilkFred to Brand from time to time.
  2. All fees are exclusive of any applicable value added tax and other sales tax, duties, imposts, levies and governmental charges of any kind, for which Brand shall be liable.
  3. The Fulfilled by SF Fee(s) or Boomerang Returns Fee(s) shall be automatically deducted from the Brand Payment paid to Brand on the Payment Dates.

Lien and Right of Disposal

  1. If Brand owes any amount to SilkFred under this Agreement (Debt), and the Debt remains unpaid for 30 days, the Parties agree that SilkFred shall have the right, on written notice to Brand, to sell any Products that are owned by Brand and under the control of SilkFred. Any amounts raised from such a sale would be applied to discharge all, or a proportion, as relevant, of the Debt.

Warranties

  1. Brand represents and warrants that:
    (a) it has full capacity and authority and has obtained all necessary consents to enter into this Agreement;
    (b) Brand is the true owner of the Products or is properly authorised to sell the Products by the true owner and is able to transfer good title to the Products free from any third party claims, liens or encumbrances to Customers;
    (c) each Product listing is accurate, current and complete and is not misleading or otherwise deceptive;
    (d) any information it provides, whether to a Customer or to SilkFred, in relation to the fulfilment of any order shall be accurate, current and complete, and not misleading or otherwise deceptive; and
    (e) each Product is safe and is produced, labelled and packaged in accordance with all requirements under applicable law.
    And Brand agrees to fully indemnify and keep indemnified SilkFred on demand against all losses and liabilities SilkFred may suffer or incur howsoever caused arising out of or in connection with any breach of the foregoing warranties.
  2. SilkFred warrants that:
    (a) it has full capacity and authority and has obtained all necessary consents to enter into this Agreement; and
    (b) the services it provides under these Terms will be performed with reasonable care and skill.
  3. Except as expressly set out in this Agreement and subject only to clause 21.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to anything supplied or provided by SilkFred under these Terms. In particular SilkFred does not warrant that the Website will be continuously available or that any link or its use will be uninterrupted or virus or error-free, nor does SilkFred make any statement, representation, claim or warranty whatsoever in respect of the level of sales of any Product.
  4. Brand shall comply with SilkFred’s reasonable instructions relating to any recall of any of Brand’s Products and in any event SilkFred reserves the right to take immediate and exclusive conduct of the product recall on notice to you, in which case the Brand will give SilkFred all such assistance as it may reasonably require. The Brand shall reimburse SilkFred for any and all costs incurred by SilkFred in connection with any recall of any of the Brand’s Products.

Images

  1. Subject to clause 18 below, Brand shall upload images of Products to use on the Website.
  2. Where agreed between the parties, SilkFred shall provide the Photography Service if the Brand is unable to provide an image of a relevant Product or, in SilkFred’s sole discretion it considers that any Product image provided by the Brand is not suitable for display on the Website.
  3. If SilkFred provides the Photography Service to the Brand, Brand shall supply such samples of the relevant Product(s) as SilkFred may require for those purposes.
  4. The parties shall use SilkFred's preferred shipping logistics company to ship samples of the Product(s), with the costs of such shipping and return shipping of the samples to be payable by the Brand. The costs shall be automatically deducted from the relevant Brand Payment paid to Brand on the Payment Dates or may (at SilkFred’s discretion) be invoiced to the Brand.
  5. Subject to clause 17.6, Brand agrees not to use or reproduce SilkFred’s photographs or images on its website, any other platforms, websites, applications, or social media platforms or in any marketing or advertising materials or posts whatsoever. Brand acknowledges that to do so may be an infringement of SilkFred’s Intellectual Property Rights.
  6. Brand may use SilkFred’s photographs or images on social media sites, provided that Brand tags SilkFred using the appropriate handle. SilkFred may at its discretion remove this usage right at any time in respect of any such photographs or images, whether in respect of all social media sites or specific social media sites.
  7. Brand shall not be permitted to use photographs on the Website unless the photographs have been (i) taken (or have been commissioned to be taken) by Brand, or (ii) taken by SilkFred for exclusive use on the Website, or (iii) approved for use by SilkFred in writing in advance. For the avoidance of doubt, Brand shall not be permitted to use photography on the Website provided by a designer, manufacturer, wholesaler or other third party from whom you have obtained any Product(s).

Intellectual Property Rights

  1. Nothing in these Terms shall cause any Intellectual Property Rights owned by one party to be transferred to the other.
  2. Brand and/or its licensors shall own and retain all Intellectual Property Rights in the Products and all images, content and other materials provided by Brand for inclusion in the consumer-facing parts of the Website including images it produces or sources for Products offered for sale through the Website, including the Brand's trademark or logo ("Brand Materials"). Brand grants to SilkFred a worldwide, non-exclusive, royalty free licence to publish and use the Brand Materials for the purposes of performing its obligations and exercising its rights under these Terms and to use the Brand Materials in all advertising, marketing and promotion of Products and SilkFred. Brand shall fully indemnify and hold harmless SilkFred on demand against all liabilities or losses that SilkFred or its affiliates suffer or incur howsoever arising as a result of or in connection with any claim that the Brand Materials infringe any third party's Intellectual Property Rights, including, without limitation, in relation to any losses and/or reputational damage suffered by SilkFred as a result of any claim that the Products copy or otherwise infringe a third party's Intellectual Property Rights or are counterfeit.
  3. You warrant that:
    (a) you are the legal owner of all of the Intellectual Property Rights in and relating to the Products and/or the Brand Materials, and/or that you possess a valid permission to use any and all such Intellectual Property Rights;
    (b) the making of Products available for sale on the Site, and use of your Brand Materials by us will not infringe any Intellectual Property Rights owned by any third party, and there is and will be no claim against us by any third party arising in relation to the use of such Intellectual Property Rights; and
    (c) all items offered for sale by you are not replica or design copies of any other brand, designer or manufacturer.
  4. SilkFred and/or its licensors shall own and retain all Intellectual Property Rights in: (a) any images of Products created by or on behalf of SilkFred in accordance with clause 17.2; (b) in the Website, Dashboard and all materials, software and information made available by or through the Website and Dashboard (but excluding the Brand Materials); and (c) all data collected from or in relation to Customers ("SilkFred Materials"). SilkFred grants to Brand a licence to use the SilkFred Materials for the purposes of performing its obligations and exercising its rights under these Terms.
  5. SilkFred grants Brand a limited, non-exclusive licence to use the Dashboard and Website during the term of this Agreement for the sole purpose of performing its obligations under this Agreement.
  6. Brand shall not permit any third party to access or use the Dashboard, or copy, adapt, reverse engineer, decompile, disassemble, modify, adapt, reverse engineer, gain access to the source code or modify the Website and/or Dashboard in any way. Breach of this clause would be a material breach of this Agreement and, without affecting any other right or remedy that may otherwise be available to it, SilkFred will seek to recover damages for all losses.

Confidentiality

  1. SilkFred will keep confidential any confidential information which Brand supplies to SilkFred in connection with these Terms and Brand must do the same in relation to any confidential information which SilkFred supplies to Brand (which includes these Terms). Confidential information will include all information marked as being confidential and any other information which might reasonably be assumed to be confidential. The obligations as to confidentiality under these Terms will not apply to any information which:
    (a) is available to the public other than because of any breach of these Terms;
    (b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
    (c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
    (d) is trivial or obvious; or
    (e) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirements).

Data Protection

  1. The parties shall comply with all applicable laws and regulatory guidance on data processing and privacy (“Applicable Privacy Laws”) including the European Union General Data Protection (Regulation (EU) 2016/679) (“GDPR”), the UK GDPR and the Data Protection Act 2018, in each case as amended from time to time and including succeeding legal instruments. Any reference to Personal Data, data controller, data processor or processing in these Terms shall have the meaning given to them under the GDPR.
  2. The parties acknowledge and agree that each party may process Personal Data pursuant to these Terms and the parties further acknowledge that the factual arrangements between them under these Terms dictate the classification of each party as a data controller or data processor. If, subsequent to the date of these Terms, the factual arrangements between the parties dictates that a party is processing Personal Data on behalf of the other party (and SilkFred consents to such verdict), the parties shall and on SilkFred's request execute and deliver any necessary documentation as may be required for the purposes of complying with Applicable Privacy Laws.
  3. Customer Personal Data may be shared between the parties during the term of these Terms. Subject to clause 20.2, the parties acknowledge and agree that with respect to any such Personal Data, each party shall act as a data controller of the version of any Personal Data that they have access to.
  4. Brand shall indemnify and hold harmless on demand SilkFred for any loss, damage, liabilities, penalties, expenses or fines incurred whether direct or indirect) arising in respect of a breach or alleged breach of the Applicable Privacy Laws by the Brand, including without limitation, legal expenses.

Exclusions and Limitations

  1. Nothing in this Agreement excludes or limits SilkFred's liability for:
    (a) death or personal injury caused by its negligence or that of its personnel;
    (b) fraud or fraudulent misrepresentation; or
    (c) any other liability which cannot be excluded under English law.
  2. Subject to clause 21.1, SilkFred shall not be liable to Brand under or in relation to this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
    (a) losses which arise from circumstances out of SilkFred's reasonable control;
    (b) all actual or anticipated loss of profits;
    (c) loss of goodwill;
    (d) loss of business opportunity; or
    (e) indirect, special, or consequential loss.
  3. Subject to clauses 21.1 and 21.2, SilkFred's total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in aggregate for all claims which may arise under or in connection with this Agreement, to an amount equal to 100% (one hundred percent) of the total of all fees paid to SilkFred by Brand under this Agreement in the twelve (12) month period preceding the event giving rise to the claim in respect of which the award is sought.

Term and Termination

  1. The Agreement shall come into effect on the date Brand's Boutique is created on the Website and shall continue in force until terminated by either party in accordance with its terms.
  2. Either party may terminate this Agreement for convenience on one (1) month's prior written notice to the other.
  3. Either party may terminate this Agreement immediately on written notice to the other if:
    (a) the other materially breaches any term of this Agreement and it is not possible to remedy that breach;
    (b) the other materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within seven (7) days of being requested in writing to do so;
    (c) the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process.
  4. SilkFred may terminate this Agreement immediately on notice to Brand if, as SilkFred may determine in its discretion acting reasonably, Brand acts or has acted in a way that could negatively affect or damage SilkFred's reputation with Customers, suppliers and/or partners, or potential Customers, suppliers and/or partners.
  5. SilkFred reserves the right to suspend Brand's Boutique immediately on notice to the Brand if SilkFred determines at its discretion that the Brand is in breach of any of these Terms, including a failure by the Brand to present Products and the Boutique in accordance with SilkFred's guidelines.
  6. Notwithstanding clauses 13.6 and/or 22.7, in the event of any Brand suspension as described in clause 22.5 or termination of this Agreement for any reason, SilkFred shall be entitled to withhold the payment of any Brand Payments until the Payment Date which follows the day on which all Refunds and/or Chargebacks have been processed.
  7. In respect of Contracts agreed prior to the date of termination: on termination of this Agreement for any reason, at SilkFred’s discretion and election, either: (i) the parties shall continue to provide services to one another in accordance with the terms of this Agreement; (ii) SilkFred may manage the fulfilment of any such Contract(s) on the Brand’s behalf; or (iii) the Brand shall follow any reasonable fulfilment plan notified to Brand by SilkFred in respect of such Contracts and, in any case, the Brand shall, accordingly, promptly fulfil, account for and conclude all accrued Contracts not yet completed at the date of termination.
  8. Clauses that by their nature or implication are intended to survive expiration or termination of this Agreement shall survive termination, including without limitation clauses: 7, 8, 13, 14, 15, 16, 17, 18, 19, 20 21, 22 and 23.

General

  1. Brand may not sub-license or assign, sub-contract or delegate any or all of its rights or obligations under the Agreement without the prior written consent of SilkFred.
  2. SilkFred will not be liable to Brand for any failure or delay in performing its obligations under these Terms which arises because of any circumstances which it cannot reasonably be expected to control (which shall include Act of God, explosion, flood, tempest, fire or accident, epidemic and/or pandemic, war or threat of war, restrictions, regulations, bye- laws, prohibitions, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of the SilkFred or a third party), non-performance by financial services providers relied upon to provide essential business-critical services, difficulties in obtaining labour and/or fuel or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, logistics or fulfilment, or any provider of any of the foregoing).
  3. Any notice required to be given hereunder by either party shall be made by email to notices@silkfred.com and Brand’s email address as set out in the Dashboard and shall be deemed effective at the time of transmission.
  4. Should you have a complaint in relation to these Terms or SilkFred, you should contact your Brand manager or brands@silkfred.com.
  5. In the event that any employee of SilkFred or its third party suppliers is deemed to transfer to Brand (whether by operation of TUPE or otherwise), Brand shall fully indemnify SilkFred on demand against all costs, liabilities, claims and expenses SilkFred may incur or suffer howsoever arising as a result of or in connection with the employment of such personnel and any and all related claims made by such personnel.
  6. If at any time any provision of these Terms is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction then such provision shall be treated in such jurisdiction as severed from the remaining provisions and neither the validity legality or enforceability of the remaining provisions nor the validity legality or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired.
  7. If Brand is required to pay any amount to SilkFred under clauses 5.2 or 7.2(b), Brand agrees that such amounts are fair and reasonable in all the circumstances and represent a genuine pre-estimate of the loss and are without prejudice to any other remedy available to SilkFred.
  8. No term of the Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement.
  9. Nothing in this Agreement shall or is intended to create a partnership or joint venture between the parties, even if the term "partner" is used in these Terms.
  10. These Terms and the terms incorporated by reference in these Terms (including without limitation the Terms of Supply) represent the entire agreement and understanding of the parties and supersede all prior agreements written or oral and each of the parties acknowledges that it has not been induced to enter into the Agreement by reason of any representation made by or on behalf of the other party. Nothing in this clause will operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
  11. These terms are governed by English law and both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute, but SilkFred is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights and/or confidential information.