Terms and Conditions
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Exim Trade Point S.L (the “ETP”, “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.eutradepoint.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all Site mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us, our Affiliates or third parties.
Subject to the conditions set forth herein, ETP may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will prevail unless the other Agreement explicitly states that it prevails. Capitalized terms are defined throughout this Agreement and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
1. DIGITAL SIGNATURE
By registering for a Site account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the EU regulation № 910/2014 of 23 July 2014 on eIDAS (electronic Identification, Authentication and Trust Services). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
2. PURPOSE OF THE SITE AND SITE SERVICES
2.1. The Site is a marketplace where Buyers and Sellers can identify each other and advertise, buy, and sell goods and services online. Subject to the Terms of Service, ETP provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Sale Contracts, and coordinating disputes related to those Sale Contracts. If Users agree on terms for sale of goods or services, a Sale Contract is formed directly between such Users. When a User enters a Sale Contract, the User uses the Site and the functionalities (some offered by third parties) to engage, communicate, invoice and pay online. In no circumstances ETP and/or its website www.eutradepoint.com can be considered as intermediary between the parties.
2.2. Each User acknowledges that it is fully assuming the risks of conducting any purchase and sale transactions in connection with using the Site or Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or services that are the subject of transactions using the Site. Such risks shall include, but are not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost mis-calculations, breach of warranty, breach of contract and transportation accidents. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Site may violate or may be asserted to violate Third Party Rights, and the risk that User may incur costs of defense or other costs in connection with third parties’ assertion of Third Party Rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by Users of the Site as a result of purchase and sale transactions in connection with using the Site may assert claims arising from their use of such products. All of the foregoing risks are hereafter referred to as "Transaction Risks". Each User agrees that ETP shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
3.1 ETP offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee of a registered Account. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts.
3.2. You represent that you are not:
(a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act;
(b) a citizen or resident of, or located in, a geographic area that is subject to EU or other sovereign country sanctions or embargoes; or
(c) an individual, or an individual employed by or associated with an entity, identified on the sanctions or restrictive measures list within the framework of the Common Foreign and Security Policy (CFSP) of the EU or otherwise ineligible to receive or sell items subject to EU export/import control laws and regulations or other economic sanction rules of any sovereign nation.
You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
4. SALE CONTRACTS
4.1. Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the Site or Services, including, without limitation, terms regarding payment, returns, warranties, shipping, insurance, fees, taxes, title, licenses, fines, permits, handling, transportation and storage. You acknowledge and agree that ETP does not represent either the seller or the buyer nor any third party in specific transactions.
4.2. The Site will offer a sample model sale contract (“Sale Contract”). It is at sole discretion of the Users to read and accept to use the Sale Contract to agree the terms of trade. ETP is not liable to or responsible for the usefulness, completeness and enforcement of the sample Sale Contracts.
The Users of the Site are responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Sellers or the Buyers. In the event of an audit of the Site, Users agree to promptly cooperate with Site and provide copies of their tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing the User is engaging in an independent business as represented to Site.
The Site will offer the opportunity for the Users to choose the appropriate shipping method for conducting their business on the Site. These services will be provided directly by the transportation and delivery companies, or through third party applications. The Users are solely responsible for selecting the transportation provider, agreeing the terms of the delivery, and paying for these services. ETP is not party in the agreement between the Users and the transportation providers and is not liable to or responsible for losses, delays, damages or other liabilities that may come from using the transportation services.
7.1 The Site provides, through a third party (“Site Escrow”), escrow services to Users to deliver, hold, or receive payment under the terms agreed in the Sale Contract and under the conditions of the escrow provider (“Escrow Services”). The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
7.2. It is at sole discretion of the Users to use the Escrow Service (and any other of the Services) as provided by the third party provider. The services provided on the Site are provided “as is”, “as available” and “with all faults”, and ETP hereby expressly disclaims any and all warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability or fitness for particular purpose. All such warranties, representations and undertakings are hereby excluded.
8. OTHER PAYMENT METHODS
8.1. The Site uses third party payment platform that may apply fees to the Users for payment processing. In order to use certain Site Services, User must provide account information for at least one valid Payment Method.
8.2. User hereby authorizes Site and the Site Escrow to run credit card authorizations on all credit cards provided by User, to store credit card and banking or other financial details as User’s method of payment for Services, and to charge Users’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Site Escrow.
8.3. Site Escrow may have limitations by its license on the type of payments it can process or the countries to order or receive payments. It is at sole discretion of the User to check if the other party of the Sale Contract is in any of these countries or the products subject to the Sale Contract are not eligible for payment processing.
8.4. By providing Payment Method information through the Site, User represents, warrants, and covenants that: (a) User is legally authorized to provide such information; (b) User is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to User’s use of such Payment Method(s) or applicable law. When User authorizes a payment using a Payment Method via the Site, User represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from User’s Payment Method(s), User is solely responsible for paying such amounts by other means.
9. DISPUTE RESOLUTION
9.1. The Site does not offer for the moment dispute resolution service for resolving any disputes and claims between the Users of the Site. It is the Escrow payment provider that offer dispute resolution to any claims related to the usage of its service between the Users.
9.2. In the event that any User has a dispute with any party to a transaction, such User agrees to release and indemnify ETP (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.
10. IDENTITY VERIFICATION
10.1. When you register on the Site and from time to time thereafter, you might be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on Site, if it is a separate legal entity. You authorize Site, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
10.2. Users are hereby made aware that there may be risks of dealing with people acting under false pretences. The Site cannot and does not confirm each User's purported identity. We encourage you to use various means, as well as common sense, to evaluate with whom you are dealing.
11. MARKETPLACE FEEDBACK
11.1. You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Site post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that the Site will make feedback results available to other marketplace Users, including composite or compiled feedback. The Site provides this feedback system as a means through which Users can share their opinions publicly and the Site does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback relate only to the business advertised in the User Profile and not to any individual person.
11.2. The Site does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Site do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. Site is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, the Site reserves the right (but is under no obligation) to remove posted feedback or information that, in Site’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify Site of any error or inaccurate statement in your feedback results, and that if you do not do so, Site may rely on the accuracy of such information.
12. SITE ACCOUNTS
12.1 ACCOUNT CREATION
To use the Site and certain Site Services, you must register for an Account. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of services and goods; and (c) perform your obligations as specified by any contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. ETP reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in ETP’s sole discretion.
12.2 ACCOUNT REGISTRATION; PROFILE
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, or the goods and services your business provides that is or becomes false or misleading. You agree not to register for more than one Account without express written permission from us.
12.3 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize ETP to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account. You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
13. CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from Site or third party service providers, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
13.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Site. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
13.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Site. In addition, so that we may communicate with you via third-party mail services, you agree to notify us immediately of any change in your address.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
14. COMMUNICATIONS FROM YOU TO SITE
All notices to Site or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, Calle Jose Bergamin 24, 28030 Madrid, Spain; or (c) in writing via email to [email protected] All such notices are deemed effective upon receipt by Site. Site does not accept service of any legal process by email or mail; all such service should occur by hand delivery on Site or its registered agent for service of process.
15. SITE’S ROLE
15.1 SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Buyers or Sellers; (b) Site is not a party to any Sale Contracts between Buyers and Sellers; (c) Site will not have any liability or obligations under or related to Sale Contracts for any acts or omissions by you or other Users; (d) Site has no control over Sellers or the seller goods and services offered or rendered by sellers; and (e) Site makes no representations as to the reliability, capability, or qualifications of any User or the quality, security, or legality of any seller goods or services, and Site disclaims any and all liability relating thereto.
15.2 USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide Site with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Site may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Site and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Site under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Site does not waive any rights to use similar or related ideas known or developed by Site or obtained from sources other than you.
15.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE
You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of Site and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Site or any third party
15.4 LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that Site is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
15.5 MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
15.6 SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. Site reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree Site will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
16. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SITE MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SITE DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
17. LIMITATION OF LIABILITY
Site is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
· your use of or your inability to use our Site or Site Services;
· delays or disruptions in our Site or Site Services;
· viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
· glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
· damage to your hardware device from the use of the Site or Site Services;
· the content, actions, or inactions of third parties’ use of the Site or Site Services;
· a suspension or other action taken with respect to your account;
· your reliance on the quality, accuracy, or reliability of items postings, profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
· your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL SITE, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF SITE, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY SITE WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS USER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that Site is not a party to any contract between Users, you hereby release Site, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the goods provide by Seller to Buyer and requests for refunds based upon disputes.
You will indemnify, defend, and hold harmless Site, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Sale Contract entered into by you or your agents; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
20. AGREEMENT TERM AND TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and Site expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to [email protected] In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Sale Contracts when you terminate this Agreement, you will continue to be bound by this Agreement and the other Terms of Service until all such Sale Contracts have closed on the Site; (b) Site will continue to perform those Site Services necessary to complete any open Sale Contracts or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Sale Contracts, whichever is later, to Site for any Site Services and to any third party provider for any Site Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Sale Contract, or Site from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting Site’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Site or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Site’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, Site will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which Site will have no liability whatsoever.
20.1 ENFORCEMENT OF AGREEMENT
Site has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting Site’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or Site.
20.2 CONSEQUENCES OF AGREEMENT TERMINATION
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Sale Contracts with you. You therefore agree as follows: IF SITE DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, SITE HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
21. CANCELLATIONS, REFUNDS, AND DISPUTES
21.1 DISPUTE PROCESS AND SCOPE
For disputes arising between Users, you agree to abide by the dispute process that is explained in p.9 DISPUTE RESOLUTION.
If a dispute arises between you and Site or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Site, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Site, the termination of your relationship with Site, or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Sale Contract, escrow payments or agreements, any payments or monies you claim are due to you from Site or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, seating, expense reimbursement, termination claims and all other legal claims arising out of or relating to your relationship with Site or the termination of that relationship.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration.”
21.2 CHOICE OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of Spain, without regard to its conflict of law provisions;
21.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify Site of the Claim at Attn: Legal, Calle Jose Bergamin 24, 28030 Madrid, Spain or by email to [email protected], and Site agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from Site must include pertinent account information, a brief description of the Claim, and Site’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and Site will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
21.4. ARBITRATION PROVISION
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, ETP, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from our third party provider of online dispute resolutions.
This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with Site ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason the third party service provider for online dispute resolutions will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
22.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Site relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Site drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Site because of the authorship of any provision of the Terms of Service.
22.2 SIDE AGREEMENTS
Notwithstanding subsection 22.1 (Entire Agreement), Users may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand Site’s obligations or restrict Site’s rights under the Terms of Service.
User will not violate any applicable EU, foreign, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
No modification or amendment to the Terms of Service will be binding upon Site unless in a written instrument signed by a duly authorized representative of Site. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 22.4 (Modifications) does not apply to amendments to the Terms of Service posted by Site to the Site from time to time.
22.5 NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Site’s prior written consent in the form of a written instrument signed by a duly authorized representative of Site (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). Site may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
22.8 FORCE MAJEURE
Under no circumstances shall ETP be held liable for any delay or failure or disruption of the content or services delivered through the Site resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
22.9 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in Spain. Site makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, EU, state, and local laws and regulations, including, but not limited to, export and import regulations. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities.
23. INTELLECTUAL PROPERTY RIGHTS
23.1 ETP is the sole owner or lawful licensee of all the rights and interests in the Site and the Site Content. The Site and Site Content embody trade secrets and other intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Site and Site Content shall remain with ETP, our affiliates or licensors of the Site Content, as the case may be. All rights not otherwise claimed under the Terms or by Eutradepoint.com are hereby reserved.
23.2 "EUTRADEPOINT.COM” and the related icons and logos are registered trademarks or trademarks or service marks of Exim Trade Point S.L., in various jurisdictions and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
23.3 ETP may have independent third parties involved in the provision of the Services (e.g., the escrow service providers). You may not use any trademark, service mark or logo of such independent third parties without prior written approval from such parties.
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