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Terms and conditions
version 1st January 2021 at 12:00
Terms and Conditions applicable to a seller of service using Marketplace by Monstera Mania / https://marketplace.monsteramania.com/
These terms and conditions are the contract between you and Monstera Mania (“us”, “we”, etc). By visiting or using Our Website, you agree to be bound by them.
MarketPlace Monstera Mania is a trade name of Monstera Mania, registered in the Netherlands
KVK : 75970732
|“Content”||means the textual, visual or aural content that is encountered as part of your experience on Our Website. It may include, among other things: text, images, sounds, videos and animations. It includes content such as advertising material, and all other product or service related material Posted by you.|
|“Post”||means place on or into Our Website any Content or material of any sort by any means.|
|“Provider”||means you, a person or organisation who has placed details on Our Website of a Provider Service offered for sale or free of charge, through Our Website.|
|“Provider Service” and “Your Service”||mean the service you offer for sale through Our Website.|
|“Our Service”||means the service we provide to enable you to sell Provider Services here.|
|“Our Website”||means any website of ours, and includes all web pages controlled by us.|
- The relationship between us is solely that:
- in consideration of a fee charged by us, we provide for you an Internet market place as an arm’s length contractor;
- we act as your agent solely in the collection of money paid by your customer;
- we are not your partners or joint venturers.
- If you place a Provider Service for sale on Our Website, you do so subject to these terms.
- When you place a Provider Service on Our Website, you will be bound to provide all the information required by the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013.
- We may change this agreement in any way at any time. The version applicable to your contract is the version which was Posted on Our Website at the time that the contract was made.
- Although we are not a party to your contract with a buyer introduced to you via Our Website, we shall remove Your Services from offer if a customer or Our Website visitor has a valid complaint against you.
- Subject to this agreement and to the procedures set out in Our Website, you may enter a Provider Service for sale through Our Website.
- You guarantee that you have the right as a vendor to sell products and plants in the respect of the local law and the law of the country where you sell to.
- Monstera Mania is able to remove your product(s) from our shop MarketPlace.Monstera.com without any justification
- The relationship between us is solely that:
The European Union Consumer Information, Cancellation and Other Rights) Regulations 2013 (“the Regulations”)
- You authorise us to take any action that may reasonably be required from time to time, to protect your interests and ours in connection with a breach or possible breach of the Regulations.
- Because we are not your agents except to market Your Service and take payment, all your obligations under the Regulations must be fulfilled by you. That means the information you provide to us by entry or upload into Our Website must be clear, sufficient and complete, to comply with the Regulations.
- On Our Website, we will provide a route for a customer to allow a customer to deal directly with you. That will include options relating to supply and cancellation of his order.
- We will also provide regulatory information relating to commencement and cancellation. We expect you to comply with those terms unless Your Services, or your business model, require different terms. The terms on Our Website will be communicated only as information to the buyer and not as contract terms.
- Because every reference to Provider Service of yours, made by you or by us, may be treated by a consumer as contractual, you agree:
- to make clear any contractual term in content you place on Our Website, which may be different from any term on Our Website.
- that no content on your website will contradict content you place on Our Website.
Your Provider Service placement
- not knowingly to place any Provider Service for sale which is not of merchantable quality or which requires for its setup or use a level of technical expertise which is not fully explained to a customer before purchase.
- immediately to remove from sale on Our Website any Provider Service which for any reason, you are unable to supply.
- not to re-place any Provider Service we remove from offer for sale.
Complaints about Provider Services
You agree that you will at all times:
- reply promptly and in any event within 48 hours to any customer message or other correspondence;
- comply with the law relating to all aspects of the contract between you and your customer, relating in particular to your obligations to provide full information and accept cancellation and returns. However, you may also offer more favourable terms to your customers as per your own returns and refunds policy set out on your website or otherwise in your terms and conditions;
- when you have an obligation to return money to a customer for any reason, you will do so immediately in line with the cancellation and refunds policy set out on Our Website;
- comply with the Monstera Mania procedures relating to satisfaction of an order, as set out on Our Website from time to time;
- Please provide information to us in respect of any claim for non-supply and any dispute as to payment, so as to enable us to identify the possibility of fraud.
The selling procedure
- Monstera Mania is not responsible for the fulfilment of your contract to sell a Provider Service.
- Your contract with a buyer through Our Website is made when you acknowledge the order or commence Your Service. Until that time, the customer’s action is an “invitation to treat”. We have arranged our terms with buyers in that way so as to give you the opportunity to decline a buyer or provide the full information required by the Regulations.
- You agree that a service contract offered by you is a firm and binding contract as soon as your customer’s payment has been accepted by our payment service provider.
- Provider Services may be offered for sale subject to any discount or promotion arranged between Monstera Mania and you.
- Subject to discounts and promotions, Provider Services are offered for sale at a fixed price. VAT may be due and will be either included in the price or shown separately. If not shown, it will not be charged.
- Provider Services will be offered for sale and sales made, subject to the terms and conditions applicable to buyers. You accept and endorse these terms and agree to comply in all respects with the corresponding obligations of a Provider. You may view the buyer’s conditions on Our Website at any time.
Value added Tax
- Fees and commissions specified in Our Website are exclusive of VAT.
- Any action by a seller to avoid paying a fee is considered fee avoidance and is strictly prohibited by Monstera Mania.
- The price in the product description must be an accurate representation of the sale.
- Monstera Mania has the right to demand additional information about your business so far as it may affect your VAT registration, at any time, from you or from a governmental authority.
Our commission and payment to you
- We sell Your Service at the price you place on it, subject to these terms and the requirements we set out on Our Website from time to time.
- Our fees and commissions are payable on demand (10%). You irrevocably authorise us to deduct them from sums paid to us by your buyer. Monstera Mania will receive 10% of the total amount paid by the customer.
- Our Website selling system is an automated system which can be followed by you through a “control panel”.
- The proportion of each sale receipt retained by us is as agreed by us in writing.
- Where our commission is based on a percentage of the sale price, you may not artificially inflate the delivery charge and reduce the price of the Provider Service in order to reduce our commission. If we believe that you do so, we may immediately cease to deal with you.
- We will pay you within 14 days of confirmed despatch of order.
- We will send you an invoice for our charges.
- If we do or could earn interest on any cash balance in our control for the period between payment by a customer and our accounting to you, we are free to keep that interest and have no obligation to account for it to you.
- If an action by a buyer results in a charge back to our account, you agree that we may deduct the sum charged back together with any fee paid to our service provider and bank, from any sum due to you, at or after that time.
- If you or we accept any cancellation and consequently refund money to a customer, we are not obliged to repay commission to you.
- If in our discretion we believe that your performance as a Provider results in a significant number of charges back and / or buyer disputes or if we believe you are in breach of this agreement, we are free to hold back payments to you until we are satisfied that disputes have been settled and / or breach rectified.
Advertising your Provider Service
If you accept our offer to advertise, market or promote Your Service, the following conditions apply.
- We may use the services of a specialist internet marketing business associated with Montera Mania.
- Without prior consent of the other; neither we nor you will contract with any other person or company for specialist services. Here your obligation is limited to the extent of the price charged and due to us.
- The price charged to you will include all payments we make to others.
- The cost of work ordered by you is payable in full, in advance. If you so request us, by indication on Our Website, we will deduct the cost from your account.
- We give no guarantee as to the success of any advertising placed.
- We shall receive no secret commission on advertising services. But note that the service supplier is associated with us.
Your Provider Service warranties
- You warrant that any Provider Service you place on Our Website for sale:
- is not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any third party;
- does not offend against the law of any country whose citizens might purchase it;
- is not intended primarily to advertise any business, except your business, so far only as it is carried on through Monstera Mania.
- You warrant that you own the copyright of any Provider Service you place on Our Website for sale, or that you have the permission of the copyright owner:
- to place the Provider Service on Our Website for sale;
- to receive the net proceeds of such sales as arise;
- to defend the copyright in the Provider Service.
- You warrant that any Provider Service you place on Our Website for sale:
How we handle your Content
- If you Post Content to any public area of Our Website it becomes available in the public domain. We have no control over who sees it or what anyone does with it.
- Posting Content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
- You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you.
- You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
- Please notify us of any security breach or unauthorised use of your account.
Restrictions on what you may Post to Our Website
We invite you to Post Content to Our Website for [marketing your services and services and in other ways]. We have to regulate your use of Our Website to protect our business and our staff, to protect other users of Our Website and to comply with the law.
We do not undertake to moderate or check any item Posted.
You agree that you will not use or allow anyone else to use Our Website to Post Content or undertake any activity which is or may:
- be unlawful, or tend to incite another person to commit a crime;
- be obscene, offensive, threatening, violent, malicious or defamatory;
- be sexually explicit or pornographic;
- be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
- use a Posting to solicit responses unconnected with the purpose of Our Website or the terms proposed by this agreement;
Your Posting: restricted Content
In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.
In addition to the restrictions set out above, a Posting must not contain:
- hyperlinks, other than those specifically authorised by us;
- keywords or words repeated, which are irrelevant to the Content Posted.
- the name, logo or trademark of any organisation other than yours.
- inaccurate, false, or misleading information;
- material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18 years old.
Security of Our Website
If you violate Our Website we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
- modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
- link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser;
- download any part of Our Website, without our express written consent;
- collect or use any service listings, descriptions, or prices;
- collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
- aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Services;
- share with a third party any login credentials to Our Website;
Copyright and other intellectual property rights
- All Content on Our Website, for example page text, graphics, logos, images, audio clips, digital downloads, data compilations, and software, is the property of either us or our affiliates or suppliers of services for sale. It is all protected by international copyright laws.
- You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as is expressly permitted in this agreement or with our written consent.
- For the sake of good order you should note that copyright exists in compilations and graphic images, shapes and styles, as well as in raw text.
Interruption to Our Service
- We give no warranty that Our Service will be satisfactory to you.
- We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of Our Service for repairs, maintenance or other good reasons. We may do so without telling you first.
- You acknowledge that Our Service may also be interrupted for reasons beyond our control.
- You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to Our Service.
- We are not responsible for any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any other indirect or consequential loss whatever.
- Our Website contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website.
- We are not liable in any circumstances for damages resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of Our Website.
- marketplace.monsteramania.com website and Monstera Mania services are provided “as is”. As to Our Website and Our Services, we make no representation or warranty of any kind, express or implied, including, without limitations, warranties:
- as to fitness of Our Website and Our Service for a particular purpose;
- as to availability and accessibility, without interruption, or without error;
- any obligation, liability, or remedy in tort whether or not arising from our negligence;
- You now expressly release us from any and all claims and liability known and unknown, arising in any way from a dispute between you and a buyer.
Your indemnity to us
You agree to indemnify us against all loss and expense, including legal fees and management time related in any way to:
- a claim by any person in respect of any Provider Service;
- protecting the reputation of our business by our making a payment to a customer of yours in circumstances where you have failed to make that repayment or otherwise comply with your contract with that customer.
- any cost to us arising from a decision by us to comply as your agent, with any obligation of yours, whether or not we have your permission, arising out of any regulation or law, including:
- the deletion or amendment of any text or other content you have placed on Our Website;
- any payment we make on an ex gratia basis, arising from a contract between you and a customer;
- legal or other fees we incur in defending a claim or the imposition of a fine or penalty;
- our management time in dealing with any failure or alleged failure by you to comply with any relevant regulation or law.
Data Protection Act 2018 Compliance
- Insofar as we process personal and other data of the buyers or other person with whom you interact in the course of your business following terms apply:
- to satisfy your legal obligations and ours, we will agree to comply with the provisions of the Schedule.
- those obligations shall continue to apply after expiry or termination of this agreement for any reason.
- You undertake to provide us your current land address, e-mail address and telephone number as often as they are changed together with all information that we may require to enable us to fulfil our obligations under this contract.
- So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
- If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
- If you are in breach of any term of this agreement, we may:
- terminate your account and refuse access to Our Website;
- remove or edit Content, or cancel any order at our discretion;
- issue a claim in any court.
- Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
- No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
- When you visit Our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on Our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.
- Any communication to be served on either of us by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail.
|It shall be deemed to have been delivered:|
|if delivered by hand: on the day of delivery;|
|if sent by post to the correct address: within 72 hours of posting;|
|If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender. Take care before agreeing to accept service by e-mail. It may be convenient, but the parties could miss or accidentally delete the message.|
- In the event of a dispute between us, then, if we so ask, you undertake to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation.
- So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party.
- We shall not be liable for any failure or delay in our performance of this agreement which is caused by circumstances beyond our reasonable control, including any labour dispute.
- In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
- The validity, construction and performance of this agreement shall be governed by the laws of the Netherlands and you agree that any dispute arising from it shall be litigated only in the Netherlands.
Schedule: Data Protection Act 2018 Compliance
In this Schedule, the following words shall have the following meanings:
|“Act”||means the Data Protection Act 2018.|
|“Associate”||means any corporate or other form of organisation or any individual person with whom you have an association which does, or could, entail the transfer of personal data to us for processing.|
|“Directive”||means Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.|
|“DPC”||means the Data Protection Commission|
|“the Data Protection Regulations”||means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).|
|“the Law”||means all or any of:|
(a) the Data Protection Regulations,
(b) the Act,
(c) the Data Protection Act 1988,
(d) the Data Protection Act 2003,
(e) regulations made under the Act,
“data controller”, “data processor”, “sub-processor”, “data subjects”, “personal data”, “process”, “processed” and “processing” shall have the meanings respectively, as defined in the Act.
In this agreement, “personal data”, is limited to data which comes into our hands in some way connected to this agreement.
- The obligations described in this Schedule are in addition to our obligations under the Law.
- To enable us to provide the Services under this agreement, you authorise us to process personal data on your behalf.
- We both agree that you and your Associates are data controllers, and we are your data processor in relation to personal data.
- Details of the anticipated processing activities are set out at Appendix 1 to this Schedule.
How we shall process data
We shall at all times comply with the provisions and obligations imposed by the Law and, in particular, shall:
- process personal data only to the extent necessary to provide the Services;
- ensure that every person processing personal data under this agreement does so strictly on a need-to-know basis, has received training on their obligations relating to handling of personal data and is bound by confidentiality obligations no less stringent than our confidentiality obligations under this agreement;
- in order to use commonly accepted international communications and money transfer protocols, it will be necessary to use sub-contractors for certain service provision. We shall not necessarily be aware of the identity of every organisation involved in the train of communications. When that happens, we accept full responsibility for our compliance with the Law.
- subject to the exceptions mentioned in the last previous sub-paragraph, we will not use subcontractors for personal data processing under this agreement without your prior written consent.
- wherever possible, enter into a written contract with each such sub-processor, which includes the same obligations on the sub-processor as those imposed on us by You under this agreement.
- subject to the other provisions of this Schedule, not process personal data or permit any third party to process personal data outside of the European Economic Area (EEA) unless:
- EU standard contractual clauses approved by the European Commission or the DPC are entered into between you or your relevant Associate as data exporter, and the relevant recipient of the personal data as data importer; or
- the recipient of the personal data has entered into a data processing agreement with you; or
- the recipient of the personal data is regulated within the United States of America solely by the U.S. Department of Commerce, is certified under the EU/US Privacy Shield framework, and continues to be certified for the period within which it processes the personal data; or
- the recipient of the personal data has entered into binding corporate rules, which are valid in respect of the processing of personal data under this agreement and have been approved by the European Commission or the DPC; or
- the transfer is to a recipient located within a jurisdiction whose law relating to the processing of personal data has been approved by the European Commission or the DPC (subject to any applicable restrictions).
- have in place at all times appropriate technical and organisational measures to ensure a level of security appropriate to the risk presented by processing the personal data, to prevent accidental, unauthorised or unlawful destruction, loss, alteration, or access to personal data, including as a minimum whatever security measures you notify and instruct us to use. Examples of such measures are:
- the pseudonymisation and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; and
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of processing;
- maintain a written record of all categories of processing activities carried out on your behalf and when you ask, copy it to you. The record shall contain:
- Our name and contact details and (where applicable) those of our approved sub-processors and details of their respective data protection officers;
- the categories of personal data, data subjects and processing activities carried out on behalf of you and your Associates;
- where applicable, transfers of personal data to a third country (i.e. non-EU Member State) or an international organisation, including identification of that third country and documentation evidencing implementation of suitable safeguards; and
- a general description of the technical and organisational security measures we have installed as referred to in Article 32(1) of the Data Protection Regulations;
- when you ask, give to you or to the DPC, access to our employees, data processing facilities, procedures, and records to inspect and audit compliance with the Law and the terms of this agreement. We shall (and shall ensure any sub-processor shall) give all reasonable cooperation and assistance.
- immediately tell you (and in any event within 24 hours) after becoming aware of any actual or suspected unlawful destruction, loss, alteration, disclosure of, or access to, personal data transmitted, stored or otherwise processed by you or any sub-processor under this agreement;
- provide reasonable assistance to you in:
- responding to data subject’s requests to exercise their rights under the Act;
- responding to communications received from the DPC relating to the processing of personal data under this agreement, including notifying You immediately of any such communication;
- taking measures to address data security incidents, including, where appropriate, measures to mitigate their possible adverse effects;
- promptly upon your request, transfer personal data to a third party in compliance with a request from a data subject to exercise their right to data portability;
- make available to you on request all information necessary to demonstrate compliance with the obligations set out in this Schedule; and
- at your request (no more than once in every calendar year) complete and return without delay your information security and data protection questionnaires.
- Upon termination of this agreement, we and any sub-processor shall:
- physically destroy all copies of media upon which any personal data was supplied and any further copies made by us;
- return all personal data stored in hard copy to you;
- delete all personal data stored in soft copy, by some method which prevents future re-activation of that data;
- Where we or our sub-processor is required to retain personal data in order to comply with applicable law, we will tell you and will retain such personal data only in our capacity as a data processor and shall comply with our obligations as a data processor, as far as applicable law permits.
- Upon termination of this agreement, we and any sub-processor shall:
Warranty and acceptance of liability
- We represent and warrant that the information provided in any response to any request by you shall be complete, true and accurate, and will not misrepresent our business or practices in respect of our ability to comply with the Law and our obligations under this agreement.
- If any act or omission of ours or our sub-processors results in data transmitted or processed under this agreement being lost or degraded so as to be unusable, then we shall be liable to you for the cost of reconstituting the data and/or yours and your Associate’s costs in recreating such data.
Appendix 1 to Schedule
Data Processing Activities
What we or you may process in each category
- We shall process this basic personal data
- Email address
- Phone number
- Date of birth
- Technical information relating to electronic communication, which is personal information only when associated with the name or identity of the data subject
- [list all other depending on whether data passes]
- We shall process the data of these data subjects
Data of buyers, so far as their data is required in order to satisfy our obligations under this contract and comply with the Law.
- This is why and how we shall process personal data
- Our processing of personal data will be limited to such activity as is reasonably required to satisfy our obligations under this contract.
- We shall not make contact with any data subject nor seek additional data from any other source.
- Retention period
- We may retain personal data, along with much other data, for six years, for these reasons:
- for accounting and taxation purposes;
- to provide evidence if required in connection with a legal claim;
- for any other reason where the law provides a six years limitation period;
- If any event occurs which requires us lawfully to continue to retain data beyond that period, then we may do so.
- We may retain personal data, along with much other data, for six years, for these reasons: