Merchant Terms & Conditions
This is an unofficial English translation of the Dutch language in3 Merchant Terms & Conditions, version 2022.2. In the event of discrepancies between this English translation and the original Dutch version, the Dutch version will prevail.
1. Definitions and interpretation
- 1.1.The merchant agreement in which these Merchant Terms & Conditions are declared applicable is hereafter referred to as the Agreement.
- 1.2.Save where expressly provided otherwise:
- (a) capitalised terms used without definition in these Merchant Terms & Conditions have the meaning set out in Annex 1 (Definitions and interpretation) to the Agreement; and
- (b) the rules of interpretation set out in Annex 1 (Definitions and interpretation) to the Agreement are applicable to these Merchant Terms & Conditions, provided that any reference to ‘the Agreement’ is deemed a reference to the ‘Merchant Terms & Conditions’.
2. Intellectual property rights
- 2.1. The Merchant will proactively present in3 Garant to its Consumers by displaying in3 brands and/or logos on its website and, if applicable, in its physical store. In connection therewith the Merchant will immediately comply with all instructions provided by in3.
- 2.2. All intellectual property rights arising during, or arising from, the performance of the Agreement belong to in3.
- 2.3. Except for the purposes of the Agreement, the Merchant is not permitted to use in any way the intellectual property rights of in3 or to reproduce, disclose, exploit or make available to third parties products to which any intellectual property rights of in3 are applicable, without prior express consent of in3 and subject to any conditions that in3 may attach to such consent.
3. 3. Undertakings Merchant
- 3.1. The Merchant represents and warrants and shall ensure that:
- (a) the required information relating to the implementation of the Money Laundering and Terrorist Financing (Prevention) Act and the sanctions regulations has been supplied to the PSP, including at least the information contained in Annex 1 (Merchant information) to these Merchant Terms & Conditions; and
- (b) all information provided by or on its behalf to in3 under or in connection with the Agreement is complete, accurate and not misleading.
- 3.2. in3 (or the PSP) may at any time request the Merchant to provide more information than provided in Annex 1 (Merchant information) to these Merchant Terms & Conditions. The Merchant is obliged to provide the requested information without delay. The Merchant is also required to inform in3 of any changes to the information previously provided under Clause 3.1(a) of these Merchant Terms & Conditions.
- 3.3. The Merchant will ensure that the Consumer will not be able to change the Product’s delivery location after the Consumer Purchase (via (the website of) the Merchant, the courier service, track & trace or otherwise).
- 3.4. After the Consumer Purchase, the Merchant shall keep for the benefit of in3, and upon first request the Merchant shall promptly provide in3:
- (a) in relation to a Consumer Purchase:
- (i) in its web shop, the relevant proof of dispatch; or
- (ii) in its physical shop, the relevant delivery note signed by the Consumer, together with, if applicable, the relevant serial number and proof that the Consumer has accepted the forfeiture of his right of revocation if the Product is custom-made;
- (b) all documents which in3 considers necessary for the proper implementation of the Agreement, in the form and manner desired by in3; and
- (c) in relation to the return of a Product which the Merchant has accepted in whole or in part, or a Consumer Purchase which the Merchant has otherwise credited in whole or in part, the credit note.
- (a) in relation to a Consumer Purchase:
- 3.5. The Merchant shall endeavour to prevent fraud in relation to the Consumer, the Consumer Application, the Consumer Purchase, the Product and the Consumer Receivable. The Merchant shall inform in3 immediately as soon as it discovers or suspects fraud (including but not limited to the discovery or suspicion of an invalid or non-existent email address or telephone number of the Consumer).
- 3.6. Upon first request the Merchant will cooperate with collection activities by in3 or third parties with respect to the Consumer and the Transferred Receivable (including but not limited to providing information and documentation).
- 3.7. Upon in3’s first request the Merchant will enable in3 and in3 Finance I B.V. to comply with legal obligations to the extent in3 and/or in3 Finance I B.V. is dependent for this on the Merchant and will provide all information in3 and/or in3 Finance I B.V. is required to provide to a competent regulator. If the Merchant receives an information request or (envisaged) measure from a competent regulator in connection with the Agreement and/or in3 Garant, the Merchant will promptly notify in3.
4. Term and termination
- 4.1. The Agreement is entered into for an indefinite period of time and may be terminated immediately by either Party by registered letter without any explanation being required.
- 4.2. Notwithstanding the above, the provisions of the Agreement remain applicable to all Consumer Applications submitted prior to the termination of the Agreement.
5. (Limitation of) liability
- 5.1. in3 shall under no circumstance be liable for:
- (a) any indirect damage; and
- (b) any direct damage other than suffered loss (as referred to in section 6:96 Dutch Civil Code; expressly excluding other disadvantage and lost profit as referred to in sections 6:95 and 96 Dutch Civil Code).
- 5.2. in3 shall only be liable for any loss suffered by the Merchant to the extent such loss is a direct consequence of intent, wilful recklessness or default by in3 under this Agreement, provided that any liability of in3 is limited to the amount paid under the professional liability insurance of in3.
- 5.3. The Merchant is required to take loss mitigating measures. in3 is entitled to remedy or reduce the loss by repairing or improving the work carried out by the Merchant.
- 5.4. The Merchant indemnifies in3 for any damage suffered pursuant to or in connection with:
- (a) any incorrect or incomplete information provided by the Merchant to any party whatsoever;
- (b) any action or omission by the Merchant against any party whatsoever;
- (c) unsafe situations in the Merchant’s company or organisation; and
- (d) any default by the Merchant in the performance of any obligation towards in3, including non-strict compliance with in3’s instructions in respect of the handling of returned Products.
6. Payments by a Consumer
- 6.1. If a Transferred Receivable ceases to exist in whole or in part by set-off or compensation with respect to any debt owed by the relevant Consumer to the Merchant, the Merchant is required to pay the amount set off or compensated to the in3 Payment Address without delay.
- 6.2. The Merchant will ensure that the Consumer pays the Transferred Receivable to the in3 Payment Address via the digital payment link sent by in3 to the Consumer. If the Merchant receives a payment from a Consumer in respect of a Transferred Receivable, it will immediately inform in3 thereof and immediately pay the full amount received to the in3 Payment Address.
7. Payments by the Parties
- 7.1. The Merchant accepts that any payment made by in3 to the PSP in favour of the Merchant will irrevocably and unconditionally release in3 from the corresponding payment obligation. If the PSP subsequently fails to pay the amounts received or pays such amounts with any delay to the Merchant, this cannot be imputed to in3 and will be solely for the Merchant’s risk and account.
- 7.2. in3 is authorised to set off its debts to the Merchant against its claims against the Merchant, whether or not payment is to be made through the PSP or the Foundation. The Merchant is not authorised to carry out any set-off whatsoever vis-a-vis in3.
- 7.3. On request, the Merchant is required to provide an advance payment and/or (additional) security to in3.
- 7.4. The Merchant remains responsible at all times for the VAT payments on the Transferred Receivables. This responsibility shall never be taken over by in3.
- 7.5. The Merchant and in3 are of the opinion that the transfer of Consumer Receivables by the Merchant to in3 is not subject to any VAT. To the extent that VAT may be due in respect of the transfer of Consumer Receivables by the Merchant to in3, such VAT shall be for the risk and account of the Merchant.
- 7.6. All amounts due by the Merchant to in3 exclude any VAT. If required by law, VAT will be charged by in3 to the Merchant by way of an invoice.
- 7.7. Unless otherwise agreed, payment by the Merchant of the amounts due to in3 shall be made within 14 days of any invoice date chosen by in3, without the Merchant being entitled to any deduction, discount or set-off. The payment date shall be the day on which the amount due is credited to the bank account of the Foundation designated for this purpose by in3. If the Merchant has not paid within the above time limit, the Merchant:
- (a) will be in default by operation of law and in3 will be entitled to charge the statutory (commercial) interest rate following such default; and
- (b) will be required to reimburse all judicial and extrajudicial (collection) costs incurred by in3, which are set at an amount equal to 15% of the total outstanding principal amount due with a minimum amount of €100 excluding VAT. The reimbursement of any incurred costs is not limited to any costs determined by the court.
- 8.1. Each Party is independently responsible for the processing of Consumer Data.
- 8.2. In respect of the exchange of Consumer Data between the Parties, the following shall apply in addition to Clause 4.1(e) of the Agreement:
- (a) the Merchant will inform the Consumer in accordance with the GDPR pursuant to its privacy statement of the exchange of Consumer Data with in3 as a result of the use of in3 Garant and the Agreement;
- (b) each Party is, for the processing of Consumer Data by it, approachable by the data subjects for the exercise of their rights or the filing of complaints as referred to in the GDPR and the Implementation Act GDPR;
- (c) if a data subject approaches the wrong Party, that Party shall refer the data subject to the appropriate controller; and
- (d) in the event of a data breach concerning any exchanged personal data, each Party shall have an independent obligation to investigate such data breach and the handling thereof in accordance with the GDPR. The Merchant will consult with in3 before making any communications to a regulator, a data subject or the media.
- 8.3. in3 and in3 Finance I B.V. process personal data of UBO’s, directors, representatives and employees of the Merchant in accordance with the Merchant Privacy Statements. The Merchant shall ensure that the relevant data subjects are notified of the Merchant Privacy Statements in accordance with the GDPR.
- 8.4. The Merchant:
- (a) is responsible for its performance under the Agreement, these Merchant Terms & Conditions, the GDPR and the implementation act GPDR with respect to the processing of personal data and indemnifies in3 and in3 Finance I B.V. for any claims of third parties in connection therewith, unless the Merchant proves that the facts underlying the claim must be attributed exclusively to in3 and/or in3 Finance I B.V.; and
- (b) at the first request of in3, will enable in3 and in3 Finance I B.V. to inspect the accessibility of the Consumer Privacy Statements on the Merchant’s website and provide evidence that the Merchant has performed its obligations as referred to in Clause 4.1 of the Agreement and Clause 8.3 of these Merchant Terms & Conditions.
- 8.5. in3 shall cooperate as far as technically possible with the obligations to be performed by the Merchant. The costs associated with such cooperation are not included in the agreed costs and fees of in3 and are for the account of the Merchant in full.
- 8.6. If in3 is required to provide any information security under the Agreement, that information security will meet the security specifications agreed in writing between the Parties. in3 cannot be held responsible for the effectiveness of the security under all circumstances. In the absence of an explicit description of the security, the security will comply with the relevant provisions of the GDPR.
- 8.7. If computer, data or telecommunication facilities are used in the performance of the Agreement or otherwise, in3 shall be entitled to assign access or identification codes to the Merchant. in3 shall be entitled to change assigned access or identification codes. The Merchant will treat the access and identification codes as confidential and with care and will only notify them to authorised personnel. in3 shall not be liable for, and at its first request will be indemnified by the Merchant against, loss resulting from the use or misuse of access or identification codes, unless the misuse is a direct result of an act or omission of in3.
- 9.1. The Parties will treat the form and substance of the Agreement as confidential and with secrecy, but will allow each other to share the Agreement with their advisors, as well as their financiers, investors, regulators and group companies and their advisers, as well as when required by law and regulation or by a judgment passed in the force of a final judgment.
- 9.2. Parties shall use the non-public information received from each other under or in connection with the Agreement solely for the purposes set out in the Agreement.
- 10.1. If a provision of this Agreement is or becomes invalid or unenforceable in any respect, the Parties shall agree a valid provision that most approximates the purpose and intention of the invalid or unenforceable provision.
- 10.2. No Party is deemed to have waived any of its rights under or in connection with the Agreement, unless express and in writing.
- 10.3. in3 is entitled to engage third parties and to outsource activities in the performance of the Agreement at its sole discretion. However, this does not alter that it remains the Merchant’s point of contact and contracting party.
- 10.4. If the Merchant is composed of several (legal) persons, they shall be jointly and severally liable for all the debts of the Merchant under and under the Agreement.
- 10.5. Subject to proof of the contrary, the records of in3 shall form conclusive evidence of the amounts due by it and due to it under or in connection with the Agreement.
11. Amendments and supplements
- 11.1. Subject to Clause 11.2 of these Merchant Terms & Conditions, no amendment to or modification of the Agreement shall be effective unless expressly agreed and made in writing.
- 11.2. These Merchant Terms & Conditions may be amended or supplemented by in3 in respect of all merchants that have accepted the same terms and conditions. in3 will inform the Merchant at least four weeks in advance prior to any amendment or supplement taking effect. If the Merchant expressly disagrees with any amendment or supplement announced by in3 prior to the effective date, each Party shall be entitled to terminate the Agreement in accordance with Clause 4.1 of these Merchant Terms & Conditions.
12. Governing law; jurisdiction
- 12.1. Dutch law applies to the Agreement and to all related non-contractual obligations.
- 12.2. The courts of Oost-Brabant, the Netherlands have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement (including a dispute relating to any non-contractual obligation arising out of or in connection with the Agreement).
- (a) A statement on the purpose of the business relation of the Merchant with in3.
- (b) A trade register extract from the Chamber of Commerce with respect to the Merchant obtained less than 3 months ago.
- (c) Information on the structure of and control over the Merchant.
- (d) Information on the UBO(s) of the Merchant, including a copy of the UBO register.
- (e) Information to verify the UBO(s) of the Merchant, including a copy of an identity card of the UBO(s) in respect of which the citizen service number has been redacted.
- (f) Information on the representatives/directors of the Merchant, including a copy of an identity card of the representatives/directors in respect of which the citizen service number has been redacted.
- (g) (g) Information showing that the representative of the Merchant is authorised to represent the Merchant (such as a trade register extract from the Chamber of Commerce or a written power of attorney).
- (h) (h) Evidence that the Merchant’s IBAN is registered in the Merchant’s name, such as a copy of a corporate debit card or a bank statement