Terms and Conditions For Sun Device Limited
Last updated: 01/07/2019
1.1 In these Conditions:
‘Buyer’ means a Member who has accepted an offer to purchase Products.
‘Conditions’ means Sun Device’s terms and conditions as set out in this document and that apply to a person or entity’s use of the Platform, as amended from time to time.
‘Fee’ means Sun Device’s fee which shall be calculated and payable in accordance with clause 6.2, and which may be amended from time to time as notified by Sun Device to the Vendor.
‘Intellectual Property’ means all intellectual and industrial property rights including without limitation, logos, brand names, images, designs, photographs, video clips, other materials that appear as part of a website, copyright, database rights and rights in computer software, domain names, business names, trade marks, service marks, trade dress, rights in get-up and goodwill, the right to sue for passing off and any other intellectual property rights whether registered or unregistered and existing now or in the future.
‘Member’ means a member who creates an account on the Platform.
‘Platform’ means the peer to peer market place, www.sun-device.com.
‘Pricing Rule’ shall have the meaning assigned to it in clause 6.1(b).
‘Product’ means an electronic product and all other items made available for sale by Vendors through the Platform.
‘Vendor’ means a Member who offers for sale and sells Products to Buyers.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.1 Sun Device operates a peer to peer Platform that allows Members to offer, sell and purchase Products from other Members. As a marketplace, Sun Device does not own or sell the Products listed on the Platform. A Buyer’s contract for sale in respect of such a Product is made directly with the Vendor that sells that Product to the Buyer. These Conditions set out the terms upon which you may access and use the Platform. By accessing and using the Platform, you agree to be bound by these Conditions. If you do not agree to be bound by these Conditions, you should stop using the Platform.
3. Information about us
3.1 The Platform is operated by Sun Device Limited (“Sun Device”) which is a private limited company, registered in Ireland under company number 632651 and having its registered address at Clifton House, Fitzwilliam Street Lower, Dublin 2, D02 XT91.
3.2 If you wish to contact us, please email email@example.com.
4. Sun Device’s role and responsibilities
4.1 The Platform gives Members the ability to offer for sale, sell and purchase Products from other Members. You acknowledge and confirm that:
(a) Sun Device is independent to its Members and has not been appointed as an agent on behalf of any Member and therefore cannot act on behalf of that Member or bind any Member;
(b) where you buy or sell a Product, your contract for sale will be with the Vendor or Buyer as applicable, and not with Sun Device;
(c) Sun Device may, but shall not be obliged, assist in resolving disputes between Members; and
(d) In no event (and without prejudice to clause 11.4) will Sun Device be liable to any Member or any third party for any loss or damages arising out of or in connection with Products offered for sale or purchased on the Platform.
5.1 In order to be able to offer, sell and purchase Products through the Platform, you may be required to register on the Platform to create an account in order to become a Member.
5.2 By applying to register for an account, you shall provide the following information relating to the entity you represent to Sun Device:
(a) company number;
(c) copy of identity documents relating to the entity’s beneficial owners;
(d) EU VAT number;
(e) contact details;
(f) bank account details; and
(g) any other documents that Sun Device may request.
5.3 By applying to register for an account, you represent and warrant that:
(a) all information you provide, now or in the future, is accurate and that you will maintain the accuracy of such information; and (b) you have authority to bind yourself and any entity on whose behalf you access and use the Platform, including to purchase or sell Products.
5.4 Sun Device reserves the right, in its sole discretion, to refuse registration of an account for any reason.
5.5 If you choose, or are provided with, a password or any other log-in details to access your account as part of our security procedures, you must treat such information as confidential and you must not disclose it or make it available to any third party. You agree to immediately notify us of any unauthorised use of your log-in details or of any other breach of security that might impact on the Platform and/or Members. Sun Device shall not be liable for any loss or damage arising from your failure to comply with this provision.
Use of the Platform
5.6 Subject to these Conditions, Sun Device grants the following licences:
(a) Members: Members may access, browse and use the Platform in order to purchase and sell Products and make enquiries to Members in respect of Products offered for sale and in a way permitted by these Conditions.
(b) Non-members: Non-members may access and browse the content displayed on the Platform in a way permitted by these Conditions.
5.7 In relation to the Platform, you agree that you shall:
(a) not modify, adapt, translate, make derivative works of, reproduce, republish, transmit or distribute in any way any material or content from the Platform, except where specifically authorised by us;
(b) not access, view or use the Platform in order to build a competitor website, app, platform or marketplace;
(c) not access, screen scrape, retrieve or index any portion of the Platform or reframe or reformat any of the content thereon;
(d) not use the Platform to harvest or otherwise collect by any means data, program material or any other information whatsoever about Members or Sun Device (including without limitation, email addresses and personal data of Members) for any purpose other than for the purposes of making or responding to enquiries about Products displayed on the Platform or negotiating or conducting sales of Products through the Platform;
(e) not misuse the Platform by knowingly or recklessly introducing viruses, trojans, worms, logic bombs or other material which is malicious or harmful;
(f) not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform;
(g) not attack the Platform via a denial-of-service attack or a distributed denial-of-service attack;
(h) not use the Platform to engage in any spam mail or other unwanted correspondence;
(i) not carry out any form of network monitoring or intercept any communications transmitted in connection with the Platform;
(j) ensure that your use of the Platform and any activities conducted in connection with it comply at all times with applicable laws and is strictly in accordance with these Conditions;
(k) not use the Platform in any manner that would damage the reputation of Sun Device or bring it into disrepute or conflict;
(l) ensure that any Products you offer for sale or sell through the Platform comply with all applicable laws and are strictly in accordance with these Conditions;
(m) not engage in any illegal activities in relation to the Platform, including offering for sale or selling any fake or counterfeit Products or any items that otherwise breaches another’s rights or applicable laws, including Intellectual Property rights and product safety laws;
(n) not offer for sale or sell any prohibited items;
(o) not engage in any conduct that is intended to obtain the transfer of money without in return delivering a Product that is compliant with these Conditions and is of the same value as the requested sum of money or fail to pay for Products purchased by you, except to the extent set forth herein;
(p) not engage in any form of fraud or misleading practices with respect to Products offered for sale or sold through the Platform;
(q) not unfairly or unlawfully interfere or manipulate any ratings system or feedback system;
(r) not purchase or sell a Product by making direct arrangements with the Buyer or the Vendor to use a payment method other than those made available through the Platform;
(s) not purport to or take any action which is deliberately designed to circumvent, reduce or manipulate any fees (including the Fee) or commission due to Sun Device;
(t) not apply to register for an account on the Platform by automated means or under fraudulent pretenses;
(u) not use or attempt to use another Member’s account, log-in details or credentials or attempt to obtain or solicit such from them; and
(v) not use the Platform in any way that is unlawful, deceptive or fraudulent or in any manner that has such a purpose or effect, including without limitation providing false data to Sun Device in order to apply for registration of an account or to a Member in connection with a Product.
Interactions with Members and user content
5.8 The Platform contains facilities that enable you to communicate with Members and also to post content to the Platform. You agree that when using the Platform for either of these purposes, you shall:
(a) not defame, abuse, harass, stalk, threaten or otherwise breach the rights of others and applicable laws (such as rights of privacy and Intellectual Property);
(b) ensure that any content you post to the Platform or interactions with Members are accurate, true and complete and are not liable to deceive or mislead any person;
(c) not publish, post, distribute or disseminate any defamatory, infringing, obscene, indecent or unlawful material or information;
(d) not upload or disseminate files or other materials that contain software or other material protected by Intellectual Property (or by rights of privacy) unless you own or control the rights thereto or are otherwise permitted by law to do so;
(e) not upload or disseminate files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Platform or another’s computer, device or information technology system; and
(f) comply with any content rules or rules concerning interactions with other Members that Sun Device may issue from time to time.
5.9 While the Platform facilitates interactions and communications between Members, you acknowledge that Sun Device has no obligation to verify the identity or statements of any Member and that any interactions or communications with Members are at your sole risk and solely between you and those other Members.
5.10 In the event that you post content to the Platform, you acknowledge that you are solely responsible for that content and you grant to Sun Device a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish that content on the Platform.
5.11 In connection with any content that you submit to the Platform, Sun Device reserves the right, in its sole discretion, to review, refuse, edit, delete or require to be amended, any of your content, including where we have determined that:
(a) there has been or may be a breach of these Conditions;
(b) your content does or might infringe a third party’s rights or applicable laws;
(c) your content does or might bring Sun Device’s business into dispute or conflict or otherwise might damage its reputation;
(d) your content is the subject of a complaint or legal action; or
(e) to correct typographical errors or technical inaccuracies that may appear in your content from time to time.
6.1 Where you act as a Vendor, you acknowledge and confirm that:
(a) you have the right to offer for sale and to sell each Product submitted to the Platform using your account, on the terms and conditions advertised and that you will not offer for sale or sell that Product, on behalf of an undisclosed third party;
(b) you shall promptly provide your list of inventory in respect of the Products that you shall offer for sale on the Platform to Sun Device and Sun Device shall notify you of the recommended price for the Product. You shall determine what the initial price of the Product shall be and the amount by which Sun Device may automatically increase or decrease the price (the “Pricing Rule”). The Product shall be made available on the Platform at the initial price determined by you and the price may thereafter be changed by Sun Device automatically every thirty (30) minutes in accordance with the Pricing Rule set by you;
(c) any list of inventory in respect of the Products that you shall provide to Sun Device to be incorporated within its online inventory displayed on the Platform shall be accurate and reflect the inventory held by you. Any online inventory of Products maintained by Sun Device shall remain valid for thirty minutes and will thereafter be updated by Sun Deviceroutinely every thirty (30) minutes;
(d) you are solely responsible for ensuring that any Products offered for sale comply with the relevant provisions of clause 5.7;
(e) you are solely responsible for testing any Products offered for sale to ensure that they are fit for purpose, comply with these Conditions and you shall be responsible for grading such Products in accordance with any criteria made known to the Vendor by Sun Device;
(f) you shall be solely responsible for providing customer service to Buyers, dealing with any complaints received and facilitating returns of Products. You must honour any customer service terms provided to Buyers. Your customer service terms are subject to Sun Device’s review and approval and shall include that you will accept from a Buyer the return of a defective product within a stated period and will undertake to provide to the Buyer an identical replacement or, where such is not available, provide a Product of equal value to that purchased by the Buyer;
(g) you shall be solely responsible for adhering to any contractual terms you agreed to with Buyers of the Products; and
6.2 In the event that a Vendor makes a sale of a Product through the Platform, the Buyer shall make payment for the Product to Sun Device though the Platform. Sun Device shall charge the Vendor a Fee of nine per cent (9%) for each sale of a Product made using the Platform. After receiving payment from the Buyer, Sun Device shall remit the proceeds for the Product received from the Buyer less its Fee to the Vendor not later than the twentieth day of the subsequent month.
6.3 If a Buyer fails to make any payment due in respect of a Product, the Vendor acknowledges and agrees that it shall have no recourse against Sun Device and that any such recourse it may have is against the Buyer solely.
6.4 The Vendor agrees that it is responsible for packaging and shipping any Products sold to Buyers promptly and that it shall complete delivery of the Product to the Buyer in any event within forty-eight (48) hours of Sun Device receiving payment for the Product from the Buyer. The Vendor agrees to send all Products by tracked delivery and to submit tracking numbers for Products to the Platform as soon as they are available.
6.5 The Vendor shall submit details of the couriers and other delivery methods it proposes to use to deliver Products to Sun Device and the Vendor shall not use any such delivery method unless and until Sun Device has approved it to use such for the delivery of Products.
6.6 Sun Device reserves the right, in its sole discretion, to require that a Vendor remove any Product offered for sale on the Platform or to amend the description of a Product, including where Sun Device has determined that:
(a) the Product or its description does not comply with applicable laws or these Conditions;
(b) the Product or its description might infringe a third party’s rights or applicable laws;
(c) the description of the Product is misleading or liable to mislead Buyers;
(d) the Product or its description does or might bring Sun Device’s business into disrepute or conflict or might otherwise damage its reputation;
(e) the Product or its description is the subject of a complaint or legal action;
(f) the Product is not operable in the country of destination or otherwise is not compatible with the country of destination; or
(g) the description of the Product contains typographical errors or technical inaccuracies.
7. Intellectual Property
7.1 All proprietary rights (including Intellectual Property) in the Platform, including the design of such and any information and content contained therein, are the valuable and exclusive property of Sun Device (or its licensors, where applicable), and nothing in these Conditions shall be construed as transferring or assigning any such ownership rights or any other interest in such rights to you or any other person or entity, except where otherwise stated.
8. Errors, changes and unavailability of the Platform
8.1 Sun Device and its Members may post content to the Platform from time to time, including describing descriptions of Products for sale and the prices of such, which shall be for illustrative and information purposes only. The Platform may contain errors, inaccuracies and omissions. Sun Device does not guarantee the accuracy, completeness, reliability or currency of the contents and information published on the Platform. Sun Device reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without notice but does not accept any liability for any failure to do so. In no event will Sun Device be liable for any content contributed to the Platform by Members.
8.2 Sun Device and/or its respective suppliers may, without notice to you, make improvements and/or changes in the Platform or any part thereof. This means that we may add or remove temporarily or permanently any content, feature, component or other functionality of the Platform. Sun Device shall not be liable to you or any third party for any changes to the Platform or any part thereof. Any changes to the Platform shall also be subject to these Conditions. If you are not happy with such changes, you can cease using the Platform.
8.3 The Platform may be temporarily unavailable from time to time for various reasons including, without limitation, due to required maintenance, telecommunications interruptions, or other disruptions. As such, access to the Platform is provided on an “as is” and “as available” basis and without warranties of any kind whatsoever. Sun Device will not be liable if for any reason the Platform, related apps or any part thereof is unavailable at any time.
9. Security of communications over the Internet
9.1 Whilst we have taken all reasonable security precautions, the nature of communication via the internet and other electronic means is such that we cannot guarantee the privacy or confidentiality of any information relating to you passing by such methods. In accessing the Platform and using it to communicate with other Members, you accept that communications may not be free from interference by third parties and may not remain confidential.
10. Links to third party websites
10.1 The Platform may contain links to websites owned or operated by parties other than Sun Device. Such links are provided for your convenience only. Sun Device does not monitor or control outside websites and is not responsible for their content. Sun Device’s inclusion of links to an outside website does not imply any endorsement of the material on our Platform or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor.
11. Liability and disclaimer of warranties
Important – Please read this section carefully as it addresses Sun Device’s liability to you.
11.1 You expressly agree that your access and use of the Platform is at your sole risk.
11.2 You hereby acknowledge and agree that the Platform is available for use ‘as is’ and ‘as available’, with no warranties of any kind whatsoever and that, without prejudice to the generality of the foregoing, we make no warranty regarding, and shall have no responsibility for, the accuracy, availability, reliability, security, fitness for purpose or performance of the Platform or the contents thereof. To the fullest extent permitted by applicable laws, we hereby expressly exclude all conditions, warranties, guarantees and other terms which might otherwise be implied by statute, common law or otherwise.
11.3 Nothing in these Conditions excludes or limits Sun Device’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation. Notwithstanding the foregoing, in no event shall Sun Device and/or its associated entities be liable to you in connection with the Platform for any direct, indirect, punitive, incidental, special or consequential damages or losses howsoever arising whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent) strict liability or otherwise and in no circumstances shall they be liable for:
(a) any content you or any Member provides (directly or indirectly) to the Platform;
(b) your inability to use the Platform or any products or services made available through such;
(c) any decision made or action taken in reliance on any content or information displayed on the Platform;
(d) any delay or service interruption to the Platform;
(e) the loss of use, data, profits or opportunity or arising out of or in connection with the access, use, performance or functionality of the Platform or any of its contents;
(f) the conduct of any third party (including Members) in relation to the Platform; and
(g) loss of or damage to any device or other property.
11.4 You hereby acknowledge and agree that Sun Device does not manufacture, store, test or sell any of the Products offered for sale on its Platform. Sun Device provides the marketplace only and all Products offered for sale are sold directly by independent Vendors. Sun Device shall have no liability or responsibility for such Products and makes no warranties with respect to such Products including about their quality, fitness for purpose, merchantability or otherwise. Any claims in relation to any Product purchased or offered for sale through the Platform shall be made directly to the Vendor.
11.5 You agree to defend, indemnify and hold Sun Device harmless from and against any and all claims, damages, costs, losses and expenses, including legal fees and court costs, that it may incur arising from or related to your use of the Platform or any activities thereof including in respect of offering for sale or the sale of Products.
12. Termination or suspension of accounts
12.1 Sun Device reserves the right, in its sole discretion and for any reason, to suspend or terminate your account and access to the Platform with or without notice to you. If you use multiple accounts, you may have action taken against all of your accounts. Sun Device shall not be liable to you or any other party for any suspension or termination of your account or access to the Platform.
12.2 Without prejudice to clause 12.1, the following may lead to suspension or termination of your account and access to the Platform:
(a) a material breach of these Conditions;
(b) persistent breaches of these Conditions;
(c) any suspected or actual improper use of the Platform, including offering to sell prohibited items or selling counterfeit Products;
(d) a request from law enforcement authorities;
(e) where a number of complaints are made against a Vendor;
(f) where a number of returns exceeds 8% during two consecutive months;
(g) All of the amounts corresponding to orders and claims on the date of closure/ suspension of the accounts shall be retained for a period of (twenty four) 24 months maximum so that Sun Device can proceed to check the state of the Vendor’s account and the partial or total reimbursement of the Purchasers, if necessary.
(h) where your actions in connection with the Platform bring Sun Device into disrepute, conflict or might otherwise damage its reputation;
(i) extended periods of inactivity; and
(j) a written request from you to suspend or terminate your account(s) and in the case of the Vendor in accordance with clause 12.3.
12.3 A Vendor may on written notice to Sun Device request to have their account terminated. Sun Device will terminate the Vendor’s account, where practicable, within thirty (30) days of receiving such notice provided that the Vendor agrees to continue to honour its contractual terms with Buyers and satisfies the following conditions:
(a) any Products sold in the thirty (30) days immediately preceding the Vendor’s request have been completed and delivered to the Buyers;
(b) all Fees are paid, and the Vendor’s account balance is zero;
(c) the Vendor does not have any returns of Products to be processed; and
(d) the Vendor shall provide such sum of money, agree to a certain proportion of the payment of its Fees being withheld and/or provide such other commitments to Sun Device as Sun Device may require in case Sun Device in its sole discretion decides to facilitate returns of the Products post-termination in accordance with the terms agreed as between the Vendor and the Buyer, namely to enable Sun Device, in its sole discretion, to replace any Products purchased with an identical or near identical replacement product or replace such a Product with a product of equivalent value. Sun Device shall refund any outstanding balance to the Vendor at the end of seven (7) years following termination of the Vendor’s account. Notwithstanding the foregoing, nothing in this provision shall relieve the Vendor of its obligation to honour its contractual commitments to Buyers.
12.4 In the case of suspension or termination of a Vendor’s account, the Vendor’s account will be deactivated for the suspension period or deleted in the event of termination and any Products offered for sale will be removed from the Platform (in the case of both a suspension and termination) with effect from the effective termination date.
12.5 In the case of suspension or termination of all other Members’ accounts, the Member’s account will be deactivated for the suspension period or deleted in the event of termination and the Member will not be able to make any further purchases on the Platform with effect from the effective termination date unless and until Sun Device determines that its account may be reactivated in the case of a suspension.
12.6 Sun Device reserves the right to withdraw the Platform at any time and without notice to you. We shall not be liable to the user or any third party for any loss or damage howsoever arising from the termination or withdrawal of the Platform or any part thereof.
13.1 Sun Device may vary the Conditions from time to time. The Platform will specify the latest date on which these Conditions were updated.
13.2 Sun Device may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of Sun Device.
13.3 No waiver by Sun Device of any breach of these Conditions shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.5 The Conditions shall be governed by the laws of Ireland. The Arbitration courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions.