RAKUTEN MARKETPLACE USER AGREEMENT: USAGE POLICY AND CODE OF CONDUCT
Welcome to Rakuten Marketplace, a new trading platform enabling Merchants to sell directly to registered Buyers via www.play.com (the ‘Website’).
Rakuten Marketplace is operated by Playtrade s.à.r.l. ("Playtrade", "we" or "us"). Playtrade is a private limited liability company ("Société á responsabilité limitée") with its registered office at Playtrade Sarl, 4-6 avenue de la Gare, L-1610 LUXEMBOURG, R.C.S. Luxembourg number B117514. The Website (excluding the Rakuten Marketplace) is owned and operated by Play Limited, whose address is Play.com, PO Box 192, St Helier, Jersey, JE4 8RP (‘Play.com’).
Every time a Merchant or Buyer ("you") transact on the Rakuten Marketplace (including without limitation the acts of buying, selling, creating or editing a Listing) you agree to and accept the latest Usage Policy and Code of Conduct, (including any linked information contained herein), which may be amended by us from time to time. A notice of any amendments made to the Usage Policy and Code of Conduct will appear on the Website.
Please read this Usage Policy and Code of Conduct, and linked information, carefully before using the Rakuten Marketplace. This Usage Policy and Code of Conduct constitute a legally binding agreement between you and us.
This Usage Policy and Code of Conduct is laid out in the following sections:
1. The Role of Rakuten Marketplace
1.1 The relationship between the parties
1.2 Your use of Rakuten Marketplace and our Website
2. General Conditions for all Users
2.2 Buying and Selling Requirements
2.3 General Conduct & Behaviour
2.4 Use of Data
2.5 Intellectual Property
2.6 Feedback System
3. Specific Conditions for Buyers
3.2 Placing an Order
3.3 Refund and Returns
3.5 Suspension and Termination
4. Specific Conditions for Merchants
4.1 Registration and Setting up a Merchant Store
4.2 Conditions of Listing and Sale
4.4 Fulfilment, Dispatch and Delivery
4.5 Refunds and Buyer Claims
4.6 VAT and other charges
4.8 Merchant Performance, Suspension and Termination
5. The Fairplay Guarantee
5.1 Conditions for Buyers
5.2 Conditions for Merchants
“Applicable Laws” means all regional, national and international laws, rules, regulations, codes and standards including those imposed by any governmental or regulatory authority and all applicable industry standards and standards determined by any self-regulatory body, which apply from time to time to the person or activity in the circumstances in question;
“Buyer” means an individual who is registered as a user of the Website;
“Catalogue” means the data in Play.com's system that describes items and their attributes;
“ECC” means a Play.com E-Commerce Consultant and their role is to help Merchants grow their sales on the Website;
“Intellectual Property Rights” means all intellectual property rights in any part of the world including without limitation patents (including supplementary protection certificates), database rights, copyright, design rights (whether registered or unregistered), trade marks (whether registered or unregistered), rights in business and trade names, rights in domain names, rights in confidential information and know-how, and all other similar rights, together with the right to apply for the protection of any such rights;
“Listing” means the Merchant's offer for sale of Catalogue items;
“Merchant” means a third party who is registered with us to sell items through the Rakuten Marketplace to Buyers;
“Merchant Store” means a Merchant’s presence on Rakuten Marketplace;
“Play Group” includes Play.com, Playtrade and their affiliates;
“Prohibited Items” means the items in the "prohibited" section, and ”Restricted Items” means the items in the "restricted" section, of our "Prohibited and Restricted Items List", which can be found here;
“Rakuten Mail” means an email service enabling Merchants to send emails to Buyers who have purchased from the Merchant; and
"Working Day" means a day other than a Saturday, Sunday or public holiday in England or Luxembourg.
1. THE ROLE OF RAKUTEN MARKETPLACE
1.1 The relationship between the parties
1.1.1 Rakuten Marketplace provides a platform for Buyers and Merchants to transact and interact with each other. By registering as a Buyer or a Merchant on the Website and by using our services, you agree to and accept this Rakuten Marketplace User Agreement: Usage Policy and Code of Conduct, (including any linked information contained herein), which may be amended by us from time to time. This forms an individual, legally binding contract between us and you which is governed by the terms set out in this Usage Policy and Code of Conduct.
1.1.2 If you are a Merchant, or a Buyer who purchases an item from or otherwise interacts with a Merchant, this Usage Policy and Code of Conduct governs your use of the Website, including without limitation the Rakuten Marketplace.
1.1.3 If you buy an item from a Merchant or sell an item to a Buyer on Rakuten Marketplace, you are entering into an individual, legally binding contract of sale for that item solely between you and the Buyer or Merchant, as applicable. We are not the buyer or seller of that item and are not a party to your contract of sale. Your contract of sale is governed by the relevant Merchant's terms and conditions, which appear in their Merchant Store.
1.1.4 If you are a Buyer, we will process your payment in respect of any transaction with a Merchant made via Rakuten Marketplace and pass it to the relevant Merchant on your behalf. If you are a Merchant, we will process the relevant Buyer's payment on your behalf and make payment to you in respect of any transaction with a Buyer made via Rakuten Marketplace.
1.1.5 The enforcement of any obligation under the contract of sale between the Buyer and Merchant is the sole responsibility of the relevant Buyer and Merchant who are party to that contract.
1.1.6 In the event that a dispute occurs between Buyer and Merchant, both parties are obliged to make every possible effort to resolve the dispute. Any complaints and/or questions with respect to a sale transaction should be directed to the other party involved. We have no obligation to mediate between you and any other Buyer or Merchant or to enforce or execute fulfilment of any contract. We may however intervene in certain circumstances to resolve an issue, in line with our FairPlay Guarantee as set out in section 5 below.
1.1.7 We have the right to remove, delay, suspend or immediately terminate any sale or Listing if you are in breach of our Usage Policy and Code of Conduct at our sole discretion (see sections 3.5 and 4.8 for further details).
1.2 Your use of Rakuten Marketplace and our Website
1.2.1 We grant you a limited non-transferable license to make use of the Website, including the Rakuten Marketplace, in accordance with this Usage Policy and Code of Conduct only. This license expressly excludes without limitation modifying, distributing, copying, republishing or making any derivative of the Website or the Rakuten Marketplace services; any framing or using framing techniques to enclose any trademark, logo or other proprietary Intellectual Property Rights (including images, text, page layout or form) of the Play Group; using any meta tags or other “hidden text” incorporating any of the Play Group's Intellectual Property Rights; any unauthorised collection and use of Buyers' e-mail addresses or other information, ratings, feedback or Listings, or any data extraction or data mining whatsoever.
1.2.2 Notwithstanding any provision of this Usage Policy and Code of Conduct, we have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Rakuten Marketplace.
2. GENERAL CONDITIONS FOR ALL USERS
2.1.1 In order to use Rakuten Marketplace you must be registered as either a Buyer or a Merchant on the Website and agree to abide without restriction to this Usage Policy and Code of Conduct. You also accept this Usage Policy and Code of Conduct and agree to abide by it every time you use Rakuten Marketplace, including without limitation when you purchase or sell a specific item on Rakuten Marketplace. If you do not accept the conditions laid out here you may not register for or access Rakuten Marketplace or any of our related services.
2.1.2 You warrant that any information that you provide to us as part of the registration process and at any other time is true, correct and complete and that you will notify us immediately if any part of this information changes.
2.1.3 The use of our Rakuten Marketplace services is limited to Buyers and Merchants that can lawfully enter into contracts under the laws of their respective country of residence.
2.1.4 Minors under 18 years old can only use our services with the prior consent of their parents or guardians. A minor must refrain from buying or selling items that are restricted to adults (e.g. 18 certificate movies). Merchants must not sell items that are restricted to adults (e.g. 18 certificate movies) to minors.
2.1.5 At all times during your use of Rakuten Marketplace and any of our related services (such as the feedback mechanism), you must remain courteous to other Buyers and Merchants.
2.1.6 You will be required to provide a password for your account as part of our security measures. At all times you are responsible for maintaining the security and secrecy of this information and should not under any circumstances give out this information to anyone. You accept sole responsibility for any use of (whether authorised or not), or action taken using, your account. If you have any reason to believe that your password has become known to anyone else, you must change it immediately.
2.1.7 We reserve the right to reject any application from a Buyer or Merchant to register to use Rakuten Marketplace at our sole discretion, including without limitation if we feel that doing so would protect our interests, those of our users and, in general, those of the Website.
2.2 Buying and selling requirements
2.2.1 All payments relating to the purchase or sale of an item by a Buyer and Merchant must be handled by us. You agree not to buy or sell items listed on Rakuten Marketplace through any other payment method, including without limitation personal cheque or money transfer.
2.2.2 If a transaction is aided or brought about through the Rakuten Marketplace (irrespective of whether payment is made through Rakuten Marketplace or not), Merchants will be charged our applicable fees.
2.2.3 You may not buy or sell any Prohibited Items or Restricted Items (see section 4.3.4) or items whose sale, distribution, offering, import or export is prohibited or restricted by any Applicable Laws, the Buyer's country of residence, the Merchant's country of domicile or any other country where delivery takes place. You are solely responsible for checking whether any such restrictions apply to the items you intend to buy or sell.
2.2.4 Buyers agree to pay in either pounds sterling (£) or euros (€) depending on which currency the Merchant has listed the item for sale.
2.3 General conduct and behaviour
2.3.1 You are responsible for all electronic communications and content sent from your computer, Merchant Store or communications centre, as applicable.
2.3.2 You must not use Rakuten Marketplace or any of our services for any activity that is unlawful under any Applicable Laws.
2.3.3 You must not use our services to send, list, distribute or otherwise divulge any material that is illegal, objectionable, misleading, false, defamatory, obscene, menacing, otherwise injurious or in breach of third parties’ privacy or any Intellectual Property Rights.
2.3.4 You must not do or omit to do anything that causes Rakuten Mail, the Website or any of our other services to be interrupted, damaged or impaired.
2.3.5 You agree that you will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
2.3.6 You must not send, list, distribute or use any material that contains viruses, commercial solicitation (including URLs for websites other than those of Play.com), adwares, chain letters, mass mailings or any "spam".
2.3.7 In the event that you notice any content or material that you believe may be in breach of this Usage Policy and Code of Conduct, please notify us immediately. We will make reasonable endeavours to investigate and, if we deem it appropriate at our sole discretion, may remove the content or material complained of within a reasonable time.
2.3.8 You may not transfer your account to another party without our prior consent.
2.4 Use of data
2.4.2 Information you provide may be shared between the Play Group for such reasons as laid out in section 2.4.1 and may if necessary be passed to a member of the Play Group out of the European Economic Area for this purpose. Your personal data will never be passed to any third party companies except as set out in this section 2.4.
2.4.3 Information you provide will be passed on to Buyers or Merchants if required to complete the transaction (for example a Buyer’s telephone number and address may be given to a Merchant for delivery purposes). In using Rakuten Marketplace to buy and sell items you accept that your personal data may be used for such purposes.
2.4.4 Buyers and Merchants must use each other’s data only for the purpose of completing the transaction for which it is received, including sending dispatch notifications and communication about the transaction. The data must not be subsequently stored nor may it be passed on to any third party.
2.4.5 Merchants agree not to use Buyers' e-mail addresses or any other information collected in the course of a transaction to send marketing e-mails or other similar materials directly to Buyers. We provide a service, Rakuten Mail, that enables Merchants to send marketing information to Buyers who have consented to receiving such marketing e-mails via us. By subscribing to our mailing lists, Buyers agree that they may be contacted by us, Play.com and Merchants regarding goods and services made available on or in connection with the Website. If you are a Merchant, further information about Rakuten Mail is available in your Merchant account.
2.4.6 Buyers and Merchants have the right to access their stored data, to rectify them if required and to object to the storage of their data for legitimate purposes.
2.5 Intellectual property
2.5.1 All content, including without limitation graphics, logos, button icons, text, images, audio clips, digital downloads, data compilations and software (which may also belong to our software suppliers), provided by us on the Website is the exclusive property of the Play Group, and is protected by Luxembourg and international intellectual property laws.
2.5.2 You may not buy or sell items that infringe our or another party's copyright, patent, trademark, design right, database right, or other Intellectual Property Right or other proprietary right (e.g. pirated software, CDs, videos and DVDs and OEM software).
2.5.3 New Region-1 DVDs may be listed by Merchants resident within the USA or Canada with our prior agreement only, and must be dispatched from the USA or Canada directly to Buyers. Buyers are limited to one copy of Region-1 titles for personal use only, and acknowledge that they are the importer of record of this item.
2.5.4 You are not allowed to copy, reproduce, modify, create derivative works from, extract or utilise parts of the contents of the Website without our express written consent. The use of data mining, robots, any software or similar data gathering and extraction tools to extract for re-utilisation of any substantial parts of the Website constitutes a violation of our copyrights and other Intellectual Property Rights.
2.5.5 You are not allowed to imitate or use Rakuten Marketplace or the Website’s presentation and structure, create and/or publish your own database that features substantial parts (e.g. Play.com prices and item Listings) of the Website without our and Play.com’s express written consent.
2.5.6 Play.com, Rakuten, FairPlay and other trademarks appearing on the Website (including without limitation graphics, logos, page headers, button icons, scripts and service names) are the trademarks of the Play Group and may not be used in connection with any item or service that is not the Play Group’s, in any manner that is likely to cause confusion among Buyers, or that disparages or discredits any member of the Play Group.
2.5.7 You should assume that everything you see or read is copyrighted, including trademarks not owned by the Play Group that appear on the Website, which are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
2.5.8 If you believe that any of the content appearing on a Merchant's Store may constitute infringement of your Intellectual Property Rights (“IPR Claim”), please contact the Merchant in question. If you are unable to resolve the IPR Claim with the Merchant directly, please notify us in writing. Upon receiving notification of an IPR Claim, we will make reasonable endeavours to investigate and/or remove the content or material within a reasonable time. Such steps are taken without any admission as to liability and without prejudice to the Play Group’s rights, remedies and defences, all of which are expressly reserved. You agree to indemnify the Play Group for all claims brought by a third party against any entity within the Play Group arising out of or in connection with the submission of an IPR Claim by you.
2.6 Feedback system
2.6.1 We provide a platform for Buyers using Rakuten Marketplace to express their opinion via the feedback mechanism. Buyers can rate each transaction as positive, neutral or negative, and can also leave a short comment. Over time, Merchants develop a score, showing what percentage of their feedback has been positive.
2.6.2 Buyers warrant that any review, feedback or rating which you leave about a Merchant is bona fide. Buyers agree that any review, feedback or rating which you leave about Merchants may be published on the Website and made available for viewing by other Buyers and Merchants. You agree that it may be displayed for as long as we consider appropriate, and that the content may be syndicated to other websites and publications of the Play Group.
2.6.3 You agree not to hold us responsible for any feedback or ratings published on the Website and release us from and waive all rights against us in respect of any liability arising out of or in connection with the publication of any comments about you in the feedback and rating system.
2.6.4 Buyers agree to indemnify and hold us harmless against any claim or action brought by third parties arising out of or in connection with any feedback posted by you on the Website, including the violation of their privacy or Intellectual Property Rights.
2.6.5 Buyers are also referred to section 3.4.2 of this Usage Policy and Code of Conduct which sets out further information with respect to their use of the feedback system.
2.6.6 High Merchant feedback scores demonstrate a high quality platform. If a Merchant’s feedback score drops below 90%, we will work with the Merchant to take corrective action to improve the service that they provide to Buyers. If the feedback doesn’t recover to above 90% within a reasonable timeframe, we may suspend or terminate the Merchant’s account. We reserve the right to modify or amend these metrics as we at our sole discretion see fit to protect our interests or those of other Buyers and/or Merchants on Rakuten Marketplace.
2.6.7 If a Merchant considers the feedback left by a Buyer to be unfair, the Merchant can request for it to be removed by contacting email@example.com. The circumstances in which the Rakuten Marketplace may consider, at its sole discretion, removing feedback include without limitation if the feedback: (i) contains swearing or obscene language; (ii) relates to a review of the item (feedback is to rate the services of the Merchant, not the item); (iii) relates to a complaint about the price of the item; (iv) contains personal information; or (v) is irrelevant or does not make sense.
2.6.8 Merchants are expressly prohibited from leaving feedback about themselves or any item offered for sale by them on the Rakuten Marketplace. Improper use or manipulation of the feedback system by Merchants will not be tolerated. We reserve the right to suspend or terminate a Merchant's account immediately if we have reasonable grounds to believe that they have directly or via a third party manipulated feedback.
SuperPoints is the Play.com loyalty scheme. Buyers earn points by making purchases on Play.com and can then use the points to reduce the price of future purchases. The SuperPoints Buyer Terms and Conditions can be found here. The SuperPoints Merchant terms and conditions can be found in your Merchant account.
3. SPECIFIC CONDITIONS FOR BUYERS
3.1.1 To purchase an item on Rakuten Marketplace, you must register as a Buyer on the Website. The information you must provide to us to register includes your name, address, telephone number, e-mail address and date of birth. You warrant that such information is true, accurate and complete and that you will notify us immediately if any part of this information changes.
3.1.2 At registration or at other times during your interaction with us you may be required to provide a nickname which may be displayed in order to identify you when using the services. You warrant that any nickname you create is not objectionable, obscene, discriminatory or inflammatory and does not infringe any third party’s Intellectual Property Rights. If you do not provide a nickname when requested to do so, you may continue to purchase items from Merchants but may have limited access to some features or services.
3.1.3 Unless agreed by us in writing in advance, a Buyer may not register for more than one account on the Website.
3.2 Placing an order
3.2.1 Your order to purchase an item from a Merchant will be placed when you click the “confirm order” button. As soon as your order is placed, we will send you an e-mail confirming that your order has been sent to the Merchant. Your order represents an offer to the Merchant to purchase a product.
3.2.2 By placing an order, you authorise us to immediately charge your credit card for the purchase price and we are entitled to rely on your placing of an order as an instruction to us to take your payment.
3.2.3 You are required to pay for items on Rakuten Marketplace with a current and valid credit card. In the event that your credit card expires, you are required to input the details of a new card immediately. You must not use any card that is known to be invalid or expired. If your payment is not authorised by your credit card issuer or bank, we will inform the Merchant and your order will be rejected.
3.2.4 Once the Merchant has accepted your order, we will send you an e-mail confirming this and the dispatch of your item, and follow-up e-mail invitations to leave feedback for the Merchant.
3.2.5 You may also receive e-mails from the Merchant confirming their acceptance of your order, dispatch of your item, estimated delivery date and informing you of their delivery terms and refund and returns policy. If you have specific questions about the delivery of an item, you should contact the Merchant directly using the ‘Contact Merchant’ function button.
3.2.6 In the event that a Merchant rejects your order or the item is not dispatched by the Merchant for any reason and your payment has already been processed, we will refund the amount that was charged to your registered credit card.
3.3 Refunds and returns
3.3.1 The Merchant's terms and conditions will apply to any refunds and returns of items. If you would like to return an item, you should contact the Merchant directly using the ‘Contact Merchant’ function available through your account. The Merchant will tell you how to return the item and where to send it. Always obtain proof or a postage receipt for any returns you send back, as the return of the item is your responsibility.
3.3.2 If you require any additional information about the returns policy of your Merchant, you should check their Merchant Store for details of their terms and conditions or contact the Merchant directly.
3.3.3 In the event that you receive an item that is damaged, defective or not as described by the Merchant you must contact the Merchant and let them know exactly what the problem is immediately. You must return these goods to the Merchant in accordance with the Merchant's return policy in order to be eligible for any possible refund from the Merchant.
3.3.4 Since we are not a party to the contract of sale between the Buyer and the Merchant, we are not responsible for any obligations on, or warranties made by the Merchant under the contract or any Applicable Laws that govern the contract between the Buyer and the Merchant.
3.3.5 Any complaints and/or questions with respect to a sale transaction should be directed by you to the Merchant. Only your Merchant can generate a refund for you.
3.3.6 In the event of a refund from the Merchant, the amount will be refunded in accordance with the payment methods used to complete the purchase.
3.3.7 If you encounter a serious problem with your Merchant with respect to the fulfilment of their obligations resulting from the sale contract, you may be eligible to our FairPlay Guarantee as provided for under Section 5 of this Usage Policy and Code of Conduct.
3.4.1 Buyers may not purchase their own Listings nor work in concert with other Buyers or Merchants to buy their own Listings, or manipulate the outcome of a sale or Listing.
3.4.2 Buyers must not use the feedback system, communication system or any other Rakuten Marketplace service to manipulate the outcome of a sale, or to influence or coerce Merchants, or to solicit a purchase or sale outside of the Rakuten Marketplace system, or to influence any other Buyer or Merchant to act in a way that would breach the Usage Policy and Code of Conduct laid out here.
3.4.3 By placing an order with a Merchant on Rakuten Marketplace, you acknowledge and agree that you are not purchasing any item that is or may be considered offensive or illegal or otherwise non-compliant with the Applicable Laws in your country of residence, nor inducing any Merchant to act in a way which is in breach of the Usage Policy and Code of Conduct laid out here, or the Applicable Laws in their country of residence.
3.5 Suspension and termination
3.5.1 We reserve the right to suspend or terminate your account immediately if you are in breach of our Usage Policy and Code of Conduct without notice.
3.5.2 You can terminate your account by writing to our registered address. Otherwise, we may reasonably assume that our relationship is terminated if there has been no activity on your account for the period of 8 (eight) months from the date of the last transaction.
4. SPECIFIC CONDITIONS FOR MERCHANTS
4.1 Registration and setting up a Merchant Store
4.1.1 To sell as a Merchant on Rakuten Marketplace, you must set up a Merchant Store. To set up a Merchant Store, please see the easy-to-follow steps within your account area on the Website. The information you must provide to us to set up a Merchant Store includes your (or your business’) legal name, physical address, e-mail address, telephone number, a returns address, bank details (please see section 4.1.2 below), country of residence and VAT registration as applicable. You warrant that such information is true, accurate and complete and that you will notify us immediately if any part of this information changes.
4.1.2 You must be able to provide a UK bank account, IBAN or SWIFT code to register. Merchants located outside of the UK may be permitted to use the Rakuten Marketplace service by prior agreement with us and subject to security checks deemed necessary to protect our interests and those of Rakuten Marketplace users.
4.1.3 You represent and warrant to us: (a) if you are registering with Rakuten Marketplace as a business entity, that you have the authority to legally bind that entity and you are duly organised, validly existing and in good standing under the laws of the territory in which your business is registered; (b) you have all requisite right, power and authority to enter into this Usage Policy and Code of Conduct; and (c) you and all of your subcontractors, agents and suppliers will comply with all Applicable Laws in your performance of your obligations and exercise of your rights under this Usage Policy and Code of Conduct.
4.1.4 When you create a Merchant account you must specify a currency (either pounds sterling (£) or euros (€)) to receive the proceeds of your sales. If you choose to list your item in both GBP and Euros and it is bought by a Buyer who does not reside in the UK, the purchase value will be converted to GBP at the rate of €1 = £0.74. If this rate changes, we will notify you. All fees payable by you to us will be applied to the price of the sale after the currency conversion.
4.1.5 At the time that you register as a Merchant, we will run a credit file ID check to ensure that any information provided at registration is accurate and current. This may involve checks as we see fit to protect our interests, those of Buyers and those of the Website.
4.1.6 After you register your bank details with us, for security purposes there will be a minimum delay of 14 days before we will transfer funds to your bank. If you subsequently change your bank details you must wait 14 days from the date of change of details before further funds can be transferred to you.
4.1.7 You may nominate your own Merchant nickname (provided it does not already exist on Play.com). Your nickname must be a minimum of 6-18 characters long, must contain no spaces and must consist of alphanumeric characters only. The nickname must not: (i) be offensive or include profanity; (ii) be misleading to your business area, (iii) contain any URL information, (iv) be confused with any company name which is protected by trademark law or (v) infringe our or any third party's Intellectual Property Rights.
4.1.8 Your Merchant Store must include your policies and terms and conditions of sale (including without limitation refund and return policies and item warranties). These policies and terms and conditions must (i) comply with all Applicable Laws; (ii) as a minimum, be at least as favourable as the Play.com returns and refund policy as published on the Website; and (iii) be available to Buyers via your Merchant Store at all times. To the extent of any conflict between your policies and terms and conditions of sale and this Usage Policy and Code of Conduct, this Usage Policy and Code of Conduct will prevail.
4.1.9 You must comply, and are solely responsible for complying, with all of your obligations arising (i) under the contract of sale between you and the Buyer; (ii) under all Applicable Laws; and (iii) all of your policies and terms and conditions, and failure to comply with all or any part of these will constitute a breach of this Usage Policy and Code of Conduct.
4.1.10 You warrant that you will keep all of your information in your Merchant account and Merchant Store up-to-date and ensure that it is accurate and not misleading.
4.1.11 At all times you are responsible for the safety and security of your Merchant account and should not give details of it to any other person. In the event that your Merchant account and/or secure details are compromised you must immediately change any secure details.
4.1.12 You accept that your contact details and e-mail address will be given out to Buyers who purchase from you, or to any Buyers who contact you via the communication system to whom you subsequently respond.
4.1.13 Merchants must monitor communication regularly and check e-mail at least once per day.
4.1.14 You should check your Merchant account daily for notification of a sale. Do not rely on e-mails to notify you of a sale and always verify any e-mail notifications that you do receive by e-mail by logging into your Merchant account.
4.2 Conditions of Listing and sale
4.2.1 You can list your items for sale in the inventory area of your account. Information including which Listing reports are available, the types of upload file and format, and the information required to populate your Listings are all set out in the inventory area of your account.
4.2.2 The Listing tool in the inventory area of your account will give you an opportunity to upload files, images and content (a description of your item including its condition) against your listed item.
4.2.3 By uploading any Listings, content, data, files, images or other materials (“Materials”) onto the Website, to the fullest extent that you have the legal right to do so, you grant the Play Group a non-exclusive, worldwide, perpetual, irrevocable, unlimited, sub-licensable, royalty-free right and licence to use, reproduce, perform, display (public communication), distribute, adapt, modify, re-format, create and exploit derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the Materials, in any existing media now or at any later date. In addition, you waive all moral rights to the extent permitted by law (and where such moral rights cannot be waived you agree to transfer all moral rights) you have in the Materials to the fullest extent permitted by law.
4.2.4 Rakuten Marketplace offers a Catalogue of stock images, descriptions and item specifications. We own or have the right to use the information in the Catalogue. Merchants may use the Catalogue solely in connection with their Listings on the Website and may not copy, edit, transfer or reproduce all or any part of the Catalogue for any other purpose. Rakuten Marketplace makes no warranties as to the accuracy of the information provided in the Catalogue, and we are not liable for any inaccuracies. Our Catalogue may include copyright, trademarked and other proprietary materials, and you agree not to remove any such markings, or create any derivative works based on Catalogue content (other than to include them in your Listings).
4.2.5 Merchants must ensure that their Listings accurately describe the items that they offer for sale on Rakuten Marketplace and are not misleading to Buyers. You may only list items for which there is an exact match in the Play.com Catalogue, regardless of whether Play.com sells the item or not. You are solely responsible for the accuracy of all other information displayed to Buyers, including without limitation the country of dispatch. We may immediately and without notice suspend or terminate the account of any Merchant we reasonably believe to be providing inaccurate information.
4.2.6 Merchants may add new items to the existing Catalogue by completing a template and submitting the item information to the Catalogue team. As long as it fits into our existing categories, Merchants may request an addition to the Catalogue and, if your request is accepted by us, list against it. We have the right in our sole discretion to reject any Merchant request for additions to the Catalogue.
4.2.7 When you offer an item for sale and a Buyer chooses to buy from you, you are obliged to sell the item to the Buyer at the price advertised. You must dispatch the item to Buyers and honour the advertised price unless there was a clear mistake involved in the pricing. We may immediately and without notice suspend or terminate the account of any Merchant we reasonably believe has made pricing errors on more than one occasion.
4.2.8 Where you have multiple quantities of a given item for sale, these must be listed under a single Listing using the quantity field to specify quantity. You should not list the same item multiple times unless there is a clear difference in quality of the item, which should be accurately described in the condition and comments fields. It is not acceptable to list the same item several times at different prices to circumvent this rule. We may immediately and without notice suspend or terminate the account of any Merchant we reasonably believe to be abusing this system.
4.2.9 It is your legal responsibility to ensure any Listing information you create and provide complies with all Applicable Laws. You must not: (i) infringe third party Intellectual Property Rights; or (ii) use tools to manipulate competitors' pricing.
4.2.10 You confirm that you are the legal owner of the items which you list on Rakuten Marketplace, or are legally permitted to transfer title of any goods which are held by any third party, and that you are acting with the complete knowledge and understanding of any third party who holds goods for you.
4.2.11 You warrant that the sale of any item you list is not in breach of any Applicable Laws, including the country in which the Buyer is resident, the country in which you are domiciled and any other country where delivery takes place. If you do not know whether the sale of an item complies with all Applicable Laws in a particular country, you should not solicit or accept an order from a Buyer resident in that country. If you are based outside of the European Economic Area (EEA), you are required to ascertain that all items you list are legally allowed into the EEA.
4.2.12 You must have and maintain all and any relevant licences or approvals necessary in order to sell your items into the EEA and must provide such evidence confirming this immediately upon request by us.
4.2.13 If we have reason to believe that you are in breach of sections 4.2.9, 4.2.10, 4.2.11 or 4.2.12, we may immediately and without notice suspend or terminate your account at any time pending investigation of the issue.
4.2.14 You agree to indemnify and hold us harmless against any claim or action brought by third parties, arising out of or in connection with (i) your use of the Website, including without limitation Rakuten Marketplace; (ii) your breach of this Usage Policy and Code of Conduct; (iii) infringement of the third party's Intellectual Property Rights or (iv) any item supplied by you to a Buyer.
4.2.15 Rakuten Marketplace will bear the risk of third party credit card fraud where a purchase is made via unauthorised use of a third party’s credit card information, subject to the conditions contained in this section 4.2.15. Merchants will bear all other risk of fraud or loss and should be adequately insured to that effect. We may in our sole discretion suspend or revoke your account at any time pending investigation of a credit card fraud matter, and you shall co-operate fully with any request from us for information and/or assistance in investigating such matters.
4.3.1 We reserve the right to restrict new Merchants to a certain volume of sales or Listings or total inventory value until such time as trading history has been established. We reserve the right to change these at any time and without prior notice in the interest of our security and the security of Rakuten Marketplace’s users.
4.3.2 Furthermore, we may restrict the Listing of certain items to Merchants with an established trading history and/or a certain level and score of feedback rating, or other criteria we at our sole discretion deem necessary to ensure the security of the Website and of other Merchants and Buyers.
4.3.3 Item titles must be in English only, except for foreign media titles where they clearly include English subtitles.
4.3.4 Merchants are not permitted to sell any Prohibited Items and may only sell Restricted Items under the conditions stated in the Prohibited and Restricted Items List, which can be found here and may be amended by us from time to time. A notice of any amendments made to the Prohibited and Restricted Items List will appear on the Website.
4.3.5 Merchants are solely responsible for ensuring that any item listed by them on the Rakuten Marketplace complies with the restrictions set out in this Usage Policy and Code of Conduct.
4.4 Fulfilment, dispatch and delivery
4.4.1 You are solely responsible for, and bear all risk and liability for sourcing, storing, selling, fulfilling and delivering all orders placed with you by Buyers.
4.4.2 When a Buyer has placed an order for an item offered by you, their order can be viewed in the orders area in your account. You can view each individual order or download multiple orders in a report. Orders will have a status: either "pending", "sold" or "refunded".
4.4.3 An order will be marked as "pending" where a Buyer has placed an order for an item. We will charge the Buyer's credit card for the purchase price. Merchants must ensure they reserve stock for all "pending" orders until the status of the order changes to "sold". If an order remains as "pending" for 7 days or more, it will cancelled automatically and you may release the stock.
4.4.4 Once we have processed the Buyer's payment and you accept their order, the status of the order will change from "pending" to "sold". If the Buyer's payment is not authorised, we will inform you and the order will be cancelled automatically.
4.4.5 In the event that the Buyer's payment has already been processed and (i) you reject an order; (ii) the item is not dispatched by you for any reason; or (iii) the Buyer returns the item to you, we will refund the purchase price to the Buyer and the status of the order will change to "refunded".
4.4.6 When a Buyer places an order, we will send the Buyer e-mails confirming the details of the item they have ordered and information regarding the processing of their payment. Once you have accepted an order, we will send the Buyer an e-mail confirming this and the dispatch of their item, and follow-up e-mail invitations to leave feedback about you. You may only send e-mails to the Buyer to confirm your acceptance of their order, dispatch of their item, estimated delivery date, informing them of your terms and conditions, including without limitation your delivery terms and refund and returns policy, and in response to any specific questions about an item that you receive from the Buyer.
4.4.7 All Listings by default carry the message “Usually dispatched within 24 hours” and the country the item is dispatched from. By default the country the item is dispatched from will be the same country that you specify when creating your account, although you may override this on a per-Listing basis. The country of dispatch will determine the acceptable delivery time to Buyers as laid out in our Delivery & Dispatch Guidelines here.
4.4.8 We reserve the right to suspend or remove access to the service for Merchants who are frequently unable to dispatch goods during the required 24 hours. We may immediately and without notice suspend or terminate the account of any Merchant whose dispatch performance is in the bottom 25% of that Merchant's peers.
4.4.9 The price of any items sold on Rakuten Marketplace must be displayed inclusive of all postage, packaging and delivery costs.
4.4.10 Details regarding the minimum requirements for packing and postage can be found in your Merchant account. You are not permitted to attach any marketing information on the package itself or in packing slips/inserts, including any URL information for any other websites.
4.4.11 You are responsible for the performance of any services you employ or sub-contract in order to fulfil your orders, including postal services or couriers. If a service you have employed to fulfil your order is unable to meet their obligations, you must refund the Buyer immediately and take up the dispute directly with the service operator.
4.4.12 Proof of postage does not equate to proof of delivery and Merchants are expected to obtain the necessary insurance from any postal carriers in order to make a claim in the event that an item is reported as missing or lost in the post.
4.4.13 You are responsible for any non-delivery, misdelivery, theft or other mistake or act in connection with the fulfilment and delivery of your items.
4.5 Refunds and Buyer claims
4.5.1 When selling items to Buyers, you must inform them of your returns policy and their withdrawal rights. We strongly recommend that you seek further information regarding consumers’ statutory rights under the Applicable Laws of the Buyer's country of residence.
4.5.2 Full or partial refunds can be made by you in the orders area of your account. You may also provide an allowance to the Buyer of up to £4.00 (or €6.00 if applicable) to cover return postage.
4.5.3 If you process a refund to a Buyer who purchased an item in a currency other than your Merchant account currency, the Buyer should receive a full refund in the currency in which he purchased the item. If the exchange rate has changed since the time you sold the item you may need to refund more or less in order to ensure that the Buyer receives a full refund in their original currency.
4.5.4. If you refund the full amount or more, the Merchant commission fees that you paid in respect of that transaction will be credited back to you in full. If you process a partial refund to a Buyer, you will not be reimbursed for Merchant commission fees.
4.5.5 Merchants are responsible for resolving Buyer complaints. However in certain circumstances we may engage with a Merchant to ensure that a Buyer issue is resolved as set out in our FairPlay Guarantee (please see section 5).
4.6 VAT and other charges
4.6.1 The price of any items sold on Rakuten Marketplace must be displayed inclusive of any customs and excise duty, VAT and any other taxes associated with the fixed price sale which may be applicable. Merchants must not charge or seek to charge the Buyer for any customs and excise duty, VAT or other taxes which are additional to the price displayed for the item on Rakuten Marketplace.
4.6.2 The business relationship between you and us may be subject to VAT. In certain circumstances, you could be liable for VAT in your country or in Luxembourg. We strongly recommend you to check whether you have to declare VAT to the tax administration of your country or not. We require a valid VAT identification number from EU Merchants who are VAT-registered. EU Merchants must notify us of any change in their VAT status.
4.6.3 It is your responsibility to collect any applicable taxes, whether VAT, customs duties or excise taxes, and to report and remit such taxes to the appropriate tax authority.
4.6.4 Merchants do not necessarily need to be VAT registered to sell on the Rakuten Marketplace. However, our fees include VAT where applicable, and if you are a VAT- registered business within the European Union, you may qualify for VAT-exclusive fees. Please contact firstname.lastname@example.org to find out more.
Fee and payment information can be found in your Merchant account.
4.8 Merchant performance, suspension and termination
4.8.1 Rakuten Marketplace offers comprehensive tools to Merchants to track their performance. Merchant performance is monitored day to day by your ECC, with Key Performance Indicators (KPI’s) consisting of feedback rating, refund rate (before and after dispatch), number of claims, dispatch time and more.
4.8.2 ECC’s will work with Merchants to alert them of any emerging performance issues. If despite best efforts, a Merchants performance is not adequate, the Merchant account may be suspended.
4.8.3 We reserve the right to delay, suspend or terminate any sale, Listing and/or your account, including access to your Merchant account funds, immediately on notice in the following circumstances: (i) we have reasonable grounds to believe you are in breach of this Usage Policy and Code of Conduct; (ii) we have reasonable grounds to believe you are in breach of any Applicable Laws; (iii) we receive any challenge or complaint from any governmental or regulatory authority or agency or industry body relating to your Listing or Merchant Store; (iv) there are amounts overdue from the Merchant to Rakuten Marketplace; (v) any action by a Merchant that in our sole opinion reflects badly on the Rakuten Marketplace or the Website and is harmful to our business operation; or (vi) abuse or discourteous behaviour to Buyers.
4.8.4 Upon termination of the relationship, we will transfer any remaining balance to your bank account.
5. THE FAIRPLAY GUARANTEE
5.1 Conditions for Buyers
5.1.1 The FairPlay guarantee is the term used to ensure that Buyers may shop with confidence on Rakuten Marketplace. It represents a refund of a purchase to a Buyer in the event that the Buyer is unable to resolve a dispute with a Merchant.
5.1.2 All Rakuten Marketplace purchases are guaranteed under the FairPlay guarantee provided that the Buyer has conformed to our Usage Policy and Code of Conduct laid out here.
5.1.3 In the event of a dispute with a Merchant you are obliged to attempt to resolve this dispute to the best of your ability with the respective Merchant, including contacting the Merchant first and foremost using the “contact Merchant” button in your order history.
5.1.4 In the event that you are still unable to resolve the dispute with the Merchant you may appeal to us for a refund under the FairPlay system. We will examine your case within a reasonable time frame. You may at our discretion be required to submit further information regarding the sale and warrant that the information you provide is fair and true.
5.1.5 You are obliged to return the item to the Merchant in the event that it is defective or not as described by the Merchant, or in the event that you claim non-delivery of an item which subsequently arrives.
5.1.6 You may only make one FairPlay claim per item.
5.1.7 The FairPlay guarantee does not apply to purchases which have been refunded in full or which have been subjected to a 'chargeback' by your credit card, or purchases from Merchants who are subsequently declared bankrupt, liquidated or placed into administration.
5.2 Conditions for Merchants
5.2.1 In the event of a dispute with a Buyer you are obliged to attempt to resolve this dispute to the best of your ability with the respective Buyer directly.
5.2.2 If such a dispute cannot be resolved satisfactorily and the Buyer submits a FairPlay guarantee claim we will contact you in order to ascertain more information about the order, in order to determine whether the sale was conducted per our Usage Policy and Code of Conduct laid out here.
5.2.3 Such requests for information must be responded to within five Working Days. If you fail to respond to us within five Working Days, or send a reply containing insufficient or incomplete information, this will result in the sale being reversed and the Buyer being refunded from your Merchant account.
5.2.4 You acknowledge and agree that if you fail to comply in full with our Usage Policy and Code of Conduct during the process of Listing and selling an item, we may reverse the sale and you explicitly agree that we may refund the Buyer and take the sum of any refund from your Merchant account.
5.2.5 If you have complied in full with our Usage Policy and Code of Conduct then the claim will either be rejected or the Buyer will be refunded by us.
5.2.6 Merchants who receive high amounts of claims from Buyers may have some or all of their account privileges revoked, including without limitation suspension or termination of their Rakuten Marketplace Merchant account.
We reserve the right to use the remedies in this Usage Policy and Code of Conduct whenever you fail to comply with them. Taking no action upon the breach of the Usage Policy and Code of Conduct does not mean we have waived our rights to enforce any of its provisions.
If any term of the Usage Policy and Code of Conduct is deemed invalided, void or unenforceable, that term will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
You may not assign or otherwise transfer, whether voluntarily or by operation of law, any rights or obligations under this Usage Policy and Code of Conduct without our prior written consent.
6.4 No warranties
Our services consist of providing you with the necessary information and tools that will allow you to do business through our Website. Whilst we are committed to providing a high standard of service, we shall use our best endeavours to make your experience as smooth as possible, please bear in mind that you use the Website and our services at your own risk. We make no warranties that the Website and our services will meet your requirements and will be uninterrupted or free from errors and that the quality of any item purchased or obtained by you through Rakuten Marketplace will meet your expectations. We may temporarily suspend your access to the Website in order to carry out maintenance, repairs, upgrades or to remove, add or alter our services.
6.5 Limitation of liability
You understand and you agree that we (including our parent, subsidiaries, affiliates, officers, directors, agents and employees) will not be liable to you in contract, tort (including negligence) or otherwise for: (i) loss of profits; (ii) loss of data; (iii) intangible losses; or (iv) any indirect, incidental, special and consequential damages, arising out of or in connection with this Usage Policy and Code of Conduct, your use of or inability to use the Website or your account, or your sale or purchase of any item via Rakuten Marketplace, or messages received or feedback posted to the Website, even if we have been advised of the possibility of such losses.
Our aggregate liability for any other damages of any kind arising out of or in connection with this Usage Policy and Code of Conduct will not exceed at any time the total amounts during the prior 6 (six) month period paid by you to us pursuant to your Rakuten Marketplace User Agreement.
Nothing in this Usage Policy and Code of Conduct limits or excludes our liability for fraudulent misrepresentation, for death or personal injury resulting from our negligence or the negligence of our agents or employees or for any other liability that cannot be limited or excluded by law.
We have no responsibility for the transaction between you and any Buyer or Merchant, as applicable. In you have a dispute with a Buyer or Merchant, you release us (including our parent, subsidiaries, affiliates, officers, directors, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
You will compensate us in full (including our parent, subsidiaries, affiliates, officers, directors, agents and employees) for any losses or costs, including reasonable legal fees, we incur arising out of any breach by you of this Usage Policy and Code of Conduct or your violation of any law or infringement of the rights of a third party.
6.8 Relationship of parties
You and we are independent contractors, and nothing in this Usage Policy and Code of Conduct will be construed to create a partnership, joint venture, agency (save as stated above), franchise, sales representative or employment relationship between the parties.
6.9.1 We will send notices and other communications to you at the e-mail address you have provided to us. You must send all notices and other communications to us by using the applicable Contact Us form. Any notices sent by e-mail or via the Contact Us form will be deemed to have been received 24 hours after the time sent by the sender. Any notices sent by first class post to the address held on file in the Merchant account will be deemed to have been received on the next Working Day.
6.9.2 Any notices issued by us that appear on our Website will be deemed to have been received when you next use the Website, unless expressly stated otherwise in this Usage Policy and Code of Conduct or in such notice.
6.10 Obligations that survive termination
All provisions in this Usage Policy and Code of Conduct, which by their nature are intended to survive expiration or termination shall survive any expiration or termination of the contract between us, including without limitation sections 2.6.2, 2.6.3, 2.6.4, 4.1.9, 4.2.14, 4.4.11, 4.4.13, 6.4, 6.5, 6.6 and 6.7.
6.11 Third party rights
The legally binding contract between us and you is governed by the terms set out in this Usage Policy and Code of Conduct. A person who is not a party to this Usage Policy and Code of Conduct has no right to enforce these terms.
6.12 Force majeure
We will not be liable for any delay or failure to perform any of our obligations under this Usage Policy and Code of Conduct by reasons, events or other matters beyond our reasonable control and which is considered as force majeure under Luxembourg law.
6.13 Governing law and jurisdiction
This Usage Policy and Code of Conduct and any dispute or claim arising out of or in connection with them or their subject matters (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Grand-Duchy of Luxembourg and subject to the non-exclusive jurisdiction of the courts of Luxembourg.