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General Terms And Conditions Merchandise Essentials BV

This page has been updated on 18 November 2020.

ARTICLE 1 DEFINITIONS.
In the General Terms and Conditions the following terms shall have the following meanings: "General Terms and Conditions": these General Terms and Conditions (version 13/11/2020), which apply to any offer made by Merchandise Essentials with regards to the usage of Merchbot (hereinafter "Offer"), any acceptance by the Client of such Offer and, in general, any agreement concluded between Merchandise Essentials and the Client with regards to the usage of Merchbot (hereinafter "Agreement"). "Specific Terms and Conditions": specific terms that describe the Agreement between the Client and Merchandise Essentials and that prevail over the General Terms and Conditions. "Merchandise Essentials": the Private limited liability company Merchandise Essentials, with registered office at Belgium, Hof ter Weze 5, Roeselare, with company number BE 0539.854.587. "Merchbot": the platform by Merchandise Essentials which is used to facilitate and automate the distribution of merchandise goods ordered by Client with Merchandise Essentials. "Client": the (future) contracting party of Merchandise Essentials to whom an Offer for the licensing of Merchbot is made and/or with whom an Agreement is concluded, as well as any affiliated company and any company that is connected with the same Merchbot-network that is set up for Client “One Off-Agreement”: an Agreement for a one-time usage of the Merchbot in the context of a single order of merchandise with Merchandise Essentials. “Subscription Agreement”: an Agreement in which Client subscribes to a continuous usage of Merchbot.
ARTICLE 2 FORMATION OF THE AGREEMENT AND AMENDMENTS

  1. Every Offer is without obligation until the moment of acceptance by the Client. An Offer will only be accepted if it is accepted in writing by Merchandise Essentials. By such confirmation, an Agreement is deemed to have been fully and legally concluded.
  2. Acceptance of the General Terms and Conditions implies that the Client completely waives the application of his own terms and conditions.
  3. Amendments to the Agreement shall always be requested and confirmed in writing and if this results in additional costs or additional work, these may be charged by Merchandise Essentials.

ARTICLE 3 LICENSE-DURATION RESTRICTIONS.
  1. In case of a One Off-Agreement, Client receives a non-exclusive, non-transferable license to use the Merchbot for the sole purpose of facilitating its specific order with Merchandise Essentials.
  2. In case of a Subscription Agreement, Client receives a non-exclusive, non-transferable license, for the duration of the Subscription Agreement, to use the Merchbot for the purpose of facilitating with Merchandise Essentials and to incorporate Merchbot with its own CRM-system. A Subscription Agreement is entered into for a period equal to one year and is renewed automatically, unless a party notifies the other party of its withdrawal in writing no later than 1 month from the final date of Subscription Agreement.
  3. Any of the following conduct, without the explicit written consent of Merchandise Essentials, will be considered a serious breach of the Agreement:
  • To assign the license pursuant to the Agreement or to provide sublicenses thereof to other parties.
  • To transfer, sell, distribute or to otherwise make available copies of Merchbot to third parties.
  • To decompile the source code of Merchbot, to make any changes to Merchbot or its incorporation with Client’s CRM-system, or to try to disable or bypass any protection established within Merchbot unless allowed by mandatory law.
  • To remove or obfuscate indications of Merchandise Essentials as the copyright owner of Merchbot.

ARTICLE 4 DELIVERY
  1. In the case of a Subscription Agreement, Merchandise Essentials will integrate Merchbot with the CRM-system of choice of Client. Merchandise Essentials will establish such integration to the best of its knowledge and ability. If the current CRM-system of Client would be incompatible with Merchbot, Merchandise Essentials cannot be held liable for such incompatability and shall not lead to any reduction of the agreed prices.
  2. It is the sole responsibility of Client to provide accurate information to Merchbot with respect to the specifications, amounts and addressees of the ordered merchandise. Merchandise Essentials does not accept any liability as a consequence of inaccurate information by Client. In the case of a One Off-Agreement, Client shall provide such information in a sheet in Excel-format in this Excel-sheet. In the case of a Subscription Agreement, Client shall provide such information directly into the integrated Merchbot.
  3. Client agrees to notify Merchandise Essentials without undue delay in case of technical issues with Merchbot. Merchandise Essentials undertakes to repair such issues within a reasonable period of time without additional costs other than the fees as agreed upon. However, Merchandise Essentials cannot be held to repair any issues which are the result of unauthorized changes to Merchbot or its incorporation with Client’s CRM-system.
  4. The ordered merchandise is manufactured and delivered by the commercial partners of Merchandise Essentials at the indicated location(s) by Client. Terms of delivery are indicative and do not bind Merchandise Essentials. Client agrees that the late payment of any amount due, prolonges the terms delivery.
  5. Costs of delivery and non-delivery shall be fully borne by Client. The risk of loss, damage or theft of the ordered merchandise is transferred to Client at the time of the conclusion of the Agreement.
  6. The conformity of the ordered merchandise is subject to the general terms and conditions of Merchandise Essentials which are attached hereto and which can be consulted
  7. If Merchandise Essentials is prevented by force majeure of a permanent or temporary nature from performing or further performing the Agreement, regardless of whether the force majeure was foreseeable, Merchandise Essentials shall be entitled, without any obligation to pay damages, to terminate the Agreement in whole or in part by means of a written notice without judicial intervention, without prejudice to Merchandise Essentials’s right to payment by Client for performance already performed by Merchandise Essentials before there was a situation of force majeure or to suspend performance or further performance of the Agreement in whole or in part.
  8. Any and all claims of the Client against Merchandise Essentials shall expire by operation of law if they are not brought before the competent court within a period of one year after the facts on which the claim is based were known to the Client or could reasonably have been known to the Client.

ARTICLE 5 FURTHER DISCLAIMERS OF LIABILITY
  1. Merchandise Essentials undertakes, prior to concluding the Agreement, to provide the Client with information relating to the Agreement. Merchandise Essentials will not be responsible for the correctness, completeness or accuracy of the information provided to the Client prior to the conclusion of the Agreement.
  2. Merchandise Essentials undertakes to perform the Agreement to the best of its knowledge and ability (obligation to perform to the best of its ability), but Merchandise Essentials will not accept any responsibility for failure to achieve the Client’s intended purpose.
  3. To the extent that the functionality of Merchbot or any service connected thereto, such as the physical transport of the ordered merchandise to Client, depends on the cooperation, services and deliveries of third parties in the performance of the Agreement, Merchandise Essentials cannot be held liable for any loss or damage arising from their fault, including their gross or intentional fault. Furthermore, Merchandise Essentials does not offer any guarantees with regard to the uptime of Merchbot, nor with regard to the prevention of data loss caused beyond the control of Merchandise Essentials. More specifically, Client acknowledges that Merchbot is hosted with Google Cloud. The hosting of Merchbot is therefore subject to the terms and conditions of Google Cloud, which can be consulted at: https://cloud.google.com/appengine/sla.
  4. The parties agree that it is not possible to develop software such that it meets all the requirements of the application without error. Merchandise Essentials shall make available user documentation explaining the intended use and the conditions of usage of Merchbot, which shall always be kept up to date. There can be no claim under this warranty in the case of minor or immaterial deviations from the agreed or assumed characteristics or in the case of merely slight impairment of use. Descriptions given in the user documentation shall not be deemed guaranteed.
  5. Merchandise Essentials shall only be liable in the event of fraud and wilful misconduct. Subject to the foregoing, Merchandise Essentials shall not be liable for, or be held to pay compensation for indirect or consequential damages, even if Merchandise Essentials has been advised or warned of the possibility of such damages or losses, and regardless if such damages or losses were foreseeable.
  6. Except in the event of fraud, wilful misconduct or gross negligence, the total contractual and extra-contractual liability of Merchandise Essentials towards the Client will be limited to the amount covered by the liability insurance taken out by Merchandise Essentials. Without prejudice to the foregoing, the total contractual and extra-contractual liability of Merchandise Essentials vis-à-vis the Client for all claims that may occur during the entire term of the Agreement will at all times be limited to the amount invoiced to the Client during the year preceding the claim.
  7. If the Agreement is signed on behalf of two or more natural or legal persons, each of these persons shall be jointly and severally liable for the full performance of the obligations arising from the Agreement.
  8. In the event that the contractual relationship is terminated, Merchandise Essentials may apply set-off between all mutually established claims with the Client, irrespective of the time at which the claims in question become due and payable, in accordance with the provisions of article 14 of the Belgian Financial Securities Act of 15 December 2004.
  9. Late payment of an invoice causes all outstanding invoices to becoming immediately due and payable, even if the due date of these invoices has not yet expired
  10. The presentation by Merchandise Essentials of an account statement is sufficient to determine the amount of its claim against the Client and to provide proof thereof.

ARTICLE 6 PRICE AND PAYMENT
  1. Pricing is determined and agreed upon in the Specific Terms and Conditions. Nonetheless, the following circumstances may give rise to the charging of additional fees on top of the initially agreed upon prices:
  • Requirements, wishes, preconditions or expectations of the Client that at the time of entering into the Agreement have not been made known to Merchandise Essentials, or not in full extent, or insufficiently clearly.
  • Bugfixing and troubleshooting necessary because of updates or changes to Client’s CRM-system resulting in issues with the established integration with Merchbot.
  • Insufficient cooperation of the Client in the integration of Merchbot in the context of a Subscription Agreement;
  1. All taxes, including VAT, and customs duties, including any duty or charge imposed on or in connection with the importation or exportation of the ordered merchandise, including any form of surtax or surcharge in connection with such importation or exportation, shall be fully borne by Client and Client shall fully reimburse Merchandise Essentials for such taxes and customs duties.
  2. In case of a One-Off Agreement, Client agrees that the processing of the ordered merchandise through Merchbot only commences after prior payment without reduction of the invoices both for the ordered merchandise and for the usage of Merchbot.
  3. In case of a Subscription Agreement, Client shall pay each invoice submitted by Merchandise Essentials within 14 business days of the date of the invoice.
  4. Invoices regarding all taxes as mentioned in paragraph 2 of this article shall be paid by Client within 5 business days of the date of the invoice.
  5. In the event of late payment of any amount due pursuant to the Agreement or for any other reason, Merchandise Essentials shall be entitled:
  • to suspend the functionality of Merchbot;
  • to suspend any further manufacturing of the ordered merchandise;
  • to suspend any delivery of the ordered merchandise.
  1. The Client waives his right to suspend payment of amounts due in the event of a claim or complaint of his own and thus waives its right or suspension.
  2. In the event of late payment of any amount due pursuant to the Agreement or for any other reason, Merchandise Essentials shall be entitled to a compensation of 10% of the amount due (with a minimum of EUR 125.00) as well as conventional default interest at the rate equal to the Act of 2 August 2002 on the combating of late payments in commercial transactions.
  3. In the event of late payment of any amount due pursuant to the Agreement or for any other reason, Merchandise Essentials shall be entitled to a compensation of 10% of the amount due (with a minimum of EUR 125.00) as well as conventional default interest at the rate equal to the Act of 2 August 2002 on the combating of late payments in commercial transactions.
  4. If the Agreement is signed on behalf of two or more natural or legal persons, each of these persons shall be jointly and severally liable for the full performance of the obligations arising from the Agreement.
  5. In the event that the contractual relationship is terminated, Merchandise Essentials may apply set-off between all mutually established claims with the Client, irrespective of the time at which the claims in question become due and payable, in accordance with the provisions of article 14 of the Belgian Financial Securities Act of 15 December 2004.
  6. Late payment of an invoice causes all outstanding invoices to becoming immediately due and payable, even if the due date of these invoices has not yet expired.
  7. The presentation by Merchandise Essentials of an account statement is sufficient to determine the amount of its claim against the Client and to provide proof thereof.

ARTICLE 7 PROTESTS
Any protest from an invoice related to Merchbot shall be made by means of a motivated and registered letter sent to the registered office of Merchandise Essentials within eight calendar days of receipt of the invoice by Client. In the absence of a protest within this period and in accordance with the terms of this provision, the Client shall be deemed to have accepted the invoice in full.
ARTICLE 8 INTELLECTUAL PROPERTY
  1. The license of Merchbot only commences or re-commences after suspension, notwithstanding the actual delivery or incorporation of Merchbot:
  • Full payment of the fees and prices agreed for the delivery in accordance with the Specific Terms and Conditions.
  • The full payment of any claims due to non-fulfilment of the Agreement by Client
  1. All designs, studies, drawings, presentations, working methods, and in general all carriers in which Merchandise Essentials’s intellectual performances appear or are contained, remain the sole property of Merchandise Essentials at all times and only the license to use Merchbot as described in Article 3 is delivered to the Client. Client acknowledges that the mentioned items, as well as the related know-how, methods and developed software, are the exclusive property of Merchandise Essentials. They may under no circumstances be used, communicated or copied, even partially, without written permission of Merchandise Essentials. The Client hereby explicitly waives the possibility to invoke any right in this respect and to use the obtained information to apply for an intellectual protection right. He commits himself to the confidentiality of the aforementioned items. Software or other items owned by third parties will remain the exclusive property of these third parties and the right of use of these items will be limited to the provisions of any licence agreements relating to these items.
  2. It is the responsibility of Client to ensure that the material or information that he provides to Merchandise Essentials in the context of the Agreement, does not infringe any intellectual property rights of third parties and does not infringe any other legislation. Client shall indemnify Merchandise Essentials against any damages, losses and expenses suffered or incurred by Merchandise Essentials as a result of any such infringement.

ARTICLE 9 CONFIDENTIALITY
All information, files and other matters exchanged between Merchandise Essentials and Client in the performance of the Agreement are confidential and, unless agreed otherwise, may only be used by both parties for the performance of the Agreement.
ARTICLE 10 PRIVACY AND DATA PROTECTION
  1. Client acknowledges that its personal data and those of their employees, agents, intermediaries, directors, etc. are registered and processed by Merchandise Essentials (as a controller), processing which can be outsourced to third parties in the name and on behalf of Merchandise Essentials, whereby the same rights and obligations are imposed on these third parties as described in these General Terms and Conditions. The registered and processed data (hereinafter referred to as “the Data”) include: IP addresses of Client, data made available to Merchandise Essentials by the Client, contact information of Client (e-mail address, name and company name), billing information of Client.
  2. The Data may be processed for the following purposes:
  • To manage the contractual relationship with the Client, for which Merchandise Essentials relies on the necessity of the performance of the Agreement.
  • For security reasons, for which Merchandise Essentials relies on its legitimate interests
  • For market research and statistics, for which Merchandise Essentials relies on it legitimate interests.
  • For direct marketing for other services offered by Merchandise Essentials or third parties with which Merchandise Essentials has a contractual or other relationship, for which Merchandise Essentials relies on its legitimate interests.
  1. Merchandise Essentials takes appropriate technical and organizational measures to protect the Data that it processes. These measures are adapted to the risk of processing.
  2. Merchandise Essentials shall keep confidential and not disclose or transfer any Data to third parties who are no processor of Merchandise Essentials, unless Merchandise Essentials is required to do so on request of judicial authorities. Such disclosure shall be based on the necessity to comply with a legal obligation to which Merchandise Essentials is subject.
  3. The Data is stored by Merchandise Essentials and processed for a period required for the purpose of the processing, legal obligations and for the contractual relationship between Merchandise Essentials and Client.
  4. Merchandise Essentials does not transfer Data outside of the EEA.
  5. Clients and third parties whose Data are processed by Merchandise Essentials, have the following rights:
  • The right to access the Data.
  • The right to rectify the Data if they are inaccurate or incomplete.
  • The right to object, free of charge and on simple request (by sending an e-mail), to the processing of the Data for the purposes of direct marketing or the sending of commercial messages or advertising by post, e-mail or telephone.
  • The right to the deletion or erasure of data where there is no compelling reason for their continuing processing.
  • The right not to be subject to automatic decision making.
  1. Clients and third parties can exercise their rights by contacting Merchandise Essentials by e-mail at the address info@merchandise-essentials.com. When making such a request, the Client must always enclose a copy of the front of his identity card. The Client has the right to complain to the Belgian Data Protection Authority, rue de la Press 35, 1000 Brussels, Tel +32 (0)2 274 48 00, Fax +32 (0)2 274 48 35, e-mail: contact@apd-gba.be.

ARTICLE 11 TERMINATION
  1. The Agreement may be terminated, at any time, by the mutual agreement of the parties. However, any sum paid to Merchandise Essentials remains non-refundable.
  2. The Client acknowledges that the following circumstances shall by operation of law give rise to termination of the Agreement within the meaning of this article, unless Merchandise Essentials waives this termination in writing and pursues the performance of the Agreement to which Merchandise Essentials is entitled:
  • Any breach of the license restrictions as mentioned in Article 3.
  • Bankruptcy or liquidation of Client.
  • A breach of any provision of the Agreement which Client fails to remedy within 15 days of Client being notified in writing of the breach by Merchandise Essentials, such as, but not limited to, the non-payment by Client of any amount pursuant to the Agreement.
  1. In the event of termination of the Agreement, regardless of the reason of such termination, while any ordered merchandise remains pending for delivery in Merchbot, Client shall, within 14 days of such termination, provide to Merchandise Essentials a delivery address, to which the ordered merchandise will be delivered at the full expense of Client.
  2. Any provision of the Agreement that expressly or by implication is intended to survive or come into or continue in force on or after the termination or expiration of the Agreement (including, payment of all fees accrued prior to the date of termination of expiration), shall remain in full force.

ARTICLE 12 MISCELLANEOUS
The nullity, invalidity or unenforceability of any provision of these General Terms and Conditions or the Specific Terms and Conditions shall nevertheless have its maximum permissible effect and shall in no way affect the validity of the other provisions of these General Terms and Conditions or the Specific Terms and Conditions and shall not lead to the nullity of these provisions. The null and void or unenforceable provision will be replaced by a legally valid provision with the same or similar economic scope by mutual agreement between the Parties, who will negotiate it to the best of their ability and in good faith.
ARTICLE 13 APPLICABLE LAW AND COMPETENT COURT
The Agreement is governed solely by Belgian law. All disputes fall under the exclusive jurisdiction of the courts with jurisdiction over the registered office of Merchandise Essentials.

CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at info@merchandise-essentials.com

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