1. GENERAL PROVISIONS AND SCOPE
1.1Purchased.at GmbH, located at Mariahilfer Straße 77-79 Vienna 1060 Austria, ("P.AT") is a digital products retailer and provider of comprehensive e-commerce services ("Services"). The Services set out in these General Terms and Conditions ("Terms") are exclusively aimed at entrepreneurs.
1.2You ("Vendor”) are the business owner and/or vendor (manufacturer) of digital products or services ("Product") subscribing to P.AT to sell your products or services through P.AT.
1.3P.AT provides its Services through www.purchased.at ("Website"), a secure online retail outlet for digital products and services obtained by P.AT from the Vendors and offered for resale to end users ("End User") for their own use via the Internet.
1.4P.AT purchases Products from the Vendor for the purpose of resale to End Users who make a decision to buy Products of the Vendor at P.AT's online shop located at shop.purchased.at.All Services provided by P.AT to the Vendors shall be exclusively based on these Terms. Diverging, conflicting, restricting or supplementary terms and regulations of the Vendor must be expressly accepted by P.AT in order to become part of the contract. In particular, acts to fulfill the contract on the part of P.AT shall not be deemed to be consent to any conditions deviating from these Terms.
P.AT expressly reserves the right to unilaterally change these Terms for the future at any time. The currently valid version of the Terms shall be made available to the Vendors in the subscription process and apply to the new contract. In case of several contract completions that do not fall on the same date, the valid version of these Terms published by P.AT and entered into at the time of contract conclusion shall be the one that is effective for the contract. ACCEPTANCE AND CONCLUSION OF CONTRACT
2.2The information provided by P.AT on the Website shall not be an offer in the legal sense. The completion of the registration process on the Website by the Vendor shall be a binding offer. A separate confirmation of receipt of the offer shall be sent after receipt of the offer by P.AT. This confirmation does not represent acceptance of the offer. P.AT's acceptance shall only occur with the establishment of the Vendor's Account according to Pt 3.1.
2.3The contract is valid for an indefinite period.
2.4P.AT may at any time change or remove (temporarily or permanently) the Website, Products or Vendors and their information from the Website without indicating the reasons of such change or removal. P.AT shall not be liable to you for any such change or removal.
3. YOUR ACCOUNT
3.1The Vendor, who wants to start using the Services, has to register at the Website. After you agree to be bound by these Terms and complete registration, P.AT will establish an account for you ("Account") and provide you with the unique login ID and password. P.AT is entitled to refuse to register a new Vendor without indicating the reasons.
3.2Use of the Website or/and the Services is limited to persons that are 18 years old or older and can lawfully enter into and form contracts under applicable law.
3.3To register, you must provide your [real name, address, phone number, e-mail address, valid credit card information] and other information required in the registration form. P.AT will apply its undertakings and exercise its rights referring to this information. You authorize P.AT to verify the accuracy of your information and to perform credit or background checks as it desires. P.AT can also request you to provide any documents required to perform either your background check or check of your provided information. Particular documents that have to be submitted will be specified in the notification to you.
3.4The Vendor is obligated to provide the information at the registration process completely and correctly and to keep it current at all times. The Vendor shall be liable to P.AT for all damages caused by false information or neglect of its updating.
3.5You unconditionally warrant that any Product characteristics submitted by you at the Website and any other information, data and/or content you provide: (i) will be correct, accurate and not misleading or otherwise deceptive; (ii) will not infringe the intellectual property rights of P.AT or any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (iii) will not violate any law, statute, or regulation; (iv) will not be defamatory or libelous, and, (v) will not create liability for P.AT. You shall indemnify P.AT for all damages resulting from the information, data or content you provide at the Website.
3.6You are solely responsible for maintaining the confidentiality of your unique login ID and password, and for their use. Any person who logs in with the Vendor's ID and matching password, is considered to be authorized by the Vendor. As traffic on the Website may be monitored, evidence of the use of the login ID can be produced to support or defend any dispute or actionable cause or matter which arises in relation to your usage of the Service and/or the Website. The Vendor shall hold P.AT harmless regarding all damages arising from failure to keep the password confidential. You shall not use the Website and/or the Services for any purpose that is unlawful or prohibited by these Terms or legal requirements. You confirm and guarantee that by selling Products to P.AT, you will act honestly and in such a way that it would meet the interests of P.AT. P.AT has the right to restrict the Vendor's usage of the Website without prior notice if the Vendor uses the Website in unlawful or other unaccepted ways.
4. PRODUCTS AND PRICING
4.1The Vendor commits to supply its Products and transfer ownership and additional rights, as determined in these Terms, to P.AT by submitting them to the Website. P.AT will use the Products strictly to fulfill its business needs.
4.2If the Vendor registers Products for inclusion in the Website, P.AT is entitled to purchase such Products for resale to End Users. The Vendor entitles P.AT to resale the Products in P.AT's own name and on the Vendor's account. P.AT is thus to be qualified as the Vendor's commission agent according to Sec 383 Austrian Commercial Code ("UGB"). The agreement on the Product's resale is thus concluded between P.AT and the End User.
4.3P.AT allows you to list and sell digital products or services only.
4.4Vendors may list any item in the Website unless it is a prohibited item defined in or similar to the items listed in the Prohibited Products and Activities List. P.AT may change the Prohibited Products and Activities List in its discretion, without notice to you or your consent.
4.5Each of your listed items will be reviewed by P.AT before making it available to be purchased. P.AT may deny any Product for any reason.
4.6You agree to either host the Products on your own server and provide P.AT the download link, access to your service subscription or provide the Products for hosting them on P.AT servers.
4.7You must provide the download link of the Product, access to your service subscription or the actual Product when you submit it to the Website.
4.8You shall indicate a Product price in currency that you choose from the list of currencies available on the Website, including all the applicable taxes, shipping fees and other costs.
4.9The Vendor agrees to give access to Products in advance by providing the download link or the actual Product to host on P.AT servers. P.AT will calculate your sales and pay the Vendor on monthly basis or other intervals as agreed with the Vendor. You will be able to see the list of all sales of your Product in your Account.
4.10The Vendor shall maintain sufficient inventory to fulfill purchases by P.AT in a timely manner.
5. PRODUCT OWNERSHIP
5.1The ownership of the Product is transferred to P.AT at the time of the Product placement in the Website.
5.2The ownership transfer takes place as soon as the Vendor provides the download link of the Product, access to its service subscription or the actual Product according to Pt 4.7.
6. PRODUCT QUALITY
6.1You agree to provide only good quality Products.
6.2You guarantee that your Products will be functioning normally and meet standard quality requirements and conditions of the respective kind of Products and will not have any hidden deficiencies. If not,
7. PRODUCT SUPPORT
7.1You shall provide Product support to both P.AT and End Users. You shall be solely responsible for the Product support of the End Users of Products.
7.2Product support means responses to P.AT and End User inquiries, troubleshooting, End User education, provision of user manuals and other similar consultations.
7.3You undertake to provide Product support in a timely manner after the support inquiry from P.AT or End User.
8. SERVICE FEES AND PAYMENTS
8.1P.AT will pay the Vendor for the Product after the actual sale of the Product to the End User was made. The amount payable corresponds with the wholesale price indicated at the Website by the Vendor at the time of the Product placement in the Website.
8.2P.AT charges the Vendor a "Commission Fees" for the use of the Website and the Services in accordance with the terms set forth in the Fees Schedule. You agree and acknowledge that no other circumstances, including, but not limited to, the actual closure of the purchase, cancellation of the purchase, shipment, delivery or return of the Product, payment of the price and/or refund of the price shall influence your obligation to pay the Commission Fees.
8.3The right to assert counterclaims by set-off or through the exercise of rights of retention by the Vendor shall be excluded, unless the counterclaim is legally established or expressly acknowledged by P.AT in writing.
8.4If not expressly otherwise agreed to in writing, the Vendor shall pay default interest on amounts due at the rate of 9.2% p.a. above the base interest rate of the Austrian National Bank.
8.5The Vendor shall be obligated to pay P.AT all actually incurred necessary reminder and collection fees for appropriate legal action, in particular costs of any collection agency services used that are based on the respectively valid regulations for maximum fees in collections, as well as attorney’s fees pursuant to the Law on Attorney’s Fees.
8.6P.AT reserves the right to undertake anti-fraud checks including manual review of orders to verify End Users credentials. In some instances the due process of these anti-fraud checks may cause delay in the sale and distribution of the Products to the End User. In the event of the End User seeking to cancel the order from P.AT due to such delay or process, P.AT shall not be liable to the Vendor for such cancellation.
8.7The sums due to the Vendor shall be clearly shown in the sales reports in the Vendor's Account.
8.8P.AT may also temporarily hold any portion of the funds in your Account if P.AT, in its sole discretion, determines such action is needed to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness you may incur with P.AT or any other third party.
9. GRANT OF RIGHTS
9.1By listing the Product in the Website, you warrant to P.AT and End Users that you are the owner of the Product and/or have the right and ability to sell the Product. You further warrant that the listing is accurate, current, and complete and is not misleading or otherwise deceptive. P.AT retains the right to immediately halt any sale, presentation, prevent or restrict access to the Website or the Services, or take any other action to restrict access to or availability of objectionable material, any inaccurate listing, any inappropriately categorized Products, any unlawful Products, or any Products otherwise prohibited by these Terms or applicable law or in any other case in its sole discretion.
9.2By submitting the Product to the Website, you grant to P.AT the following rights to the Product: (i) the non-exclusive, worldwide, royalty free, perpetual, non-revocable license and right to copy, publish and distribute the Product in any form and in any language and the right to translate and publish and distribute the Product to other internet sites under license with P.AT; (ii) the right to create derivative works from the Product, the right to include the Product in advertising and promotion, and the right to sub-license, reproduce, resell, and redistribute the Product, and any derivative works thereof, to third parties in any medium and anywhere in the world.
9.3The Vendor grants P.AT the exclusive and transferable license to market and resell Products to End Users and, where appropriate, to effect delivery of digital titles and/or relevant license keys and/or Product activation codes to End Users through the Internet and/or other networks. P.AT grants the End User no rights to use the Products. Any usage rights over the Product (including any conditions or restrictions on such usage rights) shall be granted to the End User exclusively by the Vendor and not by P.AT. A resale shall be subject to the terms and conditions issued by P.AT in respect of End Users, and in the event of any conflict such terms and conditions shall take precedence over any sales terms imposed by the Vendor including terms and conditions on the Vendor's website or in any End User License Agreement issued by the Vendor.
10. RETURNS AND REFUNDS
10.1P.AT can return the faulty Product and demand for a refund.
10.2Further, the End User may return or replace the Product or revokes the purchase contract.
10.3If the End User request a cancellation for their recurring billing Product, no future rebills will be charged to their account. Cancellation will not generate a return - it will only stop any future rebills.
10.4When the Product is returned or the purchase contract is revoked, the End User receives a 100% refund. Payouts from that sale are debited back out of the corresponding Vendor account.
10.5A sale is revoked if the End User’s bank later claims the sale was unfunded, unauthorized or fraudulent. Revoked sales cost P.AT money and harm ist reputation as a reliable Product retailer. In these instances, P.AT charges the Vendor $45 per credit card chargeback. P.AT reserves the right to charge increased fees per credit card chargeback, up to $100, if the Vendor's Products generate chargebacks in excess of 1% in any 90-day period.
11. INTELLECTUAL PROPERTY
© Copyright 2016, Purchased.at GmbH; All rights reserved
11.1The Website and all related logos, pictures, trademarks, texts, illustrations as well as design and structure of P.AT's Services are either copyright protected by P.AT, intellectual property of P.AT, trademarks or registered trademarks of P.AT or its licensors. In addition, all page headers, custom graphics, design, button icons, scripts and source code are copyrighted by P.AT.
11.2You may not copy, imitate, modify, alter, amend or use them without P.AT's prior written consent. All right, title and interest in and to the Website and any content therein is the exclusive property of P.AT and its licensors.
12. PRIVACY AND PERSONAL DATA MANAGEMENT
12.1Dealing sensitively with the Vendor's data is of greatest importance for P.AT. Any entry of personal or business data on the Website by the Vendor is made on a voluntary basis. The collecting, processing and use of data will be based on the applicable legal requirements, especially on the Austrian Data Protection Act ("DSG") and the Austrian Telecommunication Act ("TKG").
12.3Your personal data that you provide will be used to identify you as the Vendor and to execute the agreement, only.
12.4You acknowledge and agree that P.AT may provide to the End Users information that is reasonably necessary for them to communicate with you regarding any issues that may arise in connection with their purchase or Product or referral. You agree that P.AT shall not be liable for the collection and/or disclosure of such information to the End User.
12.5You shall not to use any information about other websites and/or services which may become known to you from the Website or which may be disclosed to you by P.AT, except to enter and complete transactions, and not to use any such information for purposes of solicitation, sending unsolicited email or spamming, harassment, or other activities that P.AT deems unacceptable or objectionable.
13. TERMINATION (LIMITATION)
13.1The agreement between the Vendor and P.AT is concluded for an indefinite period: The term of the agreement is for a period of time when your P.AT Account is successfully established until the agreement is terminated for whatever reason. You may close your Account and terminate the agreement at any time by logging in to your Account and then following the instructions. Account cancellation shall mean the agreement terminated.
13.2At any time and for any reason in its sole discretion P.AT may terminate the agreement, your access to the Website and/or the Services, your Account and may halt any pending listings or sales at any time without notice to you. P.AT shall have no liability or obligation for the termination of the agreement.
13.3You may not close your Account to evade an investigation on your fraudulent activities. If you attempt to close your Account while P.AT is conducting an investigation, P.AT may hold any payment to you for up to 180 Days to protect P.AT or a third party against the risk of reversals, chargebacks, claims, fees, fines, penalties and other liabilities of whatever nature. You will remain liable for all obligations related to your Account even after the Account is closed.
14.1You agree to indemnify and hold P.AT, its parent, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against P.AT arising out of any breach by you of these Terms or other liabilities arising out of your use of the Website or Services.
14.2You are responsible for all reversals, chargebacks, fees, fines, penalties and other liability and/or losses incurred by P.AT, the End User, or a third party caused by your use of the Website and Services and/or arising from your breach of these Terms. You agree to reimburse P.AT, the End User, or a third party for any and all such liability.
14.3If the End User claims for damage reimbursement in relation to your Product, you must immediately act on reimbursing such damage.
14.4If your Product does not comply with statutory requirements and state authorities apply sanctions to P.AT for selling such Product to End Users, you shall reimburse these losses to P.AT.
15. EXCLUSION OF WARRANTIES AND LIABILITY
15.1YOU SHALL ACCEPT THE WEBSITE AND THE SERVICES "AS IS" WITH ANY FAULTS OR FAILINGS AND WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF ACCURACY, COMPLETENESS, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
15.2IN NO EVENT AND TO THE GREATED EXTENT PERMITTED BY APPLICABLE LAW WILL P.AT BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGES OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY OF YOUR ACCESS TO, OR USE OF THE WEBSITE AND/OR SERVICES, ANY MATERIAL THEREIN OR ANY PRODUCTS, GOODS, MATERIALS OR SERVICES AVAILABLE THEREFROM, WHETHER BASED IN CONTRACT, TORT AND WHETHER NEGLIGENT OR OTHERWISE, EVEN IF P.AT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THIS EXCLUSION OF LIABILITY IS HELD BY A COURT OF COMPETENT JURISDICTION TO BE UNLAWFUL, BUT THAT LIABILITY MAY BE LAWFULLY LIMITED, P.AT’S AGGREGATE TOTAL LIABILITY TO YOU FOR ALL SUCH DAMAGES AND LOSSES SHALL BE LIMITED TO 50 USD.
15.3Compensation claims for damages by the Vendor, for whatever legal reason, in particular due to production losses, downtimes, delay, impossibility of performance, breach of an obligation, violation of any precontractual obligations (culpa in contrahendo), consequential damages or defects, or due to tortious acts shall be excluded, unless the Vendor proves at least gross negligent damage causation by P.AT. P.AT shall not be liable to third parties as well as for consequential damages. The limitation of liability shall not apply to damages resulting from the loss of life, bodily injury or damage to the health of people or to claims under the Product Liability Law (Produkthaftungsgesetz).
15.4Further, P.AT shall not be liable for uninterrupted function of the Website. P.AT has the right, even without prior announcement, to conduct work on the Website which requires shutting down/interruption. P.AT shall also not be obligated to provide a certain server capacity, so congestion and longer response times must be expected.
15.5P.AT may provide other information which do not concern the concrete contractual content (eg, news articles, Service instructions etc) - until further notice - free of charge. P.AT has created the content of the Website with utmost care. However, with regard to the free provision of information, the abundance of the data, as well as the existing security risks on the Internet, it is impossible to entirely avoid errors, violations of the law by third parties or mistakes. It therefore cannot be excluded that individual information is not up-to-date, complete or correct. P.AT can therefore not be liable – also with regard to providing the website free of charge - for the Website being up-to-date, or for the completeness and accuracy of its content provided online. If the Vendor encounters an error, it can report it to email@example.com. P.AT will endeavor to rectify it as soon as possible.
15.6P.AT points out that it has no influence on the content and design of any linked internet pages. Regarding the content of any linked website, the respective provider or operator of that website is liable. P.AT does not adopt the content of linked websites. Accordingly, P.AT is not liable for the content, accuracy, completeness and topicality of the linked internet pages on the Website.
16. MISCELLANEOUS PROVISIONS
16.1If any provision of these Terms is invalid or void, in whole or in part, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The wholly or partly ineffective regulation shall be replaced by a regulation which comes closest to the meaning and purpose of the void provision.
16.2Any agreement based on these Terms is personal to you and it cannot be transferred, assigned or delegated to anyone without P.AT's prior written consent. Any attempt by you to assign, transfer or delegate the agreement and the rights and/or obligations stipulated in the agreement shall be null and void. P.AT may freely assign the agreement without consent or notice.
16.3All the notices, consents and other communication of the parties related to the agreement shall be delivered via e-mail or in the Account panel.
16.4These Terms and the contracts based on them shall be interpreted and governed by the laws of Austria under exclusion of the UN Law on the Sale of Goods and under exclusion of the conflict of law rules of Austrian private international law.
16.5Any dispute or claim with respect to the validity, construction or enforceability of these Terms or arising out of or in relation to these Terms, or for the breach hereof shall be initially resolved by the parties in good faith within thirty (30) days from the day of notice by any of the parties to the other party as to the existence of a dispute or claim. In the event the dispute is not settled by the parties through negotiations or correspondence, Vendor and P.AT shall submit only to the venue of the court in Vienna having jurisdiction over the subject matter and waive the right, if need be, to another competent jurisdiction.
Version: February 2015