BUSINESS TERMS AND CONDITIONS FOR HEUREKA MARKETPLACE
1. INTRODUCTORY PROVISIONS
1.1. Operator of Heureka Portal
1.1.1. These Business Terms and Conditions for Heureka Marketplace (hereinafter the “Marketplace TaC”) are issued by Heureka Group a.s., registered office: Karolinská 706/3, 186 00 Prague 8, business ID number: 07822774, tax ID number: CZ07822774, as the operator of the Heureka portal, for the purpose of setting out the rights and obligations resulting from the contractual relationship between the Operator and Retailers using the Portal to offer goods that are, based on an agreement with the Operator, included in the Heureka Marketplace program.
1.1.2. The Operator has brought into operation the option of concluding Purchase Contracts between registered Retailers and Users through the Portal (Offers in the Heureka Marketplace regime in accordance with Article 3.6. of the Terms and Conditions of Use of Heureka Portal, available at https://heureka.group/cz-cs/podminky-pouzivani/podminky-pouzivani-nakupni-galerie-heureka-cz/, hereinafter the “Terms and Conditions”), which are, however, only offered to Retailers that conclude with the Operator a Contract on Co-operation on Sale of Goods on the Heureka Portal in accordance with these Marketplace TaC.
1.1.3. These Marketplace TaC are part of the Special Conditions of Use of Portal in accordance with Article 1.2.2. of the Terms and Conditions that apply to the relationship between a Retailer and the Operator to the extent to which these Marketplace TaC do not provide otherwise. The interpretation of terms in accordance with Article 1.3. of the Terms and Conditions applies to these Marketplace TaC, unless a different term is designated and its interpretation defined.
1.2. Adyen N.V.
1.2.1. Adyen N.V., registered in the Netherlands, registration number: 34259528, registered office: Simon Carmiggeltstraat 6-50, 1011 DJ, Amsterdam, the Netherlands, is the operator of the Adyen System through which the User pays the price for Goods or services purchased from Retailers through the Portal.
1.3. Retailer
1.3.1. The Retailer is interested in the inclusion of Goods offered in its E-shop in the Offer of Goods on the Portal, as well as the sale of such Goods to Users based on Purchase Contracts concluded through the Portal in accordance with Article 3.6. of the Terms and Conditions, and on the use of the Adyen System for the purposes of accepting payments for Goods.
1.4. Interpretation of Terms
1.4.1. Administrative Interface – an interface through which a registered Retailer can communicate with the Operator and adjust the settings;
1.4.2. AML Act – Act No. 253/2008 Coll., on Some Measures against Money Laundering and Terrorism Financing;
1.4.3. Retailer’s E-mail Address – the e-mail address that a Retailer stated in the Registration Form and that is designated for the delivery of notifications, requests and other documentation in connection with a Contract;
1.4.4. Identification – identification of a Retailer that Adyen is obligated to perform under the conditions stipulated in Act No. 253/2008 Coll., on Some Measures against Money Laundering and Terrorism Financing;
1.4.5. Payment Method – a specific payment method through which a User can pay for Goods or services offered on the Portal. Individual Payment Methods, with the exception of a cash-on-delivery payment, bank transfer payment and cash payments following personal handover, include the solutions agreed in the Adyen System with the various Adyen Partners;
1.4.6. Payment Account – a virtual payment account that is maintained by Adyen for a Retailer on which funds paid into it by Users for Retailers based on Purchase Contracts will be accepted;
1.4.7. Adyen Rules – Rules for the use of the Adyen payment system for the purposes of paying the prices of Goods at Heureka, which are annexed to a Contract, are available at https://heureka.group/cz-cs/podminky-pouzivani/podminky-pouzivani-platebniho-systemu-adyen -na-heureka-cz/;
1.4.8. Commission – the Operator’s commission agreed based on Article 6.1 of the Marketplace TaC;
1.4.9. Registration Form – a form made available to a Retailer as a part of the Administrative Interface, whose completion and sending by the Retailer is regarded as a proposal for the conclusion of a Contract;
1.4.10. Contract – contract on co-operation that governs the rights and obligations of the parties during the sale of Goods and services through the Heureka portal, and the use of the Adyen System for the payment of the price of the Goods and services concluded between a Retailer and the Operator;
1.4.11. Adyen System – an online payment gateway administered by Adyen, offering the option of making use of several Payment Methods.
1.5. Conclusion of Contract, Business Terms and Conditions
1.5.1. The Contract is concluded by the Retailer and the Operator electronically, where the completion and sending of the Registration Form located in the Administrative Interface by the Operator is a proposal for the conclusion of the Contract. The Contract is concluded at the moment the Operator delivers a message to the Retailer’s e-mail address saying that it has accepted its proposal for the conclusion of the Contract.
1.5.2. The approval of these Marketplace TaC and the Adyen Rules, which are an integral part of the Contract concluded between the Retailer and the Operator and govern the rights and obligations of the contracting parties under the Contract, is a condition for sending a Registration Form in accordance with Article 1.5.1.
1.5.3. The Operator reserves the right
- a) to contact the Retailer by telephone before the approval of a registration and to verify the information it stated in the Registration Form; and/or
- b) to refuse to conclude the Contract, without giving reasons.
1.5.4. Unless a differing provision is expressly stated in the Contract or the validity of some provisions of these Marketplace TaC is excluded by the Contract or another express agreement between the Retailer and the Operator, or it is otherwise modified, these Marketplace TaC apply to relations between the contracting parties.
1.6. Conditions for Conclusion of Contract
1.6.1. So that the Retailer can conclude the Contract, it is obligated to comply with all the conditions specified below:
a) the Retailer’s e-shop has implemented the Verified by Customers service;
b) the Retailer is the holder of a “Verified by Customers” certificate based on the Verified by Customers service (https://heureka.group/cz-cs/podminky-pouzivani/podminky-pouzivani-programu-overeno-zakazniky/).
1.6.2. The Retailer also notes that if it stops meeting any of the aforementioned conditions during the Contract, the Operator is entitled to deactivate its option of selling Goods directly through the Portal. This option can be re-activated at any time after the Retailer once again meets the conditions stated in Article 1.6.1.
1.7. Security of Administrative Interface, Retailer’s Reporting Obligation
1.7.1. Access to the Administrative Interface is secured by a user name (the Retailer’s e-mail address) and password. The Retailer is responsible for the user password and is obligated to protect the password or to change it as soon as it suspects that it could have been disclosed to unauthorized persons or it could have been abused. The Retailer is responsible for any abuse of an access password by a third party.
1.7.2. The Retailer is responsible for all data stated in the Registration Form being up to date and is obligated to keep them up to date in the relevant form in the Administrative Interface (in particular changes to the persons authorized to act for the Retailer or changes to the contact persons). The Retailer is also responsible for the correct setup of its e-mailbox at the Retailer’s e-mail address, its functionality and that the e-mailbox is not full. In the event of the long-term absence of the relevant contact person, the Retailer is obligated to re-direct its e-mail in such a manner as to ensure the receipt of e-mails sent to the Retailer’s e-mail address and responses to it.
2. SUBJECT OF CONTRACT
2.1. The subject of the Contract is the Retailer’s obligation:
2.1.1. To supply Users of the Portal with Goods that Users order through the Portal from the Retailer, in a quantity and quality corresponding to the Order, and at a time and under the conditions specified by the Contract;
2.1.2. To comply with obligations in accordance with the Contract and the Terms and Conditions when offering Goods and to comply, when concluding Purchase Contracts through the Portal, with the Terms and Conditions and the Special Terms and Conditions;
2.1.3. To pay the Operator a Commission for brokering sales, in the amount and under the conditions agreed in the Contract and Article 6 of these Marketplace TaC;
2.1.4. To pay the Operator in full all amounts that the Operator pays Users or third parties due to the guarantee for reimbursement of the purchase price in accordance with Article 7 of the Terms and Conditions;
2.1.5. To comply with the obligations when using the Adyen System in accordance with the Contract and the Adyen Rules.
2.2. The subject of the Contract is also the Operator’s obligation:
2.2.1. To enable Users to search for the Retailer’s goods through the Portal;
2.2.2. To present the Goods on the Portal using automatic means (API interface or XML feed supplied by the Retailer);
2.2.3. To provide the Retailer and User with the option of concluding a Purchase Contract, the subject of which is Goods offered by the Retailer through the Portal, if the Operator supports the sale of the Goods in Heureka Marketplace regime in the relevant category (Article 4.1);
2.2.4. To provide Users with the option of paying the purchase price for Goods to the Retailer using the Adyen System, using the Payment Methods agreed with Adyen;
2.2.5. To provide the Retailer with access to the Administrative Interface and enable it to use its functions to the extent of the Contract;
3. RIGHTS AND OBLIGATIONS OF RETAILER
3.1. The Retailer undertakes to ensure that the purchase price for Goods displayed on the Portal does not exceed, during the period of their display on the Portal, the purchase price of the same Goods in the E-shop or on other websites it operates. The Retailer is liable for the correctness of data exported to the Portal and for such data complying with the actual properties of the Goods and legal regulations.
3.2. After receiving an Order from a User handed over to the Retailer by the Operator, the Retailer is obligated to send the User, in accordance with Article 3.9. of the Terms and Conditions, a confirmation of Order containing, at least, information in accordance with the Terms and Conditions. The delivery of such a confirmation of Order to a User concludes a Purchase Contract. The Retailer notes that a Purchase Contract is not concluded by the sending of a summary of an Order by the Operator to the User in accordance with Article 3.7. of the Terms and Conditions. The Retailer is obligated to keep Order statuses up to date so that it is possible, at any time, to ascertain the status of an Order. If the Goods were, at the moment an Order was sent, properly displayed on the Portal, the Retailer is obligated to conclude a Purchase Contract with the User under the conditions resulting from the Offer.
3.3. The Retailer undertakes to, mandatorily for every Offer on the Portal, state information about the “Availability of Goods”, which informs Users of the maximum period necessary for the sending of Goods using a carrier or the maximum period necessary for the preparation of an Order for personal acceptance from the date of acceptance of the purchase price in the Retailer’s account (in the event the payment using Adyen is selected) or from the date of conclusion of the Purchase Contract (in the event payment in cash on delivery or during personal acceptance is selected). In the event the Retailer states on the Portal that the availability of Goods is “In stock”, it is obligated to send the Goods (or prepare them for personal acceptance) no later than the business day after the date the Purchase Contract is concluded. If the Retailer is not aware of the availability of the Goods, it is entitled to state by such Offer “Availability on request” or similar information concerning a User’s ability to verify the availability of the Goods individually by telephone or e-mail. In the event there are repeated breaches of the Retailer’s obligation (i.e. more than three times in the last month) in accordance with this article, the Operator is entitled to withdraw from the Contract in accordance with Article 9.2.1.
3.4. The contracting parties agree that the Retailer is also entitled to request from Users, in addition to the payment of the purchase price, payment of the costs of transport of the Goods, unless it agrees otherwise with the User. The price for the transport of the Goods cannot exceed the price of transport stated by the Retailer for the same Goods on its E-shop.
3.5. Goods are regarded as having been delivered to a User (buyer) if they are handed over to him by the Retailer or carrier.
3.6. The Retailer notes that it has all the rights and obligations of a seller under the Purchase Contract and that the Operator, as the broker of the sale, is not party to the Purchase Contract. The Retailer undertakes to offer the Goods and conclude Purchase Contracts through the Operator’s Portal under conditions that are in accordance with the Terms and Conditions and to comply with them in full (in particular Articles 3 to 6). The stated provisions of the Terms and Conditions contain provisions that comprise a necessary part of a Purchase Contract. In the event that the Retailer offers Goods through its E-shop under conditions different to those stipulated in the Terms and Conditions (business terms and conditions, complaint rules, etc.), it undertakes not to apply such different terms and conditions when offering Goods and concluding contracts through the Portal, to the extent to which there is a discrepancy with the Terms and Conditions of Use of Heureka Shopping Gallery and the Contract or Business Terms and Conditions. The provisions of separate terms and conditions of a Retailer that are more favourable to Users than the provisions of the Terms and Conditions always apply to a relationship between a User and a Retailer. The provisions of the Contract, these Business Terms and Conditions and the Terms and Conditions of Use of Heureka Shopping Gallery are binding to the Retailer, the Retailer expressly agrees to them and undertakes to comply with them. If the Retailer applies its own business or complaint terms and conditions to a Purchase Contract to an extent that does not conflict with the Terms and Conditions under this paragraph, it is obligated to send its business or complaint terms and conditions in text form in the confirmation of Order sent to the User in accordance with Article 3.2.
3.7. The Retailer takes note that over the Portal consumer contracts will usually be concluded using remote communications in accordance with Section 1824 et seq. of the Civil Code. The reporting obligation to consumers regarding information that should be communicated to consumers before the making of a binding offer in accordance with Sections 1811 and 1820 of the Civil Code is discharged by complying with the requirement for the content of an Offer and also through the Terms and Conditions relating to Users. By concluding the Contract, the Retailer authorizes the Operator to provide the aforementioned information to Users through the Portal on the Retailer’s behalf.
3.8. The Retailer is obligated to arrange a document on acceptance of Goods by a User for all Goods delivered. The document on acceptance of Goods can be in written or electronic form (in particular if the Goods are delivered through a carrier). In the event of doubts about delivery or the moment of delivery of the Goods, or in other disputed situations, the Retailer is obligated to send the Operator a copy of the document on acceptance of Goods (also in electronic form). The contracting parties hereby agree that the ownership of the Goods is transferred to the User on the day they are accepted from the Retailer or carrier.
3.9. The Retailer undertakes to offer new and unused Goods for sale on the Portal. In the event used or unpacked Goods or secondary software licenses are offered, it is obligated to properly designate them and include them in the relevant category for used Goods, if the Operator offers such a category. In the event of a breach of the obligations in accordance with this paragraph, the Operator is entitled to withdraw from the Contract in accordance with Article 9.2.1.
3.10. The Retailer is responsible for the correction of information sent to the Portal and for its compliance with legal regulations. In the event the Operator learns such information is incorrect or unlawful, it is obligated to remove an Offer containing such information in accordance with the Terms and Conditions on Liability for Content, which are available at (TO BE COMPLETED) or Articles 5.1 and 5.2 of the General Terms and Conditions for Use of Heureka.cz Portal, which are available at (TO BE COMPLETED). The Retailer is liable to the Operator and Users for the damage that they suffer in connection with the statement of incorrect or unlawful information.
3.11. The Retailer takes note that the Operator, in accordance with Article 7 of the Terms and Conditions, guarantees the User the repayment of the purchase price in cases where:
3.11.1. the Retailer delivers the Goods to a User in conflict with the Purchase Contract;
3.11.2. the Retailer does not deliver any Goods to the User;
3.11.3. the User withdraws from the Purchase Contract and the Retailer does not return the purchase price to it;
3.11.4. the Retailer does not correct defects in the Goods after the User legitimately claims rights under the warranty for quality.
3.11.5. detailed conditions for the making of a claim for repayment of the purchase price by the User are stipulated in Article 7 of the Terms and Conditions for Use of Heureka Portal.
3.12. If the Operator repays the purchase price to the User in accordance with Article 3.11., the Retailer undertakes to pay the Operator an amount identical to the amount paid by the Operator to the User, based on a tax document delivered to the Retailer. The Retailer grants Adyen its consent to a receivable of the Operator from the Retailer due to the legitimate repayment of a purchase price to the User being paid in the form of the deduction of such a receivable by Adyen from the Retailer, from the Retailer’s receivable for the payment of the purchase price for the Goods, in accordance with Article 2.2.7. A condition for such a payment is that, at the moment the User becomes entitled to the repayment of the purchase price, there is a sufficient amount of funds on the Payment Account for payment to the Retailer. The Retailer’s entitlement to the payment of purchase prices for Goods and services received into the Payment Account in favor of the Retailer will be reduced by such an amount.
3.13. Through the Administrative Interface, the Retailer has access to the summary of payments received on the Payment Account.
3.14. The Retailer can sell Goods over the Portal through a connection to the Portal’s API interface. If the Retailer does not connect to the Portal’s API interface, some functions or conditions for the conclusion of Purchase Contracts through the Portal can be unavailable to it or they can be limited. A description of the functionalities, binding instructions and rules in the event the Retailer is not connected to the Portal’s API interface can be found in the Help section of Registration and Activation of Heureka Marketplace and the Process for Processing an Order. Precise specifications of the Portal’s API interface can be found in the Help section of Heureka Marketplace – API.
4. RIGHTS AND OBLIGATIONS OF THE OPERATOR
4.1. The Operator displays Offers of the Retailer’s Goods on the Portal and brokers for the Retailer the option of concluding Purchase Contracts through the Portal with Users in accordance with these Business Terms and Conditions in the categories in which the Operator supports the conclusion of Purchase Contracts in the Heureka Marketplace regime. The Operator undertakes to provide maximum co-operation when dealing with technical problems the Retailer is encountering in connection with the use of the Portal or other tools provided to the Retailer by the Operator based on the Contract.
4.2. The Operator undertakes to arrange the provision of information and technical support necessary for the full connection of the E-shop and the Portal for the Retailer from the provider of the software platform on which the Portal is operated. In the event the Retailer is interested in the transfer of data between the Operator and the E-shop over the API interface, the Retailer is obligated to make alterations to its E-shop itself at its own expense, the Operator will only provide the specifications necessary to realize the API interface and possibly other information, without it being responsible for the correctness and the success of the realization of the API interface.
4.3. The Operator is not responsible for the content and correctness of information sent by the Retailer to the Portal, for its compliance with legal regulations or for any errors, inaccuracies or defective data in individual Offers caused by their automatic transfer to the Portal. Within the meaning of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act), the Operator is obliged to remove any content that is unlawful or incompatible with its contractual terms and conditions, further details of which are set out in the General Terms and Conditions for Use of Heureka Portal by Retailers, available at (TO BE COMPLETED), and the Rules on Liability for Retailer’s Content, available at (TO BE COMPLETED). The Operator is not liable for damage caused to the Retailer in connection with such a procedure.
4.4. For each Offer by the Retailer where the Adyen System so enables, the Operator undertakes to offer Users the option of paying the price of Goods or services in accordance with the Offer over the Adyen System. In addition to the method of payment of the price of Goods or services through Adyen, the Retailer is also entitled to offer bank transfer payment, payment in cash on the Portal in the event of acceptance in person or payment in cash on delivery to the carrier. Payment of the price for Goods or services through the Adyen System is provided by Adyen, and the Retailer uses this option at its own risk and in accordance with the terms and conditions set by Adyen. The Retailer takes note that the Operator is not liable for the provision of this service by Adyen.
4.5. Amounts received on the Payment Account are paid out automatically once a week into the Retailer’s bank account.
4.6. If a User legitimately complains about a payment to its bank or to Adyen (due to the abuse of a means of payment, payment account or due to the non-delivery of Goods), Adyen is obligated to compensate the User for damage arising from funds in the Payment Account, and for this purpose to block the Retailer’s funds in the Payment Account up to the amount of the payment complained about. In this case, the Operator is entitled to request from the Retailer the source documents for the transaction complained about, assess such source documents and, if appropriate, pass them on to Adyen or the User’s bank. The User undertakes to provide the Operator with all the required co-operation necessary for the clarification of the circumstances of a complaint. If it comes to light that a complaint is legitimate, Adyen will return the relevant amount to the User.
4.7. In the event that, at the moment an obligation arises for the Operator to return to a User an amount complained about, there are not sufficient funds in the Payment Account, received into the Payment Account in favor of the Retailer, the Retailer is obligated to compensate the Operator for the damage arising in this manner, no later than within three days of the date of receipt of a request from the Operator for such a payment. The Operator is entitled to set off all monetary claims of the Retailer that it has from the Operator against such a claim for reimbursement of damage.
4.8. Any changes to the Retailer’s bank account can only be made based on a request of the Retailer sent from the Retailer’s E-mail Address to the Operator’s address; the Operator is not obligated to respond to a request sent from an address other than the Retailer’s E-mail Address stated during Registration. The Operator also reserves the right to verify a request for a change to the bank account by telephone or using other means.
4.9. The Retailer takes note that the Operator is, in accordance with Act No. 164/2013 Coll., on international cooperation on the administration of taxes, obligated to gather information about all transactions executed through Heureka Marketplace, if individual Retailers exceed the limit of 30 transactions and/or the amount of EUR 2,000 in total payments for Goods accepted from Users in one year. In accordance with Act No. 164/2013 Coll., on international cooperation on the administration of taxes, the Operator is obligated to gather the following information and then notify it to the Specialized Financial Authority:
a) Retailer’s name;
b) address of Retailer’s registered office;
c) list of all tax identification numbers allocated, specifying the designation of the state that issued them, also for the purposes of value added tax;
d) information about permanent establishments in countries that are under a reporting duty;
e) the identifier for the Retailer’s bank account together with information about the account’s owner;
f) the amount of the commission paid to the Operator for the transactions executed using Heureka Marketplace;
g) the number of transactions executed using Heureka Marketplace;
h) the total of payments received from Users for transactions executed through Heureka Marketplace.
The Retailer will provide the Operator with the cooperation necessary when performing its duties in accordance with Act No. 164/2013, on international cooperation on the administration of taxes. If the Retailer does not provide the necessary cooperation, although it was reminded twice by the Operator after the communication of a request for the provision of cooperation, the Operator must, in accordance with Act No. 164/2013, on international cooperation on the administration of taxes, terminate the Contract with the Retailer and make it impossible for it to re-register for the Heureka Marketplace program or not make payments to the Retailer from Users for the sale of Goods.
5. IDENTIFICATION OF RETAILER
5.1. Identification Obligation
5.1.1. The Retailer takes note that Adyen is, in accordance with legal regulations on protection against money laundering (the AML Act), obligated to perform the Identification of individual Retailers that accept payments of prices in accordance with Purchase Contracts with regard to the use of the Portal through the Adyen System.
5.2. Consequences of non-performance of identification
5.2.1. Until the Identification of the Retailer is performed in full, the Retailer is not entitled to ask Adyen for the payment of funds accepted using the Adyen System into its bank account and Adyen is not obligated to transfer such funds from the Payment Account.
6. COMMISSION AND PAYMENT TERMS AND CONDITIONS
6.1. Operator’s Commission
6.1.1. The Retailer undertakes to pay the Operator a Commission for the individual Purchase Contracts concluded through the Portal. The amount of the Commission is set as a percentage of the purchase price for the Goods including VAT (excluding the costs of transport) purchased by the User through the Portal.
6.1.2. The specific amount of the Commission is specified in the List of Commissions, available on the Portal’s website at http://sluzby.heureka.cz/napoveda/kosik-provize/. The List of Commissions is subject to changes, which the Operator informs Retailers of in the user interface, where the List of Commissions valid at the time of confirmation of the Order by the User is always decisive for the amount of a Commission, regardless of whether the Retailer had familiarized itself with the information about the change of the List of Commissions in the user interface or not. A Commission is always retroactively available to the Retailer in its user interface no later than after the end of the billing period in accordance with Article 6.2 (calendar month).
6.1.3. The Operator only becomes entitled to a Commission under all Purchase Contracts at the moment of their conclusion. An entitlement to a Commission terminates for the Operator concerning Purchase Contracts where payment of the purchase price for Goods was not made by the User to the Retailer and in the case of consumer contracts where the User exercises the right to return the Goods and withdraws from the contract without giving a reason in accordance with Section 1829 et seq. of the Civil Code (within 14 days of the acceptance of performance).
6.2. Billing Commissions
6.2.1. The billing period for the purposes of paying Commissions to the Operator is a calendar month. Commissions under all Purchase Contracts are billed for a billing period.
6.2.2. The Operator issues the Retailer an invoice for an amount equal to the total of the Commissions to which it became entitled no later than on the fifth working day of the calendar month following the relevant billing period, payable within 14 days. The Retailer is obligated to inform the Operator of Purchase Contracts from which Users have withdrawn without giving a reason over the last billing period, specifically no later than three calendar days after the date of withdrawal by a User.
7. LIABILITY FOR DAMAGE, OBLIGATION OF CONFIDENTIALITY
7.1. Liability for Damage
7.1.1. The Retailer is liable to the Operator for damage it suffers in connection with a breach of a Purchase Contract or similar contract concluded between it and the User. The Retailer is also liable to the Operator for damage it suffers in connection with a breach of the Contract and these Marketplace TaC, in particular in connection with a breach of the Identification obligation in accordance with Article 5, the obligation to provide a User with performance in compliance with a Purchase Contract or to return the amount of a Transaction to a Customer. The Retailer is also liable to the Operator for damage it suffers in connection with the imposition of sanctions by Partners or third parties and that is caused by non-compliance with the conditions in accordance with the Contract or these Business Terms and Conditions by the Retailer. The Conditions for liability for damage caused in connection with the use of the Adyen System are determined by the Adyen Rules.
7.1.2. The Operator is liable for damage caused by a culpable breach of obligations resulting from the Contract or the Business Terms and Conditions. The Operator, however, is not liable for lost profit or damage caused by the Retailer, Partner or third party. The sum of the total amount of damage paid for by the Operator for all breaches will not exceed CZK 50,000.
7.2. Obligation of Confidentiality
7.2.1. The contracting parties undertake to comply with the obligation of confidentiality concerning all information about the Operator or Retailer that they learn of in connection with the Contract and that is not public and whose nature does not indicate that it should be made public. In particular, the contracting parties are obligated not to disclose such information to third parties, use it in their favor or in favor of third parties other than in the way the Contract or Business Terms and Conditions enable, and take all available measures to comply with these obligations. Such an obligation applies even after the termination of the Contract. In the event of a breach of obligations in accordance with this article, the contracting party that the information concerns becomes entitled to a contractual penalty totaling CZK 20,000 for each individual case of breach.
8. PROTECTION OF PERSONAL DATA
8.1. Conditions for Processing Personal Data
8.1.1. Performance by the Operator under the Contract includes personal data processing. The Retailer, in accordance with Article 28(3) of the GDPR, authorizes the Operator to process the personal data of Portal Users (in particular identification data, contact data and data about the content of Orders) for the purposes of gathering and submitting Orders by Portal Users to the Retailer.
8.1.2. The Operator is obligated to process personal data for the Retailer to the extent necessary to ensure its performance in accordance with Article 2.2. of these Marketplace TaC and only based on instructions of the Retailer issued in these Marketplace TaC and the Contract or issued by e-mail or by telephone using the contact details stated at https://heureka.group/cz-cs/o-nas/kontakty/.
8.1.3. The restrictions in accordance with Article 8.1.2 of these Marketplace TaC apply also to the handover of personal data to a third country or an international organization and they are used unless the Operator is instructed to perform other processing by legal regulations that apply to the Operator; in such case the Operator will inform the Retailer of such legal requirement before processing, unless legal regulations prohibit such reporting for important public interest reasons.
8.1.4. The Operator’s obligation in accordance with Article 8.1.2 and 8.1.3 of these Marketplace TaC does not apply to personal data that the Operator did not obtain as a part of a processor’s activities in accordance with these Marketplace TaC. Article 8.1.2. of these Marketplace TaC also does not entitle the Operator to independently process personal data of Portal Users as a personal data controller. The Operator, as a personal data controller, is entitled to process customers’ personal data, in particular for the purposes of offering its own products and services and personalizing advertising based on its legitimate interest.
8.1.5. The processing of personal data by the Operator as a controller, including the processing of the Retailer’s personal data, is governed by the Special Terms and Conditions “Protection of Personal Data on Heureka Portal”.
8.1.6. The Retailer is not entitled to handle personal data that were handed over to it as a part of the Order for the purpose of concluding a Purchase Contract for purposes other than dealing with the Order, providing performance under the Purchase Contract to the User, protection of the Retailer’s legal claims and performance of legal obligations that apply to the Retailer. In particular, the Retailer is not entitled to send a User whose e-mail address it obtains in connection with an Order its own commercial messages, as when an Order is sent the conditions for sending commercial messages without a User’s consent are not met in accordance with Section (7)(3) of Act No. 480/2004 Coll., on some information society services.
8.1.7. The Operator, within 30 days of the termination of the Contract, will delete personal data processed based on these Marketplace TaC, unless legal regulations require the saving of the relevant personal data or the Retailer calls on it in writing, as of the moment the Contract is terminated, to hand over a copy of the personal data. The Operator’s obligation in accordance with this provision does not apply to personal data that the Operator did not obtain as a part of a processor’s activities in accordance with these Marketplace TaC or to personal data that the Operator processes independently as a personal data controller, in particular in the cases of processing in accordance with Article 8.1.4 of these Marketplace TaC or in other cases, if the Operator continues to be entitled to process personal data based on a consent, contract, legitimate interest or other legitimate grounds.
8.2. Security of Personal Data Processing
8.2.1. The Operator has adopted and maintains technical and organizational measures so that there can be no unauthorized or random access to the personal data, their destruction or loss, unauthorized transfers, other unauthorized processing or other abuse of personal data.
8.2.2. In the event the Operator, during the Contract’s effective term, learns of a breach of the security of personal data processed by the Operator based on these Marketplace TaC, the Operator is obligated to notify the Retailer that the breach of personal data security has occurred, promptly after it learns of it. The Operator performs reporting by sending a notification to the Retailer’s E-mail Address. Subsequently, without undue delay after the moment the Operator learns of a case of a breach of personal data security, the Operator is obligated to notify the Retailer, in the same way, of the description of the nature of the relevant case of the breach of personal data security, including, if possible, the categories and approximate number of affected data subjects, the categories and appropriate quantity of affected personal data records and a description of the probable consequences of the breach of personal data security.
8.3. Involvement of Third Parties in Personal Data Processing
8.3.1. The Operator will ensure that persons authorized to process personal data have undertaken to maintain confidentiality.
8.3.2. The Retailer consents to the involvement of other processors in personal data processing in accordance with these Marketplace TaC. The Operator is obligated to inform the Retailer, a reasonable time in advance, of the intention of involving another processor in the processing of personal data in accordance with these Marketplace TaC, including the identification details of the other processor.
8.3.3. If the Operator involves another processor in the processing of personal data in accordance with this Contract, it must contractually bind this other processor to comply with the same obligations to protect personal data as agreed between the Retailer and the Operator in these Marketplace TaC, in particular the introduction of appropriate technical and organizational measures.
8.4. Co-operation on Personal Data Processing
8.4.1. The Retailer is fully responsible for dealing with requests for the exercise of data subjects’ rights in relation to the personal data that, based on the Contract, is processed by the Operator. If the request of a data subject concerning personal data processing in accordance with these Marketplace TaC is made to the Operator, the Operator will deal with this request; this does not apply if co-operation by the Retailer is necessary to deal with the request or if dealing with the request would require unreasonable efforts by the Operator.
8.4.2. The Operator will enable the Retailer to audit technical and organizational measures introduced by the Operator to protect personal data after notification sent to the Operator’s data box no less than 30 business days in advance. The Retailer is obligated to request the performance of an audit only on business days from 9 a.m. to 5 p.m. If the date of an audit proposed by the Retailer does not suit the Operator, the Operator is entitled to reject the proposed date and propose a new date. The Operator will enable the Retailer to perform all audits in accordance with Article 8.4.3. of these Marketplace TaC.
8.4.3. The Operator and Retailer undertake to provide each other with all other necessary co-operation and source documents for the performance of their obligations related to personal data processing in accordance with these Marketplace TaC, in particular when performing obligations resulting for the Retailer from security for personal data processing, when performing audits, when assessing influences on protection of personal data, during prior consultations with the supervisory body and when performing requests for the exercise of data subjects’ rights. The Operator’s co-operation, with the exception of reasonable co-operation of the Operator when dealing with requests for the exercise of data subjects’ rights in accordance with Section 8.4.1, is charged at an hourly rate of CZK 2900 per hour, excluding VAT. The invoicing and the payment of charges for the provision of co-operation are governed by Article 6.5. of the General Business Terms and Conditions of Heureka Portal for Retailers.
9. DEACTIVATION OF SERVICES, TERMINATION OF CONTRACT
9.1. Temporary Deactivation of Option of Selling Goods through Portal
9.1.1. The Operator is entitled to temporarily deactivate (make unavailable) the option of selling the Retailer’s Goods through the Portal, in the event:
a) the Retailer stops complying with any condition for the conclusion of the Contract stated in Article 1.6.1, and/or
b) the Retailer commits any of the actions specified in Article 9.2.1. (fundamental breach of Contract); and/or
c) the Retailer commits another act that can be designated as a fundamental breach of the Contract in accordance with Section 2002(1) and (2) of Act No. 89/2012 Coll., the Civil Code.
9.1.2. The Operator is entitled to perform deactivation of the option of selling the Retailer’s Goods through the Portal for the aforementioned reasons with immediate effect even without informing the Retailer of this. At the Retailer’s request, however, the Operator is obligated to state the reasons for deactivation.
9.1.3. Deactivation in accordance with Article 9.1. is only a temporary suspension of performance by the Operator and does not influence the duration of the Contract. The Operator is entitled, as it sees fit, to perform the re-activation of the option of selling Goods through the Portal.
9.1.4. Deactivation of the option of selling Goods through the Portal for the reasons stated in Article 9.1.1. and therefore the temporary suspension of the provision of services and performance by the Operator is not a defect in performance or a breach of the Contract and the Operator is not liable for damage caused by such deactivation.
9.1.5. The Retailer is also entitled, by e-mail, to ask the Operator to perform the temporary deactivation of the option of selling Goods over the Portal, in particular in the event of insufficient sales capacity, the temporary suspension of the E-shop’s activities, etc. Temporary deactivation in accordance with this article is possible for no more than one month and it can be performed no more than three times per calendar year for one E-shop.
9.2. Method of Termination of Contract
9.2.1. In the event of a material breach of the obligations resulting from the Contract by the Retailer, the Operator can withdraw from the Contract. The following, in particular, are regarded as material breaches of the Contract:
a) repeated delay with the sending of Goods compared to the deadline in accordance with Article 3.3.;
b) offering of Goods on an E-shop’s website under different conditions or for a different purchase price than that stated on the Portal;
c) offering used Goods in conflict with Article 3.9.;
d) breaching legal regulations related to the sale of Goods;
e) refusing to perform Identification;
f) delay by the Retailer in paying any amounts to the Operator on the grounds of a commission or on the grounds of compensation paid out within the terms of the Purchase guarantee by more than 15 days;
g) the Retailer not being available through its contact data for a period of over 10 days (SUPPLEMENT), during which time unavailability is considered to be completely non-functional contact information, as well as the absence of a response by the Retailer to communication from the Operator for the period specified above;
h) non-provision of cooperation in accordance with Art. 4.10.
9.2.2. Either of the contracting parties is entitled to terminate the Contract by giving one week’s notice. The notice term starts to run on the day the written notice is delivered to the last contracting party. In the event of doubts about the moment of delivery, the contracting parties agree that notice is regarded as having been delivered on the 3rd (third) day after it was sent by the party giving notice or after it was handed over for postal transport. The Operator is also entitled to terminate the Contract in the event the Retailer does not accept any Orders through the Heureka Marketplace for more than one month.
9.2.3. The Operator is also entitled to withdraw from the Contract or give notice of termination of the Contract electronically, by sending withdrawal or notice to the Retailer’s E-mail Address. The Retailer is, for reasons of legal certainty, only entitled to withdraw from the Contract or give notice of termination of the Contract in writing, signed by a person authorized to act for the Retailer or to represent it; the Retailer will deliver the notice or withdrawal to the Operator at its address.
9.2.4. Any obligations of the Retailer in relation to Users that arose during the effective term of the Contract remain valid, even after the termination of the Contract.
9.2.5. In the event of the termination of the Contract in any manner, the Retailer is obligated to promptly issue Adyen with an instruction for the payment of all monies received in favor of it through the Adyen System into the Payment Account and that were not paid out to it as of the date of termination of the Contract.
10. FINAL PROVISIONS
10.1. Relations not set out by these Marketplace TaC are governed by the Terms and Conditions and Special Terms and Conditions to the extent to which they are not in conflict with these Marketplace TaC, as well as by generally binding legal regulations, in particular Act No. 89/2012 Coll., the Civil Code, and Act No. 480/2004 Coll., on Some Information Society Services.
10.2. The rules for making unilateral amendments to these Marketplace TaC by the Operator are stipulated by Article 9.1. of the Terms and Conditions and Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on the Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). A change to the List of Commissions by the Operator within the meaning of Article 6.1.2 of these Marketplace TaC is not an amendment to these Marketplace TaC and the rules for making unilateral changes to the Marketplace TaC do not apply to such changes.
10.3. These Marketplace TaC come into effect on 5 March 2024.