- INTRODUCTION The terms and conditions as described in these Terms of Service apply to any User of the Services, whether it is for a paid subscription or a trial. These Terms of Service form together with the Order Form and the Data Processing Agreement the Service Contract.
DEFINITIONS AND INTERPRETATION:
In these Terms of Service we use capitalized words which shall have the following meaning:
Goods means any physical, tangible item. Order means the request of a Retailer to purchase a Good on the Platform, in the context of this document an Order does not have to be confirmed by the Supplier. Orderchamp Orderchamp B.V. a limited liability company (Besloten Vennootschap) registered under the with the Chamber of Commerce under registration number 72677872. Order Form means the order form or any other confirmation in writing describing the specification of the Services that the User wishes to receive or that confirms the use of trial or demo for the Services. Platform means the Orderchamp B2B Marketplace software, accessible through a website or application, where the Services are made available by Orderchamp. Product Content means any content provided by the Supplier relating to a Good listed on the Platform, including, but not limited to, photographs, videos, text or audio. Product Content Rules the rules of conduct and guidelines of Orderchamp relating to the use of Product Content on the Platform as made available from time to time on the website of Orderchamp. Retailer means a person using the Service to discover, view, request a quote or purchase Goods on the Platform. For the avoidance of doubt, it is possible to be both a supplier and a retailer in these instances both the Supplier and Retailer sections of the Terms of Service apply to such User. Services means the online B2B Marketplace and any associated services and documentation provided by Orderchamp to the User, as specified in the Contract and amended and updated from time to time. Service Contract means the contract between Orderchamp and the User which consists of the Order Form, these Terms of Service and, if applicable, the Data Processing Agreement, including any schedules, appendices and amendments thereto. Supplier means a person using the Service to offer, display, trade or sell Goods on the Platform, also being referred to as a brand. Terms of Service this document specifying the terms of service for the Contract regarding the use of the Services by the User. User means the user of the Services as specified in the Order Form, being a Retailer, a Supplier or both. For the avoidance of doubt, it is possible that a User is both Supplier and Retailer. User Data means data, text, drawings, images, videos or sounds, including the Product Content, as well as any database made up from any of the aforementioned which are supplied by a User to Orderchamp in connection with the use of the Services. Words in the singular include the plural and vice versa.
Orderchamp has created a Platform where Suppliers can offer Goods and Retailers can place an order for these Goods. On the Platform, Orderchamp will offer intermediary services for the Supplier and the Retailer in relation to the purchase and sale of Goods. Orderchamp only acts intermediary and can not be held liable for the acts and omissions of the Supplier and/or the Retailer on the Platform. The Services may only be used by Users who are registered businesses.
The specifications of the Services offered by Orderchamp and accepted by the User are described in the Service Contract. Orderchamp and the User may agree on additional Services which will only be binding if confirmed in writing by Orderchamp.
Orderchamp will use its commercially best efforts to deliver the Services under the Contract to the User in a professional manner consistent with good industry standards.
Updates and changes
Orderchamp will use its best efforts to regularly update its Platform to repair bugs and to make small improvements. Orderchamp may, from time to time, further change the scope of its Services which means that certain features may disappear and new features may be introduced. Orderchamp has the right to change its Services, to its own discretion, as long as these do not materially change the core functionality of the Services.
Repairs or maintenance
It may be necessary for Orderchamp to perform scheduled or unscheduled repairs or maintenance, or to improve or adapt the Platform, which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Platform. Orderchamp will try to carry out such repairs or maintenance during times that will cause the least disruption to the User’s business.
Orderchamp shall provide to the User a reasonable level of support by means of making online documentation available and providing a helpdesk that is available by phone and by email during normal business hours as specified on Orderchamp’s website.
USER ACCOUNTS AND ACCESS TO THE SERVICES
- Creation of account
Orderchamp shall create a unique account for each new User with the username and password as chosen by the User where the User can log in to use the Services. In addition, the User may create additional user accounts with unique usernames that are connected to the User.
The User is responsible for choosing a strong and safe password and keeping it confidential. The User shall not be allowed to share its credentials for access to the Services with any third party or allow any third party to use the Services.
All acts that take place through the User’s account or any connected user accounts shall be attributed to and under the responsibility of the User. In the event that the User suspects abuse of the account it shall immediately notify Orderchamp to allow Orderchamp to take the appropriate measures.
A User is not permitted to use the Service for processes and/or acts that conflict with applicable laws or regulations or these Terms of Service or that infringe the rights of any third party. This includes, but is not limited to, the following processes and acts: Spamming: the sending of large quantities of unsolicited -mails with the same content and/or the unsolicited news group posting of a message with the same content in large quantities on the Internet. Also included here is spam that is sent referencing a website, email address or other service at Orderchamp; Committing an infringement on copyrighted works, or defying the intellectual property rights of third parties; Sexual intimidation or the harassing of persons in any way; Hacking: accessing of other computers or computer systems on the Internet without having first acquired permission to do so; Any other violation of (local) legislation or mandated industry guidelines.
Orderchamp reserves the right to monitor the acts and behavior of the User on the Platform for the purpose of ensuring compliance with these Terms of Service and to improve the functionality of its Platform.
- Measures by Orderchamp
Orderchamp may suspend or limit User’s access to the Services and Platform immediately if Orderchamp, in its sole discretion, believes (i) such suspension is required by law, (ii) the User has breached any of its obligations under this Contract (including the obligation to pay the Fees), (iii) the User is infringing any applicable law by using the Services or the Platform (iii) there is a security or privacy risk to the User or other Users. To the extent reasonably possible, Orderchamp shall notify the User of a suspension in advance.
- Creation of account
SPECIFIC PROVISIONS APPLYING TO SUPPLIERS
- Supplier’s rights
Orderchamp allows the Supplier to create one or multiple storefronts on the Platform where it can make Goods available for sale on the Platform, either to all users on the Platform or to a selected audience (e.g. only pre-approved Retailers).
- Power of attorney to Orderchamp
The Supplier hereby gives to Orderchamp the irrevocable power of attorney to sell the Goods listed on the Platform for the sale price as specified by the Supplier on the Platform on behalf of and in the name of the Seller to all Retailers or, if so agreed between Supplier and Orderchamp, only Retailers as pre-approved by the Supplier .
The Supplier is responsible for ensuring that all Goods made available comply with the requirements as set out in these Terms of Service or any other rules or guidelines, that may apply from time to time. Orderchamp reserves the right, at its sole discretion, to refuse the offering of certain Goods or to remove certain Goods offered by a Supplier from its Platform.
- Product Content
The Supplier is responsible for creating professional Product Content. All Product Content published made available for sale on the Platform by the Supplier must comply with the Product Content Rules. Orderchamp reserves the right to refuse certain Product Content or to propose amendments to Product Content if it believes that it does not comply with the Product Content Rules.
- License on Product Content
The Supplier hereby grants to Orderchamp a limited, worldwide, non-exclusive, sublicensable, transferable and royalty free license to combine, translate, modify (for quality assurance and technical purposes only) reproduct, distribute and/or enrich the Product Content with other data obtained by Orderchamp, to use the Product Content internally and for marketing and promotional purposes and to allow a Retailer to use of the Product Content relating to Good that the Retailer has purchased for their own business purposes. In the event the Supplier deletes or changes any Product Content this will not affect any (sub)license granted by Orderchamp to a Retailer insofar as such Product Content has been used by such Retailer.
- Approval of Orders
The Orders will be initially approved by Orderchamp and then send to the Supplier for acceptance and processing. If the Supplier decides not to accept an Order, it shall notify the Retailer without any delay.
- Accepting an Order
By accepting an Order, the Supplier enters into a binding agreement with the Retailer to sell the Goods of the Order and to deliver the Goods to the Supplier.
For any accepted Order received by the Supplier from the Retailer, the Supplier shall procure to adhere to the delivery times as indicated by it in relation to such Goods on the Platform.
Payment for the accepted Order shall be processed by a third party payment processor engaged by Orderchamp. Depending on the method and conditions of payment, Orderchamp may receive and hold the payment on an escrow payment platform where it shall be released to the Supplier once the payment conditions have been fulfilled. Orderchamp cannot be held liable for any default by the Retailer in relation to its payment obligations for Orders.
- Representations and warranties
The Supplier represents and warrants in relation to the Product Content that:
- The Supplier has all legal and beneficial rights necessary to publish to the Product Content on the Platform.
- The Supplier is entitled to grant a license in relation to the Product Content to Orderchamp and the Retailers.
- The Product Content is free and clear of any third party rights.
- The Product Content is not unlawful, harassing, defamatory, obscene, inappropriate in any other way or violating or infringing any applicable laws or third party rights (including intellectual property rights).
- The Supplier has all legal and beneficial rights to offer the Goods for sale on the Platform and to sell the Goods to Retailers.
- The Goods are free and clear of any third party rights.
- The Goods are not unlawful, harassing, defamatory, obscene, inappropriate in any other way or violating or infringing any applicable laws or third party rights (including intellectual property rights).
- The Supplier is not aware of any defects to any Goods listed on the Platform at the time of selling.
- The Goods will comply with the specifications as specified on the Platform and with the rules and guidelines that apply from time to time.
- It will offer the Goods on the Platform against the lowest wholesale price possible and shall not offer or sell the same Goods against lower prices through a different channel and will take into account a reasonable margin in view of the MSRP as recommended by the Supplier on the Platform.
- It is and will remain for the duration of the Term in compliance with all applicable laws and regulations and all policies and guidelines as made available by Orderchamp with respect to its activities under and in connection with the Service Contract.
- All information published by the Supplier on the Platform, including delivery and shipment times, are true, accurate and not misleading.
The Supplier hereby indemnifies and holds harmless Orderchamp from any losses, expenses, liabilities, damages and costs resulting from (i) a claim from a Retailer in connection with the use of the Services by the Supplier and (ii) a claim from any third party in connection with a breach of the representations and warranties by the Supplier.
- Warranty claims, returns and complaints
The Supplier shall be responsible for adequate and professional handling of all queries, warranty claims, return requests and complaints from Retailers relating to Goods offered and Ordered.
- Additional obligations
For the purpose of stimulating proper and safe trade on the Platform, Orderchamp may, from time to time, publish additional rules and guidelines setting out extra obligations of the Supplierin connection with the use of the Platform. These additional rules and guidelines will apply and be binding upon the Supplier as from the date of publication. Such rules and guidelines will be named “Guidelines for Suppliers” and can be found in the support section of the Orderchamp website.
- Supplier’s rights
SPECIFIC PROVISIONS APPLYING TO RETAILERS
- Retailer’s rights
Orderchamp allows the Retailer to place Orders with Suppliers and buy Goods on the Platform.
- Placing an Order
By placing an Order which is accepted by Orderchamp and the Supplier, the Retailer enters into a binding agreement with the Supplier to purchase the Goods and to pay the purchase price for the Goods as both specified in the Order. The Order may be subject to additional terms and conditions as imposed by the Supplier.
- Disclaimer of warranties
Orderchamp does not give any implicit or explicit warranty as to the quality, fitness or the delivery times of the Goods purchased by the Retailer on the Platform. Orderchamp cannot be held liable by the Retailer for any acts or defaults of the Supplier. The Retailer acknowledges that Orderchamp does not have the power or control to inspect or verify any Goods sold on the Platform.
- Information and statements on the Platform
All Product Content and other information and statements provided on the Platform concerning, amongst others, the characteristics of the Goods are given by and on behalf of the Supplier and do not constitute any obligation or commitment from Orderchamp.
The Retailer hereby indemnifies and holds harmless Orderchamp from any losses, expenses, liabilities, damages and costs resulting from (i) a claim from a Supplier in connection with the use of the Services by the Retailer and (ii) a claim from any third party in connection with a breach of the representations and warranties by the Retailer.
- License on Product Content
Orderchamp hereby grants to the Retailer a limited, worldwide, non-exclusive, non- sublicensable, non-transferable and royalty free license to use the Product Content. This license is limited to Product Content relating to Goods that the Retailer has validly purchased on the Platform and solely for the purpose of reselling the Goods. Orderchamp is entitled to revoke this License when the Service Contract ends.
- Representations and warranties
The Retailer represents and warrants that;
- it is fully authorized to enter into this Contract, to place Orders and to purchase Goods on the Platform.
- it is not aware of any restrictions with respect to the purchase of the listed Goods to in the region of delivery and or region where the Retailer is registered.
- it shall not sell or distribute Goods Ordered on the Platform on any third party marketplace including but not limited to Amazon, Bol.com, eBay and Rakuten.
- It shall keep fully confidential and not disclose to any third party the sale prices and applicable discounts relating to the Goods on the Platform, with the exception of the suggested retail prices (MSRP).
- Additional obligations
For the purpose of stimulating proper and safe trade on the Platform, Orderchamp may, from time to time, publish additional rules and guidelines setting out extra obligations of the Retailer in connection with the use of the Platform. These additional rules and guidelines will apply and be binding upon the Retailer as from the date of publication. Such rules and guidelines will be named “Guidelines for Retailers” and can be found in the support section of the Orderchamp website.
- Retailer’s rights
- Restrictive covenant
User acknowledges and agrees that for the duration of this Agreement it shall not seek, ask or seduce other Users to do business or trade with other Users outside of the Platform provided that this restriction does not apply for business relations between Users that do not originate from the Platform. In the event of a breach of a User of this covenant, Orderchamp is entitled to suspend or restrict the use of the Platform by such User, notwithstanding the right of Orderchamp to claim any damages suffered.
- Duty to notify
User agrees to immediately notify Orderchamp in the event that another User proposes to make or receive a payment outside of the Platform in violation of this section 7 by sending an email to [email protected]
- Restrictive covenant
- INTELLECTUAL PROPERTY RIGHTS All intellectual property rights relating to the Platform and the Services, including copyrights on the source code of the Platform and database rights (in Dutch: ‘Databank recht’) for any and all Product Content on the Platform and any documents or any other material provided to the User in connection with the performance of the Contract shall be and remain the property of Orderchamp. Unless explicitly permitted under these Service Terms, the User shall not be permitted to use any of these intellectual property rights, including but not limited to extracting any data from Orderchamp’s website or the Platform by using web crawlers or web scrapers, without the prior written approval of Orderchamp. Any intellectual property rights which are created as a result of the performance of the Services by Orderchamp and the use of the Services by the User will be the property of Orderchamp, except for intellectual property rights relating to User Data.
All intellectual property rights, including copyrights and database rights, on any User Data shall belong exclusively to such User. Orderchamp shall have a limited right of use relating to the User Data for the sole purpose of delivering and improving its Services and for promotional and marketing purposes.
The User understands and agrees that the download and upload of any User Data through Orderchamp is done at the User’s own risk and that Orderchamp cannot guarantee a back-up of the User Data. The User will be solely responsible for a timely and adequate back-up of the User Data and prevention of any loss or damage to their computer system or User Data.
- DISCLAIMER OF WARRANTIES Orderchamp does not give any guarantee in relation to the performance and availability of the Services and the Platform. The Services are provided “AS-IS” and, to the extent permitted by law, Orderchamp hereby disclaims all implicit or explicit warranties or fitness for a particular purpose. All advice that Orderchamp gives and notifications and statements that Orderchamp provides concerning, amongst others, the characteristics of the Services are entirely free of obligation and are provided by Orderchamp as non-binding information.
- Definition of confidential information
Confidential Information means any information, whether in written, verbal or other form, that relates to Orderchamp or the User (or any of its businesses) and which is disclosed to the other party in connection with the Service Contract or on the Platform, including but not limited to but shall not include information that (i) is at the relevant time of disclosure publicly available or become so other than as a result of a breach of the Service Contract, (ii) is received by the other party from a third party who did not acquire it in confidence or (iii) is independently developed by the other party without any breach of the Service Contract.
- Confidentiality undertaking
Orderchamp and the User shall, during the term of the Service Contract and for an indefinite term after the expiry of the Service Contract, keep strictly confidential and secret and shall not disclose to any third party any confidential information relating to the other party unless specifically permitted under the contract or necessary to perform its obligations under the Contract. Orderchamp and the User shall further safeguard confidential information from disclosure using no less than a commercially reasonable standard of care.
- Exclusions for confidentiality
The obligation of confidentiality shall not apply to any party who is required by law or by any governmental authority to which it is subject to disclose any Confidential Information, in which case such party shall be entitled to disclose the Confidential Information provided that it (i) notifies the other part in writing of the disclosure, to the extent permitted, (ii) it consults with the other party how to minimize or avoid the disclosure and (iii) receives a confidentiality undertaking to the same level as in this Contract form the party to whom the Confidential Information is (to be) disclosed.
- Breach of confidentiality undertaking
In the event that either party learns that a person or entity has gained unauthorized access to the other party’s Confidential Information, such party shall immediately notify in writing the party whose Confidential Information has been so compromised, providing the full particulars of such access or disclosure.
- Definition of confidential information
- SECURITY Orderchamp has taken all reasonable appropriate technical and organizational security measures to protect the Platform and the data stored on it against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network.
- Exclusion of liability
To the extent legally possible, Orderchamp does not assume, nor does it authorize any person or entity to assume on its behalf, any other liability in connection with the provision of the Service and the use of the Platform. In no event shall Orderchamp be liable to a User or to any third party for any loss of profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from the User’s use of the Services, even if Orderchamp has been advised of the possibility of such damages.
- Limitation of liability
Notwithstanding anything to the contrary contained herein, the liability of Orderchamp to the User for any damages arising from the User’s use of the Platform or the Services (for any cause whatsoever and regardless of the form of the action), will be limited to the Fees paid by such User relating to a period of three months. The limitations of liability provided in these terms of service serve Orderchamp, shareholders, affiliates and to all of our respective officers, directors, employees, attorneys and agents and, in each case, liability is limited to the fullest extent as permitted by law. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to the User, who may also have other legal rights that vary from jurisdiction to jurisdiction.
- Exclusion of liability
- Occurence of Force Majeure
Limitations or impediments to the provision of Services can occur that lie outside the sphere of influence of Orderchamp and are caused by Force Majeure. If Orderchamp, as a result of such Force Majeure, is limited in complying with its obligations under the Service Contract, it is entitled to suspend the carrying out of Service Contract. The User has in that case no right to damage, costs or interest compensation.
- Definition of Force Majeure
Force Majeure includes the following: technical terms and conditions of the internet beyond the influence of Orderchamp, impediments as a result of the hardware and software that the User uses or caused by the technical infrastructure it uses, disruptions to the electricity supply, hacking, Denial of Service Attacks, strikes, fire, accident or staff illnesses, unforeseen problems by Orderchamp and every other circumstance that is not exclusively dependent on the will of Orderchamp.
- Occurence of Force Majeure
FEES, INVOICING AND PAYMENT
For the Services the User shall pay the fees as described in the Order Form and any other fees as described in these Terms of Service or specifically agreed between the User and Orderchamp in writing (the Fees). The Fees shall be monthly unless specified otherwise in the Order Form.
All Fees are excluding any applicable VAT unless explicitly described otherwise.
- Out-of-plan fees
Orderchamp facilitates the option to, instead of upgrading to a larger plan, upgrade the current plan with additional features. The additional features and Fees connected to these upgrades shall become part of the Contract as per the date as confirmed in writing by Orderchamp and shall be included on the invoice in the month following the month wherein the Out-of-plan costs were incurred.
- Commission fee
A revenue based commission Fee may be charged to the Supplier on specific transactions that a User performs on the Platform (Commission Fee). The amount of the Commission Fee shall be specified in the Order Form and shall be charged over any Order transaction that takes place on the Platform and withheld from the amount of the transaction (excluding VAT, if applicable) paid to the Supplier. The Commission Fee that has occurred will be specified and be listed on the invoice in the month following the month where Commission Fee was charged.
- Handling fee
A handling Fee may be charged to the Supplier on all transactions that a User performs on the Platform to cover the payment costs (Handling Fee). The amount of the Handling Fee shall be specified in the Order Form and shall be charged over any Order transaction that takes place on the Platform and withheld from the amount of the transaction (including VAT, if applicable) paid to the Supplier. The Handling Fee that has occurred will be specified and be listed on the invoice in the month following the month where Handling Fee was charged.
Orderchamp will invoice all Users for the Fees in advance on a monthly or (multi-) annual basis as specified in the Order Form.
All payments made by a User under the Service Contract are non-refundable and shall be made via the automatic payment method specified in the Order Form or otherwise as agreed between the User and Orderchamp. All payment dates are firm dates and upon the expiration of a payment date the user shall be immediately in default without any notice being required. Without prejudice to any other rights and remedies available to Orderchamp, in the event of a late payment, failed attempt to charge the credit card and/or failed attempt to debit cash via direct debit, Orderchamp is entitled to charge administration costs of EUR 5 to cover its expenses.
Orderchamp is entitled to adjust the Fees on an annual basis. Orderchamp shall notify the User of the Fee adjustment at least 60 days in advance. If the User does not agree with the Fee adjustment, it shall be entitled to terminate the contract as per the effective date of the Fee adjustment.
DURATION, EXTENSION AND TERMINATION
The Service Contract shall have an initial term of twelve months or any other term as specified in the Order Form (the Initial Term).
Upon expiry of the Initial Term, the term of the Service Contract shall automatically renew for periods of 12 months, unless specified otherwise in the Order Form (Renewal Term).
- Termination as per the end of a term
User or Orderchamp is entitled to terminate the Service Contract as per the end of the Initial Term or Renewal Term (jointly referred to as Term) by sending a written notification, including by email or through the user section on the Platform, to the other party observing a notice period of one month.
- Termination by Orderchamp
Orderchamp is entitled to terminate the Service Contract with immediate effect by giving the User written notice without any liability for damages, in the event of: a breach by the User of its obligations of the Service Contract which, to the extent possible and upon receipt of a notice thereof with a reasonable remedy period from Orderchamp, the User has not remedied, The (impending) suspension of payments or bankruptcy of the User.
- Consequences of termination
Upon termination of the Service Contract the User shall no longer have access to the Services and the Platform. Orderchamp is entitled to terminate the User accounts and to delete all User Data on the Platform or make it inaccessible. Termination of the Service Contract by Orderchamp shall not limit the User’s obligation to pay all applicable fees and shall be without prejudice to any other remedies available to Orderchamp.
- Surviving License to use Product Content
Termination of the Agreement of a User does not obligate Orderchamp or any other Users to stop or cancel use of the Product Content provided by the User.
- Survival of other provisions
After termination of the Service Contract, regardless of the nature, the provisions that are intended by their terms to survive the Service Contract will remain valid and in force.
- CHANGES TO THE AGREEMENT The User acknowledges and agrees that Orderchamp may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on its website and by notifying the User. Such amendments to the Terms of Service are effective as of the date of posting. The Users continued use of the Services after the amendment of the Terms of Service constitutes the agreement to, and acceptance of, the amended Terms of Service. If a User does not agree to any of the changes to the Terms of Service, it shall notify Orderchamp within 2 weeks of the date of posting these amendments. Orderchamp shall review grounds on a case-by-case basis.
CHOICE OF LAW AND FORUM
- Applicable law
The Service Contract shall exclusively be governed by Dutch law.
- Competent court
The competent courts in Amsterdam, the Netherlands shall have exclusive jurisdiction to settle any dispute in connection with the Service Contract without prejudice to the right of appeal and that of appeal to the Supreme Court.
- Applicable law
- AMICABLE USER DISPUTE MEDIATION In the event that a dispute arises between two Users relating to an Order which has a financial impact not higher than two times the list price of the Goods in dispute plus delivery costs, Orderchamp may choose to act as an independent mediator in relation to this dispute. User agrees that the outcome of this mediation is binding and the User accepts any handling charges that may be incurred in connection with the Mediation.
User may not assign any of its rights or obligations under the Service Contract without Orderchamp’s prior written consent. Orderchamp may, without User’s prior consent, assign its rights and obligations under the Service Contract to a third party.
In the event that one or multiple provisions or requirements of the Service Contract are in violation of governing law, the validity of other provisions or requirements shall not be affected thereby and shall be enforced and remain in full force and effect. In the place of the null or invalid provisions, a suitable regulation shall apply which mirrors, as closely as possible, the intention of the parties and the economic result aimed for by them, in a legally effective way.
The failure of Orderchamp to exercise or enforce any of the rights and/or provisions set out in the Service Contract shall not constitute a waiver of set rights and/or provisions. Any waiver of any provision of Service Contract shall only be effective if made in writing and signed by Orderchamp.
All notices to Orderchamp can be done by email to [email protected].