GENERAL TERMS AND CONDITIONS
Version: 21.1, GTC Effective Date: 1.12.2021
1 SCOPE OF APPLICATION
1.1 These GTC govern the contractual framework conditions between the Provider and the Merchant in connection with the provision of the Services.
2 CERTAIN DEFINITIONS
2.1 Unless the context indicates otherwise, capitalized terms used in the Agreement and the GTC shall have the following meanings or meanings as they are defined in the Agreement:
2.1.1 “Accounting Day” shall mean a day on which commercial banks in Slovakia are open for general business (including dealings in foreign exchange and foreign currency deposits) that starts on 9:01 p.m. of the previous day and ends on 9:00 p.m. of the given day;
2.1.2 “Call” shall mean audio or video call between the Consumer and the Merchant initiated by the Consumer by clicking on the ZoenShop widget;
2.1.3 “Commercial Code” shall mean Slovak Act No. 513/1991 Coll., Commercial Code (in Slovak: Obchodný zákonník);
2.1.4 “Confidential Information” has the meaning stipulated in the Section 13.1 of the GTC.
2.1.5 “Consumer Data” shall mean the data of the Consumer;
2.1.6 “Consumer” shall mean the retail consumer to whom the Merchant offers to sell or sells the Products when using the ZoenShop Software;
2.1.7 “Contact Form” shall mean the contact form of the Provider available on the ZoenShop Website;
2.1.8 “Daily Clearing” shall mean the clearing of Purchase Price payments received on the ZoenShop Payment Account for an Accounting Day;
2.1.9 “GTC” shall mean these valid and applicable General Terms and Conditions that govern the contractual framework conditions between the Provider and the Merchant in connection with the provision of the Services and form inseparable part of the Agreement;
2.1.10 “Initial month” shall mean month of approved and finalized registration process;
2.1.11 “Merchant’s Account” shall mean the account of the Merchant with the ZoenShop Software;
2.1.12 “Merchant’s E-mail” shall mean the e-mail address of the Merchant specified in the Agreement and notified to the Provider by the Merchant upon the Registration (in case of discrepancy between the two the e-mail in the Registration will prevail) or the e-mail address notified later in accordance with the GTC;
2.1.13 “Merchant’s GTC” shall mean the Merchant’s valid and applicable General Terms and Conditions or other similar legal binding document pertaining to the sale of the Products to the Consumers;
2.1.14 “Merchant’s Payment Account” shall mean the payment account notified to the Provider by the Merchant upon the Registration or the payment account notified later in accordance with the GTC;
2.1.15 “Merchant’s Website” shall mean the website operated by or on behalf of the Merchant on which the ZoenShop widget is placed to enable the Merchant to use the ZoenShop Software;
2.1.16 “Merchant’s ZoenShop E-mail” shall mean the e-mail address with the domain @zoenshop.sk assigned to the Merchant upon the Registration;
2.1.17 “Monthly Clearing” shall mean the clearing of Purchase Price payments received on the ZoenShop Payment Account for a calendar month;
2.1.18 “Payment Processor” shall mean the company providing payment services;
2.1.19 “Payment Services Act” shall mean Slovak Act No. 492/2009 Coll. on Payment Services as amended;
2.1.21 “Products” shall mean any and all products offered by the Merchant to its Consumers using the ZoenShop Software related to the business purpose of the Merchant stated in the Registration Form;
2.1.22 “Product Catalogue” shall mean the list of any or all the Products uploaded onto the ZoenShop Software by the Merchant;
2.1.23 “Purchase Price” shall be the final price at which the Product is/are sold by the Merchant to the Consumer during the Call that includes all taxes, duties, levies, warehousing, packaging, cost of transport and logistics charges as well as any other charges;
2.1.24 “Registration” shall mean the performance of the registration of the Merchant for an account with the ZoenShop Software;
2.1.25 “Refund” shall mean an instruction initiated by Provider to return funds to a Consumer for an existing Charge;
2.1.26 “Registration Form” shall mean the registration form for the Registration available on the ZoenShop Website;
2.1.27 “Registration Data” shall mean required registration information within the scope of the Registration Form;
2.1.28 “Registration Documentation” shall mean all required documentation specified in the Registration Form;
2.1.29 “Chargeback” shall mean an instruction initiated by a Payment Method Provider to return funds for an existing Charge. Chargeback may result from (i) invalidation of a charge by a Payment Method Provider or a Payment Method Acquirer; (ii) funds settled to you in error or without authorisation; and (iii) submission of a Charge in violation of the applicable Payment Method Rules;
2.1.30 “Service Fee” shall mean the fee to be paid by the Merchant to the Provider for the Services in accordance with the terms of the GTC;
2.1.31 “Services” shall mean, in particular, granting non-exclusive license to use the ZoenShop Software limited to the duration of the Agreement granted by the Provider as the agent of the Merchant to facilitate, to broker and to negotiate sale of the Products in the Territory in the name and for the account of the Merchant, including use of Merchant’s Account as well as order processing services and authorization to accept payments made by Consumers according to the Agreement and the GTC;
2.1.33 “Territory” shall mean the territory of the European Economic Area;
2.1.34 “Transaction” shall mean the conclusion of agreement for the sale of the Product between the Merchant and the Consumer during the Call;
2.1.35 “Unregistered Consumer” shall mean the Consumer not registered for an account with the ZoenShop Software;
2.1.36 “ZoenShop Software” shall mean the audio and video calling software developed and owned by the Provider used to facilitate, to broker and to negotiate sale of the Products as part of the Services;
2.1.37 “ZoenShop Payment Account” shall mean the payment account of the Provider;
2.1.38 “ZoenShop Website” shall mean the website operated by or on behalf of the Provider available on zoen.shop .
2.2 In this Agreement and in the GTC, unless a contrary intention appears from the context:
(a) any words denoting persons shall include natural persons, legal persons and unincorporated associations of persons; and
(b) words importing only the singular shall include the plural, and vice versa.
2.3 The headings and structure of the Agreement nor GTC affect their interpretation.
2.4 Reference to any natural or legal person shall include also reference to its legal successor.
3 REGISTRATION PROCESS
3.1 The Merchant is entitled to use the ZoenShop Software including the Merchant’s Account and Calls, only upon the completion of the Registration and placing of the ZoenShop widget on the Merchant’s Website.
3.2 The Merchant shall duly complete the Registration Form. The Registration Form is the only form for Registration that is accepted by the Provider. For the completion of the Registration Form, the Merchant shall:
3.2.1 provide the Provider with all the Registration Data. The Registration Data shall inter alia include:
(i) Merchant’s business name, registered office, ID number, VAT ID number, the respective company registration authority; and
(ii) Merchant’s E-mail and Merchant’s telephone contact number to the Merchant’s brick and mortar retail shop.
3.2.2 provide the Provider with all required the Registration Documentation (the list of documents is provided to Merchant’s E-mail after registration).
3.2.4 click on the register button “Submit Registration”.
3.3 By clicking on the register button, the Merchant declares that Registration Data as well as Registration Documentation is correct, accurate, complete and up-to-date and that the Merchant comply with all the obligations, conditions, covenants, assurances, representations and warranties under the Agreement, GTC and generally binding regulations.
3.4 By clicking on the register button, the Registration Form and the Agreement including GTC are sent to the Provider for processing which is considered a legally binding offer to conclude the Agreement. If the Registration Documentation or/and Registration Data are incorrect, inaccurate, uncomplete, not up-to-date or in the event of any other failure to complete the Registration Form properly, the Provider may request the Merchant for correction or completion. However, the Provider is not obliged to invite the Merchant to rectify such defects or incompleteness.
3.5 The Provider reserves the right to verify through a third party whether requirements of Know Your Customer rules are complied with. For the purpose stated herein, the Merchant is obliged to provide the Provider as well as the third party with all the required additional information and documentation (beyond the Registration Data and the Registration Documentation) as well as with all the necessary cooperation.
3.6 The Registration is completed, when the Merchant receives acknowledgment letter from the Provider to Merchant’s E-mail. The receipt of the acknowledgment letter is not claimable as the Provider reserves the right to refuse or not allow the Registration. At the moment of the receipt of the acknowledgement letter by the Merchant, the Merchant and the Provider conclude the Agreement and the GTC.
3.7 All questions, comments, notifications or complaints relating to the process of Registration shall be sent to “email@example.com”.
3.8 The Merchant shall keep the Registration Data, the Registration Documentation as well as any other data or documentation, whether or not provided on the request of the Provider, correct, accurate, complete and up-to-date.
3.9 The Merchant shall place ZoenShop widget that enables the Merchant to access the Services onto the Merchant’s Website, its social media accounts and all other channels that the Merchant uses for communication with its Consumers. Provider will provide the Merchant with the design of the ZoenShop widget.
3.10 The Merchant is entitled to upload the Product data onto the ZoenShop Software and create the Product Catalogue. If the Product Catalogue does not contain all the data of all the Products, the Merchant may upload the Products not listed in the Product Catalogue to the Consumer’s cart manually during the Call.
4 PERMITTED USE
4.1 If not expressly allowed by the Provider, the Merchant shall not be allowed to use the ZoenShop Software other than for following purposes:
4.1.1 audio and/or video Call with the Consumer during which the Merchant visually demonstrates to the Consumer the Products in Merchant‘s brick and mortar retail shop;
4.1.2 realization of the steps for the offer and sale of the Product selected by the Consumer including the selection of the Product and effecting the payment through payment gateway.
4.2 The Merchant must refrain from the use of the ZoenShop Software, in particular, in the following manner:
4.2.1 unrelated to the retail sales in his/her own brick and mortar retail stores;
4.2.2 infringing the applicable legal rules of consumer law such as by providing misleading and knowingly false information regarding nature, quality and price of the Products;
4.2.3 infringing third parties’ privacy and data protection legislation;
4.2.4 infringing intellectual property rights of the Provider or third parties;
4.2.5 infringing any applicable legal regulations including criminal regulation;
4.2.6 causing or threating harm and/or damage to Provider or third parties;
4.2.7 misusing, overloading or other improper handling of the Zoenshop Software or using it contrary to the purpose of the Services;
4.2.8 abusive, harmful, obscene, offensive, harassing, inciting violence or hatred or discriminatory;
4.2.9 libellous or in any way denigrating of goods or reputation of any third parties; or
4.2.10 publishing or using software viruses or other computer codes, files or programs that may endanger, interrupt, limit or stop the operation of the ZoenShop Software;
4.2.11 endangering or damaging the reputation of the Provider;
4.2.12 disrupting or damaging the ZoenShop Software or attempting to do so.
4.3 The Merchant’s Account is authorized to be used exclusively by the Merchant. The Merchant’s Account is non-transferable. The Merchant may not sub-license to any third party the Merchant’s right to use ZoenShop Software being part of the Services nor permit any third party to access or use it.
4.4 The Merchant shall be responsible for all access to and use of the Merchant’s Account. Any activity on the Merchant’s Account shall be automatically assigned to the Merchant. Merchant shall be solely responsible for the content on the Merchant’s Account, including content created, transmitted or displayed while using the Services, as well as for all consequences of all actions and activities on the Merchant’s Account.
4.5 The Merchant is liable to the Provider for all damage caused by third parties that were granted access to the Merchants Account by the Merchant or were able to access it due to Merchant’s negligence.
4.6 The Merchant shall keep Merchant’s Account passwords confidential and take all steps necessary to prevent unauthorized access to the Merchant’s Account. The Merchant shall notify the Provider without undue delay upon becoming aware of any unauthorised access to or use of the Merchant’s Account and/or the Services and provide all reasonable assistance to the Provider to bring an end to such unauthorised access or use.
4.7 The Merchant acknowledges that the Merchant’s Account becomes permanently the property of the Provider from the moment of the Registration. The Merchant is the only administrator of the Merchant’s Account. The provision of the Merchant’s Account is solely at the discretion of the Provider and there is no claim to actual availability of the Merchant’s Account. The Merchant acknowledges that the Merchant’s Account may not be available at all times. The Provider is entitled to terminate the operation of the ZoenShop Software or suspend its operation at any time without stating any reason and without notice.
4.8 The Provider is entitled at its own discretion and without stating any reason and without notice, to block, suspend, restrict, deactivate or cancel the Merchant’s Account. The Provider is not responsible for any damage incurred in connection with the blocking, suspension, restriction, deactivation or cancellation of the Merchant’s Account. The Provider is entitled to publish the Provider’s decision to block, suspend, restrict, deactivate or cancel the Merchant’s Account.
5 ORDER AND PAYMENT PROCESS
5.1 The shop associate of the Merchant shall respond in a timely manner to all Consumers initiating the Call by clicking on ZoenShop widget on the Merchant’s Website. The shop associate of the Merchant shall be professional and courteous in all Call communications with the Consumers and provide them with correct, accurate, complete and up-to-date information relating to the Products.
5.2 The Consumers are enabled to turn on the camera before initiating Call as well as during the Call. If the Consumer turns on the camera, whether before initiating the Call or during the Call, the shop associate of the Merchant shall notify the Consumer of the possibility of turning the camera off. The shop associates of the Merchant shall put the Products selected by the Consumer to the Consumers ’s cart from the Product Catalogue or manually upload the Products to the Consumer’s cart.
5.3 The Merchant is obliged to fulfil all the notification and other obligations arising from the generally binding legal regulations applicable to the legal relationship between the Provider and the Consumer, in particular, consumer legislation of the country:
5.3.1 of the business operation of the Merchant,
5.3.2 where the Consumer has his habitual residence and
5.3.3 of the delivery of the Products.
5.4 The Merchant is obliged to clearly specify and provide the Consumer with the information on the amount of the Purchase Price as well as on the amount of value-added tax and cost of transport separately.
5.5 Before completing Transaction, the shop associate of the Merchant is obliged to invite the Consumer to:
5.5.1 confirm the Products in the Consumer’s cart;
5.5.3 fill in personal information and payment data into the opened pop-up in case of the Unregistered Consumer;
5.5.4 click the order button “Buy”.
5.6 The Merchant acknowledges that the Provider does not verify nor check any information about the Consumers.
5.7 The Provider shall, in accordance with the authorization under the Agreement, deliver to the Consumer on behalf of the Merchant an automatically generated e-mail confirming the Transactions, in particular the Products purchased by the Consumer and the Purchase Price. Such e-mail shall include the following information regarding the Transaction : Transaction ID, Date of Transaction , Currency and Amount.
5.8 The Merchant shall receive automatically generated e-mail notification by the Provider in the same form and content as stipulated in the Section 5.7 of the GTC.
5.9 The Provider shall in accordance with the authorization under the Agreement process all payments for the Purchase Prices made by the Consumers in connection with the use of the ZoenShop Software by the Merchant. The Provider shall ensure payment processing according to the previous sentence by the Payment Processor.
5.10 The Merchant acknowledges that the Provider does not guarantee that the Merchant will enter into the contractual relationship with the Consumers. The Merchant shall honour in full all contracts concluded with the Consumers.
6 CONSIDERATION AND PAYMENT TERMS
6.1 The Provider shall deduct for each Transaction the Service Fee in the amount of 8 % of the Purchase Price for the initial month.
6.2 The Provider will perform the Monthly Clearing at the latest within fifteen (15) days of the calendar month following the calendar month for which the Monthly Clearing is performed.
6.3 If the total volume of Purchase Price payments received on the ZoenShop Payment Account per calendar month for which the Monthly Clearing is performed doesn’t exceeds the amount of:
6.3.1 10,000 €, the Service Fees in the amount of 10 % of the volume of Transactions in question shall apply for the following month;
6.3.2 30,000 €, the Service Fees in the amount of 9 % of the volume of Transactions in question shall apply for the following month;
6.3.3 50,000 €, the Service Fees in the amount of 8 % of the volume of Transactions in question shall apply for the following month;
6.3.4 100,000 €, the Service Fees in the amount of 7 % of the volume of Transactions in question shall apply for the following month;
6.3.5 300,000€, the Service Fees in the amount of 6 % of the volume of Transactions in question shall apply for the following month.
6.3.6 1,000,000€, the Service Fees in the amount of 5 % of the volume of Transactions in question shall apply for the following month.
6.4 Any claims related to the Monthly Clearing shall be raised in writing with reviewable reasoning within one (1) week from the date of receipt of the statement according to the Section 6.3. After the expiration of the period referred in the previous sentence, the Service Fees paid according to the Monthly Clearing is deemed to be calculated correctly.
6.5 The Provider shall issue invoices for the Services every calendar month within fifteen (15) days from the date of performance of the Monthly Clearing. Each invoice will be issued in the Provider’s standard format.
6.6 The Provider shall issue invoices for the Refunds or Chargebacks and the Refund or Chargeback fees every calendar month within fifteen (15) days from the date of performance of the Monthly Clearing. Each invoice will be issued in the Provider’s standard format. Monthly Clearing is calculated as the sum of all Refunds and Chargebacks paid and showed on the ZoenShop Payment Account per referred month plus the amount of the Chargeback fee (in amount 20 Eur per the Chargeback).
6.7 The Merchant shall pay to the Provider the result of the Monthly Clearing made according to the Section 6.6. of the GTC.
6.8 Detail of Transactions, Actual Balance of ZoenShop Payment Account and Daily Clearing are available on Merchant Portal on ZoenShop website.
6.9 Daily Clearing is calculated as the sum of Purchase Price payments received on the ZoenShop Payment Account per Accounting Day (see the Section 6.8 of the GTC) less the amount of the Service Fees deducted according to the 6.3 of the GTC.
6.10 The Provider shall pay to the Merchant the result of the Daily Clearing made according to the Section 6.9 of the GTC. The Provider shall make the payment according to the previous sentence to the Merchant’s Payment Account after seven (7) Accounting Day from the date of the performance of the Daily Clearing.
6.11 Any claims related to the Daily Clearing and the amount of payment executed on its basis shall be raised in writing with reviewable reasoning within three (3) days of the date of receipt of the notification according to the Section 6.10 of the GTC. After the expiration of the period referred in the previous sentence, the Service Fees paid according to the Daily Clearing is deemed to be calculated correctly.
6.12 The Merchant shall not be entitled to any payment other than payments according to the Sections 6.9 and 6.11 of the GTC. The Merchant shall not be entitled in particular to any payment or refund of the Service Fee in the event of returning the sold Product to the Merchant.
6.13 Payment processing services for the Merchant on ZoenShop are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a Merchant on ZoenShop, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ZoenShop enabling payment processing services through Stripe, you agree to provide ZoenShop accurate and complete information about you and your business, and you authorize ZoenShop to share it and transaction information related to your use of the payment processing services provided by Stripe..
7.2 The Merchant is obliged to meet high standards in audio and video communications with the Consumers during the Call as well as to observe all the rules of the permitted use stipulated in the Section 4 of the GTC.
7.3 The Merchant is obligated to ensure that the Merchant’s GTC comply with all generally binding regulations of the country in the Territory where the Merchant operates its business of selling Products as well as all the countries on the list according to the Section 5.3of the GTC. The Merchant is obligated to ensure that the Merchant’s GTC are available and easily accessible to the Consumers on the Merchant’s Website.
7.5 For avoidance of any doubt, in relation to the Products sold to the Consumers, it shall be duty and obligation of the Merchant to correctly and timely pay or deposit all taxes, duties, statutory levies and any other charges applicable to the sale and delivery of the Products to the Consumers to the relevant government authority.
7.6 The Merchant is obligated to notify the Provider without undue delay in the event of any errors pertaining to ZoenShop Software with respect to its functioning.
7.7 The Provider shall provide support for the Merchant via Contact Form or phone, especially in the event of the request for assistance in resolving technical problems in the use of the ZoenShop Software. The support shall be available for the Merchant during hours and on the phone number specified on the ZoenShop Website.
8 REPRESENTATIONS AND WARRANTIES
8.1 The Merchant represents and warrants to the Provider that:
8.1.1 it is an entity which has been duly formed and is validly existing and in good standing under the laws of the jurisdiction where it is formed;
8.1.2 it has all requisite power and authority to execute and perform its obligations under the Agreement and/or the GTC in accordance with their respective terms;
8.1.3 the execution and performance of the Agreement and/or the GTC
(a) has been duly authorized by its requisite officials,
(b) shall not conflict with, result in a breach of, or constitute a default under any other agreement to which it is a party or by which it is bound, and shall not constitute an event that would, with notice and/or lapse of time, constitute such a default, and
(c) will not result in a violation of or conflict with any applicable law, and
(d) there is no proceeding pending or, to the knowledge of the Provider, threatened, which challenges or may have a material adverse affect on the Agreement;
8.1.4 possesses or have all necessary proprietary rights, active and valid licenses, consents, permissions, interests and authority to engage in all the activities contemplated in connection with the Agreement and/or the GTC;
8.2 The Provider makes no representations and warranties with respect to the Services provided to the Merchant, including the use of the ZoenShop Software.
9 LIMITATION OF LIABILITY
9.1 The Merchant acknowledges that the Provider is not the contractual party of the relationship concluded via Call by and between the Merchant and its Consumers.
9.2 The Provider is not liable for direct or indirect loss or damage of any kind that might arise to the Merchant from or in connection with the using of the ZoenShop Software. Any liability of the Provider in connection with the provision of the Services is excluded. In particular, the Provider shall not be responsible for:
9.2.1 any interactions, in particular legal and factual acts relating to the sale of the Products between the Merchant and the Consumer;
9.2.2 any service issues, connectivity issues, payment issues or problems arising between the Consumer and the Merchant;
9.2.3 any damage or loss in the event of non-purchase of the Consumer due to interruption, termination of video communication via the ZoenShop Software or poor quality of video communication or other defect on the part of the ZoenShop Software;
9.2.4 the quality of the Product and their delivery, and any breach of any obligation by the Merchant or its Consumers;
9.2.5 whether the information and data on the ZoenShop Softwrare is complete, accurate and/or up-to-date;
9.2.6 misuse of the Merchant’s Account;
9.2.7 any damage incurred in connection with the blocking, suspension, restriction, deactivation or cancellation of the Merchant’s Account;
9.2.8 its inability to provide the ZoenShop Software to the extent such failure is due to:
(i) third party software, hardware or network infrastructure outside of the ZoenShop Software;
(ii) failure of the external internet beyond the Provider’s;
(iii) electrical or internet access disruptions; or
(iv) cyber-attacks (i.e. hacks, malicious introduction of viruses and disabling devices) caused by third parties.
9.3 To the extent that any cause is found to be actionable against the Provider, the Provider’s liability for same shall be limited to the maximum amount of 1,000 €.
9.4 The Merchant acknowledges and agrees to indemnify, defend and hold harmless the Provider against all direct and indirect losses, claims, damages, costs (including legal costs) and expenses without any limitation incurred as a result of breach of any of the Merchant’s representations, warranties, covenants, assurances and/or obligations given in the Agreement and/or the GTC.
9.5 The Merchant is obliged to fully compensate the Provider if the Provider is obliged to any performance on the basis of any decision or any other act of any public authority to the Consumer or any third party related to the Merchant’s use of the Services, including the use of ZoenShop Software.
10 LIMITATION OF LIABILITY TOWARDS CONSUMERS AND THIRD-PARTY CLAIMS
10.1 The Merchant acknowledges that as the “seller” within the meaning of the applicable consumers law, it is the subject of obligation to fulfil all obligations and duties arising from the applicable consumers laws, while these obligations and duties are not in any way transferred to the Provider under this Agreement.
10.2 The Provider is not liable for direct or indirect loss or damage of any kind that might arise to the Consumer(s) from or in connection with the using of the ZoenShop Software from or in connection with provision of the Services.
10.3 The Merchant acknowledges and agrees to indemnify, defend and hold harmless the Provider against all direct and indirect losses, claims, damages, costs (including legal costs) and expenses without any limitation incurred as a result of a claims from the Consumers.
10.4 The Merchant acknowledges and agrees to indemnify, defend and hold harmless the Provider against all direct and indirect losses, claims, damages, costs (including legal costs) and expenses without any limitation incurred as a result of claims in any form (e.g. fines, penalties) from the authorities as a result of failure of the Merchant to abide by the applicable consumer legislation.
10.5 In the event of a claim asserted by a Consumer, the Merchant agrees to provide the Provider immediately and truthfully with all information required to examine the claim and prepare a defence immediately after it has been notified thereof by the Provider.
10.6 In the event of a claim or action brought by a third party (including Consumers), whether a private individual, corporation, government entity or any public entity or organization (and whether though court, out-of-court or administrative proceedings), in connection with matters that, if the claim or action succeeds, might give rise to a claim (this third-party claim or action is referred to as the “TPC”), the following procedure will apply:
10.6.1 Provider affected by TPC from the date it becomes aware of the TPC that might give rise to a claim and, to the extent possible, within the first third of the term provided by law for response to the TPC (if any), will give the Merchant notice of the nature of the TPC and, if possible, the relevant amount of TPC, and submit it with all relevant documents (“Notice of TPC”).
10.6.2 Within 10 days from receipt of the Notice of TPC, or where a term for response is provided by law, within the second third of that statutory term for response to a TPC, the Merchant will send to the Provider notice (i) that it rejects that the TPC might give rise to a claim, or (ii) that it accepts that the TPC might give rise to a claim. If the Merchant fails to send Provider notice under the terms in the preceding paragraph or its response is other than as provided in the preceding paragraph, Merchant will be held to have accepted its liability for the TPC in full.
10.6.3 If the Merchant rejects that the TPC might give rise to the claim, Provider will be entitled to present the defence against the TPC it considers most appropriate, and the Merchant will have no right to obstruct Provider’s actions in this regard. If the Merchant expressly requests it, it will be entitled to be informed regularly on the progress of the TPC.
10.6.4 If the Merchant accepts that the TPC might give rise to the claim, it must state expressly in its response (i) Merchant’s decision to accept the TPC and assume full liability for the claim, or (ii) whether Merchant’s assumes its right of defence against the TPC, in which case the Merchant will automatically accept full liability for the claim including all costs related to his defence in court or out-of-court proceedings, with full indemnity for the claim to Provider. For that purpose, and only if the Merchant has accepted that the TPC might give rise to the claim in the terms set out above, the Merchant will be entitled to present the defence it considers appropriate, with the following exceptions:
a) Any out-of-court settlement relating to the TPC will require Provider’s written consent.
b) Provider will be entitled to take over the defence at any time, if, in its reasonable opinion, the TPC might damage its business activity or its image or its reputation. In this event, the Provider must reasonably inform the Merchant of its reasons for taking over the defence and keep the Merchant reasonably informed of the claim’s progress if the Merchant expressly asks to be informed.
10.6.5 The Provider and the Merchant, whether directly or through any advisors or consultants they may appoint, will have total access to all the information and documents relating to the TPC and the Merchant will diligently pursue Provider’s advice and guidelines in respect of defending the TPC.
10.6.6 If the Merchant accepts that the TPC might give rise to a claim, the Merchant will pay the full amount of the claim at least 10 days before the date payment is due and payable to the third-party claimant, including any payment to government bodies, based on legally effective decision issued by the relevant court, administrative or other authority in force, based on which the Provider will be obliged to perform.
11.1 The Parties shall jointly determine the purposes and means of processing of Consumer Data as joint controllers in the agreement concluded between the Provider and the Merchant that form inseparable part of the Agreement.
11.2 The Merchant and the Provider acknowledge they shall process Consumer Data of the Unregistered Consumers to the minimum extent possible. All the personal data of the Unregistered Consumers will be deleted immediately upon the sending the notification according to the 5.7 of the GTC.
11.3 The Merchant shall ensure compliance with all the applicable privacy and data protection legislation when using the Services. In particular, the Provider shall ensure that:
11.3.1 data processing in relation to employees of the Merchant during the Call with the Consumers is in compliance with the applicable data protection legislation;
11.3.2 no data processing occurs in relation to third parties (streaming of his/her face in the brick and mortar retail store of the Merchant) during the Call. In case, data processing may nevertheless occur, the Merchant, as a controller, must take all necessary measures in compliance with all the relevant data protection legislation to mitigate the extent and impact of such possible data processing. Such measures should particularly include minimizing the area which the camera can view (ideally only the shop assistant), training of the shop assistant for that purpose, clear visual identification of the shop assistants during the Call, written announcement at a visible and accessible spot for third parties that they may be accidentally caught by camera during the Call.
12 INTELECTUAL PROPERTY
12.1 The Merchant hereby allows and grants to the Provider free of charge license to use a reference to the Merchant (with the Merchant’s logo if appropriate) and hypertext link to Merchant’s Website to promote the Services, especially the ZoenShop Software and its use, in the Provider’s marketing materials and/or on the ZoenShop Website.
12.2 The Merchant acknowledges that all ZoenShop logos as well as the graphical representations of the ZoenShop Website are protected as trademark by copyright and trade-mark law and by intellectual property rights under Slovak and foreign laws and treaties. The Provider is the proprietor of this trademark. During the validity of the Agreement the Provider grants to the Merchant a limited (in terms of territory and time), non-exclusive license to use all ZoenShop logos as well as the graphical representations of the ZoenShop Website for the purposes of fulfilling the Agreement.
13.1 The Parties acknowledge and agree that any communication between the Parties according to the Agreement and the GTC shall be delivered by electronic mail furnished through the ZoenShop E-mail and the Retailer’s E-mail.
13.2 The Parties acknowledge and agree that any communication according to the Agreement and the GTC
13.2.1 sent by the ZoenShop E-mail addressed to the Merchant’s E-mail shall be deemed to have been delivered upon receipt of such communication to the Merchant’s E – mail. If such delivery fails for any reason, the communication shall be deemed to have been delivered in ten (10) days following the sending of the communication. The Merchant is obliged to make sure the Merchant’s E-mail is working and functioning all the time and check incoming e-mails from the ZoenShop E – mail on a regularly basis, at least once a week;
13.2.2 sent by the Merchant’s E-mail addressed to the ZoenShop E -mail shall be deemed to have been delivered to the addressee upon the sender’s receipt of an acknowledgement from the recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement). If such acknowledgement is not received in ten (10) days following the sending of the communication, the communication shall be deemed to have been delivered to the addressee one (1) day after expiry the period stated herein.
14 CONFIDENTIAL INFORMATION
14.1 The Provider and the Merchant each acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning the other Party which such Party considers to be confidential. As used in the Agreement and the GTC, confidential information means all information, in any form, furnished or made available directly or indirectly by one Party, or to which either Party gains access in the course of or incidental to the performance of the Agreement and/or the GTC, and that should reasonably have been understood by the recipient (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be confidential to the disclosing Party (hereinafter the “Confidential Information”).
14.2 The terms and conditions of the Agreement as well as the GTC as a whole shall be deemed Confidential Information. The Confidential Information also shall include, whether or not designated as the Confidential Information:
14.2.1 the specifications, documents, correspondence, software, documentation, data and other materials in connection with the Agreement and/or the GTC;
14.2.2 all information concerning the operations, affairs and businesses of the other Party, the financial affairs of the other Party, and the relations of the other Party with its customers, employees, business partners;
14.2.3 other information or data stored or communicated orally, and obtained, received, transmitted, processed, stored, archived or maintained by either Party in connection with the Agreement and/or the GTC.
14.3 The Confidential Information shall not include information:
14.3.1 in the public domain or which subsequently falls into the public domain;
14.3.2 which the non-disclosing Party can prove was already known to it prior to the date of the Agreement;
14.3.3 disclosed to the non-disclosing Party in good faith by a third party having a legal right to do so.
14.4 Each of the Parties hereto acknowledges and agrees that the other party owns all right, title and interest in and to such party’s Confidential Information. Each of the Parties hereto further agrees that it shall (a) maintain the secrecy and confidentiality of all the Confidential Information which comes to its attention, (b) take all necessary precautions to prevent any disclosure of the Confidential Information by any of its agents, and (c) during the term of the Agreement and for so long as the Confidential Information does not enter into the public domain through an act or omission of the disclosing Party, neither publish, disclose nor disseminate any part of such Confidential Information in any manner, or use the same, without the prior written consent of the disclosing Party.
15.1 The Merchant shall pay to the Provider a contractual penalty in the amount of 1,000 € per every day of breach of any of the Merchant’s obligations stipulated in the Agreement and/or the GTC, particularly in the event of breach of:
15.1.1 the Merchant’s obligation under Section 3.5 of the GTC;
15.1.2 the Merchant’s obligation under Section 3.8 of the GTC;
15.1.3 any of the rules on permitted use of the ZoenShop Software according to the Section 4 of the GTC;
15.1.4 any of the obligations stipulated under the Sections 5 or 7 of the GTC;
15.1.5 any of the representations and warranties under the Section 8 of the GTC;
15.1.6 the obligation to ensure compliance under the Section 11.3 of the GTC;
15.1.7 the Merchant’s obligation under Section 13.2.1 of the GTC;
15.1.8 any of the obligations under Sections 14.1 and 14.4 of the GTC.
15.2 The right of the Provider to compensation for damages shall not be limited in any manner.
15.3 Contractual penalty according to the Section 14.1 of the GTC is due and payable within fifteen (15) days of the date of delivery of Provider’s written request for payment thereof.
16.1 The Provider may terminate the Agreement at any time without reason by a written notice with immediate effect delivered to the other Party.
16.2 The Merchant may terminate the Agreement at any time without reason by a written notice while the termination will take effect at the end of the calendar month following the calendar month when the Provider received such notice.
16.3 The rights of the Parties which arose before the termination of the Agreement will not be affected by the termination of the Agreement.
17 FINAL PROVISIONS
17.1 The Merchant shall not assign, delegate or otherwise transfer to any other person any rights and/or obligations arising from or in connection with the Agreement and/or the GTC without the prior written consent of the Provider.
17.2 The Merchant shall not assign or unilaterally set off any claim arising from or in connection with the Agreement and/or the GTC against the Provider without the prior written consent of the Provider.
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