This marketplace seller agreement (the "Agreement") is entered into between eComIN AB and its Affiliates and subsidiaries (individually and collectively, "eComIN", "ByggFix", "we", "us" or "our") and the legal entity that accepted this Agreement (collectively "you", "Seller"). This Agreement may be accepted by manual signature or electronic signature, or through an electronic system specified by eComIN. In the electronic system, Seller will be prompted to accept these terms by clicking a button. Clicking the button or using any Marketplace Service indicates that Seller has read, understood and accepted this Agreement. If Seller does not accept this Agreement, Seller must not use any Marketplace Service.
Nature and purposes of the Processing - To fulfil the Customer transactions by shipping goods to Buyers for orders placed on a website operated by EComIN AB.
Duration of the Processing - Until terminated under the terms of the Data Processing Agreement.
Type(s) of Personal Data - Customer Name; Customer Address; Customer E-Mail Address; Customer Order Reference Number; Customer Phone Number(s); Customer Nationality; Customer Gender
1.1 By completing the Seller Application, and/or using the ByggFix Platform as a Seller including providing Product data and/or completing the Seller details in the ByggFix Marketplace, the Seller agrees to be bound by this Agreement, the ByggFix Terms of Use and the ByggFix Policies.
2.1 Platform. The ByggFix Platform enables the Seller to display and sell Products in some or all of the ByggFix Country Marketplaces, as determined by the Seller. ByggFix, or its third-party service provider(s), shall process payment for all Orders on the ByggFix Platform via the ByggFix Checkout System.
2.2 Products. ByggFix shall display through the ByggFix Platform the Seller's Products optimally categorised, in local currencies on the ByggFix Country Marketplaces in the relevant local language(s). ByggFix, or its third party service provider(s), shall enable Buyers to make purchases of Products through a range of payment methods as made available by ByggFix from time to time through the ByggFix Checkout System. ByggFix shall not have any access to the Buyers' payment details.
2.3 Search result ranking. ByggFix ranks products within search results on the ByggFix Platform, aiming to display the most relevant products to Buyers' searches and based on the following parameters (in descending order of importance):(a)popularity of the product as determined by historical sales performance ; (b) the commission payable to ByggFix on each product; and (c) historical sales performance of the Seller. The parameters and their relative importance are subject to change from time to time.
3.1 ByggFix's IPR. ByggFix (and its applicable licensors) owns and shall continue to own all Intellectual Property Rights
in:
3.1.1 the ByggFix Platform;
3.1.2 the ByggFix APIs; and
3.1.3 the ByggFix Plugins.
3.2.1 in accordance with the ByggFix Terms of Use and ByggFix Policies; and
3.2.2 in accordance with any terms and restrictions contained in this Agreement.
3.3.1 use and modify the Seller Content to the extent necessary to perform its obligations under this Agreement (including to create ByggFix Content); and
3.3.2 analyse, enhance, develop, test and operate ByggFix's and its Affiliates' systems, products and services.
4.1.1ByggFix shall provide the Seller with access by username and password to use the ByggFix Platform during the Term to enable the Seller to list and manage Products and process Orders, including to review and update Orders. Each Seller is solely responsible for maintaining its username and password security. The Seller must not disclose its username or password to any unauthorised third parties and shall be solely responsible for any use or action taken under username or its password on the ByggFix Platform. If the Seller's password is compromised, the Seller must contact ByggFix and request a change of password.
4.1.2ByggFix shall provide the Seller with such administrator rights to the ByggFix Portal as are required for the creation of usernames and passwords for the Seller's authorised users.
4.2.1 Product Pricing. The Seller shall set and maintain the prices for its Products available on the ByggFix Platform exclusive of VAT and any other applicable taxes, charges or levies in the currency in which its account operates. The Seller shall specify the delivery costs for each Product listed on the ByggFix Platform. Delivery costs defined by the Seller must not exceed the actual cost of delivery.
4.2.2 Responsibility for pricing. The Seller is solely responsible for the accuracy of the price and delivery costs of each of its Products, and any other information required to calculate the same at the time they are submitted to the ByggFix Portal by the Seller or any third party authorised by the Seller. On becoming aware of them, the Seller shall notify ByggFix immediately of any discrepancies in Product prices, delivery costs, and any other information submitted to the ByggFix Platform. ByggFix reserves the right to insist that the Seller honours the price and delivery costs of each Product as was submitted to the ByggFix Portal by the Seller or its authorised third party and published on the ByggFix Platform.
4.2.3 International pricing. ByggFix uses the Seller's price for each Product in the Seller's own currency as the basis for pricing the Seller's Products in other currencies as required on all other ByggFix Country Marketplaces. ByggFix reserves the right to determine the conversion rate and to calculate the local retail price of each Product on all other ByggFix Country Marketplaces. This calculation is performed at ByggFix's own risk; the Seller shall always receive the amount of Net Sale Proceeds in the Seller's own currency at the Seller's price for each Product in any Order as such price has been submitted to the ByggFix Portal by, or on behalf of, the Seller.
4.2.4 No promotion
(a) The Seller must not display its own website address, email address, phone number or any other direct or identifying contact details in any part of the Seller Content, including Product titles, descriptions or images. Product images must not carry any text or watermarks.
(b) The Seller must not directly market its website, any other sales channel or its business to Buyers using any digital or physical communication such as email, telephone, web-based marketing, or tools each as provided via the ByggFix Portal, or any other promotional materials (including inserts in the Customer's Product package).
4.2.5 Seller Content and ByggFix Content
(a) Notwithstanding clauses 9.2.1 and 9.2.4(e), and without prejudice to its other rights and remedies under this Agreement, ByggFix reserves the right to remove or restrict access to Seller Content at its sole discretion, without advance notice to the Seller, whenever ByggFix reasonably believes, or is advised by a third party, that such Seller Content may violate any third party's Intellectual Property Rights or other legal rights or applicable laws, or if ByggFix is of the reasonable opinion that such Content should be removed for other reasons. Upon Seller's reasonable request, ByggFix will provide commercially reasonable assistance to the Seller if the Seller wishes to try to resolve such issues with the relevant third parties, with a view to reinstating the Seller Content where legally permissible to do so. Subject to clause 8.1, ByggFix will not be liable for any loss or damage caused by or arising out of or in connection with any action or inaction by ByggFix within the scope of this clause 4.2.5(a).
(b) ByggFix may refer any issues concerning the Seller Content to the Seller, including any issues within the scope of clause 4.2.5(a). The Seller agrees to negotiate in good faith with the relevant third party and use all reasonable endeavours to resolve the issue, and to notify ByggFix of the outcome within 14 days of ByggFix referring the relevant issue to the Seller. Without prejudice to clause 4.2.5(a), failure to comply with this clause may result in the suspension or termination of the Seller's access to the ByggFix Platform in accordance with clause 10.
(c) ByggFix may create ByggFix Content from the Seller Content and shall use its reasonable endeavours to ensure that the ByggFix Content remains consistent with the Seller Content.
4.2.6 Duplicate product listings. Where two or more product listings are uploaded for the same product by more than one Seller, ByggFix reserves the right to link them into one product listing with one relevant description and image(s) provided by one Seller.
4.2.7 International listings. The Seller may choose to make its Products available on certain ByggFix Country Marketplaces. Seller Fees shall be payable on all Orders of the Seller's Products, regardless of which part of the ByggFix Platform the Order originated from.
4.2.8 Advertising with third parties. As well as promoting Products on the ByggFix Platform, ByggFix may also selectively advertise the Products, at ByggFix's own cost, on various paid search websites, including independent shopping portals, Google Shopping (via the Google Adwords platform), Bing and Facebook.
4.2.9 Prohibited Products. ByggFix prohibits the sale of illegal and offensive Products. Products available on the ByggFix Platform must be authentic. Any Product that has been illegally replicated, reproduced or manufactured is prohibited from sale on the ByggFix Platform. If ByggFix determines in its sole discretion that any Product, or the content of the Product Pages, and/or any Seller Content, is prohibited, potentially illegal, or inappropriate, then without prejudice to its other rights and remedies, ByggFix may remove the Product and/or Product Pages, and/or Seller Content from the ByggFix Platform or alter such content on the ByggFix Platform.
4.3.1 ByggFix is not a party. ByggFix provides the ByggFix Platform for the Seller and Buyers to complete Transactions. ByggFix is never a party to any Transaction completed through the ByggFix Platform. Any contract of sale concluded through the ByggFix Platform is solely between the Seller and the Customer, and ByggFix has the Seller's authority to bind the Seller to a Transaction pursuant to such contract to the extent it is created through the ByggFix Platform. ByggFix acts as a commercial agent on behalf of the Seller only and not on behalf of the Customer. By joining the ByggFix Portal and/or listing Products for sale on the ByggFix Platform, the Seller authorises ByggFix to conclude the sale of Products to Buyers through the ByggFix Platform on behalf of the Seller.
4.3.2 Order information. When an Order is submitted on the ByggFix Platform, ByggFix shall collect all required Order information, which it shall make available to the Seller via the ByggFix Portal and/or the ByggFix APIs. Where a Customer submits an Order for products from more than one Seller on the ByggFix Platform, the Seller may only access its own Products' Order information.
4.3.3 The ByggFix Checkout System. The ByggFix Checkout System collects payment for the Order from the Customer in the relevant ByggFix Country Marketplace's currency. At its sole discretion ByggFix has the right to select the payment options made available to the Customer in the ByggFix Checkout System.
4.3.4 Settlement of Customer's debt. Once the Customer has transferred the necessary funds required to complete a Transaction to ByggFix, this will constitute settlement of the Customer's debt to the Seller.
4.4 Delivery. ByggFix recommends that the Seller uses a tracked delivery service to deliver Products to Buyers. If the Products are delivered via an untracked delivery service and are not delivered to the Customer within the timeframe specified at the time of the Order, ByggFix reserves the right to require the Seller, at the Customer's option, either to issue either a refund or provide a replacement to the Customer, in which case the Customer shall not be required to return any Products delivered late unless the Seller can prove (for example, by providing tracking details for the relevant Order) that the Products were successfully delivered to the Customer within the relevant timeframe.
4.5 Refunds. Where a Customer has a right to a full or partial refund, the Seller shall process the applicable refund to the Customer via the ByggFix Portal within the relevant timescale. ByggFix may at its sole discretion, with reasonable notice to the Seller, refund the Customer on behalf of the Seller and deduct the amount refunded from any monies owed to the Seller in accordance with clause 6.1.6.
4.6 Customer Disputes. In the event that a dispute arises between the Seller and a Customer, the Seller shall use all reasonable endeavours to resolve the dispute. ByggFix is not obliged to mediate between the Seller and the Customer or enforce or execute the fulfilment of any contract of sale or otherwise. The Seller shall, and shall procure that the Customer shall, release ByggFix (and its agents and employees and Affiliates) from any claims, demands, and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
4.7 Order cancellations. The Seller shall use all reasonable endeavours to ensure that its Order cancellation rate (where cancellation is due to the Seller rather than the Customer) is kept to a minimum, and in any event ensure such rate not exceed 5% of all valid Orders. ByggFix reserves the right to terminate the Agreement, at its discretion, if the Seller's cancellation rate exceeds 5% of all valid Orders.
4.8 ByggFix APIs. The ByggFix APIs are available if the Seller wishes to integrate and automate Orders into its existing sales order processing systems. Where possible ByggFix shall co-operate with the Seller to set up the ByggFix APIs.
4.9 Transfer of ownership of the Seller's ByggFix Platform account. If the Seller wants to transfer ownership of its ByggFix Platform account for any reason, including a transfer of ownership of the Seller's business, this must be requested in writing to ByggFix. If such a request is made, Seller shall provide ByggFix with all information in relation to the proposed new Seller or new owner of the Seller's business as requested by ByggFix. ByggFix may suspend the Seller's ByggFix Platform account while ByggFix verifies the proposed new Seller's or new owner's details, eligibility and suitability to be a Seller on the ByggFix Platform. Where applicable, ByggFix will only provide access to the ByggFix Platform to a new Seller if they enter into an agreement incorporating this Agreement. The Seller's ByggFix Platform account may be suspended until all payments owed to the outgoing Seller have been cleared. Any attempt to transfer a Seller's ByggFix Platform account without ByggFix's written consent, ByggFix may result in ByggFix suspending the relevant Seller's ByggFix Platform account until the proposed new Seller has been verified and identification provided. In any event, ByggFix may terminate this
4.10Agreement if ByggFix, in its sole discretion, determines that the change of ownership of the Seller's ByggFix Platform account or of the Seller's business renders the Seller's ByggFix Platform account or business no longer eligible or suitable to be listed on the ByggFix Platform.
5.1.1 copy, reproduce, publish, distribute, modify, create derivative works of, sell or in any way commercially exploit any part of the ByggFix Platform, ByggFix APIs or ByggFix Plugins;
45.1.2 copy, frame or mirror any part of the ByggFix Platform, ByggFix APIs or ByggFix Plugins to copy its features, functions or graphics to develop a competing platform or software, or attempt to gain access to third-party data contained within the ByggFix Platform, ByggFix APIs or ByggFix Plugins;
5.1.3 reverse engineer, decompile, translate, disassemble or attempt to discover any source code or underlying ideas or algorithms in the ByggFix Platform, ByggFix APIs or ByggFix Plugins;
5.1.4 post, link to or transmit through the ByggFix Platform, ByggFix APIs or ByggFix Plugins any material, which is unlawful, or that contains a Virus and/or other hostile computer program, malware or spam;
5.1.5 attempt to gain unauthorized access to or disrupt any service, device, data, account or network;
5.1.6 use the ByggFix Platform, ByggFix APIs or ByggFix Plugins in any manner in a way that could harm the ByggFix Platform, ByggFix APIs or ByggFix Plugins (or impair anyone else's use of any of them); or
5.1.7 assist or encourage anyone to do any of the above.
6.1.1 ByggFix shall charge Seller Fees on all Orders sent to the Seller for despatch, except for any Orders which are cancelled by the Customer prior to the Expected Despatch Date. Seller Fees shall apply to all Orders, regardless of which part of the ByggFix Platform the Order originated from.
6.1.2 After delivery of an Order to the Customer and the completion of any applicable cooling off period, and subject to any right of ByggFix to withhold payments to the Seller and/or deduct Seller Fees, ByggFix shall pay the Net Sale Proceeds to the Seller in the Seller's local currency. For the purposes of this clause 6.1.2, an Order shall be assumed to have been delivered on the earlier of: (i) the date the Order is delivered the Customer (as evidenced by the tracking details for the relevant Order); and (ii) 14 days from the date the Seller notifies ByggFix via the ByggFix Portal that the Order has been despatched to the Customer. ByggFix may require the Seller to provide evidence that any despatch occurred on the date specified.
6.1.3 ByggFix shall make payments of Net Sale Proceeds to the Seller on a weekly basis. ByggFix shall choose the most cost-effective way to pay the Seller in the operating currency of its account and this may have one or more days clearing days between initiation of the payment by ByggFix and the cleared funds being available in the Seller's bank account.
6.1.4 With each payment of Net Sale Proceeds to the Seller, ByggFix shall provide by email a reconciled statement of Net Sale Proceeds transferred, together with a corresponding VAT invoice for any VAT due on the Seller Fees.
6.1.5 ByggFix shall apply Swedish VAT on its applicable Seller Fees charged to Sweden-based Sellers, which can be reclaimed by the Seller. For non-Swedish-based Sellers, the Seller Fees are zero rated for VAT purposes.
6.1.6 If ByggFix determines that, singly or cumulatively: (i) it has incorrectly calculated the Seller Fees applicable to any payments already made to the Seller in accordance with clause 6.1.2; and/or (ii) the Seller's account balance falls below a certain threshold which may put the Seller at risk of not being able to collect any such recalculated Seller Fees from its account balance; and/or (iii) the amount of Customer dispute chargebacks exceeds the monies owed to the Seller by ByggFix; and/or (iv) the Seller fails to remit any VAT, and/or any other applicable taxes, charges or levies directly to the appropriate national authorities, then ByggFix may either:
(a) suspend payments of Net Sale Proceeds to the Seller's bank account otherwise payable in accordance with clause 6.1.2 until the correct amount of Seller Fees have been paid by the Seller from its account balance; or
(b) require the Seller to make an immediate payment to cover the outstanding balance of Seller Fees.
[email protected]. Any credit balance in the Seller's account which is unclaimed for 12 months or more will be retained by ByggFix.
6.3.1 Fraud chargebacks. ByggFix shall be responsible for payment related fraud chargebacks for all payment types except where ByggFix has instructed the Seller that an Order be cancelled prior to despatch.
6.3.2 Customer dispute chargebacks.
(a) The Seller shall be responsible for Customer dispute chargebacks including where a Product is ‘not as described' or ‘defective' or similar and for delivery related reasons (except where the Seller has proof of delivery to the Customer's address specified on the ByggFix Platform). For a Customer dispute chargeback, ByggFix will automatically assign liability to the Seller and ByggFix will deduct the amount of the chargeback plus any administration fees from any monies owed to the Seller as Net Sale Proceeds or otherwise. If the amount of the chargeback exceeds the monies owed to the Seller by ByggFix, ByggFix reserves the right to demand immediate transfer of funds from the Seller to ByggFix to cover any shortfall in accordance with clause 6.1.6.
(b) ByggFix shall use its reasonable endeavours to defend Customer dispute chargebacks raised against the Seller where the Seller can provide suitably compelling evidence (as determined by the relevant payment processor), which shall be provided to ByggFix within 3 business days of request by ByggFix. If no compelling evidence is provided, ByggFix reserves the right to accept the chargeback (for which the Seller shall be liable in accordance with clause 6.3.1). ByggFix shall credit the full amount of the chargeback plus the acquirer's administration fee to monies owed to the Seller if the chargeback is successfully defended.
6.4.1 For the purpose of listing the relevant VAT rate applicable to each Product on the ByggFix Platform, ByggFix shall assume that the Seller's Products shall be despatched from the Seller's country of domicile, as specified by the Seller in the ByggFix Portal, unless notified otherwise by the Seller in the ByggFix Portal (in which case the Seller shall specify the country that each Product is despatched from).
6.4.2 ByggFix shall be responsible for calculating and charging the Customer the applicable VAT and/or any other applicable taxes, charges or levies (other than any Customs and Import Fees) payable on all Orders.
6.2.3 Where ByggFix is legally obliged to collect VAT and/or any other applicable taxes, charges or levies for any reason in any jurisdiction in respect of the Seller's use of the ByggFix Platform, the ByggFix APIs or the ByggFix Plugins or any Transactions, ByggFix will report and remit the relevant sums in respect of such VAT, other taxes, charges or levies directly to the appropriate national authorities and will accrue such sums from the sums paid by a Customer in any Transaction and so reduce by the value of the relevant VAT, and/or any other applicable taxes, charges or levies, the Net Sale Proceeds otherwise due to the Seller for that Transaction.
6.2.4 Where ByggFix is not legally obliged to collect VAT and/or any other applicable taxes, charges or levies for any reason in any jurisdiction in respect of the Seller's use of the ByggFix Platform, the ByggFix APIs or the ByggFix Plugins or any Transactions, ByggFix shall remit the Net Sale Proceeds to the Seller inclusive of such VAT, and/or any other applicable taxes, charges or levies and the Seller shall be solely responsible for reporting and remitting the relevant sums in respect of such VAT, and/or any other applicable taxes, charges or levies directly to the appropriate national authorities. In the event that ByggFix incurs liabilities in respect of any failure by the Seller to remit such VAT, and/or any other applicable taxes, charges or levies directly to the appropriate national authorities, ByggFix reserves the right to deduct any such amounts from any payments due to the Seller in accordance with clause 6.1.6.
6.2.5 The Seller shall notify ByggFix as soon as possible if it becomes aware that the ByggFix Platform is incorrectly displaying VAT and/or any other applicable taxes, charges or levies for any of the Seller's Products on any ByggFix Country Marketplace, or if there has been any significant change in the Seller's tax configuration (e.g., additional tax registrations or de-registrations).
6.2.6 If the value of the Seller's sales to a country within the EEA exceeds 'distance selling threshold', the Seller must register for VAT in that country, and charge the destination country rate of VAT on Orders to that country. The Seller shall notify ByggFix promptly of any such registration.
6.5.1 Any Customs and Import Fees levied on an Order shall be the Seller's sole responsibility. If a Customer raises a query regarding any Customs and Import Fees applicable to its Order, it shall be entitled to have such charges reimbursed if it can provide evidence of the same with official documentation, in which case ByggFix shall reimburse the Customer and shall deduct the applicable Customs and Import Fees from any payments due to the Seller in accordance with clause 6.1.6.
6.5.2 The Seller must ensure that the value of the contents of all Product packages is correctly stated on the relevant packing materials to avoid the Customer being charged incorrect or excessive Customs and Import Fees. In the event that ByggFix incurs Customs and Import Fees in respect of any Orders that are a direct result of the mislabelling of Order consignments by the Seller, ByggFix reserves the right to deduct any such charges from any payments due to the Seller's payment in accordance with clause 6.1.6.
6.5.3 ByggFix accepts no liability for any Customs and Import Fees arising on any Products returned by the Customer to the Seller, which shall be the sole responsibility of the Seller.
7.1 The Seller shall execute the ByggFix Data Processing Agreement provided by ByggFix from time to time, an example of which is attached at Appendix 3 which, once executed, shall be incorporated into this Agreement.
8.1 Nothing in this Agreement shall exclude or limit any liability arising from fraud, fraudulent misrepresentation, death or personal injury resulting from negligence or any other liabilities which cannot lawfully be limited or excluded under applicable law.
8.2 Subject to clause 8.1, in no event shall ByggFix be liable to the Seller, whether in contract, tort (including, without limitation, negligence), under statute or otherwise for any indirect or consequential loss or damage, or any (i) loss of profits; (ii) loss of revenue; (iii) loss of anticipated savings; (iv) loss of business; (v) loss of opportunity; (vi) loss of goodwill; (vii) loss due to business interruption; (viii) liability to third parties (including any obligation to pay customer compensation whether ex gratia or otherwise); (ix) loss, alteration or corruption of data; (x) additional operational and administrative costs and expenses; (xi) any fines, penalties or expenses imposed by a regulator, governmental authority or professional body (each of items (i) to (xi) applying whether such loss is direct or indirect).
8.3 Subject to clauses 8.1 and 8.2, ByggFix's total aggregate liability, whether in contract, tort (including negligence), under statute or otherwise to the Seller for any and all losses, liabilities, damages, costs and expenses arising under or in connection with this Agreement in respect of all events occurring in any Contract Year shall be limited to the greater of (i) SEK1,000; and (ii) 100% of the fees paid or payable by the Seller to ByggFix in that Contract Year. For the avoidance of doubt, this clause 8.3 shall take precedence over any limitation of liability clause in the ByggFix Terms of Use.
9.1.1 if it is a business, it is duly organized, validly existing and in good standing under the laws of the territory in which the business is registered, and in the case of the Seller, it holds a valid bank account in the agreed and supported operating currency it has specified in the ByggFix Portal;
9.1.2 it has all requisite right, power and authority to enter into this Agreement and perform its obligations and grant the rights, licences and authorizations its grants hereunder;
9.1.3 any information provided or made available by one party to the other party or its affiliates is accurate and complete, and it will promptly update such information as necessary to ensure it at all times remains accurate and complete; and
9.1.4 it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury's Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce's Entity List), the European Union or its member states, or other applicable government authority.
9.2.1 it shall comply with all applicable laws and shall not cause ByggFix to be in breach of any applicable laws and shall not infringe the rights (including Intellectual Property Rights) of any third party in its performance of this Agreement;
9.2.2 it shall comply with its obligations under this Agreement, the ByggFix Terms of Use and the ByggFix Policies;
9.2.3 it shall perform all of its obligations under this Agreement (including to Buyers) with reasonable care and skill and in accordance with best industry practice; and
9.2.4 by listing a Product for sale on the ByggFix Platform:
(a)it owns the Product or is authorised by the owner to list the Product on the ByggFix Platform, the Product is in stock and available for prompt delivery, is new, original and authentic and has not been illegally replicated, reproduced or manufactured;
(b)it is able to transfer good title to the Product free from any third-party claims, liens or encumbrances;
(c)the Product Pages (including any Seller Content and the Product classification) are accurate, current and complete and is not misleading or otherwise deceptive in any way;
(d)it shall despatch Orders promptly and in any event within the later of: (i) 24 hours from the time the Customer places the Order; and (ii) the lead time, if a lead time is specified by the Seller when the Customer places the Order (the "Expected Despatch Date"); and
(e)the Product and the Seller Content comply with all applicable laws including the laws of all countries in which the Product is made available via the ByggFix Platform, the country in which the Customer resides and any other relevant country (including the country where the Product is manufactured), including any prohibitions on sale, distribution or offering for sale of specific products, customs procedures, taxation, Intrastat, Intellectual Property Rights, parallel importation, copyright levies, export controls, CE marketing and any other relevant EU marks and labels, environment including the Electrical and Electronic Equipment Act in Germany, health and safety legislation and product compliance legislation.
9.2.5 it shall
from sale which are or subsequently become:
not list any Products on the ByggFix Platform and shall immediately remove any such Products
(a) considered by any local regulator or government body to be dangerous, harmful or hazardous, including all those listed as such on RAPEX, Safety Gate or similar; or
(b) subject to recall by the manufacturer or distributor.
9.3.1 the ByggFix Platform, ByggFix APIs and ByggFix Plugins are provided on an "as is" basis; and
9.3.2 except for the warranties, representations, conditions and obligations expressly set out in this Agreement, ByggFix disclaims all warranties, representations, conditions and obligations, whether express or implied, including:
(a) the implied warranties of merchantability, fitness for a particular purpose, title and non- infringement; and
(b) that the ByggFix Platform, ByggFix APIs or ByggFix Plugins will meet the Seller's requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error.
accordance with its terms ("Term").
10.5.1 in accordance with clause 4.7 and 4.9;
10.5.2 by giving written notice to the Seller, if required to do so by any regulator, court order or any applicable law, if continued performance of this Agreement is contrary to any applicable law, or if any of ByggFix's agreements with its licensors terminate or expire, such that ByggFix is no longer able to provide the services or any part thereof; or
10.5.3 on 30 days' written notice to the Seller for any reason.
10.6.1 by giving written notice to Seller if required to do so by any regulator, court order or any applicable law or if continued performance of this Agreement is contrary to any applicable law; or
10.6.2 as set out in clause 13.7.3; or
10.6.3 on 30 days' written notice to ByggFix for any reason.
10.7.1 the Seller's access to the ByggFix Portal, and its ability to list new Products for sale on the ByggFix Platform, shall immediately cease, save to the extent necessary for the Seller to process and/or manage any Orders submitted prior to termination, for which the Seller shall remain fully responsible;
10.7.2 the Seller's existing Products shall be removed from the ByggFix Platform;
10.7.3 except as otherwise set out in this Agreement, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party (including the ByggFix Portal);
10.7.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced;
10.7.5 without prejudice to ByggFix's other rights and remedies, the Seller shall immediately pay all payments due to ByggFix prior to the date of termination; and
10.7.6 ByggFix may retain a portion of any payments due to the Seller for up to 6 months from the date of termination to fund any recalculation of Seller Fees in accordance with clause 6.1.6.
10.8.1 the Seller is in breach of the terms of this Agreement, the ByggFix Terms of Use and/or the ByggFix Policies and such breach has had (or is reasonably likely to have) a serious adverse impact on: (i) the performance of ByggFix's IT systems; and/or (ii) the security of ByggFix's IT systems; and/or the security of ByggFix's other Buyers and their data;
10.8.2 the Seller is in breach of clauses 5.1 or 9.2; or
10.8.3 the Seller fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
13.7.1 Subject to clause 13.7.2, ByggFix may amend any of the terms of this Agreement by giving the Seller at least 21 days' prior written notice, after which the amendment shall be considered incorporated into this Agreement. The Seller's continued use of the ByggFix Platform and/or ByggFix Portal following ByggFix's notice of the amendment will constitute the Seller's acceptance of the amended Agreement.
13.7.2 The notice period in clause 13.7.1 shall not apply where:
(a) ByggFix is subject to a legal or regulatory obligation which requires it to amend this Agreement in a manner which does not allow it to respect the notice period referred to in clause 13.7.1; or
(b) ByggFix has exceptionally to amend this Agreement to address an unforeseen and imminent danger related to defending the online intermediation services, consumers or business users from fraud, malware, spam, data breaches or other cybersecurity risks.
13.7.3 If any amendment proposed by ByggFix is unacceptable to the Seller, the Seller shall be entitled to terminate this Agreement within 15 days of receipt of notice of the amendment.
13.8.1 If any dispute arises in connection with this Agreement, the parties agree to first try to resolve the
dispute through ByggFix's complaints procedure, which is available upon request.
13.8.2 If the dispute is not wholly resolved through ByggFix's complaint's procedure, then the dispute may be referred at the discretion of the Seller to CEDR for mediation. The parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing ("ADR Notice") to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR.
13.8.3 If there is any point on the logistical arrangements of the mediation, other than the nomination of the mediator, upon which the parties cannot agree within 14 working days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them.
13.12.1 this Agreement;
13.12.2 the executed ByggFix Data Processing Agreement;
13.12.3 the schedules and appendices of this Agreement;
13.12.4 the ByggFix Policies; and
13.12.5 the ByggFix Terms of Use.
Appendix 1: Definitions and interpretation
1.1 "ADR Notice" has the meaning set out in clause 13.8.2;
1.2 "Affiliate" means an entity that, either directly or indirectly, Controls, is Controlled by or is under common Control with the relevant entity;
1.3 "Agreement" means this agreement, as amended from time to time in accordance with its terms, including the schedules and appendices and the executed ByggFix Data Processing Agreement;
1.4 "CEDR" means the Centre for Effective Dispute Resolution;
1.5 "Commission" means the commission payable to ByggFix on each Order, as specified in Appendix 2;
1.6 "Confidential Information" has the meaning set out in clause 12.1;
1.7 "Contract Year" means a period of 12 months (or such shorter period if this Agreement is terminated earlier), commencing on the Effective Date or an anniversary of the Effective Date;
1.8 "Control" means the ability to direct the affairs of another by ownership, contract or otherwise;
1.9 "Customer" means a user of the ByggFix Platform who has submitted an Order to the Seller via the ByggFix
Platform.
1.10 "Customs and Import Fees" means any customs and import fees and other duties and/or levies imposed by any authority, government or government agency in any jurisdiction, including local import tax, and any handling and/or administration fees;
1.11 "Expected Despatch Date" has the meaning set out in clause 9.2.4(d);
1.12 "Effective Date" means the date on which the Seller's Seller Application is accepted by ByggFix;
1.13 "EEA" means the European Economic Area;
1.14 "Export Control Laws" has the meaning set out in clause 13.1;
1.15 "Force Majeure Event" means an event beyond the reasonable control of the relevant party, including flood, fire, explosion, the elements, epidemic, disease, war, civil commotion, terrorist activity, shortage of raw materials, power or fuel, breakdown of plant or machinery, computer, software and hardware failure, or any failure in a communications network. For the avoidance of doubt the non-payment of any fees by the Seller is not a Force Majeure Event;
1.16 "ByggFix" means eComIN AB, incorporated and registered in Sweden with company number 559270-2061 whose registered office address of Klågerupsv. 361, 212 36 Malmö, Sweden;
1.17 "ByggFix APIs" means any application programming interface made available by ByggFix under this Agreement, including the ByggFix Product and Order API, and any other APIs that ByggFix may make available for use by the Seller from time to time;
1.18 "ByggFix Checkout System" means ByggFix's checkout system in which Buyers place Orders in their local currency on the ByggFix Platform and ByggFix settles the Net Sale Proceeds to the Seller in the Seller's own currency;
1.19 "ByggFix Content" means content generated by ByggFix from the Seller Content, including manual or automatic translations of Product descriptions or resized Product images;
1.20 "ByggFix Country Marketplaces" means the fully localised versions of the ByggFix Platform;
1.21 "ByggFix Platform" means the multi-country, multi-currency, multi-language platform owned and operated by ByggFix for Buyers and Sellers to transact with each other, the ByggFix Country Marketplaces and the ByggFix Portal;
1.22 "ByggFix Plugins" means the plug-ins developed by ByggFix and its partners for numerous major ecommerce platforms such as Magento and Shopify, together with API integrations into multi-channel management solutions such as ChannelAdvisor, Linnworks and PlentyMarkets. The current list of ByggFix Plugins and future planned integrations is available upon request;
1.23 "ByggFix Policies" means the following policies and any other policies and guidelines notified to the Seller by ByggFix, each available at this website and in each case as may be amended or updated from time to time:
1.23.1 ByggFix Advertising with Third Parties Policy
1.23.2 ByggFix Chargebacks Policy
1.23.3 ByggFix Intellectual Property Policy,
1.23.4 ByggFix Third Party Legal Complaints Policy,
1.24 "ByggFix Portal" means the back-office facility that allows the Seller to list and sell Products on the ByggFix Platform;
1.25 "ByggFix Product and Order API" means the optional API for automatic Product data management and Order processing between the ByggFix Platform and the Seller's own systems. Documentation for the ByggFix Product and Order API is available upon request;
1.26 "ByggFix Terms of Use" means the terms of use governing the use of the content, software and services offered through the ByggFix Platform, available at this website;
1.27 "Funds Processing Fee" means the funds processing fee payable to ByggFix on each Order, as specified in Appendix 2;
1.28 "Insolvency Event" means any corporate action, legal proceedings or other procedure or step (save for any corporate action, legal proceedings or other procedures which are frivolous or vexatious and which are being contested in good faith) taken in relation to:(a) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);(b) a composition, compromise, assignment or arrangement with any creditor; (c) commencing action to appoint, or the appointment of, a liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver, administrator, compulsory manager or other similar officer; or (d) any analogous procedure or step is taken in any jurisdiction;
1.29 "Intellectual Property Rights" means all patents, trademarks, service marks, trade names, design rights, copyright, rights in software, database rights, rights in know-how and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights, and rights in Confidential Information;
1.30 "Order" means an order submitted by a Customer to buy one or more Products from the Seller via the ByggFix Platform;
1.31 "Net Sale Proceeds" means the proceeds of an Order, after all applicable Seller Fees have been subtracted by ByggFix;
1.32 "Product" means a product listed for sale on the ByggFix Platform by the Seller;
1.33 "Product Detail Page" means the Product page on the ByggFix Platform which includes a detailed description of
the Product;
1.34 "Product Listing" means the Product listing which appears in a grid of similar products on the ByggFix Platform which includes a brief description of the Product;
1.35 "Product Pages" means the Product Detail Page and the Product Listing;
1.36 "Seller" means the user of the ByggFix Platform named in the Seller Application;
1.37 "Seller Application" means the Seller's application to become a Seller on the ByggFix Platform which has been accepted by ByggFix;
1.38 "Seller Content" means the content uploaded by the Seller to the ByggFix Platform in relation to a Product, including Product descriptions and images;
1.39 "Seller Fees" means the amounts deductible from the proceeds of an Order, as further set out in Appendix 2 including the Commission, and any other applicable taxes, charges or levies specified in this Agreement or as otherwise notified by ByggFix to the Seller from time to time;
1.40 "Term" has the meaning set out in clause 10.1;
1.41 "Transaction" means the purchase of one or more Products from the Seller via the ByggFix Platform in
completion of an Order;
1.42 "VAT" means any taxes or levies imposed by a government agency pursuant to the purchase of goods, such as value added tax chargeable under or pursuant to the Value Added Tax Act 1994 or Council Directive 2006/112/EC
and/or any equivalent and/or similar sales, purchase, goods and services or turnover tax chargeable outside the European Union;
1.43 "Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re- arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.1 a reference to a party is to a party to this Agreement and includes that party's representatives, successors and
permitted assignees;
2.2 a reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law (whether or not having separate legal personality);
2.3 any reference to a statute, statutory provision or statutory instrument is a reference to it as it is in force for the time being, as may be amended, extended, consolidated, re-enacted, replaced, superseded or otherwise converted, succeeded or modified or incorporated into law (whether in relation to the United Kingdom's exit from the European Union or otherwise);
2.4 general words are not to be given a restrictive meaning because they are followed by examples, and any words introduced by the word "including" or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words;
2.5 writing includes email to the designated email addresses notified by the recipient party to the notifying party on the ByggFix Portal from time to time, which in the case of the Seller shall be the email specified by the Seller in the ByggFix Portal;
2.6 the headings and sub-headings in this Agreement are included for convenience only and are not intended to affect the interpretation of this Agreement; and
2.7 "subsidiary" and "holding company" have the meanings given to these terms in sections 1159 and 1162 of the Companies Act 2006.
Appendix 2: ByggFix Seller Fees
Current Seller Fees (apply from 1st January 2022)
Joining and Set-Up Fee:
Monthly Fee / Minimum Monthly Fee: Product Listing Fee:
Commission:
Funds Processing Fee:
SEK0
Nil
Nil – Unlimited Products
15% of basket value (being the value of the Products and the delivery costs, excluding VAT and any other applicable taxes, charges or levies)
2.35% of Transaction value (being the value of the Products and the delivery costs, including VAT and any other applicable taxes, charges or levies)
Note: Commission is calculated based on the Seller's own price list for each Product and in their local currency. The Funds Processing Fee is calculated on the local sale price of the Product plus delivery costs paid by the Customer, including any applicable VAT and any other applicable taxes, charges or levies, and converted into the Seller's local currency. For the avoidance of doubt, the Funds Processing Fee concerns transaction costs incurred by ByggFix and does not relate to any form of payment service provided to the Seller.
Funds Processing Fees are non-refundable.
Appendix 3: ByggFix Data Processing Agreement
THIS AGREEMENT is made the _____________ day of _________________ 20[ ]
BETWEEN:
(1) ECOMIN AB. Klågerupsvägen 361, SE-212 36 Malmö, Sweden, Registered as a company in Sweden as Company Number 559270-2061 ("Controller"); and
(2) [PARTY 2] of [ADDRESS & Company Registration Number] ("Processor"),
(with each a "Party" and both the "Parties").
BACKGROUND:
(a) The Processor is required to Process Personal Data on behalf of the Controller in connection with the Terms and Conditions for ByggFix Sellers agreed between the Parties ("ByggFix Agreement").
(b) This Agreement effects the appointment of the Processor and sets out the terms and conditions that shall apply to its Processing of the Processed Data.
"Commencement Date" "Controller"
"Data Protection Impact Assessment"
"Data Protection Legislation"
"Data Subject"
"Data Subject Access Request"
"GDPR"
"International Organisation" "Law"
"Personal Data" "Personal Data Breach"
[the date of this Agreement];
has the meaning given to it in the GDPR;
means an assessment by the Controller, for the purposes of Article 35 of the GDPR, of the impact of certain envisaged Processing of Personal Data;
means all applicable data protection and privacy legislation and laws in force from time to time, as applicable to a Party or the services performed under the ByggFix Agreement, including but not limited to:(a)the GDPR, the ePrivacy Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003;(b) any laws which implement or supplement any such laws in any relevant jurisdiction; and (c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and (d) any guidance or codes of practice issued by any Supervisory Authority from time to time;
has the meaning given to it in the GDPR;
a request made by, or on behalf of, a Data Subject in accordance with the Data Subject's rights under the Data Protection Legislation to access their Personal Data;
General Data Protection Regulation (Regulation (EU) 2016/679) ("EU GDPR") and/or the EU GDPR (as defined in Part 1, Section 3(10) of the Data Protection Act 2018), as the context permits and to the extent applicable to a Party;
has the meaning given to it in the GDPR;
means any law, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, (as applicable) any enforceable right within the meaning of Section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements with which the Processor is bound to comply;
has the meaning given to it in the GDPR;
has the meaning given to it in the GDPR and includes also any breach of Article 5(1)(f) (the integrity and confidentiality principle) of GDPR;
"Processing" "Processor"
"Processed Data"
"Processor Personnel"
"Sub-Processor" "Third Country "Supervisory Authority"
has the meaning given to it in the GDPR, and the terms "Process" and "Processed" shall be construed accordingly;
has the meaning given to it in the GDPR;
means such item(s) forming part of the Personal Data being processed by the Processor on behalf of the Controller or which the Processor has access to under this Agreement as are more particularly specified in Annex 1 of this Agreement;
means all directors, officers, employees, agents, consultants and contractors of the Processor and/or of any Sub-Processor engaged in the performance of its obligations under this Agreement;
means any third party appointed to Process the Processed Data on behalf of the Processor;
means any country other than the Sweden, a European Union Member State or a member of the European Economic Area at the time of transfer of the Processor Processed Data; and
means the European Information Commissioner and otherwise (where relevant) has the meaning given to it in the EU GDPR.
2.1.1 the termination or expiry of the commercial relationship between the Controller and the Processor including the completion of any post-termination obligations of the Processor set out in the ByggFix Agreement which require the Processor to Process Processed Data; or
2.1.2 the Controller terminates the appointment of the Processor by giving not less than one (1) month's prior notice to the Processor,
at which point this Agreement shall terminate with immediately effect.
3.3.1 a systematic description of the envisaged Processing operations and the purpose of the Processing;
3.3.2 an assessment of the necessity and proportionality of the Processing operations;
3.3.3 an assessment of the risks that the Processing shall pose to the rights and freedoms of Data Subjects; and
3.3.4 the measures proposed or envisaged to address such risks, including appropriate technical and organisational measures to ensure the protection of the Personal Data.
3.4.1 Process that Processed Data only in accordance with Annex 1 and in accordance with the Controller's written instructions (including with respect to transfers of Personal Data to a Third Country or International Organisation), unless the Processor is required to do otherwise by Law (and if so required by Law the Processor shall promptly notify the Controller before Processing the Processed Data unless prohibited by Law);
3.4.2 keep the Processed Data confidential and not disclose it to any third party without the prior written consent of the Controller;
3.4.3 take appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Processed Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects, including as appropriate:
3.4.3.1 the pseudonymisation and encryption of the Processed Data;
3.4.3.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
3.4.3.3 the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and
3.4.3.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing;
3.4.4.1 the Processor Personnel do not Process any Processed Data except in accordance with this Agreement (and in particular Annex 1);
3.4.4.2 it takes all reasonable steps to ensure the reliability and integrity of any Processor Personnel who have access to the Processed Data and ensure that they:
(a) are aware of and comply with the Processor's duties under this Clause 3;
(b) are subject to appropriate confidentiality undertakings that are enforceable by the Processor and/or are under an appropriate statutory obligation of confidentiality;
(c) are informed of the confidential nature of the Processed Data and do not publish, disclose or divulge any of the Processed Data to any third party unless directed in writing to do so by the Controller or as otherwise permitted by this Agreement; and
(d) have undergone adequate training in the use, care, protection and handling of Processed Data;
3.4.5.1 (where the Processor is located in the United Kingdom or the EEA) transfer the Processed Data to a Third Country, or to any International Organisation; or
3.4.5.2 (where the Processor is located outside the United Kingdom or the EEA) effect an onward transfer of the Processed Data to a Third Country, or to any International Organisation, unless the prior written consent of the Controller has been obtained and the following conditions are fulfilled:
(a) the Processor has, prior to such transfer, established, or procured the establishment of, appropriate safeguards in relation to the transfer of the Processed Data and complied with the provisions of clause 3.13in respect of any transfers of Processed Data to Sub-Processors in Third Countries for Processing;
(b) each Data Subject whose Personal Data is transferred has enforceable rights and effective legal remedies which are enforceable against the Processor, and the Processor has ensured prior to any such transfer that such rights and remedies are available;
(c) the Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection for all Processed Data that is transferred (or procures that such protection is provided); and
(d) the Processor complies with all reasonable instructions notified to it in advance of such transfer by the Controller with respect to such transfer, including to provide to the Controller copies of adequate safeguards such as standard contractual clauses to be used by the Processor and details of transfer impact assessments or other risk assessments undertaken by the Processor in respect of the transfer.
3.7.1 receives any Data Subject Access Request (or purported Data Subject Access Request);
3.7.2 receives any request to rectify, block or erase any Processed Data;
3.7.3 receives any other request, complaint or communication relating to either Party's obligations under the Data Protection Legislation;
3.7.4 receives any communication from any Supervisory Authority or any other regulatory authority in connection with Processed Data;
3.7.5 receives a request from any third party for disclosure of Processed Data where compliance with such request is required by Law; or
3.7.6 becomes aware of any Personal Data Breach (and such notification shall be made not later than twenty-four (24) hours following the Processor becoming aware of each Personal Data Breach).
and shall promptly
do so within the timescales reasonably required by the Controller. In particular the Processor shall provide the Controller with:
full details and copies of each complaint, communication or request received by the Processor (or received by the Controller and relating to any Personal Data);
such assistance as is reasonably requested by the Controller to enable the Controller to comply with each Data Subject Access Request within the relevant timescales specified in or under the Data Protection Legislation;
copies of any Processed Data specified by the Controller, and details of the Processing of such Processed Data by or on behalf of the Processor;
assistance as requested by the Controller in relation to any Personal Data Breach, including in relation to any notifications to Supervisory Authorities or affected Data Subjects;
assistance to ensure that Processing of Processed Data by or on behalf of the Processor complies with any exercise by any relevant Data Subject of any of his or her rights under Data Protection Legislation, including to ensure that the Personal Data relating to such Data Subject is (for example) deleted and/or rectified and/or made subject to restrictions in accordance with such exercise of such rights; and
3.9.6assistance as requested by the Controller with respect to any request from a Supervisory Authority, or any consultation by the Controller with a Supervisory Authority.
3.10.1 its details, the Controller's details and the details of the Processor's data protection officer (if applicable) or, if the Processor is not subject to a mandatory requirement under Data Protection Legislation to appoint such an officer, the details of the person who has overall responsibility for the Processor's compliance with the Data Protection Legislation;
3.10.2 the categories of Processing of the Processed Data that are carried out by or on behalf of the Processor;
3.10.3 the details of any transfers to any Third Countries, where applicable, and the safeguards in place for each such transfer; and
3.10.4 accurate records of the technical and organisational measures that the Processor has in place in accordance with clause 3.4.3.
3.13.1 notify the Controller in writing of the intended Sub-Processor and Processing;
3.13.2 obtain the written consent of the Controller to the Processor appointing or using the proposed Sub-Processor to Process certain Processed Data;
3.13.3 enter into a written agreement with the Sub-Processor which appoints the Sub-Processor on terms and conditions that comply with Data Protection Legislation and are no less onerous on the Sub- Processor, and no less protective of the Personal Data and of Data Subjects, than the provisions of this Agreement (and provide comprehensive details of such agreement to the Controller on request); and
3.13.4 provide the Controller with such information regarding the proposed Sub-Processor as the Controller may reasonably require.
4.1 The Parties intend for the dispute resolution procedures set out in the ByggFix General Terms And Conditions to apply to this Agreement.
5.1 Subject to Clauses 3.16and 3.20, any amendment or variation to this Agreement shall be in writing and signed by duly authorised representatives of each of the Parties.
5.2 If the Data Protection Legislation changes in a way that the Agreement is no longer adequate for the purpose of governing lawful Processing exercises, the Parties agree they will negotiate in good faith to review the Agreement in the light of the new legislation.
6.1 Any notice or other communication given by either Party under or in connection with this Agreement shall be in writing and shall be:
6.1.1 delivered by hand, courier or by recorded post or other next working day recorded delivery service at its registered office (if a company) or its principal place of business (in any other case); or
6.1.2 sent by email to the following addresses: [email protected] and [Party 2 address]].
6.2 Any notice or communication shall be deemed to have been received:
6.2.1 if delivered by hand or courier, on the date on which the delivery receipt is signed;
6.2.2 if sent by recorded post or other next working day recorded delivery service, at the time recorded by the delivery service; and
6.2.3 if delivered by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume,
and in this clause 6.2 "business hours" means 9.00am to 5.00pm Monday to Friday on a working day, and in this clause 6 "working day" means that is not a weekend or public holiday in the place of receipt.
6.3 This clause 6 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
7.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
7.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 7.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
8.1 No failure or delay by any Party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right to remedy.
9.1 A person who is not a Party to this Agreement shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
10.1 This Agreement, together with the ByggFix Agreement, supersedes all prior representations and agreements between the Parties (whether written or oral) relating to the subject matter of the Agreement and sets forth the entire agreement and understanding between the Parties.
10.2 Each Party warrants to the other that it has not relied on any representation or agreement (whether written or oral) not expressly set out or referred to in the Agreement or the ByggFix Agreement.
11.1 This Agreement may be executed in one or more counterparts. Any single counterpart or a set of counterparts executed, in either case, by the Parties shall constitute a full original of this Agreement for all purposes.
12.1 Each Party submits to the exclusive jurisdiction of the Swedish courts and agrees that the Agreement is to be governed and construed according to Swedish law. This Agreement has been entered into on the date stated above.
IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below. For EComIN AB (the Controller)
Signature______________________________
Name______________________________
Title______________________________
Date Signed:______________________________
For______________________________(the Processor)
Signature______________________________
Name______________________________
Title______________________________