1. DEFINITIONS

In this Contract the following words have the following meanings:

1.1 “Joy Of Indie” means the organisation Joy Of Indie (trading name of And so to Shop Ltd)

1.2 “Seller” means the business owner.

1.3 “Confidential Information” all confidential information (however recorded or preserved) in connection with this Contract, including but not limited to: (a) the terms of this Contract and the pricing; (b) any information that would be regarded as confidential by a reasonable business person (excluding Cleansed Data) relating to: (i) the business, assets, affairs, customers, Sellers, suppliers, of the disclosing party or its Affiliates; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party or its Affiliates;

1.4 “Connectivity Infrastructure” means the internet, telecommunications links, broadband and/or third party software and systems which are neither owned or supplied by Joy Of Indie or the Seller and which connect the Services and/or Joy Of Indie Software to wide area networks.

1.5 “Contract” means these Terms & Conditions and the Joy of Indie Application.

1.6 “Costs” means costs, liabilities, penalties, and charges.

1.7 “Deliverables” means the output/deliverables in respect of any Services.

1.8 “Effective Date” means the contract date when the Seller makes payment.

1.9 “Event of Force Majeure” any circumstances beyond a party’s reasonable control, including, without limitation: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) import or export regulations or embargoes; (e) any change in any Law(s) that has an impact on the parties’ rights and/or responsibilities under this Contract; (f) any breach by a third party of the Computer Misuse Act 1990 or the Communications Act 2003 that has the object or effect of directly or indirectly interfering with or damaging the Seller Infrastructure, and/or Joy Of Indie’s hardware, software and/or network infrastructure; (g) any government guidance or instruction(s) applicable to either party or its suppliers (and any difficulties in obtaining supplies), arising as a result of any epidemic, pandemic, or outbreak of disease; (h) national or regional loss of or interrupted supply of utilities or essential supplies.

1.10 “Fees” means the fees and charges specified in the Joy Of Indie Application.

1.11 “Services” means: the online market page (moving to a Business Directory page after the market ends), coverage on social media and via the Joy Of Indie email lists, access to the Sellers online community.

1.12 “Intellectual Property Rights” means all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals.

1.13 “Law” means any applicable laws, regulations, regulatory constraints, obligations, proclamations, rules (including binding codes of practice and statement of principles incorporated and contained in such rules), or applicable judgment of a relevant court of law which is a binding precedent, in each case in force in any jurisdiction that is or may be applicable to this Contract.

1.14 “Licensing Purpose” means in the ordinary course of the Seller’s business and for the use(s) envisaged in Joy Of Indie’s published marketing materials for the Hosted Services.

1.15 “User Data” means any information, materials, or data: (a) uploaded, stored or created by: (i) Joy Of Indie or its users; or (ii) by the Seller.

1.16 “Market” means the week long event, as set out in the Joy Of Indie Application. Dates as set out in the Joy Of Indie Application.

2. SERVICES

2.1 From the relevant Market date, Joy Of Indie shall provide Services substantially in accordance with reasonable skill and care in accordance with good industry practice, subject to the terms of this Contract.

2.2 Joy Of Indie shall not be responsible for any failure to provide Services as a result of a failure by the Seller to comply with its responsibilities under this Contract and: (a) errors in or corruption of the Seller Infrastructure, Connectivity Infrastructure, and/or the User Data; and/or (b) the occurrence of a Suspension Event.

2.3 Joy Of Indie reserves the right at its sole discretion to suspend or limit performance of the Services in the event of (each of which shall be a “Suspension Event”): (a) scheduled maintenance services (for which Joy Of Indie shall give to the Seller as much notice as is reasonably practicable in the circumstances); (b) a material breach by the Seller of the terms of this Contract (including a failure to pay the Fees in accordance with Clause 6); (c) where ongoing use by the Seller of  Services, in Joy Of Indie’s reasonable opinion, the prospect of damaging Services or degrading performance (or actually has damaged or degraded the same); (d) the occurrence of an Event of Force Majeure.

2.4 In the event of a failure by Joy Of Indie to provide Services in accordance with this Contract, Joy Of Indie will, at its expense, use all reasonable commercial efforts to correct any such failure(s) promptly (which may include the provision of a temporary workaround) in accordance. Joy Of Indie’s provision of corrective services in accordance with this Clause 2.4 shall constitute the Seller’s exclusive remedy for any breach of Clause 2.1. Nothing in this Clause 2.4 purports to limit Joy Of Indie’s liability for any failure of Joy Of Indie to comply with this Clause 2.4 (for which the provisions of Clause 10 shall apply).

2.5 The Seller acknowledges that Joy Of Indie will take all reasonable steps to drive traffic to the Seller’s website during and after the Market, but that Joy Of Indie cannot guarantee sales or traffic when taking part in the Market.

3. LICENCE

3.1 Subject to the Seller complying at all times with the terms of this Contract, Joy Of Indie grants to the Seller a non-exclusive non-transferable licence for the duration of this Contract to permit its authorised users to use Joy Of Indie marketing material.

3.2 The Seller shall not except as may not be excluded by Law attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Joy Of Indie marketing assets or its associated documentation in any form or media or by any means, apart from as allowed by Joy Of Indie.

4. SELLER’S RESPONSIBILITIES

4.1 The Seller shall: (a) undertake all reasonable enquiries to satisfy itself that the Services are suitable for its needs before entering into this Contract; (b) adopt such processes and make such changes to its working practices as are necessary to make effective use of the Services; (c) have in place appropriate Seller Infrastructure and Connectivity Infrastructure necessary for the provision of Services; (d) carry out all of its responsibilities set out in this Contract in a timely and efficient manner and, in particular, not act (or fail to act) in a manner that will delay or otherwise adversely impact on Joy Of Indie performance of Services; (e) provide Joy Of Indie with all necessary information, co-operation, and assistance as may be required by Joy Of Indie in order to provide Services; (f) comply with the Law with respect to its activities under this Contract.

5. PAYMENT

5.1 The Seller shall pay Fees as and when they fall due for payment, as specified in the Joy Of Indie Application.

5.2 The Seller shall pay Joy Of Indie’s invoices either within thirty 30 days of the date of the invoice.

5.3 The Seller may not withhold payment of any amount due to Joy Of Indie because of any set-off, counter-claim, abatement, or other similar deduction.

5.4 Fees payable by the Seller to Joy Of Indie under this Contract are payable in Pounds Sterling.

5.5 If any sum payable under this Contract is not paid within ten (10) days after the due date for payment then (without prejudice to Joy Of Indie’s other rights and remedies) Joy Of Indie reserves the right to charge interest on that sum on a daily compounded basis (before as well as after any judgment) at the annual rate of ten per cent measured from the due date to the date of payment, provided that at no time shall the Seller be required to pay interest at an effective rate higher than legally permissible.

6. TERM AND TERMINATION

6.1 This Contract. This Contract is formed (and becomes legally binding) when the Seller makes payment. This Contract shall commence on the Effective Date and shall continue unless and until terminated by either party.

(i) Either party shall be entitled to terminate this Contract on expiry of the Minimum Term specified in the Order and each subsequent Renewal Term by giving to the other party not less than thirty (30) days’ prior written notice.

(ii) Either party shall be entitled to terminate this Contract immediately by giving written notice to the other party if the other party commits any material breach of this Contract and fails to remedy that breach within thirty (30) days of written notice of that breach, provided that: (a) the thirty (30) day period only applies where a breach is capable of remedy - if it is incapable of remedy, the Contract may be terminated by written notice immediately; and (b) the parties agree that any failure to pay sums due under this Contract within the agreed payment terms shall constitute a material breach of this Contract.

6.2 Insolvency. Save to the extent otherwise specified by Law, either party shall be entitled to terminate this Contract immediately by giving written notice to the other party if that other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.

7. CONSEQUENCES OF TERMINATION

7.1 On termination of this contract, Joy Of Indie will remove all data held about the seller and cease all services. 

8. CONFIDENTIALITY

8.1 Each party that receives (“Receiving Party”) Confidential Information from the other (or the other’s Affiliate(s)) (“Disclosing Party”), whether before or after the Effective Date shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 10.2, or 10.3; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract (“Permitted Purpose”).

8.2 The Receiving Party may disclose Confidential Information to its own, or any of its Affiliates, officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 10 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 10. Joy Of Indie may disclose Confidential Information to any Affiliate, provided that such Affiliate shall only use such information either for the Permitted Purpose or in order to offer the Seller its, or any of its Affiliate’s, products and/or services that it reasonably considers may be of interest to the Seller.

8.3 If required by Law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.

9. DATA

9.1 Joy Of Indie shall not own (or claim ownership rights in respect of) User Data.

9.2 The Seller is responsible for the accuracy, reliability, lawfulness, and integrity of all User Data. The Seller warrants that User Data shall not be defamatory or offensive and that it, and its users, have all consents, licenses and permissions (including the consent of any Data Subjects) in respect of User Data as are required for Seller (and its users) to lawfully upload, store, distribute, publish, share and/or Process the User Data (as applicable): (a) in/through Joy Of Indie; and/or (b) to/with other Seller users or any third parties who are authorised by the Seller or by Law to view/access the User Data. The Seller shall indemnify and hold harmless Joy Of Indie for Costs arising from a breach of this Clause 11.2, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Seller of this Clause 11.2.

9.3 The Seller acknowledges that the provision of high-quality services requires Joy Of Indie to analyse data to identify trends, optimise services, and provide Sellers with the opportunity to use such information to enhance their own services. The Seller therefore grants to Joy Of Indie a non-exclusive, perpetual, irrevocable, royalty free, worldwide licence to use, modify, adapt, and create derivative works of User Data for any purposes, and commercially exploit and/or sublicense any or all of such rights on any terms, provided always that such User Data must at all times be cleansed such that individuals, the Seller, and/or any legal entities cannot be identified in any circumstances (“Cleansed Data”).

9.4 The parties shall comply with the data processing provisions, set out as a Schedule to this Contract.

10. LIABILITY

10.1 Neither party shall exclude or limit its liability for: (a) death or personal injury caused by its negligence; and/or (b) fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); (d) breach of section 2 of the Consumer Protection Act 1987; and/or (e) any liability that cannot be excluded or limited by Law.

10.2 Subject to Clause 12.1, Joy Of Indie shall not be liable for any direct or indirect loss of profit, loss of revenue, loss of anticipated savings, re-procurement costs, and/or loss of goodwill.

10.3 The Seller agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).

10.4 Joy Of Indie’s Contractual Liability to the Seller under the shall not exceed such amount as is equivalent to the Market fee for Joy Of Indie and/or payable by the Seller under the Fees. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not: (a) unlimited by virtue of Clause 10.1; or (b) excluded pursuant to Clauses 10.2 and 10.3.

10.5 Except as expressly provided in this Contract, Joy Of Indie hereby excludes any implied condition or warranty concerning the quality or fitness for purpose of its services, whether such condition or warranty is implied by statute or common law.

10.6 Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by an Event of Force Majeure. If an Event of Force Majeure causes Joy Of Indie a delay in or failure to perform duties under this Contract for a continuous period of fourteen (14) days (“Force Majeure Period”), the Seller shall be entitled to terminate this Contract by giving to Joy Of Indie not less than thirty (30) days’ prior written notice, such notice to be given within fourteen (14) days of expiry of the Force Majeure Period.

11. CHANGES

11.1 Subject to Clause 11.4, no changes to this Contract shall be valid unless made in writing and agreed by the authorised representatives of both parties.

11.2 Either party shall be entitled from time to time to request a change to the scope of the Services (“Change”). 

11.3 Joy Of Indie reserves the right to make changes to Services from time to time provided that Joy Of Indie has given the Seller not less than sixty (60) days’ prior written notice of such change (a “Change Notice”) and provided further that in the event that such a change removes material Services functionality to the material detriment of the Seller’s use of Hosted Services the Seller shall be entitled by giving Joy Of Indie not less than thirty (30) days’ prior written notice prior to the Change Notice taking effect to terminate this Contract. In the event of termination by the Seller in accordance with this Clause 11.3, Joy Of Indie shall refund to the Seller any prepaid Fees covering any unused period, pro rated on a daily basis.

12. DISPUTES

12.1 The parties shall attempt to resolve any dispute arising out of or relating to this Contract (including any dispute relating to any non-contractual obligations arising out of or in connection with it) (the “Dispute”) through discussions between senior representatives.

12.2 Where the Dispute is not resolved within forty (40) days of the start of discussions in accordance with Clause 12.1 above, the parties shall attempt to resolve the Dispute in good faith through an Alternative Dispute Resolution (“ADR”) procedure as recommended by the Centre for Effective Dispute Resolution.

12.3 If the Dispute has not been resolved by an ADR procedure within forty (40) days of the initiation of that procedure, or if either of Joy Of Indie or the Seller will not participate in an ADR procedure, either of the parties shall be entitled to refer the Dispute to the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.

12.4 Clauses 12.1 to 12.3 above shall not restrict either party’s ability to commence court proceedings in respect of any: (a) matter relating to its Confidential Information or Intellectual Property Rights; and/or (b) unpaid invoice.

13. GENERAL PROVISIONS

13.1 Publicity. The Seller hereby irrevocably consents to Joy Of Indie referring to the Seller as a Seller of Joy Of Indie in its sales and marketing literature (including its web site).

13.2 Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.

13.3 Relationship. Nothing in this Contract shall render the Seller a partner or an agent of Joy Of Indie and the Seller shall not purport to undertake any obligation on Joy Of Indie’s behalf nor expose Joy Of Indie to any liability nor pledge or purport to pledge Joy Of Indie’s credit.

13.4 Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.

13.5 Severance. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.

13.6 No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.

13.7 No Bribery. Each party warrants to the other that it: (a) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (b) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.

13.8 Anti-Slavery. In performing its obligations under this Contract, Joy Of Indie shall: (a) comply with all applicable anti-slavery and human trafficking Laws; (b) use its reasonable endeavours to include in contracts with its subcontractors anti-slavery and human trafficking provisions that are at least as onerous as those set out in this Clause 17.8; (c) maintain a complete set of records to trace the supply chain of all goods and services provided to the Seller in connection with this Contract; and provide to the Seller, on not less than 30 days’ prior written notice, records to evidence Joy Of Indie's compliance with its obligations under this Clause 17.8. Joy Of Indie represents and warrants that it has not been convicted of any offence involving slavery and human trafficking or been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.

13.9 Counterparts. This Contract may be executed in any number of counterparts and by each of the parties on separate counterparts each of which when executed and delivered shall be deemed to be an original, but all the counterparts together shall constitute one and the same agreement.

13.10 Injunctive Relief. Nothing in this Contract shall prevent or preclude either party from seeking injunctive relief.

13.11 Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent by email immediately to louise@joyofindie.co.uk

13.12 Interpretation. In this Contract: (a) any reference to a Clause means a reference to a Clause of this Contract unless the context requires otherwise; (b) unless the context otherwise requires, the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them; (c) the headings are for ease of reference only and shall not affect the construction or interpretation of the Contract; and (d) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.

13.13 Law. This Contract is governed by the laws of England.