Definitions: In these Terms of Service:
- “Orderchamp” means Orderchamp B.V. a limited liability company (in Dutch: Besloten Vennootschap) registered under the (Chamber of Commerce) registration number 72677872 in Amsterdam, The Netherlands.
- “Service” or “Services” means the Orderchamp application and any associated services, software, features and products.
- “Supplier” or “Suppliers” is anyone using the Service to offer, display, trade or sell items. For the avoidance of doubt, it is possible to be both a supplier and a retailer in these instances both the Supplier and the Retailer sections of the TOS are applicable.
- “Retailer” or “Retailers” is anyone using the Service to discover, view, request a quote or purchase items 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 the Retailer sections of the TOS are applicable.
- “Brand” is used interchangeably with Supplier.
- “Buyer” is the customer of the Retailer that purchases an item sourced by the retailer through the Service.
- “Product Content” means the information, be it images, video or text, provided by a Supplier relating to an item listed on the Platform.
- “Item” or “Items” mean physical products offered for sale on the Platform by a Supplier.
- “Listed” or “Listing” means that an Item on the Platform is available for sale, either to a larger audience (all users on the Platform) or to a selected audience (e.g. only pre-approved Retailers).
- “Platform” is used interchangeably with the Service.
- “License” this meaning is defined in section 4 of this TOS.
- “Order” means the request of a Retailer to purchase an Item, in the context of this document an Order does not have to be confirmed by a Supplier.
- “User” means a Retailer, a Supplier or both depending on the context.
Supplier rights and obligations
- The Supplier gives to Orderchamp the irrevocable right to broker in the sale of the Items Listed on the Platform for the price provided by the Supplier. Allowing Orderchamp to approve the sale of any Item listed as available on the Platform.
- The Supplier provides a License for any Product Content made available on the Platform.
The Supplier warrants that the Supplier;
- is legally allowed to sell the Items to the Retailer
- is capable of meeting the delivery and or shipment times listed on the Platform.
- is legally allowed to provide a License for the Product Content to Orderchamp
- is not aware of any restrictions with respect to the sale of the listed item to any seller in the regions approved for sale.
- is not aware of any defects to any Item listed on the Platform.
- is responsible solely responsible for the delivery and financial consequences that may arise from a transaction following the rights given to Orderchamp under 2.a.
Retailer rights and obligations
- The Retailer gives to Orderchamp the irrevocable right to broker a purchase agreement with a Supplier on behalf of the Retailer when placing an Order on the Platform.
- The Retailer is provided a License for the Product Content that is made available on the Platform for Items purchased from Suppliers.
The Retailer warrants that the Retailer;
- is legally allowed to purchase the Item(s) from the Retailer
- is not aware of any restrictions with respect to the purchase of the listed item to in the region of delivery and or region where the Retailer is registered.
- is responsible solely responsible for the acceptance and financial consequences that may arise from a transaction following the rights given to Orderchamp under 3.a
- Shall not sell nor distribute Items Ordered on the Platform via any third party marketplace including but not limited to Amazon, Bol.com, eBay and Rakuten.
- The License provided by the Supplier allows Orderchamp to translate, modify (for quality assurance and technical purposes only), reproduce and distribute the Product Content in any way to perform and/or promote the Service.
- Retailers are licensed for the duration of their Agreement with Orderchamp to make use of the Product Content for Items purchased through the Platform.
- This License does not allow a Retailers the right to sell and or distribute Items via a third party marketplace including but not limited to Amazon, Bol.com and Rakuten.
- This License does not affect the IP ownership in any way.
- Restrictions apply to Item pricing which is deemed to be confidential information except for the Manufacturer Suggested Retail Pricing as detailed in section 5b below.
Conduct, confidentiality and non-circumvention
A User is not permitted to use the Service for processes and/or acts that conflict with applicable legal provisions, the guidelines of the Advertising Code Commission, or these Terms of Service. This includes, but is not limited to, the following processes and acts:
- Spamming: the sending of large quantities of unsolicited e-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, e-mail 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.
Item pricing and related discounts on the Platform is to be considered to be confidential information and shall not be shared by a Supplier other than the Supplier offering the Item nor by a Retailer to any party with the sole exclusion of Manufacturer Suggested Retail Pricing.
- User acknowledges that he/she will not seek, ask or seduce other Users to do business or trade outside of the Orderchamp platform with Users found on the Orderchamp platform. For the avoidance of doubt if the business relation did not start at Orderchamp, e.g. you were already doing business or were in direct contact prior to starting the contact on Orderchamp - or were invited by the Supplier on Orderchamp - then this restriction does not apply.
- User agrees to notify Orderchamp immediately if any User suggests to make or receive a payment outside of the Platform in violation of this Section 5c. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Orderchamp by sending an email message to: [email protected]
- The User hereby agrees to protect, indemnify, defend and hold harmless Orderchamp from any claims imposed upon, incurred by or asserted against Orderchamp by reason of any unauthorised use by the User in connection with the Service covered by this Agreement or any failure to properly perform the terms of this Agreement and that it will compensate Orderchamp for any damage resulting from such unauthorised use or failure concerning IP rights and similar rights. The User agrees to notify Orderchamp of any such claims within 5 (five) business days of receiving notice of such claim, thereby specifying reasonable particulars of the facts that give rise to such claim.
- Orderchamp may engage a counsel of its choice to represent it against such Claim.
- The User shall not make any admission as to liability or agree to any settlement or compromises with regard to a claim without the prior written consent of Orderchamp. Orderchamp may, at its option and at its own costs, take over the defence of any action brought in respect of such a claim.
- The User will use reasonable endeavours to prevent the occurrence of any damage and, where such damage has occurred, to reduce or eliminate such damage.
- The indemnity requirements set out in this Clause 6 shall survive the termination of this Agreement for whatever cause.
- In no event shall Orderchamp be liable to the 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.
- 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 Site or services (for any cause whatsoever and regardless of the form of the action), will at all times be limited to EUR 75.
- The User understands and agrees that the download and upload of any material through Orderchamp is done at the User’s own discretion, and that the User will be solely responsible for any loss or damage to their computer system or loss of data that may result in the download or upload of any material.
- Orderchamp neither assumes, nor does it authorize any person or entity to assume on its behalf, any other liability in connection with the provision of the Service.
- 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 of 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.
User Dispute Arbitrage
- In the event that a dispute arises between two Users relating to Items purchased or offered on the platform Orderchamp may perform arbitrage service in so far as the financial impact is not greater than twice the List Price of the Item on the Platform and reasonable cost incurred during transport.
- User agrees that this Arbitrage is binding and accepts any handling charges that may be incurred according to theUser Dispute Arbitrage Policy.
- All advice that Orderchamp gives and notifications and statements that Orderchamp provides concerning, amongst others, the characteristics of the services to be provided by Orderchamp are entirely free of obligation and are provided by Orderchamp as non-binding information. Hereby Orderchamp does not provide any guarantee.
- Orderchamp is not liable for any direct or indirect damage, in whichever form and for whatever reason resulting from information and/or advice that Orderchamp has provided. User indemnifies Orderchamp against all claims from third parties, unless there is case of intentional act or gross negligence on behalf of Orderchamp.
Payment and fee's
- Orderchamp will invoice all Users in advance of the period, be it monthly or (multi-) annual depending on the package and terms agreed upon in the Agreement.
- Payment shall be made via SEPA direct debit where possible.
- For (multi-)annual subscriptions the option to pay via bank transfer can be offered by Orderchamp
- Out-of-package: Orderchamp facilitates the option to, instead of upgrading to a larger package, augment the current package with additional retailer connections or brands. These prices are part of (and made visible in) the Agreement and shall be included on the invoice in the month following the month wherein the Out-of-package cost were incurred.
- Handling fee: In order to process payments for transactions on the Platform a Payment Provider, licensed to operate in Europe, will be used. This enables Orderchamp to offer an Escrow service, prevents Orderchamp from holding the money of Users on its accounts and ensures compliance with local legislation. A small fee is charged for all transactions on the platform to facilitate these compliant payments; these prices are part of (and made visible in) the Agreement and shall be charged during the transaction payout to suppliers and on the will be listed on the invoice in the month following the month wherein the transaction occurred.
- For every failed attempt to charge the credit card and for every failed attempt to debit cash via direct debit, User is liable to pay administration costs to the sum of €5 to Orderchamp.
- Orderchamp withholds the right to suspend, without redress of costs, and add on an administrative fee and collection costs, should the User fail to comply with the payment terms stated above.
Term and termination
- All Agreements shall be entered into for an initial minimum term of 12 months unless stated otherwise.
- Unless the User terminates the Agreement before the end of the term of the Agreement, after the initial term of the Agreement the Agreement shall be extended by periods of 12 months, unless specified otherwise in the Agreement.
- All costs incurred during the term of the Agreement need to be paid in full in order for the Agreement to terminate, especially if this regards specific costs invoiced in the month following the final Term (e.g. ‘Out-of-package costs’).
- Termination of the Agreement of a User does not obligate Orderchamp or any other Users to stop or cancel use of the content provided by the User.
Force majeure Event
- Limitations or impediments to the provision of services can occur that lie outside the sphere of influence of Orderchamp. If Orderchamp, as a result of these limitations or impediments or other forms of force majeure, is impeded with complying with the agreement, it is entitled to suspend the carrying out of the agreement. The User has in that case no right to damage, costs or interest compensation.
- Limitations, impediments or force majeur 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 Licensee uses or caused by the technical infrastructure it uses, disruptions to the electricity provision, 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.
- Survival: Sections 4, 5(b), 6, 7, 10(d, f-g) and 11(c-d) will survive the termination or expiration of this Agreement.
- Applicable law: This Agreement shall solely be governed by Dutch law.
- Severability: In the event that one or multiple provisions or requirements of these Terms of Service 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.
- Waiver: The failure of Orderchamp to exercise or enforce any of the rights and/or provisions set out in the Terms of Service and/or in the Agreement shall not constitute a waiver of set rights and/or provisions. Any waiver of any provision of these TOS shall only be effective if made in writing and signed by Orderchamp.
- Amendments: The User acknowledges and agrees that Orderchamp may amend these Terms of Service, including the Policies, and the Platform, as well as any other documents incorporated by reference, at any time by posting the relevant amended and restated Terms of Service on its website. Such amendments to the Terms of Service are effective as of the date of posting. The Users continued use of the Services after the amended Terms of Service are posted 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, she shall notify Orderchamp within 2 weeks of the date of posting these amendments. Orderchamp shall review grounds on a case-by-case basis and will either clarify, make an exception or terminate the contract.