Terms & conditions

BROOCHY MERCHANT TERMS AND CONDITIONS 2016

1. GENERAL

1.1. These General Terms are applicable to the Agreement between the Merchant (“Merchant”) and Broochy, Inc. (Business ID 2733261-1), a company duly incorporated under the laws of Finland and having its principal place of business at Tehtaankatu 27-29A, 0015, Helsinki, Finland ("Broochy") and set out the terms under which Broochy shall provide marketplace services (“Services”) to the Merchant.

1.2. The Merchant enters into the Agreement by opening a merchant account with Broochy.

1.3. All Services are subject to the Agreement at all times. The Services may be subject to additional third party terms and conditions, which terms and policies shall be communicated to the Merchant by Broochy or its subcontractors.

2. MARKETPLACE SERVICES

2.1. The Marketplace Services consist of a web marketplace which the Merchant may use to sell its goods to end-customers. The role of Broochy as regards the Marketplace Services is only to provide a web marketplace for the Merchant. Any and all transactions as regards any goods or services the Merchant sells or provides via the Marketplace Services, are always between the Merchant and the end-customer. Broochy is never a party to such transaction, although for the avoidance of doubt, the Merchant shall pay Fees to Broochy based on such transactions as set out in these General Terms. Broochy assumes no responsibility or liability for any business, transactions and activities carried out via the Marketplace Services.

2.2. The service description for the Marketplace Services may be viewed at Broochy's web site. Broochy shall provide the Marketplace Services to the Merchant substantially as set out in the Agreement.

2.3. Broochy reserves the right to make changes to the Marketplace Services at any time. If a change made by Broochy has an adverse effect on the agreed contents of the Marketplace Services, Broochy shall inform the Merchant of such change at least thirty (30) days before the effective date of the change. In such a case the Merchant shall have the right to terminate the Agreement subject to a thirty (30) days prior written notice. The termination notice must be delivered to Broochy in writing prior to the effective date of the change.

2.4. Broochy shall always have the right but shall have no obligation to make such changes to the Marketplace Services that (a) concern or relate to the production environment of the Marketplace Services and do not have an adverse effect on the agreed contents of the Marketplace Services or the agreed service levels, (b) are necessary to prevent any data security risk or any other threat to the Marketplace Services, or (c) result from law or from an administrative order.

2.5. The Marketplace Services are not subject to any particular service levels, and are provided to the Merchant strictly on an "as is" and "as available" basis. Broochy makes no representations, warranties or promises as to the availability or functioning of the Marketplace Services at any particular time. Under no circumstances does Broochy warrant that the Marketplace Services would be free from errors or work or be available without interruption.

2.6. The Merchant shall be solely responsible for using the Marketplace Services in accordance with applicable laws and regulations. The Marketplace Services may not be used for business, transactions and activities that are illegal or unethical (including but not limited to activities and business related to drugs, alcohol or tobacco, weapons, hazardous materials, stolen items, hate items, pornography, mature content, human trafficking, any materials infringing third party Intellectual Property Rights, pirated or counterfeit materials).

2.7. The Merchant shall provide its sales terms to the end-customer via the Marketplace Services. The Merchant's sales terms shall always fulfil the following minimum requirements:

2.7.1. The Merchant shall ship all orders and provide their respective tracking numbers within seven (7) days of acceptance of such orders.

2.7.2. The Merchant shall use its best efforts to co-operate with Broochy’s employees regarding customer enquiries within 24 hours from the first contact by Broochy.

3. SUPPORT SERVICES

3.1. Broochy shall provide Support Services to the Merchant substantially as set out in this Agreement.

3.2. The Support Services are available from 9:00 to 17:00 CET Monday to Friday. The Support Services are provided to the Merchant strictly on an "as is" and "as available" basis, but Broochy shall use its commercially reasonable efforts to provide Support Services during the aforesaid service time.

4. INTELLECTUAL PROPERTY RIGHTS

4.1. All rights, title and interest, including all Intellectual Property Rights in and to the Services and any changes thereto shall belong exclusively to Broochy or its licensors. Except for the express license to use the Marketplace Services granted to the Merchant under and in accordance with the terms and conditions of the Agreement, the Merchant shall have no and shall not obtain any rights, license or interests in and to the Services or any Intellectual Property Rights pertaining thereto.

4.2. The Merchant shall have a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to [use the Marketplace Services during the term of the Agreement in its internal business operations].

4.3. The Merchant grants to Broochy a worldwide, non-exclusive, royalty-free, transferrable and sublicensable right to the Merchant's Intellectual Property Rights for the sole purpose of fulfilling Broochy's obligations under the Agreement.

5. INDEMNIFICATION

5.1. Broochy agrees to defend the Merchant, at its own discretion and expense, against any third party claims or actions where a third party claims that the Marketplace Services infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Merchant:

5.1.1. notifies Broochy of such claim immediately upon receipt of notice thereof;

5.1.2. provides Broochy, free of charge, with all available information, permissions and assistance;

5.1.3. grants Broochy the exclusive and sole right to control the defence of the claim; and

5.1.4. does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of Broochy.

5.2. If the Merchant has acted in accordance with Sections 5.1.1 to 5.1.4, Broochy shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.

5.3. If Broochy justifiably deems that the Marketplace Services infringe or may infringe upon any third party rights, Broochy shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Merchant the right to continue the use of the Marketplace Services; or (b) replace the Marketplace Services; or (c) modify the Marketplace Services to the extent necessary to avoid the infringement.

5.4. If none of the alternatives defined in Section 5.3 are available to Broochy on commercially reasonable terms and/or without the significant loss of time, Broochy shall have the right to terminate the Agreement in whole or in part subject to a notice period set by Broochy, upon which the Merchant agrees to cease using the Marketplace Services.

5.5. The indemnity in this Section 5 shall not apply to, and Broochy is not liable for any claim that (a) is based on a claim by any Merchant Affiliate; or (b) is based on the modification or alteration of the Marketplace Services or a modification or alteration influencing the Marketplace Services by the Merchant or any third party; or (c) results from complying with any instructions, specifications or design given by the Merchant or any third party under the command and control of the Merchant; (d) arises or results from the use of the Marketplace Services in combination with any software, equipment or products not developed or supplied by Broochy or which are contrary to instructions given by Broochy; or (e) could have been avoided by using the latest version of the Marketplace Services made available by Broochy to the Merchant.

5.6. The Merchant agrees to indemnify Broochy, at the Merchant's own expense, against any claims made towards Broochy based on any information or data the Merchant submits, processes or stores to the Marketplace Services, including without limitation claims that the Merchant's data infringes third party Intellectual Property Rights or that the data otherwise infringes applicable laws or regulations.

5.7. This Section 5 sets out the entire liability of Broochy and the Merchant’s sole remedy in case of any infringement of any Intellectual Property Rights.

6. MERCHANT'S OBLIGATIONS

6.1. The Merchant shall be solely responsible for any use of the Marketplace Services under the Merchant's account, including any breach of the Agreement by the Merchant or any of its authorized users.

6.2. The Merchant shall be responsible for its own devices, systems, applications, connections and software used to access the Marketplace Services.

6.3. The Merchant shall be responsible for the protection of the Merchant’s data communications and data systems and costs for communications and other comparable costs related to use of the Marketplace Services.

6.4. The Merchant may authorize its personnel to use the Marketplace Services under the Merchant's account. The Merchant shall ensure that any users it authorizes to use the Marketplace Services under the Merchant's account comply with the Agreement at all times and use the Marketplace Services only in accordance with the Agreement.

6.5. The Merchant shall be responsible for ensuring that its authorized users maintain any user accounts and passwords diligently and do not disclose them to third parties. The Merchant undertakes to inform Broochy without delay if any password has been revealed to a third party or if the Merchant has a reason to suspect misuse of a username or password. The Merchant’s liability for the misuse of the Marketplace Services by the use of the user name or password of its user shall expire when Broochy has received the Merchant’s written and sufficiently detailed notice thereof enabling Broochy to take sufficient action to prevent any further use of the Merchant's user name and password.

6.6. The Merchant shall change the passwords required for the use of the Marketplace Services upon written request of Broochy if necessary due to data security risk to the Marketplace Services.

7. PERSONAL DATA AND CUSTOMER DATA

7.1. To the extent the Merchant submits, processes or stores any personal data in to the Marketplace Services, Broochy (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Merchant while the Merchant remains at all times the data controller for such personal data. Broochy processes data submitted by the Merchant to Broochy in accordance with the applicable laws, decrees and regulations. The Merchant represents and warrants that it is authorized to instruct Broochy and its subcontractors to process such personal data. The Merchant represents and warrants that it has the right to collect the personal data provided to Broochy for processing.

7.2. Broochy provides the Merchant information on where Broochy's or its subcontractors' servers are located at upon request. The Merchant shall be solely responsible for ensuring that it has the right to transfer personal data to the countries where Broochy’s hosting partner's servers are located.

7.3. By using the Marketplace Services, the Merchant understands and accepts that the Merchant's data may be provided to Broochy's subcontractors for the purposes of providing the Marketplace Services.

7.4. The Merchant is solely responsible for making appropriate backups of its data, and Broochy or its subcontractors shall in no way be liable for any deletion of or failure to store any data of the Merchant or other communications maintained or transmitted to the use of the Marketplace Services.

7.5. After the termination of the Agreement for any reason, Broochy shall retain the Merchant's data for thirty (30) days and make it available to the Merchant via the Marketplace Services. After the thirty (30) days' period, Broochy shall have the right to destroy the Merchant's data from the Marketplace Services without any liability towards the Merchant.

8. SUSPENSION OF SERVICE

8.1. Broochy shall have the right to suspend the provision of the Marketplace Services for a reasonable period of time without any liability towards the Merchant if this is necessary in order to perform installation, change or maintenance work in respect of the Marketplace Services or if such suspension results from installation, change or maintenance work in respect of public communication networks. Broochy shall also have the right to suspend the provision of the Marketplace Services due to a data security risk to the Marketplace Services or if law or administrative order requires Broochy to do so.

8.2. Broochy may suspend the Marketplace Services without any liability towards the Merchant if the Merchant ceases to conduct its business, is adjudicated in bankruptcy or liquidation or corporate restructuring, is found insolvent in recovery proceedings or if a material default in payment has been registered to the Merchant.

8.3. Broochy shall have the right suspend the provision of the Marketplace Services and to deny the Merchant's access to the Marketplace Services without first hearing the Merchant, without any liability towards the Merchant, if Broochy reasonably suspects that the Merchant burdens or uses the Marketplace Services contrary to the Agreement, applicable laws or administrative orders or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardises the provision of the Marketplace Services to other users.

9. FEES

9.1. The Merchant shall be free to set the prices for the goods and services it sells when using the Marketplace Services. All charges from end customers are made using the payment gateways enabled by the Merchant on Shopify.

9.2. The Merchant is responsible for paying the Fees for Broochy. In practice, Shopify will charge the Fees from the Merchant in their monthly Invoice. Any failure of Shopify to pay the Fees to Broochy will not, however, release the Merchant from the obligation to pay the Fees.

9.3. The Merchant shall be responsible for paying the following Fees for the Services:

9.3.1. The Fee per each transaction made by the Merchant via the Marketplace Services shall be twenty percent (20 %) of the price (including any taxes and shipping costs) of the transaction.

9.4. Any Services, not expressly defined as being included in the Fees shall be charged in accordance with Broochy’s price list as in force from time to time.

9.5. All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations.

9.6. In case a separate invoice is sent, the term of payment of each invoice shall be fourteen (14) days net from the date of the invoice.

9.7. Overdue interest on any amounts overdue shall accrue in accordance with the applicable Finnish Interest Act (Korkolaki 1982/633, as amended).

10. CONFIDENTIALITY

10.1. Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party.

10.2. The obligations of confidentiality in Section 10.1 above shall not prevent a Party from disclosing Confidential Information where it is required to do so under any mandatory law, or by order of a court or governmental body of authority of competent jurisdiction, or by any mandatory requirement of a regulatory authority. If legally possible and applicable, the recipient of such order shall notify the disclosing Party to allow a reasonable opportunity to seek protective order or equivalent or to appeal, and to extent reasonably possible, make effort to protect any sensitive information.

10.3. Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.

10.4. Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.

10.5. The rights and obligations related to the Confidential Information shall survive the termination of the Agreement for any reason for a period of three (3) years from such termination.

11. LIMITATION OF LIABILITY

11.1. The total aggregate liability of a Party towards the other Party under the Agreement during a calendar year shall not exceed an amount corresponding to (i) twenty percent (20%) of the Fees for Services paid by the Merchant to Broochy during the calendar year, or (ii) five thousand (5.000) Euro, whichever is less.

11.2. Under no circumstances shall a Party shall be liable for any indirect, incidental, or consequential damages, loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.

11.3. The limitations of liability shall not apply to damages caused by wilful misconduct or gross negligence or to liability under Section 5 (Indemnification) or Section 10 (Confidentiality) or to the Merchant's obligation to pay the applicable Fees.

12. TERM AND TERMINATION

12.1. The Agreement shall enter into force after the Parties have accepted the Agreement. Choosing to apply for a merchant account constitutes the Merchant's acceptance of the Agreement. Choosing to open the merchant account for the Merchant constitutes Broochy's acceptance of the Agreement.

12.2. The Agreement shall remain in force until terminated by a Party by a [one (1) months *] written notice to the other Party.

12.3. Each Party may terminate the Agreement for cause with immediate effect upon written notice to the other Party if:

12.3.1. the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or

12.3.2. the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.

12.4. Upon the termination of the Agreement, any Fees owed by the Merchant for any Services provided until the effective date of the termination shall become immediately due. All Fees are non-refundable.

12.5. Regardless of any termination of the Agreement, the Merchant shall fulfil any orders to end-customers accepted prior to the termination of the Agreement taking effect.

13. GOVERNING LAW AND DISPUTES

13.1. The Agreement shall be governed by and construed in accordance with the substantive laws of Finland, excluding its choice of law provisions. For the avoidance of doubt, the Finnish Sale of Goods Act (355/1987) and the CISG shall not be applied to this Agreement.

13.2. All disputes arising out of or relating to the Agreement shall be primarily settled by amicable negotiations between the Parties. Should the Parties fail to reach an outcome acceptable to both Parties as a result of the negotiations within thirty (30) days from the date when a Party has requested in writing to commence with the aforementioned negotiations, the dispute shall be finally settled in arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall take place in Helsinki, Finland and the language to be used in the proceedings shall be English.

13.3. Notwithstanding anything set out in Section 13.2 above, Broochy shall have the right to claim unpaid Fees in a public court.

14. OTHER TERMS

14.1. Broochy shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. Broochy shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.

14.2. Broochy shall have the right to use its relationship with the Merchant in its marketing and sales promotion activities.

14.3. Neither Party shall be liable for any delays or non-performance of its obligations or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.

14.4. All formal notices and other formal communication between the Parties hereunder shall be made in the English language

14.5. Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Broochy shall, however, have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.

14.6. Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.

15. DEFINITIONS

15.1. “Affiliate” of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) directly or indirectly owned or controlled by the Party, for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty percent (50 %) of the nominal value of the issued equity share capital or more than fifty percent (50 %) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;

15.2. "Agreement" means the agreement between Broochy and the Merchant, consisting of these General Terms and any other terms applicable to the Services;

15.3. "Marketplace Service(s)" means the cloud based services provided by Broochy to the Merchant, as set out in the Agreement;

15.4. "Company" means Broochy Oy (Business ID 2733261-1), a company duly registered under the laws of Finland, having its principal place of business at Kaisaniemenkatu 13 A, 00100, Helsinki, Finland;

15.5. "Confidential Information" shall have the meaning set out in Section 10.1;

15.6. "Merchant" means Broochy entering into the Agreement with Broochy;

15.7. "Fee(s)" means the compensation paid by the Merchant to Broochy for the Services;

15.8. "General Terms" means these General Terms and Conditions 2017;

15.9. "Intellectual Property Rights" means: (i) patents, inventions, designs, copyright (including the right to amend, modify, develop and assign) and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;

15.10. "Parties" and "Party" means Broochy and the Merchant jointly and separately;

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