1.1            What these Terms cover. These Terms are the terms and conditions on which you (you, your) agree to advertise your Goods on the Website to End Customers, and sell those products to us, (Picking Cherry, we, us, our) for us to sell onwards to End Customers. These Terms and each Order together form the agreement between you and us (this Agreement).

1.2            How these terms work. Please read these Terms carefully. These Terms tell you how and what information you should provide to us about your Goods to present them on the Website, how Orders will be notified to you by us and processed by you, what your obligations are to us, how we may change or end the Agreement, and other important information. By registering for a Supplier Account and by advertising Goods on the Website, you are agreeing to be bound by these Terms. Some words and phrases in these Terms have defined meanings. These defined terms have Capital Letters, and you can find their meaning in clause 18 (Interpretation) at the end of the Terms.

1.3            How we may vary these Terms. We may at amend these Terms at any time by posting an updated version of these Terms on the Website. We will notify you in writing whenever we update these Terms. The amended Terms will only apply to our Agreement from the date on which you receive this notice.

2.1            Who we are. We are PickingCherry.com – Paolo Franceschetti, of 166 Flora Gardens, London, England, W6 0HT, trading as ‘Picking Cherry’ via the Website.

2.2            How to contact us. You can contact us by writing to us at contactme@pickingcherry.com.

2.3            How we may contact you. If we need to contact you, we will do so either through the by writing to you at the email address you provided to us when you register for a Supplier Account. You may update your contact details by giving us notice of the change in accordance with clause 2.2.

2.4            “Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes emails.

This Agreement will commence on the Commencement Date and will continue until terminated in accordance with clause 16.

4.1            You must maintain the Supplier Information you provide to the Website so that it is always accurate and complete, including ensuring:

(a)             all descriptions, images, specifications and any other information relating to the Goods contained in the Supplier Information are true, accurate and not misleading;

(b)             all Prices are correct;

(c)             the stock count of available Goods is updated as required to ensure that you can meet any Orders placed with us by End Customers;

(d)             that you can meet all Orders for Goods within the Delivery Period specified for the relevant Goods; and

(e)             any Goods which you are not able to supply at any time are no longer registered as Available Goods in the Supplier Information.

4.2            We will use reasonable efforts to use the Supplier Information to promote your Available Goods on the Website.

5.1            We may submit Orders for any Available Goods via email to you at any time.

5.2            You will supply Goods in accordance with the Orders.

5.3            You will use your best endeavours to deliver the Goods in respect of each Order at the date and time specified in the Delivery Time Notification, and in any event within the Delivery Period.

5.4            If you cannot meet the specified Delivery Time, you will promptly (and in any event at least 48 hours before the Delivery Time) notify us in writing and request a new Delivery Time.

5.5            We may amend or cancel an Order in whole or in part at any time before delivery by giving you written notice.

6.1            You will ensure that the Goods:

(a)         correspond with the Supplier Information relating to the Goods;

(b)         be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by you or made known to you by us expressly or by implication, and in this respect we rely on your skill and judgement;

(c)         where they are manufactured products, are free from defects in design, material and workmanship and remain so for 12 months after delivery; and

(d)         comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

6.2            You will ensure that you always have and maintain all the licences, permissions, authorisations, consents and permits you need to carry out your obligations under this Agreement

7.1            You will ensure that:

(a)             each delivery of Goods is properly packed securely and appropriately (as applicable to the type of Goods being delivered) in such manner as to enable them to reach their destination in good condition, and has the relevant address details for the End Customer (as specified in the relevant Order) clearly, legibly, and securely affixed to the external packaging of the Goods; and

(b)             each delivery of Goods is accompanied by the Delivery Note attached to the applicable Order, which shows the order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered;

(c)             no advertising or promotional material relating to you or any third party is including in any delivery of goods

7.2            You will deliver the Goods specified in each Order:

(a)             at the Delivery Time;

(b)             at the Delivery Location.

7.3            Delivery of Goods is completed on the completion of handing of those Goods to our nominated logistics provider at the Delivery Location.

7.4            If we reject any Goods they are returnable at your risk and expense. We will account to you for the proceeds of sale (if any) after deducting the purchase price paid for the Goods, storage costs and its reasonable costs and expenses in connection with the sale.

7.5            You will not deliver Orders in instalments without our prior written consent. Where it is agreed that Orders may be delivered by instalments, such instalments will be invoiced separately. However, failure by you to deliver any one instalment on time or at all, or any defect in an instalment, will entitle us to the remedies set out in clause 8.

8.1            You acknowledge that Picking Cherry will purchase Goods from you, and ship them directly to End Customers after delivery, and will therefore not be able to inspect any Goods until the Goods are delivered by us to End Customers.

8.2            If:

(a)             the Goods are not delivered to us (including our nominated logistics provider) at the relevant Delivery Time or within the Delivery Period, in full compliance with clause 7; or

(b)             on delivery by us to an End Customer, the Goods do not comply with the requirements of clause 6.1, or are otherwise not in accordance with the relevant Order,

then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, we may exercise any one or more of the following remedies:

(i)               to terminate the Agreement;

(ii)              to suspend the promotion of your Goods on the Website;

(iii)             to reject the Goods (in whole or in part) and return them to you at your own risk and expense;

(iv)             to require you to repair or replace the rejected Goods, and to withhold payment of the corresponding invoice until such time as you repair or replace the rejected Goods;

(v)              to require you to provide a full refund of the price of the rejected Goods (if paid);

(vi)             to refuse to accept any subsequent delivery of the Goods which you attempt to make;

(vii)           to recover from you any costs incurred by us in rearranging delivery of the Goods by you, or in obtaining substitute goods from a third party;

(viii)          withhold payment of the corresponding invoice until such time as you rectify any non-correspondence with the Order; and

(ix)             to claim damages for any other costs, loss or expenses incurred by us which are in any way attributable to your failure to carry out your obligations under the Agreement.

8.3            If the Goods are not delivered at the Delivery Time, we may at our option:

(a)             provide a new Delivery Time; and

(b)             claim or deduct 5% of the price of the Goods for each week’s delay in delivery until the earlier of delivery or termination or abandonment of the Agreement by us, by way of liquidated damages, up to a maximum of 15% of the total price of the Goods.

If we exercise our rights under this clause 8.3, we may not exercise any of the remedies set out in clause 8.1 in respect of the Goods’ late delivery (but such remedies will be available in respect of the Goods’ condition).

8.4            These Conditions will apply to any repaired or replacement Goods supplied by you.

8.5            Our rights and remedies under these Conditions are in addition to our rights and remedies implied by statute and common law.

Title and risk in the Goods will pass to us on completion of delivery.

10.1         We will pay for Goods in accordance with this clause 10.

10.2         The Price:

(a)             excludes amounts in respect of VAT, which we will additionally be liable to pay to you at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b)             includes the costs of packaging, insurance and carriage of the Goods.

10.3         No extra charges will be effective unless agreed in writing and signed by Picking Cherry.

10.4         You may invoice us for the price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. You will ensure that the invoice includes the date of the Order, the invoice number, the Picking Cherry order number, your VAT registration number, and any supporting documentation that we may reasonably require.

10.5         Subject to clause 8.2(b)(iii), we will pay correctly rendered invoices within 30 days of receipt of the invoice. Payment will be made to the bank account nominated in writing by you.

10.6         Subject to clause 8.2(b)(iii), if a party fails to make any payment due to the other under the Agreement by the due date for payment, then the defaulting party will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate at any time, but at 4% a year for any period when that base rate is below 0%.

10.7         We may at any time, without limiting any of its other rights or remedies, set off any liability of you to us against any liability we may have to you.

We acknowledge that all descriptions, images, specifications and any other information relating to the Goods contained in the Supplier Information are and will remain your exclusive property. You grant to Picking Cherry a worldwide, non-exclusive, royalty-free licence to use the Supplier Information for the purposes of the Agreement.

12.1         Both parties will comply with all applicable requirements of the Data Protection Legislation in respect of any personal data processed by you under this Agreement. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

12.2         The parties acknowledge that for the purposes of the Data Protection Legislation, Picking Cherry is the controller and you are the processor. Schedule 1 (Processing, personal data and data subjects) sets out the scope, nature and purpose of processing by you, the duration of the processing and the types of personal data and categories of data subject.

12.3         We will ensure that we have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to you for the duration and purposes of this agreement.

12.4         You will, in relation to any personal data processed in connection with the performance by you of its obligations under this agreement:

(a)             process that personal data only on our written instructions unless you are required by any Applicable Law to otherwise process that personal data. Where you are relying on Applicable Law as the basis for processing personal data, you will promptly notify us of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits you from so notifying us;

(b)             ensure that you have in place appropriate technical and organisational measures, reviewed and approved by us, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by you);

(c)             in addition to your obligations under clause 17.3 (Confidentiality), ensure that all of your personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

(d)             not transfer any personal data outside of the European Economic Area unless the prior written consent of Picking Cherry has been obtained and the following conditions are fulfilled:

(i)               Picking Cherry or you have provided appropriate safeguards in relation to the transfer;

(ii)              the data subject has enforceable rights and effective legal remedies;

(iii)             you comply with your obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)             you comply with reasonable instructions notified to it in advance by us with respect to the processing of the personal data;

(e)             assist us, at our cost, in responding to any request from a data subject and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f)              notify us without undue delay on becoming aware of a personal data breach;

(g)             at our written direction, delete or return personal data and copies thereof to us on termination of the agreement unless required by any Applicable Law to store the personal data; and

(h)             maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and provide all such records and information promptly on request by us or our designated auditor, and immediately inform us if, in the opinion of you, an instruction infringes the Data Protection Legislation.

12.5         We do not consent to your appointing any third-party processor of personal data under this agreement.

12.6         Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to this agreement).

13.1         You will keep us indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us as a result of or in connection with:

(a)             any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods or the Supplier Information, to the extent that the claim is attributable to the acts or omissions of you, your employees, agents or subcontractors;

(b)             any claim made against us by an End Customer or other third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of you, your employees, agents or subcontractors; and

(c)             any claim made against us by an End Customer or other third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Agreement by you, your employees, agents or subcontractors.

13.2         This clause 13 will survive termination of the Agreement.

During the term of the Contract and for a period of one (1) year thereafter, You will maintain in force, with a reputable insurance company product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement, and will, on our, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

15.1         In performing your obligations under the Agreement, you will

(a)             comply with all applicable laws, statutes, regulations at any time in force; and

(b)             comply with any supplier policies notified to Supplier through Website at any time.

15.2         We may immediately terminate the Agreement for any breach of clause 15.1 by you.

16.1         If at any time we reasonably believe that you are in breach of any of these Terms, we may without penalty immediately suspend your Website account with Picking Cherry and remove any or all of your information from the Website. We will give you prompt written notice of any suspension, setting out the reasons for the suspension if appropriate. If at any point we are satisfied that you have remedied the reasons for the suspension, we may reinstate your Website account and allow you to list Available Goods. If any suspension continues for 30 days or more, we may at any time after the 30th day of the suspension terminate the Agreement by giving you notice in writing.

16.2         Either party may terminate the Agreement at any time by giving the other party 30 days’ notice in writing.

16.3         Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a)             the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b)             the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)             the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)             the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

16.4         Termination of the Agreement will not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

16.5         Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

17.1        Force majeure. Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.

17.2        Subcontracting. You may not subcontract any or all of your rights or obligations under this Agreement without our prior written consent. If we consent to any subcontracting by you, you will remain responsible for all acts and omissions of your subcontractors as if they were your own.

17.3        Confidentiality.

(a)             Each party undertakes that it will not at any time during this agreement, and for a period of (two) years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 17.3(b).

(b)             Each party may disclose the other party’s confidential information:

(i)               to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 17.3(b); and

(ii)              as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)             No party will use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.

17.4        Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.5        Variation. Other than in accordance with clause 1.3, any variation of this Agreement will be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.6        Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

17.7        Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Agreement.

17.8        Notices.

(a)             Any notice or other communication given to a party under or in connection with the Agreement will be delivered by email to:

(i)           for Picking Cherry: contactme@pickingcherry.com; and

(ii)         for you, the email address you give when you register for a Supplier Account.

(b)             A notice or other communication will be deemed to have been received one Business Day after transmission.

(c)             The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

17.9        Third party rights. No one other than a party to this Agreement will have any right to enforce any of its terms.

17.10     Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by, and construed in accordance with the law of England and Wales.

17.11     Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

18.1        Definitions:

                    Applicable Laws: all applicable laws, statutes, regulations and codes at any time in force.

                    Available Goods: Goods listed by you as being available for sale in the Supplier Information at any time.

                    Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

                    Commencement Date: the date the Agreement commences, being the date on which you register with us for a Supplier Account.

                    Conditions: these terms and conditions set out in Error! Bookmark not defined.Error! Reference source not found. to clause 17 (inclusive).

                    Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

                    Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force at any time which apply to a party relating to the use of personal data (including the privacy of electronic communications).

                    Delivery Date: the date specified for delivery of an Order, in accordance with clause 5.2.

                    Delivery Location: the address for delivery of the Goods, as provided to us by you when you register for a Supplier Account.

                    Delivery Time: the date and time window arranged by us for the collection of the Goods under an Order by our nominated logistics provider, as specified in the relevant Delivery Time Notification. All Delivery Times will be between the hours of 8:00am and 6:00pm on a Business Day, unless otherwise agreed between us and you in the contract

                    Delivery Time Notification: an email from us informing you of the Delivery Time.

                    End Customer: a customer of Picking Cherry who places an order with us to supply Goods via the Website.

                    Goods: the goods as listed by us on the Website on behalf of you in accordance with the Supplier Information at any time.

                    Order: our order for the Goods submitted by us in accordance with clause 5.

                    Price: the price for the Goods, as set by you at any time in the Supplier Information.

                    Supplier Account: an account registered with us via our Website to advertise goods for sale on the Website.

                    Supplier Information: any information provided to us by you through the Website, including:

a)               the Goods offered for sale by you, and the product descriptions, images and other information relating to such Goods;

b)               the Prices for such Goods;

c)               stock levels and whether any Goods are available at any time; and

d)               the Delivery Period for such Goods.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force at any time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

                    VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

                    Website: our website at www.pickingcherry.com.

18.2        Interpretation:

(a)             a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted at any time. A reference to a statute or statutory provision will include all subordinate legislation made at any time under that statute or statutory provision.

(b)             any phrase introduced by the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)             a reference to writing or written includes emails.

Schedule 1         Processing, personal data and data subjects

1.               Processing by You

1.1           Scope and nature of processing: you will use End Customer contact details supplied in Orders to correctly address Goods for delivery.

1.2           Purpose of the processing: to allow Picking Cherry to fulfil orders from End Customers in respect of Goods purchased by Picking Cherry from you under the Contract.

1.3           Duration of the processing: The personal data will be processed during fulfilment of the Orders and dealing with any follow-up issues in respect of such Orders. Personal data contained within Orders will be retained for a reasonable period (but in any event no longer than 12 months) by you.

2.               Types of personal data: Names; addresses; email addresses; telephone numbers.

3.               Categories of data subject: Picking Cherry’s End Customers.