U-Send, established and having its office in (4701 GM) Roosendaal at the Damstraat 107 (KvK 80454887), for this purpose legally represented by Mr. L.F.M. Bartels, further to be referred to as ‘U-Send’, conducts a business, the aim of which is the processing of orders in the context of dropshipping.
U-Send applies the following general (usage) terms and conditions, which Dropshipper must accept before using the order processing described in these terms and conditions (‘order processing’).
Dropshipper means the party who is engaged in order processing as a dropshipper and who wishes to provide such order processing via U-Send’s platform in the manner described in these terms and conditions.
Art. 1 Applicability of general terms and conditions
1.1
These general terms and conditions apply to Dropshipper’s use of the platform made available by U-Send, as well as the order processing.
1.2
Not only U-Send, but also the third parties engaged by U-Send in the execution of order processing may rely on these general terms and conditions. Other third parties, including customers of Dropshipper, cannot appeal to these terms and conditions.
1.3
The applicability of any general or other conditions other than those of U-Send, for example but not only those of Dropshipper, is expressly rejected.
Art. 2 Order processing, costs & invoicing and use of third parties
2.1
U-Send takes care of linking Dropshipper’s web shop to a system managed by U-Send and the Chinese supplier. Through this link, U-Send processes Dropshipper’s orders automatically. For this purpose, Dropshipper shall, pursuant to the mutual agreement to be entered into by Dropshipper with the Chinese supplier prior to order processing, use the portal provided by U-Send for this purpose. Thereafter, the Chinese supplier shall ship the ordered goods to Dropshipper’s customer.
The Chinese supplier then sends an order list to U-Send. U-Send uses this to send the Chinese supplier’s invoice containing the Chinese supplier’s details to Dropshipper. U-Send provides this invoice with a specification with the goods ordered.
Dropshipper pays this invoice to the Chinese supplier. Payment of this invoice serves as a (suspensive) condition for processing the order.
U-Send thus ensures that Dropshipper has a Dutch point of contact to which Dropshipper can turn for order processing and at the same time additional service such as customer problems and price inquiries (sourcing).
The costs associated with the order processing shall be borne by Dropshipper and are included in the invoice from the Chinese supplier to Dropshipper. These include at least, but not only, the following costs:
- Product costs;
- Transaction fees;
- Shipping charges.
Dropshipper accepts these costs in advance, both the amount and type of cost.
2.2
U-Send, as also described in Art. 2.1, does not become a contracting party of the supplier as far as order processing is concerned, this is always Dropshipper. The model agreement to be concluded with the Chinese supplier is attached as an appendix to these terms and conditions. By agreeing to these terms, Dropshipper also agrees to enter into this agreement with the Chinese supplier prior to order processing. U-Send is not responsible for entering into that agreement nor for its execution and does not act on behalf of Dropshipper in this regard.
2.3
U-Send has an obligation of effort and not an obligation of result.
2.4
U-Send is not responsible for the formation or execution of the agreement between Dropshipper and its customer, nor between Dropshipper and the Chinese supplier.
2.5
U-Send does not perform any checks with regard to quality marks to which the goods to be delivered by Dropshipper (should) comply, nor with regard to possible intellectual property rights. This is the responsibility of Dropshipper.
2.6
A term mentioned by U-Send is only meant as a guideline and not a fatal term, unless explicitly agreed otherwise in writing.
2.7
Dropshipper will not engage a third party for the purpose of executing its own order processing without U-Send’s written consent, and may therefore not allow a third party to process orders on its own behalf (of the third party). U-Send has the right to refuse the access of a third party.
Art. 3 Excluded goods
3.1
For the order processing of the following goods, U-Send will not make its platform available, unless expressly agreed otherwise in writing:
- – Goods in powder or liquid form;
- – Highly flammable goods;
- – Products with included batteries;
– Goods prohibited by law or whose possession or handling is punishable by law, in thecountry of receipt, transit and/or shipment;
3.2
Dropshipper is obliged to immediately inform U-Send on first request about the products it offers and/or to which the order processing relates.
Art. 4 Non-exclusivity.
Dropshipper’s use of the platform is, unless expressly agreed otherwise in writing, non-exclusive. This implies that Dropshipper is free to offer the same products to its customers through other means. This also means that U-Send is authorized to allow other parties to have similar orders for similar products processed on the platform.
Art. 5 Provision of information
5.1
Dropshipper undertakes, on its own initiative and if requested, to provide U-Send with all information, documents, data necessary for the correct execution of this order processing. Dropshipper guarantees the accuracy of this information, documents and data. U-Send is not obliged to check the data for the purpose of shipping the product to U-Send or its customer. This is the responsibility of Dropshipper.
5.2
All information, documents, data and calculations provided by U-Send are indicative and not binding. The accuracy of this information, documents, data and calculations is not guaranteed by U-Send.
5.3
U-Send shall not be obliged to provide information regarding its suppliers and/or the agreements made with its suppliers.
Art. 6 End of use
6.1
The use of the Platform may be terminated by either party in writing with immediate effect.
6.2
Termination pursuant to Art. 6.1 shall not affect the parties’ right to finalize pending orders, except when this cannot reasonably be required of U-Send, for example in the case of ‘excluded goods’ as referred to in Art. 3.
Art. 7 Cooperation, confidentiality & data protection, competition
7.1
Dropshipper will provide its full and immediate cooperation in order processing in the manner described in Art. 2.1.
7.2
Both during and after the use of the platform, regardless of the manner in which it has come to an end, parties will maintain confidentiality with respect to all information and data relating to the parties and its customers/suppliers and the agreements entered into with these customers/suppliers.
The parties will comply with the applicable data protection regulations (including the AVG) and inform each other about this if requested. The agreements as included in the appendix ‘Data Processing Agreement’, belonging to these general terms and conditions, which agreements form an inseparable part of these general terms and conditions, also apply.
7.3
Dropshipper is only permitted to use the information obtained from U-Send and the software required for this purpose for the purpose of order processing. U-Send is authorized to access Dropshipper’s account to verify Dropshipper’s compliance with the regulations applicable to Dropshipper.
7.4
Dropshipper, both during and after the use of the platform and regardless of the manner in which it has ended, is not allowed, directly or indirectly and whether for no consideration or not, without prior written consent of U-Send:
- a) provide, use, exploit, multiply, disclose or otherwise process the information obtained from U-Send or the underlying software to third parties for any purpose other than order processing;
- b) offer similar services or a similar portal to U-Send;
- c) for the purposes of order processing, to deal directly with any Chinese supplier with whom cooperation is being sought in the context of such order processing. This prohibition under ‘c’ shall expire after 6 months have passed after the use of the platform has ended.
Article 8 Penalty
For violation of art. 7 (Cooperation, secrecy and competition) Dropshipper forfeits an immediately and immediately payable fine of € 10,000 for each violation, as well as, after Dropshipper has been notified in writing of the violation, a fine of € 1,000 for each day that the violation continues after such notification, without prejudice to U-Send’s right to also claim full damages.
Art. 9 Liability and insurance
9.1
U-Send shall not be liable
- – for a defect and/or damage to the product, or an incorrectly delivered product, unless this has a cause that should be at the expense and risk of U-Send. In the latter case, the starting point will be that a replacement product will be delivered, in consultation and with the approval of U-Send, the invoice amount will be returned instead (refund to balance/wallet);
- – with regard to the product, the way it is produced, its properties and the way it is used;
- – if the delivery time is longer than expected in advance;
- – for costs related to order processing , whether or not they were foreseen by Dropshipper and/or U-Send;
- – For performance, non-performance, default and/or cancellation by the relevant supplier;
- – for the formation, execution, non-performance, default and/or cancellation of the agreement between Dropshipper and its customer;
- – For claims of third parties.9.2
Dropshipper shall indemnify U-Send with respect to all claims, damages, costs and demands of its customers and third parties arising from the agreement between Dropshipper and its customer, as well as from order processing.9.3
U-Send shall never be liable for the incorrectness or inaccuracy of the information, documents, data and calculations or advice provided by U-Send to Dropshipper.9.4
In the event of an alleged attributable failure, U-Send must be given written notice of default and given a reasonable period of time to still perform correctly.
9.5
Liability of U-Send for indirect damage, including consequential damage, loss of profit, lost savings, mutilated or lost data and materials or damage due to business interruption, is excluded.
9.6
U-Send’s liability shall be limited to the amount that is paid in respect of such liability under the (professional/company) liability insurance taken out by U-Send, increased by the amount of the deductible applicable under such insurance.
9.7
In the event that no payment is made under the aforementioned (professional/company) liability insurance and liability does arise, then this liability shall be limited to an amount of € 5,000, – excluding VAT.
9.8
U-Send shall not be liable for errors and defects in products or services of third parties engaged by, on behalf of or for the benefit of Dropshipper, whether or not they have been nominated by U-Send.
9.9
U-Send assumes, and hereby stipulates, that all assignments given to it include the authority to accept any limitations of liability of third parties with respect to others also on behalf of Dropshipper.
9.10
Dropshipper indemnifies U-Send against all claims of third parties, including costs of legal assistance, which are in any way related to or result from the order processing, except in the case of gross negligence or wilful misconduct on the part of U-Send.
9.11
The limitations and exclusions of liability included in these general terms and
-9.11 The limitations and exclusions of liability included in these General Terms and Conditions shall also apply in the event that an order is refused and damage results from that.
9.12
U-Send shall not be liable for damage resulting from any unlawful, illegal or malicious infringement within the organization of U-Send in the (electronic/digital) data and systems, even if such infringement results in (functions that lead to) the distortion, corruption, copying, deletion, destruction or delay of such data and systems.
9.13
All claims against U-Send shall lapse one (1) year after Dropshipper was aware or could reasonably have been aware of the facts on which the liability is based, but in any event one
(1) year after the use of the platform has ended, or, if that time is earlier, after the order has been processed.
9.14
Dropshipper is responsible for ensuring that it is adequately insured in connection with liability for its business.
Art. 10 Complaints
A complaint about an alleged shortcoming in order processing must be submitted in writing to U-Send as soon as possible, but in any case within 5 days after Dropshipper has discovered or reasonably should have discovered the shortcoming, failing which Dropshipper will be deemed to have approved the execution.
Art. 11 Miscellaneous
11.1
U-Send is authorized to unilaterally change the contents of the general terms and conditions.
11.2
If and insofar as any clause in these general terms and conditions is non-binding, invalid or void, this non-bindingness, invalidity or voidability shall not affect the other clauses of the general terms and conditions and the general terms and conditions shall continue to apply. The parties shall use their best efforts to replace a non-binding, invalid or void clause with a clause that is binding, valid and not void and whose legal effect, given the content and purport of the general terms and conditions, corresponds as closely as possible to that of the non-binding, invalid or void clause.
Art. 12 Disputes, applicable law and competent court
12.1
In the event of disputes between the parties with respect to order processing, before bringing the dispute to court, they will try to bring it to a mutually satisfactory solution in consultation, if necessary with the aid of mediation.
12.2
Dutch law applies to the terms and conditions and order processing, also in case Dropshipper is not located in The Netherlands and/or does not have an office in The Netherlands.
12.3
The Court of Zeeland – West – Brabant, location Bergen op Zoom is competent to take cognizance of disputes related to the terms and conditions and/or order processing. In case of a dispute the parties will agree that the cantonal judge in Bergen op Zoom will have jurisdiction.
DATA PROCESSING AGREEMENT
1. Definitions
In this Data Processing Agreement, unless otherwise provided, the same definitions are used as in the Agreement and in applicable laws and regulations relating to the processing of Personal Data, supplemented by the definitions in this Article 1.
1.1 Data Subject: the person to whom a Personal Data relates;
1.2 Data Breach: any incident resulting in (possible) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data transmitted, stored or otherwise processed;
1.3 Agreement: the general (terms of use) terms and conditions set forth above, including recitals and any attachments, as well as any amendment, replacement, update or other version thereof;
1.4 Data Processing Agreement: this Personal Data Processing Agreement, as well as any amendment, replacement, update or other version thereof;
1.5 Applicable Law: the applicable laws or regulations, including any guidelines, policies, instructions or recommendations of any governmental authority, applicable to the processing of the Personal Data, including any amendments, replacements, updates or other subsequent versions thereof.
2. Object and validity of this Data Processing Agreement.
2.1 This Data Processing Agreement contains the agreements between the Parties regarding the processing of Personal Data in the context of the performance of the Agreement.
2.2 The Parties are each to be regarded as data controllers for their own data processing by or on behalf of them of Personal Data under Applicable Law. This means that each of the Parties is independently responsible for the processing of the personal data for which they jointly determine the purposes and means (in part) within the framework of the performance of the Agreement.
2.3 The processing operations will only be aimed at being able to provide the order processing as described in Art. 2 of the General Terms and Conditions.
2.4 The Parties guarantee that they will process the personal data in accordance with Applicable Law. The parties will make the information necessary to demonstrate compliance with the relevant obligations arising from Applicable Law available to each other upon first request.
2.5 Taking into account the nature of the data processing operations and the information available to the Parties, the Parties will assist each other in complying with the obligations arising from Applicable Law, more specifically the obligations regarding the security of personal data, the obligation to report Data Breaches, the performance of Data Protection Impact Assessments, the principles of data protection by design and data protection by default settings and prior consultation by competent public authority(ies).
2.6 In the event of any contradiction between the provisions of this Data Processing Agreement, (the body of) the Agreement and any other attachments thereto, the provisions of this Data Processing Agreement shall prevail, unless otherwise expressly provided in this Data Processing Agreement.
2.7 This Data Processing Agreement is effective while the Agreement is in force. Upon termination of the Agreement this Data Processing Agreement shall terminate by operation of law without any further (legal) act being required.
2.8 The parties agree in advance to amendments to this Data Processing Agreement that are necessary to comply with obligations under Applicable Law.
2.9 Obligations under this Data Processing Agreement that by their nature are intended to continue beyond the end of this Data Processing Agreement shall survive the end of this Data Processing Agreement.
3. Processing of Personal Data
3.1 In line with the description of the processing operations in Art. 2.3 in this Data Processing Agreement, the parties will record and maintain their data processing operations referred to in this Data Processing Agreement in an appropriately secure environment, in accordance with Applicable Law.
3.2 The parties will grant access to the Personal Data only to those employees, subcontractors or other persons under its direction and supervision to the extent necessary for the performance of the Agreement. The Parties will otherwise keep the Personal Data confidential, subject to any differing legal obligations under Applicable Law.
3.3 The parties shall impose the obligations set forth in this Data Processing Agreement and the Agreement, including the security and confidentiality obligations, on the employees, subcontractors or other persons engaged by him under his management and supervision. The parties shall ensure that these employees, subcontractors or other persons under its direction and supervision comply with these obligations.
4. Subcontractors
4.1 If Dropshipper engages a subcontractor/third party to process personal data or perform order processing (whether or not as a processor), Dropshipper shall enter into a written processor agreement with such subcontractor/third party in accordance with its obligations under Applicable Law.
4.2 Dropshipper will remain fully responsible and liable if it engages a subcontractor/third party for the processing of personal data or the performance of order processing for the fulfillment of its obligations under the Agreement and/or Applicable Law.
5. Security
5.1 Without prejudice to any other obligations regarding the processing of the personal data, parties will take (or have taken) appropriate technical and organizational (security) measures to protect the personal data against loss or any form of unlawful processing, in accordance with Applicable Law.
6. Reporting of Data Breaches
6.1 Parties will maintain adequate procedures aimed at detecting and taking action on all possible Data Breaches. These procedures are designed in such a way that Parties are able to comply with their Data Breach reporting obligations under Applicable Law.
6.2 As soon as a Party detects a Data Breach or reasonably suspects that a Data Breach has occurred, it shall notify the other as soon as possible, but in any event within 24 hours of detection or suspicion of a Data Breach, and provide any information or documentation reasonably necessary or requested by the other, as well as assistance so that the other may, where applicable, inform (potentially) affected Data Subject(s) and/or the relevant governmental authorities competent to adjudicate on the processing of the Personal Data in a timely manner about the Data Breach and be enabled to demonstrate compliance with the Data Breach notification obligations under Applicable Law. Such notification will be made by e-mail and telephone to the (replacement) contacts.
7. Duty to Inform Data Subjects
7.1 Dropshipper is responsible for how and when Data Subjects are informed about the processing of their Personal Data, for obtaining Consent from Data Subjects if and to the extent required, and about the material content of the arrangements that the Parties have set forth in this Data Processing Agreement.
8. Requests from Data Subjects.
8.1 The Parties shall mutually fully cooperate with each other so that they can each comply with their legal obligations if a Data Subject exercises its rights under Applicable Law.
9. Requests from supervisory authorities
9.1 If a party receives a request from a supervisory authority to inspect or otherwise gain access to Personal Data, it shall immediately inform the other in writing prior to such inspection or access being granted, providing the other with a copy of all correspondence received in this regard.