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Terms and Conditions for Retailers

Standard Terms and Conditions

1.      Definitions and Interpretations

The following words shall have the following meanings:

Confidential Information” any information not in the public domain relating to Operator, any Seller, their business practices, intellectual property or customers, including any personal information (as defined in the Data Protection Act) collected through the Website
"Commission Fee" the fee detailed as 'Commission Fee' in the Memorandum;
Fundraising Percentage” the percentage set forth in the Memorandum to be set aside as part of any fundraising scheme then in operation on the Website
Memorandum” a written agreement signed by Operator and Seller incorporating these terms and conditions by reference.
"Operator" as defined in the Memorandum
Online Marketplace” the selling forum constituted by the Website
Payment Gateway” the party appointed to process secure payments
Published Policies” such policies as shall from time to time be published by Operator in relation to the Service and the standards of service expected to be provided to Shoppers, including without limitation as the operational requirements underlying the provision of the Services by Operator such as the provision of information, advertisements, formatting of catalogues, image size and content and the like and for financial reporting and accounting and the implementation of any terms and conditions of any agreement between the Operator and the Payment Gateway.
"Seller" any person who has contracted to receive the Services by signing the Memorandum.
Services” the on-line resources, including the Online Marketplace, offered from time to time by Operator to Seller
Shopper” a person, firm or company who makes an offer to purchase products from the Seller by means of the Service.
"Standard Sales Terms" the terms of sale to Shoppers as set out on the Website from time to time

2.      Description of the Service

2.1 Operator is the owner of the Website and provides Sellers with access to a range of on-line resources, including the Online Marketplace. Operator reserves the right to withdraw, limit, revise, add to or alter the Service at any time in accordance with these terms and conditions.

2.2 The Website is an on-line venue that allows Sellers to advertise and offer their products and services direct to Shoppers. As a consequence:
2.2.1 Operator acts as the non-exclusive agent of Sellers;
2.2.2 Any contract to buy is between the Seller and the Shopper;
2.2.3 Products offered for sale are neither owned by nor in the possession of Operator;
2.2.4 Operator accepts no responsibility for ensuring that Sellers and Shoppers conclude any transaction or perform their respective obligations under any contract concluded between them;
2.2.5 Operator bears no responsibility for the accuracy of any statements made by Sellers, including, without limitation, any descriptions, claims or advertisements
2.2.6 Operator’s sole responsibility is to process payment in accordance with the online payment system in operation on the Website and to account to Seller in respect thereof as set out in this Agreement
2.2.7 Seller is solely responsible for the raising of any invoice and accounting for any VAT or sales tax in respect of the sale of goods or provision of services between Seller and a Shopper and the performance of any sales agreement between Seller and Shopper.

2.3 The Service allows Sellers to display their products in the most appropriate categories and with product information, pictures and promotions provided by them, which Sellers can amend and update.  Sellers are responsible for designing, creating, managing and amending any graphics or product images, subject to Operator's general content policies and operational requirements in force from time to time both as to content and means of submission.

2.4 Operator does not currently charge any joining fee or subscription fee or transaction-based fee, other than the Commission, but reserves the right to implement such fees at a later date, subject to 30 days notice, during which Sellers may serve notice to terminate this agreement if they wish.

2.5 A Commission Fee is payable by the Seller.  The Commission Fee is a percentage of the value of sales (exclusive of VAT and shipping costs) made through the Website by a Seller at a rate set out in the Memorandum and agreed annually thereafter. The Commission Fee is subject to VAT, when applicable.  Operator will refund any Commission paid in respect of sales made but subsequently refunded to Shoppers less any deductions and retentions set out herein.

2.6 The Fundraising Percentage will be calculated and paid in the same way as the Commission Fee.  If already paid when a refund is made to a Shopper, the Fundraising Percentage will not be returnable to Seller.

3.      Duration and Termination of this Agreement

3.1 A contract shall be concluded only when Operator and Seller sign the Memorandum.  It shall continue, subject to 3.3, until 30 days after either party gives written notice to the other of its desire to terminate unless Operator shall serve notice that it intends to withdraw the Service in which case the termination shall take immediate effect.  In the event of any conflict between these terms and conditions and any terms of the Memorandum, the Memorandum shall prevail.

3.2 Operator may add to, update and amend these terms & conditions, the Published Polices and the Standard Sales Terms from time to time, including as to the fees and charges imposed by Operator and shall give no less than 30 days notice thereof to Sellers (unless short notice is reasonably necessary for any legal reason) during which time Sellers may serve notice to terminate this agreement   Notice of any amendments may be given by Operator either by sending amended versions to Sellers by e-mail or by mail, or by posting amended versions on the Website. 

3.3 Operator may terminate this agreement with immediate effect if Seller shall be in breach of its warranties, representations or undertakings hereunder or shall or is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into liquidation

4.      Provision of the Service

4.1 Operator will use all reasonable endeavours to maintain the Website in operation, subject to any events, including server failure, beyond its direct reasonable control.  Operator will also use reasonable endeavours to restore any faults in the Service as soon as reasonably practicable, it being accepted by Seller that using the Internet for any business purpose is inherently unstable and that it is technically impossible to provide the Service entirely free of fault at all times.

4.2 Seller acknowledges that it is Seller’s responsibility to check the Website on a regular basis to make and keep itself aware and notified of any changes made by Operator to these terms & conditions, the Standard Sales Terms and its Published Policies.

4.3 If the Seller wishes to promote the same product and/or service on the Website as another Seller, it shall be solely the responsibility of the Sellers to resolve between themselves any conflict arising in this respect. Operator shall have no responsibility or liability for any such scenario or any issues arising from any such scenario.

4.4 Operator has the absolute discretion as to the look, feel and content of the Website (including without limitation the manner in which the Seller’s goods shall be presented for sale).

5.      Basic Standard of Sales Service

5.1    Seller warrants and represents that its business and all Seller Materials comply with all applicable legislation and that the products offered for sale by it are fit for the purpose for which they are intended and are safe.  Seller will add Operator as an additional beneficiary to any product liability insurance in force from time to time.

5.2 The Seller’s terms and conditions of sale to each Shopper shall incorporate the provisions of the Standard Sales Terms. 

6.      Seller’s Undertakings

6.1 Seller will ensure that all information supplied electronically to Operator and to the Website is submitted free from viruses and that all information supplied by Seller to Operator or posted on the Website or provided to Shoppers is true, accurate, current and complete and complies with all applicable legislation.

6.2 Seller will comply at all times with Operator's Published Policies and will ensure that all technical and administrative systems including the dispatch of goods and the response to all Shopper enquiries and complaints shall be maintained effectively and will comply with all applicable laws and regulations

6.3 Seller will ensure that all items offered for sale by it are not replica or design copies of any other brand, designer or manufacturer, and that no brand name or trademark not owned by the Seller is used in connection with a product, whether by implication or actual use

6.4 Seller will not offer its products for sale through a similar or competitive on-line marketplace as that offered by the Operator (other than the Seller’s own website) at a price which is less than that offered by the Seller on the Website except for short term special promotions

6.5 No information or material provided by Seller will be false, inaccurate or misleading, offensive, indecent, obscene, pornographic, menacing, abusive, defamatory or in poor taste, be in breach of copyright, confidence, privacy or any other rights of any third party and, in particular, will not infringe any third party's intellectual property rights, trade secrets or other proprietary rights or rights of publicity or privacy, be fraudulent or involve the sale of counterfeit or stolen items or in breach of any applicable laws or regulations, create, or be likely to create, liability for Operator or cause Operator to lose (in whole or in part) the services of its internet service or other suppliers

6.6 Seller will cooperate with all activities undertaken by Operator to promote, sell or market the Website and Seller’s products via the Website or in off-line publications promoting the Website.

7.      Intellectual Property Rights

7.1 All Intellectual Property Rights in the Website, in the Service, in all of the Operator’s logos and images and any documentation prepared by Operator are and will remain the absolute property of Operator or its licensor's as appropriate.  Any Intellectual Property Rights created by Operator in the course of the performance of this agreement or otherwise in the provision of the Service shall remain Operator's property. 

7.2 Seller grants to Operator the right to use all materials submitted by it to Operator (which materials include the data, information, photographs, logos and images it has provided or uploaded to Operator) on the Website and in any promotional or other materials issued by Operator in connection with the Website, which rights are hereby granted by Seller to Operator for the duration of this Agreement, it being understood that following termination of this Agreement Operator will remove Seller’s material from the Website as soon as reasonably practicable but shall not be obliged to retrospectively amend any sales or other promotional literature already in existence.

7.3 Seller warrants and represents that it has full power and authority to grant the rights hereby granted or purported to be granted either because it is the legal beneficial owner of all intellectual property rights therein or because it has a valid transferable license that entitles it to grant such rights and that to the best of Seller’s knowledge, information and belief the use of such materials by Operator pursuant to these terms & conditions will not infringe the intellectual property rights owned by any third party and that there is and will be no claim against Operator by any third party arising in relation thereto.  Seller further undertakes to indemnify Operator from and against all costs, claims and liabilities (including costs) incurred by Operator by reason of any breach or alleged breach of these warranties and representations

7.4 This clause shall survive the termination or expiration of these terms & conditions.

8.      Charges and payment terms between Seller and Shopper

8.1 Payment for goods on the Website shall be made directly by a Shopper to Operator, as receiving agent on behalf of Seller, using the on-line payment gateway in operation from time to time on the Website.  All sums held by Operator shall be free of any trust, the obligation of Operator hereunder being one under the laws of contract to account for those sums as provided herein.

8.2 The terms and conditions of sale between the Seller and the Shopper shall provide that payment by the Shopper and the placing of an order by completing the online purchase process constitutes an offer to purchase by the Shopper, the acceptance of which is at the Seller’s discretion and is subject to the availability of the goods.  Said offer shall be accepted, rejected and processed in accordance with the Published Policies in force from time to time.

8.3 Operator shall account to the Seller for the relevant transaction less the Commission Fee and any other charges levied in accordance with this agreement less the applicable VAT and a percentage, equal to the Commission percentage, of the charges levied by any payment gateway in operation on the Website from time to time plus the Fundraising Percentage, all at the times and in the manner set forth in the Published Policies relating to accounting.

8.4 Unless specified otherwise, all charges quoted by Operator to Seller are shown exclusive of any value added tax or other similar taxes or levies all of which amounts the Seller shall pay, where appropriate, at the rate prevailing at the relevant tax point in addition to the charges themselves. Unless specified otherwise, all charges are subject to value added tax.

8.5 If any sum due from the Seller to Operator under this agreement is not paid on or before the due date for payment then all sums then owing by the Seller to Operator shall become due and payable immediately and, without prejudice to any other right or remedy available to Operator, Operator shall be entitled to exercise any right of set off in respect of any other amounts held by Operator for Seller, cancel or suspend its performance of this agreement or any order including suspending provision of the Service until arrangements as to payment or credit have been established which are satisfactory to Operator and charge the Seller the cost of obtaining judgement or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

8.6 Any requests by a Shopper for refunds or chargeback shall be dealt with in accordance with the Published Policies in force from time to time.  Operator reserves the right to charge the Seller an administration fee of 5% of any amount refunded to the Shopper and any fees charged by the Payment Gateway as a result of a refund or chargeback.

9. Confidentiality

Both parties agree to ensure the continued confidentiality of the Confidential Information but so that this obligation shall not extend to any matter which either party can show is in, or has become part of, the public domain other than through a breach of the contract; was lawfully in the possession of the recipient before the disclosure under the contract took place, was independently disclosed to it by a third party entitled to disclose the same or is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.  The obligations of confidentiality under this agreement shall remain in effect for two (2) years after the termination or expiry of this agreement.  Nothing in this clause restricts or limits the obligations of either party under the Data Protection Act.

10.    Exclusion and limitation of liability

Nothing in this agreement excludes or limits the liability of Operator for death or personal injury caused by Operator's negligence, or for fraudulent misrepresentation but Operator's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the provision of the Service and performance or contemplated performance of this agreement shall be limited to the maximum value of £1,000.  Operator shall not be liable to the Seller for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the contract, or for any liability incurred by the Seller to a Shopper or to any other person for any economic loss, claim for damages or awards howsoever arising from the provision of the Service or any failure therein or otherwise.
11. Events beyond Operator’s or Seller’s reasonable control

Operator reserves the right to suspend or to cancel the contract in whole or in part (without liability to Operator) if it is prevented from or delayed in the carrying on of its business and its obligations under this agreement and Seller’s shall not be in breach of its obligations under this agreement if such events are due to circumstances beyond its reasonable control including, without limitation, acts of god, fire, flood, lightning, war, revolution, acts of terrorism, industrial disputes (whether of its own employees or others) or acts of local or central government (including the imposition of legal or regulatory restrictions).

12.  Data Protection

Seller agrees that the Operator may retain and process personal information provided by it to Operator for purposes connected with the performance of this agreement and that Operator will be the data controller of this information for the purposes of the Data Protection Act 1998.  Seller agrees that Operator may disclose this information to any governmental authority or if required by law and to other companies which are associated or affiliated with the Operator for all purposes connected with the conduct or promotion of the Operator’s business from time to time whether such associated or affiliated companies are situated in the EU or not.  Seller understands that the Operator will provide Seller with details of any such disclosures on request and also understand that some countries may not have laws to protect personal information.

13. General

The waiver by either party of any breach of this agreement or delay in enforcing any breach shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision. If at any time any one or more of these terms & conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the contract and the validity and/or enforceability of the remaining provisions of the contract shall not in any way be affected or impaired as a result of that omission. Notices given under the contract must be in writing and may be delivered by hand or by courier, or sent by prepaid first class or registered mail to the address set out in the Memorandum of Agreement or any alternative address either notifies to the other in accordance with this provision but so that if any provision of this agreement allows for notice to be served in a different manner, such provisions will continue to have effect.  Notices may be sent by email provided that, to be effective, the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a return receipt. 

14. Law and Jurisdiction

This agreement shall be governed by English law and subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.