BUYER TERMS AND CONDITIONS
Welcome to Fractured. Please review our terms and conditions (Terms) before using our platform. If you have any questions in relation to these Terms, please contact us using the contact details set out below.
Our contact details:
Fractured UK Limited, a company registered in England and Wales. Our company registration number is 16192235 (we, us or our).
Address: Jump Accounting, 131 Finsbury Pavement, London, United Kingdom, EC2A 1NT
Email: [email protected]
1. Introduction
We provide a platform called ‘Fractured’ where vendors of sustainable consumer goods (Brand) and consumers (Buyers) can connect and transact to purchase goods (Platform).
These Terms contain the terms and conditions on which we supply the Platform to you.
These Terms are entered into between us and you, together the Parties and each a Party. In these Terms, you or your means (as applicable) the person or entity registered with us, as a Buyer, or the individual accessing or using the Platform.
If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
2. Acceptance and Platform Licence
You accept these Terms by accepting these Terms on the Platform.
If a Buyer or individual accessing or using the Platform of any of the Services is under the age of 18, these Terms must be accepted on behalf of person by the person’s parent or legal guardian. The parent or legal guardian agrees that they have legal authority to accept these Terms on behalf of the person, and warrants and agrees:
(a) that there are no consent or court orders in place preventing them from making decisions on behalf of the person;
(b) they have read, understood, and agree to these Terms, and informed the person of the contents of these Terms and about the Platform; and
(c) they have read, understood, and agree to these Terms, and informed the person of the contents of these Terms and about the Platform; and
We may amend these Terms at any time, by providing written notice to you (including via the Platform). By clicking “I accept”, or similar, or continuing to use the Platform. If you do not agree to the amendment and it adversely affects your rights, you may cancel these Terms with effect from the date of the change in these Terms by providing written notice to us within 7 days of us notifying you of the change. If you cancel these Terms, you will no longer be able to use the Platform on and from the date of cancellation.
Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.
When using the Platform, you must not do or attempt to do anything that is unlawful or inappropriate, including:
(a) anything that would constitute a breach of an individual’s privacy or any other legal rights (including uploading private information or Personal Data without an individual's consent);
(b) using the Platform to defame, harass, threaten, menace or offend any person;
(c) using the Platform for unlawful purposes;
(d) interfering with any user of the Platform;
(e) tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);
(f) using the Platform to send unsolicited electronic messages;
(g) using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; and
(h) facilitating or assisting a third party to do any of the above acts.
3. Accounts
You may register on the Platform and create an account (Account) to access the Platform’s features.
You may only have 1 Account as a Brand, and 1 Account as a Buyer on the Platform.
You must provide basic information when registering for an Account including your contact name, phone number and email address and you must choose a username and password. The username you choose must not (1) be offensive or in other ways insulting or (2) contain characteristics which belong to a third party, including names of famous persons, or other names to which you do not own the rights.
Once you have registered an Account, your Account information will be used to create a profile.
You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer it to others.
You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.
We may make access to and use of certain parts of the Platform subject to conditions or requirements, including identity verification, cancellation history, quality of services and threshold of reviews. You agree to be bound by and to comply with these conditions or requirements.
4. Platform summary
The Platform is a marketplace where you can find Brands and buy goods online. We provide the Platform (including hosting and maintaining the Platform) to users and process payments between Buyers and Brands for a seamless shopping experience (together the Fractured Services). We will provide the Fractured Services in accordance with these Terms and all applicable laws, and we warrant to you that the Fractured Services will be provided using reasonable care and skill.
You understand and agree that we only make available the Fractured Services. We are not party to any agreement entered into between you and a Brand, and we have no control over the conduct of Brands, Buyers or any other users of the Platform.
You may browse listings made by Brands wishing to sell their goods (Brand Listing). Where you wish to purchase the goods listed in a Brand Listing, you may send a request through the Platform. The request is an offer from you to the Brand to buy the goods described in the Brand Listing, for any price described in the Brand List (Purchase Request). If the goods are ‘in stock’ on the Platform, your purchase request will automatically be accepted, and it will become a Confirmed Purchase. Where the goods are not available, we will contact you via email to inform you that the Brand is unable to fulfil your Purchase Request and any amounts paid by you upfront in respect of the Purchase Request will be refunded to you.
Once you have a Confirmed Purchase, the Brand is responsible for postage and shipping of the goods. Where you are required to pay a delivery fee in respect of the Confirmed Purchase, this will be set out in the Brand Listing. Where available to us, we may provide you with a tracking number for your Confirmed Purchase, however we make no guarantees in respect of the tracking number.
5. Promotional Opportunities and Discount Codes
As a Buyer, we may from time-to-time issue promotional discount codes to you for use on the Platform. [To claim the discount, you must enter the promotional discount code at the time of submitting your Purchase Request on the Platform.] The conditions of use relating to promotional discount codes will be set out on the Platform. We may also from time to time run competitions on the Platform or on social media. These competitions are subject to terms and conditions which will be made available on the Platform at the time of the competition.
6. Communication
We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as text message or email.
You must not communicate with a Brand outside of our Platform, and all communication between you and the Brand must occur via the Platform. You must not organise the provision of the goods off the Platform or otherwise attempt to circumvent the payment of any fees to us.
7. Payments
As a Buyer, you agree to pay (and your chosen payment method will be charged) the fees set out in the Brand Listing (Listing Fees) at the time that the Purchase Request becomes a Confirmed Purchase.
The payment methods we offer are set out on the Platform. We may offer payment through a third-party provider such as Apple Pay. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.
You must not pay, or attempt to pay, any amount in connection with these Terms by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.
You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Platform.
We reserve the right to place a hold on any funds transacted through the Platform in connection with a Confirmed Purchase. Funds may be held in the event of a dispute, to allow time for resolution of the dispute, or where we reasonably believe that a transaction may violate these Terms or applicable laws. If funds are placed on hold, we will provide notice to the applicable Buyer and Brand detailing the reasons for the hold. We do not pay interest on any funds held pursuant to this clause 7. You agree that we shall have no liability for any losses or damages arising out of our decision to hold funds in accordance with this clause 7.5. This clause shall not be interpreted to obligate us to hold funds in any particular situation, and our decision not to hold funds does not transfer any liability to us arising from or related to the applicable transaction.
We reserve the right to place a hold on any funds transacted through the Platform in connection with a Confirmed Purchase. Funds may be held in the event of a dispute, to allow time for resolution of the dispute, or where we reasonably believe that a transaction may violate these Terms or applicable laws. If funds are placed on hold, we will provide notice to the applicable Buyer and Brand detailing the reasons for the hold. We do not pay interest on any funds held pursuant to this clause 7. You agree that we shall have no liability for any losses or damages arising out of our decision to hold funds in accordance with this clause 7.5. This clause shall not be interpreted to obligate us to hold funds in any particular situation, and our decision not to hold funds does not transfer any liability to us arising from or related to the applicable transaction.
You are responsible for all taxes, levies or duties imposed by taxing authorities or customs in your own country, and you shall be responsible for the payment of them. We have no responsibility to them on your behalf.
We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.
8. Refunds and Cancellation Policy
If you have rights to cancel a Confirmed Purchase during the relevant cooling off period under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the Brand is responsible for facilitating the cancellation and any refund in accordance with those Regulations, and they must ensure that the Refund Period in the refund policy on the Platform, at a minimum, meets the requirements under the Regulations.
The Brand sets the refund policy which is stipulated on their Brand Listings on the Platform. Where the Brand makes changes to their refund policy, the refund policy made available to the Buyer at the time they made their Confirmed Purchase will be the refund policy which applies to that Confirmed Purchase.
In the event of a dispute between you and a Brand regarding a Confirmed Purchase:
(a) you agree to make reasonable efforts to resolve the dispute directly with the Brand in good faith;
(b) if you and the Brand are unable to resolve the dispute within 14 days from the date the dispute is raised, either party may escalate the dispute to us for mediation;
(c) you agree to cooperate fully with our dispute resolution process, including providing any relevant information or evidence we may reasonably request to assist in resolving the dispute;
(d) where you have referred the dispute to us, we reserve the right to make a final decision regarding any dispute, which may include, but is not limited to, requiring the Brand to issue a full or partial refund of the Listing Fees, or allowing you to retain the purchased item without further payment; and
(e) you agree to abide by our decision in resolving any dispute.
However, this does not affect your statutory rights or the Brand’s statutory rights under applicable consumer protection laws.
9. Intellectual Property
All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, the Platform itself and any content on the Platform (except Buyer Content)) (Our Intellectual Property) will at all times vest, or remain vested, in us.
We authorise you to use Our Intellectual Property solely for the purposes for which it was intended to be used.
You must not, without our prior written consent:
(a) copy, in whole or in part, any of Our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
(c) breach any Intellectual Property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of Our Intellectual Property.
Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:
(a) you do not assert that you are the owner of Our Intellectual Property;
(b) unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;
(c) you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and
(d) you comply with all other provisions of these Terms.
(d) you comply with all other provisions of these Terms.
This clause 9 will survive the termination or expiry of these Terms.
10. Content you upload
You may be permitted to post, upload, publish, submit or transmit relevant information and content (Buyer Content) on the Platform.
We may run campaigns via the Platform and via social media that encourage you to post Buyer Content on social media using specific hashtags (#) (Tag).
If you make any Buyer Content available on or through the Platform, including on social media using a Tag, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the Buyer Content, with the right to use, view, copy, adapt, modify, distribute, license, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such Buyer Content on, through or by means of the Platform and our social media platforms. We agree to only modify Buyer Content to the extent reasonably required by us. You may request that any of your Buyer Content is removed from the Platform or social media by sending us an email. We will endeavour to action any removal requests within a reasonable time. This does not limit any rights you may have under any applicable privacy laws.
You agree that you are solely responsible for all Buyer Content that you make available on or through the Platform, including on social media using a Tag. You represent and warrant that:
(a) you are either the sole and exclusive owner of all Buyer Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such Buyer Content (as contemplated by these Terms); and
(b) neither the Buyer Content nor the posting, uploading, publication, submission or transmission of the Buyer Content or our use of the Buyer Content on, through or by means of our Platform (including on social media) will infringe, misappropriate or violate a third party’s Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We do not endorse or approve, and are not responsible for, any Buyer Content. We may, at any time (at our sole discretion), remove any Buyer Content.
If you believe that any Buyer Content on the Platform is an infringement of your Intellectual Property rights, please contact us using the contact details set out at the top of these Terms, and we may investigate.
This clause 10 will survive the termination or expiry of these Terms.
11. Warranties
You represent, warrant and agree that:
(a) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms; and
(c) all information and documentation that you provide to us in connection with these Terms is true, correct and complete.
12. Data Protection
We understand that protecting your Personal Data is important. We set out how we handle your Personal Data in our Privacy Policy, available on our website.
We process Buyers' Personal Data, and Brands process Buyers’ Personal Data (for example, the Buyer’s name and delivery address), as separate and independent controllers. This means that we and Brands are responsible for the Personal Data of Buyers we each process.
13. Limitations on liability
Nothing in these Terms limits any Liability which cannot legally be limited, including Liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) defective products under the Consumer Protection Act 1987.
This clause 13.2 applies if you are a ‘consumer’ as defined in the Consumer Rights Act 2015 and to the extent that the Platform is considered digital content. If the Platform is defective and it damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services; and
(b) any aspect of the Buyer and Brand interaction including the goods offered by the Brand, the description of the goods requested or offered, any advice provided, or the supply and delivery of goods by the Brand.
Subject to clause 13.2 (damage caused by defective digital content) and clause 13.1 (liability which cannot legally be limited), but despite anything to the contrary, to the maximum extent permitted by law:
(a) you agree to indemnify us for any Liability we incur due to (i) your breach of the Acceptance and Platform Licence clause (clause 2), and (ii) your breach of the Intellectual Property clause (clause 9) of these Terms;
(b) we will have no liability to you for any loss of profit, loss of business, loss of data, business interruption, or loss of business opportunity;
(c) a Party’s liability for any liability under this Agreement will be reduced proportionately to the extent the relevant liability was caused or contributed to by the negligent or unlawful acts or omissions of, or breach of this Agreement, by the other Party; and
(d) our aggregate liability for any and all Liability arising from or in connection with these Terms will be limited to 100% of the Listing Fees for the relevant Confirmed Purchase.
We have given commitments as to the compliance of the Platform with these Terms and applicable Laws in clause 4.3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the maximum extent permitted by law, excluded from these Terms.
This clause 13 will survive the termination or expiry of these Terms.
14. Termination
You may cancel your Account at any time, using the ‘cancel Account’ functionality (or similar) in the Account page section of your Account settings. Your cancellation will take effect immediately. Any Confirmed Purchase made prior to cancellation will be fulfilled by the relevant Brand.
We may terminate these Terms at our discretion, effective immediately, including if we no longer intend to operate the Platform (Termination for Convenience).
These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
Should we suspect that you are in breach of these Terms, we may suspend your Account while we investigate the suspected breach, or we may cancel your Account (acting reasonably).
Upon expiry or termination of these Terms:
(a) where terminated by us under clause 14.3, we may cancel any Confirmed Purchases made prior to termination;
(b) we will remove your access to the Platform and your Account may be deleted once any Returns Period for all Confirmed Purchases has passed;
(c) we will immediately cease providing the Fractured Services; and
Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause 14 will survive the termination or expiry of these Terms.
15. General
Assignment: Subject to the below clause 15.2, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
Confidentiality: Other than where the disclosure is permitted by law, each Party agrees not to disclose any confidential information it may access on or through the Platform to a third party, or otherwise misuse such confidential information. Confidential information may include confidential information supplied to you by us, by a Buyer, or by a Brand.
Contracts (Rights of Third Parties) Act 1999: Notwithstanding any other provision of these Terms, nothing in these Terms confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.
Disputes: Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are not happy with how we have handled any complaint, and:
(a) you are a resident or incorporated in England and Wales, you may want to contact the alternative dispute resolution provider we use. You can submit a complaint to The Centre for Effective Dispute Resolution via their website at https://www.cedr.com/. The Centre for Effective Dispute Resolution will not charge you for making a complaint and if you are not satisfied with the outcome you can still bring legal proceedings; and
(b) we will remove your access to the Platform and your Account may be deleted once any Returns Period for all Confirmed Purchases has passed;you are not resident or incorporated in England and Wales, you may refer the matter to arbitration administered by the London Court of International Arbitration (LCIA), with such arbitration to be conducted in London, before one arbitrator, in English and in accordance with the LCIA Arbitration Rules.
Entire Terms: Subject to your consumer law rights (if applicable), these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations, and uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
Governing law: These Terms are governed by the laws of England and Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in England and Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Publicity: You agree that we may advertise or publicise the broad nature of our supply of the Fractured Services to you, including on our website or in our promotional material.
Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
16. Definitions
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us any fees under these Terms will not constitute “Consequential Loss” for the purposes of this definition.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, business names, get-up, goodwill, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), misrepresentation, restitution, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Personal Data has the meaning given in the Data Protection Act 2018.
Returns Period means the period of time, as specified by a Brand on the Platform, within which you may request a refund for the goods purchased for change of mind (subject to any reasonable restrictions, and subject to your consumer law rights).
