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Vendor Agreement

VENDOR AGREEMENT

Last updated: June 15, 2023

Contents

1 Definitions

2 Services of KulturCart

3 Participation and Access

4 Vendor Requirements

5 Registration and Product Listing

5.1 Registration:

5.2 Listing:

6 Sales and Orders

7 Prices and Shipping Costs

8 Payment and Fees

9 Shipping and Fulfillment

10 Product Quality and Customer Service

11 Processing and Payout

12 Intellectual Property Rights

13 Confidentiality

14 Liability and Purchase Transaction

15 Data Protection

16 Return and Right of Withdrawal

17 Warranty

18 Sanctions for rule violation

19 Termination

20 Miscellaneous

21 Policy & Security for Sellers

22 POS System

23 Entire Agreement

24 Contact Information

 

This Agreement (the "Agreement") is made and entered into by and between KulturCart Marketplace (hereinafter referred to as "KulturCart") and the Seller/Vendor (hereinafter referred to as "Seller", “Vendor”, “Merchant” “Retailer”) who agrees to sell their products on the KulturCart services under the domain kulturcart.de, other top-level domains, within mobile applications (apps) and hardware equipment.

 

The General Terms and Conditions and all policies (Seller Policies and General Policies) of KulturCart apply to this agreement and are incorporated into this Agreement by reference.

1           Definitions

In this Agreement, the following terms shall have the following meanings:

  1. "Products" means the goods or services that the Seller intends to sell on the Platform.
  2. "Seller Account" means the account created by the Seller on the Platform to sell the Products.
  3. “POS” or "POS System" means the KulturCart POS machine and app that gives the Seller liberty to manage sales on their online store along with the physical store simultaneously.
  4. “Customer” or “Buyer” means the end-user who purchases Products from the Seller on the Platform.

2           Services of KulturCart

KulturCart provides a platform for merchants to sell their multicultural products to customers in Germany. The services provided by KulturCart include, but are not limited to:

  • Technical Service: KulturCart operates an online marketplace platform designed to facilitate transactions between end customers and vendors. The platform enables end customers to place orders for products offered by participating vendors, and upon the vendor's acceptance, enter into legally binding purchase agreements for the products. Furthermore, the marketplace provides prospective customers with the ability to explore and research vendors and their offerings through a variety of search functionalities.
  • Order checkout and Processing of payments through online processors and other possible means.
  • Provision of a POS system machine and app for the management of sales.
  • Provision of a delivery system app functionality for the delivery of seller's orders on the marketplace.

3           Participation and Access

  • To participate as a seller on KulturCart, the seller must register and provide all necessary information and guidelines as required by KulturCart.
  • The seller must also agree to the terms and conditions of this agreement and any other agreements, policies, or guidelines that KulturCart may have in place from time to time.
  • KulturCart reserves the right to review and approve or reject merchant applications at its sole discretion.
  • KulturCart may also suspend or terminate a merchant's account for any reason, including but not limited to violation of these terms and conditions, illegal or fraudulent activity, or failure to comply with KulturCart's policies and guidelines.
  • Sellers cannot link multiple shops to one account. Therefore, every vendor shop must have a different Seller account.

4           Vendor Requirements

To be eligible to sell on KulturCart, the Seller must meet the following criteria:

  • The Seller must be a legal and registered business entity in Germany.
  • The products being sold must comply with all applicable laws and regulations in Germany.
  • The Seller must provide accurate and complete information about the Products, including prices, descriptions, and images.
  • The products must align with the multicultural nature of KulturCart's platform.
  • The Seller must comply with KulturCart's policies and guidelines, as updated from time to time.

5           Registration and Product Listing

5.1          Registration:

  • To become a Seller on KulturCart, you must first register for an account on our platform.
  • You agree to provide accurate and complete information during the registration and verification process, including your business name, address, contact information, relevant documents, and payment details.
  • You are responsible for maintaining the security of your account and password. Any activity that occurs under your account is your responsibility.
  • The Seller is under no circumstances entitled to pass on his/her access data such as login password, to third parties. If third parties nevertheless gain access to the Seller account or the Seller has other indications of misuse of his/her account, the Seller must inform KulturCart immediately and change the access data. In the event of misuse, KulturCart expressly reserves the right to take measures in accordance with Section 18 "Sanctions for rule violation" of this Vendor Agreement or take other necessary actions.

5.2          Listing:

  1. The Seller may list products for sale on the Marketplace in accordance with the Marketplace’s policies and procedures.
  2. The Seller is solely responsible for the accuracy and completeness of all product information and descriptions, as well as the quality, safety, and legality of the products sold on the Marketplace.
  3. The Seller agrees to comply with all applicable laws and regulations related to the sale and distribution of products, including but not limited to those related to consumer protection, intellectual property, and privacy.
  4. The Seller is responsible for keeping their product listings up to date, including the price, quantity, and product descriptions.
  5. Products which, due to an entry in the list of media harmful to minors or a serious threat to minors, may only be advertised to persons of legal age and may only be sold to persons of legal age, are only placed by the Seller must contain age limit indication or age verification to proceed.
  6. KulturCart reserves the right to remove any listings or products that violate our policies or that we deem inappropriate.
  7. KulturCart has the right at any time to change or delete category and other designations and to deviate from the assignment to an agreed category, in particular, but not exclusively, in the event - from KulturCart point of view - incorrect category assignment of products. The Seller is therefore obliged – even after the product has gone live – to regularly check the product presentation and to inform KulturCart immediately if there are any discrepancies.

6           Sales and Orders

  • The Seller agrees to provide accurate and up-to-date information regarding the availability of their products.
  • The Seller agrees to properly set up their shipping methods and fulfill all orders made through the KulturCart marketplace promptly and efficiently.
  • The Seller acknowledges that KulturCart reserves the right to cancel any order for any reason, including but not limited to, product unavailability, fraud, or violation of KulturCart policies.
  • When shipping products that may only be sold to persons of legal age, ensure that the shipment is made using a method that does not allow minors to access the shipment.
  • To initiate the purchase process, the customer places the desired item in the shopping cart by clicking on the respective button on the offer page. By clicking on the button to complete the order subject to a fee in the shopping cart view, the customer submits a binding offer to conclude a purchase contract.
  • KulturCart confirms the receipt of the order electronically on behalf of the Vendor with a so-called order confirmation. However, this does not yet mean that the offer has been accepted unless the Seller has received the order payment.
  • The purchase contract is only concluded with the confirmation of dispatch of the respective products. This is to be understood as a declaration of acceptance by the merchant. In the event that the customer pays for the order placed by means of a SEPA transfer of the purchase price to the bank account of the payment service provider, the confirmation of dispatch is not deemed to be the Vendor's declaration of acceptance, but rather the order confirmation/payment request issued in advance by KulturCart.
  • If KulturCart has a justified suspicion of fraud against the customer or the Vendor, KulturCart is entitled to cancel the affected orders.

7           Prices and Shipping Costs

As a merchant on KulturCart, you are responsible for setting the prices for your products and for determining the shipping costs for each order. You must clearly and accurately display the prices and shipping costs for each product on the KulturCart platform. All prices must be in Euro (€) and include any applicable taxes.

8           Payment and Fees

  • The Seller agrees to pay all fees associated with the use of the KulturCart platform, including subscription fees, transaction fees, service fees and any other applicable fees.
  • For online payment processing, KulturCart uses Stripe and PayPal (if applicable) as payment processors for transactions made on the platform. Sellers are responsible for setting up and maintaining their own Stripe and PayPal accounts connected to our platform according to relevant guidelines.
  • KulturCart charges a commission fee on each sale made through the platform. The commission rate may vary based on the vendor plan and other factors. The Seller also pays the listed in the currently valid overview of conditions for using the online marketplace.
  • KulturCart reserves the right to change the fees or commission structure at any time, with prior notice to the Seller.
  • KulturCart is not responsible for any payment disputes that arise between Seller and the customer.
  • The initial setup fee shall become due and payable immediately upon the execution of the agreement and Seller approval, with payment customarily expected to be remitted within a 30-day period following the contract's conclusion.
  • The sales commission is due with the sale of the respective order.
  • The Merchant is not entitled to disclose any fees and commissions it has to pay to the Customer.
  • The fee rates can be changed by KulturCart at any time. The changed fee rates will be emailed to sellers no later than 14 days before they come into effect. If the Vendor does not object to the validity of the changed fee rates within 14 days, the changed fee rates are deemed to have been accepted. If the Vendor objects to the validity of the changed fee rates within the specified period, KulturCart reserves the right to terminate the Vendor account in accordance with Section 19 of this vendor agreement.

9           Shipping and Fulfillment

  • The Seller may choose to offer shipping through courier service, pick up from the Seller store, or use our delivery system app by creating the shipping methods in the administration menu in accordance with the Shipping method seller guide.
  • The Seller agrees to accurately and promptly fulfill all orders and to provide all necessary tracking and shipping information to the Marketplace.
  • The Seller agrees to comply with all applicable laws and regulations related to the shipping and distribution of products, including but not limited to those related to packing, food processing, and delivery controls.
  • The Seller is solely responsible for fulfilling and delivering all orders received through KulturCart in a timely and efficient manner.
  • If the seller chooses to use our delivery system functionality, you agree to follow all guidelines and procedures outlined in the documentation.
  • KulturCart is not responsible for any delays, damages, or losses that occur during the shipping or delivery process.

10      Product Quality and Customer Service

  • The Seller is responsible for ensuring the quality of their products, including but not limited to, product safety, authenticity, and compliance with all applicable laws and regulations.
  • The Seller agrees to provide excellent customer service to all customers, including prompt and courteous responses to inquiries and complaints.
  • The Seller acknowledges that KulturCart reserves the right to refund or return any product or take any other necessary action, in the event of customer complaints or concerns.
  • The Seller agrees to answer customer inquiries about products or other inquiries such as answering a complaint or processing returns within 48 hours (weekdays Monday to Friday; excluding public holidays and closing days).
  • The Seller agrees to ensure availability by telephone during normal business hours (usually on working days between 9:00 a.m. and 5:00 p.m.) and to ensure availability by e-mail and post.
  • The Seller agrees to comply with the Vendor code of conduct policy.
  • KulturCart is entitled to check compliance with the obligations at any time - in particular, but not exclusively, in the event of complaints by third parties - by means of suitable control measures in individual cases and, if necessary, to take measures according to Section 18 "Sanctions for rule violation" of this vendor Agreement or take other necessary actions.

11      Processing and Payout

  • The payment to be made to the Seller is calculated from the nominal value of the sales proceeds from the Seller to the customer less the remuneration due to KulturCart. The agreed remuneration to be paid to KulturCart takes place via the Marketplace.

Stripe Processing: The Seller consents to the arrangement of the purchase price processing through the external payment service provider, Stripe Inc (US) (hereinafter referred to as "Stripe").

  • Upon the consummation of the purchase agreement, the end customer (buyer) shall remit the purchase price to Stripe using the designated payment method, and the Seller shall dispatch the purchased item to the end customer (buyer). The stipulated sales fee shall be disbursed to the Seller immediately after checkout or upon the delivery of goods to the end customer, by the timeline agreed upon between Stripe and KulturCart. Concurrently, the stripe processing fee and marketplace fee payment to KulturCart shall be deducted.
  • Payment services for the merchants on the KulturCart platform are facilitated by Stripe and are governed by the Stripe Connected Account Agreement (Stripe Connected Account Agreement), which encompasses the Stripe Terms of Service (collectively referred to as the "Stripe Services Agreement"). By assenting to this Seller Agreement and utilizing the Marketplace, the Seller acquiesces to the terms of the "Stripe Services Agreement," which may be subject to amendments by Stripe periodically. The agreement can be accessed at https://stripe.com/docs/connect/. As a prerequisite for KulturCart’s utilization of Stripe's payment services, The Seller agrees to provide KulturCart with comprehensive information about themselves and their business, authorizing KulturCart to use such information and transaction data related to Stripe's payment services.
  • Payouts take place in accordance with the provisions of the KulturCart payment framework.
  • The Seller can choose from various payout modalities for the payout, which the Provider makes available to the Seller in the Vendor account.
  • KulturCart may withhold the payout if the Merchant has violated the terms and conditions or if there is suspicion of fraud or other illegal activities related to the Seller account or sales on the KulturCart platform.
  • The seller will receive payments for sales made through the KulturCart platform according to the payout modalities established by KulturCart. KulturCart reserves the right to change the payout modalities at any time.
  • KulturCart will transfer the proceeds from Seller’s sales on the KulturCart platform to the Seller’s bank account or other payment methods within the agreed payout period.
  • The payout period may vary depending on the payment method and other factors determined by KulturCart.

12      Intellectual Property Rights

  • The Seller represents and warrants that it has all necessary rights and permissions to sell and distribute the products listed on the Marketplace, including but not limited to any intellectual property rights.
  • The Seller agrees not to infringe upon any intellectual property rights of third parties in connection with the sale and distribution of products on the Marketplace.
  • The Seller agrees to indemnify and hold harmless KulturCart and its affiliates, officers, directors, employees, partners, and agents from any claims or damages arising from any alleged or actual infringement of any intellectual property rights related to the products sold using the platform.
  • The Seller grants KulturCart a non-exclusive, worldwide, royalty-free license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any content, trademarks, logos, and other intellectual property provided by the Seller for the purpose of promoting the Platform and the Seller's products.

13      Confidentiality

  • The Seller acknowledges that all information relating to KulturCart business and operations is confidential and proprietary.
  • The Seller agrees to keep all such information confidential and not to disclose or use such information for any purpose other than fulfilling their obligations under this Agreement.
  • The entire content of the online marketplace is protected by database rights in favor of KulturCart as the database manufacturer.
  • The Merchant does not acquire database rights by posting data and/or a database on the online marketplace.

14      Liability and Purchase Transaction

  • KulturCart is not liable for any direct, indirect, incidental, or consequential damages that may arise from Seller use of our platform or any products sold on our platform.
  • The services provided by KulturCart are contingent upon their availability. While KulturCart strives to maintain consistent and continuous access to the platform, it is acknowledged that uninterrupted availability cannot be guaranteed due to technical constraints. Factors that may contribute to service disruptions include but are not limited to, maintenance, security or capacity issues, and events beyond KulturCart's control (including, but not limited to, disruptions in public communication networks and power outages). As a result, KulturCart cannot guarantee that the marketplace will be available without interruption or that service disruptions will not occur.
  • KulturCart is under no obligation to maintain backups of content or data submitted by Sellers using the platform. It is the sole responsibility of the Seller to ensure appropriate measures are taken to back up and secure their own data. KulturCart shall not be held liable for any loss or damage resulting from the Seller's failure to adequately safeguard their content.
  • The Seller is solely responsible for the products sold on KulturCart and for any damages or losses resulting from the use or consumption of those products.
  • The purchase contract is concluded between the Seller and the Customer. KulturCart is not a party to the contract and does not assume any liability for the products or services offered by the Seller. KulturCart is responsible only for providing the platform for the sale and the Seller agree to fulfill the contract in accordance with these terms and conditions.
  • The Seller is obliged to independently back up documents, reports, transaction data and other information provided by KulturCart on its systems. A permanent provision of this information by KulturCart is not part of this contract.
  • The Seller agrees that after a completed order, customers have the opportunity to rate the products and the service on the online marketplace based on defined criteria including but not limited to delivery, product, communication.
  • KulturCart is entitled to check compliance with the obligations of the Seller in accordance with this agreement at any time - in particular, but not exclusively, in the event of complaints by third parties - by means of suitable control measures in individual cases and, if necessary, measures according to Section 18 "Sanctions for rule violation" of this Seller Agreement or take other necessary actions.
  • KulturCart and its vicarious agents are only liable in the event of intent, gross negligence, culpable injury to life, limb, or health, or slightly negligent breach of a contractual obligation (so-called "cardinal obligation"; this refers to an obligation whose fulfillment enables the achievement of the purpose of the contract and the fulfillment of which the Vendor can therefore regularly rely on), in the event of a breach of a guarantee that is expressly designated as such and in the event of statutory liability under the Product Liability Act. In the case of a slightly negligent breach of a cardinal obligation, liability is limited to the foreseeable, contract-typical damage at the time the contract was concluded, which KulturCart had to expect when the contract was concluded due to the circumstances known at that time.
  • KulturCart is only liable for the loss of data in accordance with the above paragraphs if such a loss could not have been avoided by appropriate data backup measures on the part of the Seller.
  • Upon first request, the Seller releases KulturCart from all claims and burdens that Customers and other third parties – for whatever legal reason – assert against KulturCart due to the violation of their rights or legal violations due to the offers and/or Product and/or content posted and for which the Seller is responsible. In this regard, the Seller assumes the necessary costs of all measures necessary as a result, including the necessary costs of a legal defense of KulturCart caused by this. This does not apply if the Seller is not responsible for the infringement. The above obligation also applies to the employees and other representatives of the Seller.
  • In addition, in the event of disputes with third parties, e.g., warnings, the Seller is obliged to immediately provide KulturCart with all information relating to the dispute and necessary for defense upon first request. The Seller must refrain from any action that runs counter to the fulfillment of his/her duty to cooperate. In particular, the Seller is obliged, in the event of legal and trademark or copyright warnings, to immediately disclose the information on the chain of rights in accordance with other sections of this agreement and to provide written and useful evidence of this.

15      Data Protection

  • KulturCart shall comply with all applicable data protection laws and regulations, including but not limited to the EU General Data Protection Regulation (GDPR).
  • The Seller has sufficient knowledge of the type, scope, location, and purpose of the collection, processing, and use of the personal data required for registration for the online marketplace and for the use of the platform (see data protection declaration).
  • The Seller shall comply with all applicable data protection laws and regulations in connection with the use of the platform.
  • The Seller acknowledges that KulturCart may collect, process, and use the personal data of the Seller and the Customer in accordance with KulturCart data protection policy, which the Seller can view on the KulturCart website.
  • The Seller alone is responsible for the lawfulness of the storage and provision of the data that is stored by the Seller on the platform and kept available there as intended. In particular, he/she must ensure that he/she also has the appropriate rights for continued storage and/or repeated use or arranges for the deletion of data as soon as the rights expire, or it turns out that they do not exist or do not exist to the required extent.
  • In the knowledge of the data protection declaration, the Seller expressly agrees to the collection, processing, and use of his/her personal data and grants KulturCart the revocable right to advertise him/her, even without specific reference to the Seller and/or specific offers/articles from the Seller.
  • Furthermore, the Seller, aware of the data protection declaration, agrees that KulturCart can disclose personal data if this serves to clarify misuse of the platform or appears necessary for the legal prosecution or legal defense of KulturCart. If KulturCart has concrete indications of illegal or abusive behavior or at the request of certain public authorities or in the case of warnings based on industrial property rights, copyright or competition law, KulturCart can transfer personal data to the criminal prosecution authorities, tax authorities or authorities that prosecute administrative offenses subject to fines and, if necessary, forward it to third parties who claim that their rights have been violated. KulturCart is not obliged to check beforehand whether the claim of the third party is justified. A transfer can also take place if this serves to enforce the contractual agreement or is necessary due to a legal or official order or a court order.
  • With regard to data from other Sellers and Customers that he/she obtains as part of the use of the platform, the Seller undertakes to process this exclusively in the context of processing the order and not to pass it on to third parties or to use it commercially in any way.

In particular, the Seller will:

  • Not send commercial emails to other merchants or customers without the prior consent of the data subjects.
  • Not contact customers or merchants beyond what is necessary to process the transaction made via the platform.
  • Ensure that with regard to the processing of transactions made via the online marketplace and the associated processing of personal data, all data protection legislation is complied with and that service providers or other third parties are commissioned to process personal data by the Vendor only under provided that the necessary contractual agreements have been concluded and the Seller has ensured that the technical and organizational measures taken by the provider are appropriate.
  • In the event of any violations by the Vendor, in particular, but not exclusively, violations of data protection regulations, KulturCart expressly reserves the right to initiate the further legal steps described in Section 18 "Sanctions for rule violation" of this Vendor Agreement or take other necessary actions.
  • For the rest, the Seller acts intentionally and independently when handling all data.

16      Return and Right of Withdrawal

  • As a Seller on KulturCart, you must comply with all applicable laws and regulations related to the return and right of withdrawal of products purchased on the KulturCart platform.
  • You must clearly and accurately communicate the return and withdrawal policy for each of your products to customers.
  • Customers have the right to withdraw from a purchase transaction within a specified period, as determined by law.
  • Customers may also be entitled to return products for a refund or exchange under certain conditions.
  • You agree to promptly process any returns or withdrawals according to your policy and applicable laws and regulations.
  • In the event of an effective declaration of revocation, the Seller is obliged to take back the delivered products and to cancel the order immediately after receipt of the goods in the administration system in order to reimburse the customer for the purchase price paid and any shipping costs.
  • Insofar as the return costs are not borne by the customer, the Seller must also bear them. If the value of the returned product exceeds EUR 40.00 (EUR 40.01 excluding postage costs for the outward shipment), the retailer must bear the costs of the return shipment. In addition to these standard return rules, the Seller is free to offer the customer an even better deal, for example through an extended exchange or free return.
  • KulturCart expressly reserves the right to charge the Seller for any costs incurred by KulturCart as a result of late notification of cancellation or delays in the return process. The same applies analogously in the case of a return for another reason.
  • Any compensation for lost value, if this cannot be precisely quantified, is only to be claimed in an economically justifiable and comprehensible amount; KulturCart also reserves the right to claim any costs incurred by us from unjustified claims for compensation from the Seller.
  • In disputed cases that cannot be clarified by mutual agreement between KulturCart and the Seller (e.g. in the case of different statements by the Seller and Customer), the Vendor is obliged to clarify the matter with the Customer on his/her own responsibility.
  • If KulturCart has a justified suspicion of fraud against the Customer or the Seller, KulturCart is entitled to cancel the affected orders. With a view to any claims by KulturCart and other sanctions.

17      Warranty

  • The Seller is liable for ensuring that the products sold on KulturCart meet the statutory requirements and regulations of the Germany market.
  • The Seller is also responsible for ensuring that the products are free of defects and are of satisfactory quality.
  • The Seller is responsible for providing any warranty information and handling any claims or complaints related to the products sold on KulturCart.
  • KulturCart is not liable for any warranty claims or complaints related to the products sold by the Seller on KulturCart.
  • You are also responsible for ensuring that your products meet all applicable safety and quality standards.
  • KulturCart reserves the right to remove any product from the platform that is found to be unsafe or does not meet applicable standards.

18      Sanctions for rule violation

  • KulturCart reserves the right to temporarily or permanently exclude Seller who violate the terms and conditions of KulturCart, or who engage in any illegal or unethical behavior on the platform.
  • KulturCart reserves the right to take legal action against Sellers who engage in fraudulent activities, such as selling counterfeit or illegal products or engaging in price-fixing or other anticompetitive behaviors.
  • KulturCart may also take disciplinary action against Seller who violate the terms and conditions of KulturCart, including suspending or terminating their account, withholding, or deducting payments, and imposing fines or penalties.
  • KulturCart may impose sanctions on Sellers who violate these terms and conditions or any applicable laws or regulations. Sanctions may include the suspension or termination of your account, the removal of your products from the platform, and the withholding of payments.
  • KulturCart may also take legal action against Sellers who violate these terms and conditions and policies or any applicable laws or regulations.

19      Termination

  • Term of Agreement: This Seller Agreement (the "Agreement") shall commence on the date it is accepted by the seller and shall continue for a fixed duration of three (3) years (the "Initial Term") unless earlier terminated in accordance with the terms of this Agreement. Following the Initial Term, the Agreement shall automatically renew for successive three-year periods (each a "Renewal Term"), unless otherwise specified.
  • Price Adjustment Clause:  Price Adjustment Clause: KulturCart reserves the right to adjust the price, fees, or charges for the services provided under this Agreement at its discretion. Any such adjustment will not exceed a predetermined percentage, and can take effect at any time during the Initial Term or a Renewal Term. The Seller will be given written notice of any change at least thirty (30) days prior to the new prices taking effect. If the Seller disagrees with the price adjustment, they may choose to terminate the Agreement upon ninety (90) days written notice to KulturCart.
  • Termination for Convenience: KulturCart may terminate this Agreement for any reason or no reason, with or without cause, upon sixty (60) days written notice to the Seller. The Seller may terminate this Agreement for any reason or no reason, with or without cause, upon ninety (180) days written notice to KulturCart, provided that such termination does not occur during the Initial Term or a Renewal Term. The Seller shall be responsible for fulfilling any outstanding orders and obligations arising from their participation in the KulturCart platform until the effective date of termination.
  • Termination for Cause: Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice to the other party if the other party (i) commits a material breach of this Agreement that is not cured within thirty (30) days after receipt of written notice specifying the breach; (ii) becomes insolvent, files for bankruptcy, or has bankruptcy proceedings initiated against it, (iii) engages in any fraudulent or illegal activities, (iv) ceases to operate as a going concern, or (v) experiences a change in control that materially and adversely affects the terminating party's rights or interests under this Agreement.
  • Survival: The provisions of this Agreement that by their nature should survive termination or expiration, including but not limited to confidentiality, indemnification, and limitation of liability, shall survive any termination or expiration of this Agreement.
  • Effect of Termination: Upon termination or expiration of this Agreement for any reason: (a) all rights and licenses granted by each party to the other shall cease immediately; (b) the Seller shall immediately discontinue the use of the KulturCart marketplace, the KulturCart POS system, and all related KulturCart services; (c) the Seller shall promptly, but no later than thirty (30) days after the effective date of termination, pay all outstanding amounts owed to KulturCart; and (d) each party shall return to the other all Confidential Information in its possession or control within thirty (30) days of the termination.
  • Confidentiality: The Seller agrees to protect KulturCart's confidential information and not to disclose it to any third party without KulturCart's written consent.
  • Dispute Resolution: In the event of a dispute arising under this Agreement, the parties agree to first attempt to resolve the issue through good faith negotiation. If the dispute cannot be resolved through negotiation, the parties agree to resolve the dispute through binding arbitration in accordance with the rules of the Arbitration Association.
  • Jurisdiction: This Agreement shall be governed by and interpreted in accordance with the laws of Germany.
  • By signing up as a seller on the KulturCart marketplace, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions of this Termination Section, the Price Adjustment Clause, the Confidentiality Agreement, the Dispute Resolution procedure, and the entire vendor Agreement.

20      Miscellaneous

  • KulturCart reserves the right to change the structure and design of the product presentations and the online marketplace itself, including the backend functions and, if applicable, application programming interfaces (API) interfaces at any time and without stating reasons.
  • Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email (with confirmation of receipt) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses provided in this Agreement or such other address as may be designated by a party from time to time in accordance with this Section.
  • Assignment: Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that KulturCart may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets.
  • Waiver and Modification: No waiver or modification of any provision of this Agreement shall be effective unless in writing and signed by both parties. No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach, whether of the same or a different nature.

21      Policy & Security for Sellers

This section outlines the policies and security measures that sellers must adhere to in order to maintain a secure, trustworthy, and transparent marketplace on KulturCart. By registering as a seller on KulturCart, you agree to comply with these policies.

  • Non-compete: By registering as a vendor on KulturCart, you agree not to engage in any activities that directly compete with KulturCart during the term of your agreement and for a year period following the termination of your agreement. This includes but is not limited to, the development, marketing, or operation of a similar online marketplace platform.
  • Non-circumvention: As a seller on KulturCart, you agree not to circumvent the platform by contacting buyers directly or indirectly for the purpose of conducting transactions outside the platform. This includes sharing contact information with third parties to initiate direct transactions or soliciting KulturCart customers for off-platform transactions. Any attempts to bypass KulturCart will be considered a breach of this agreement and may result in warnings, temporary suspension, or permanent termination of your account.
  • Price parity: You are required to maintain price parity between your products listed on KulturCart and your own webshops or physical stores. This means that the prices for the same items should be the same across all channels, ensuring that customers do not have the incentive to purchase from one channel over another due to pricing differences.
  • Consistent special offers and promotions: Any special offers, promotions, or discounts available in your physical store or webshop must also be offered to KulturCart customers. This ensures that customers do not feel disadvantaged by purchasing through KulturCart and encourages equal treatment across all sales channels.
  • Protection of Customer Data: Sellers are prohibited from using customer data obtained through KulturCart for any purpose other than fulfilling orders and providing customer service. This helps prevent sellers from targeting KulturCart customers for direct sales and ensures the protection of customer data.
  • Monitoring and tracking: KulturCart reserve the right to monitor and track your activities on the platform to identify any unusual patterns or behaviors that may indicate attempts to bypass KulturCart. This may include analyzing communication between you and buyers or monitoring external websites and social media accounts associated with your seller account. Any evidence of attempts to engage in direct transactions with buyers outside of KulturCart may result in warnings, temporary suspension, or permanent termination of your account.

22      POS System

  • KulturCart provides a POS system machine and app to allow merchants to manage their sales on both their online store and physical store simultaneously. Merchants are responsible for ensuring that they have the necessary materials to use the POS system.
  • KulturCart grants the Seller a non-exclusive, non-transferable, and revocable license to use the KulturCart POS system solely for the purpose of managing and conducting its business on the KulturCart platform, in accordance with the terms and conditions of this Agreement and any applicable documentation provided by KulturCart.
  • The Seller shall use the POS system only in accordance with KulturCart’s guidelines, policies, and procedures, as may be updated from time to time.
  • The Seller is responsible for providing and maintaining any necessary hardware and equipment to access and use the POS system and is solely responsible for the security of such hardware and equipment.
  • KulturCart reserves the right to modify or discontinue the POS system or any features or functionality thereof at any time, with or without notice, and shall not be liable to the Seller or any third party for any such modification or discontinuation.
  • KulturCart will provide the Vendor with access to the POS software, which includes integration with a third-party cloud-based solution for TSS compliance. The Vendor may also opt to purchase additional POS Systems from us separately.
  • The Vendor acknowledges that the POS System, through cloud integration, complies with German TSS requirements. The Vendor agrees to uphold this compliance and understands that failure to do so could result in penalties under German law.
  • The Vendor agrees to pay KulturCart the fees according to the chosen subscription model. The Vendor will be responsible for any additional costs associated with the use of the Point of Sale System.
  • Technical Support: KulturCart will offer technical support to the Vendor for any issues related to the POS System. The Vendor will bear the cost of shipping for any necessary repairs or replacements.
  • Technical Security System (TSS): The POS System integrates with a compliant TSS to ensure adherence to German tax regulations. The Vendor acknowledges the importance of TSS compliance and agrees to operate within the guidelines set by law, KulturCart, and our trusted TSS provider. The Vendor also understands that a failure of the TSS or improper usage of the TSS may result in non-compliance with tax regulations, for which the Vendor will be solely responsible.
  • System Updates and Upgrades: KulturCart may provide updates and upgrades to the POS System as necessary, which may include updates to the TSS integration.
  • Data Policy: We respect the privacy of the Vendor and will handle data generated by the POS System in accordance with applicable data protection laws and regulations. The Vendor acknowledges their responsibility for ensuring they have the appropriate rights to store and provide the data stored on the POS System.
  • System Malfunction: In the event of a system malfunction or a TSS failure, the Vendor may use their Android mobile device with the POS App to manage orders temporarily. KulturCart will strive to provide the quickest possible solution for repair. The failure may be noted in the business transaction, and when the system or TSS is functional again, business transactions will automatically resume.
  • Offline Mode: In the event of an Internet connection failure, the Vendor can use the POS System in Offline Mode. However, during Offline Mode, there is no connection to the TSS, and no business transactions can be signed. The failure may be noted in the business transaction. The Vendor acknowledges that if the POS System is operated in Offline Mode for an extended period, KulturCart cannot guarantee compliance with German tax regulations.
  • DSFinV-K and Non-compliance Penalties: In the context of external audits and Kassen-Nachschau, tax authorities can request the data collected by the TSS uniformly via DSFinV-K export. The DSFinV-K describes an interface for the export of data from electronic recording systems. KulturCart will provide this monthly data to the vendors, who will then be responsible for its storage (approximately 30 years), usage, and management. If the legal requirements of the KassenSichV are not met, the Finanzamt (tax office) can estimate the basis for taxation during an audit. In addition, fines of up to €25,000 can be imposed. KulturCart does not host this data for the vendor. Instead, we automatically forward it to the vendor for download. KulturCart has no interest in sharing this data with third parties. However, we are obligated to comply with the law and provide any requested vendor information to legal authorities.
  • Breach of Agreement: If the Vendor breaches the terms of this Point of sale system Agreement, KulturCart may terminate the Agreement. The specific consequences of such violations will be determined on a case-by-case basis.
  • Indemnification: The Vendor agrees to indemnify and hold the Company harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising from the Vendor's misuse of the Point of Sale System, violation of this Agreement, or violation of any law or rights of a third party.

23      Entire Agreement

This Seller Agreement, along with any supplementary documents, policies, or guidelines referenced herein, including but not limited to the Vendor guide pages, represents the complete understanding and agreement between the parties concerning the use of the KulturCart platform and services. Any alterations or modifications to this Agreement will be made in writing and transmitted via email and website page.

In case of any discrepancy between this Seller agreement and any other referenced policies or terms and conditions, the provisions of these terms and conditions shall take precedence.

KulturCart shall inform the Seller with an amended version of this Seller Agreement via email at least fifteen (15) days prior to its intended effective date. Should the Seller fail to object to the revised terms and conditions within fifteen (15) days of receiving the email, the updated terms and conditions shall be deemed accepted. The email containing the amended terms and conditions shall explicitly notify the Seller of the importance of this period, their right to object, and the legal consequences of their silence. This change mechanism is not applicable to modifications in the primary contractual obligations. In the event the Seller objects to the validity of the new terms and conditions within the specified period, KulturCart reserves the right to terminate the Seller's account in accordance with this Agreement.

The Seller may only assign or delegate rights and obligations under this Agreement with the prior written consent of KulturCart. KulturCart reserves the right to assign or delegate all or any portion of its rights and obligations under this Agreement to third parties. KulturCart will provide the Seller with a two-week notice prior to the intended assignment or delegation. Specifically, KulturCart is authorized to assign the agreement established based on this Seller Agreement to its legal successor if there is a partial or complete transfer of the platform's operation to a third party. Consent may only be withheld if there are significant concerns about the technical and/or financial capabilities of the successor. The Seller's approval is not necessary if the assignment or delegation occurs within KulturCart's affiliated entities.

Should any provision of this Agreement be deemed wholly or partially invalid or unenforceable, or subsequently lose its legal effect, the remainder of the Seller Agreement shall remain in full force and effect. The applicable statutory provisions shall replace the invalid or unenforceable provisions. In the event of an unforeseen gap within the terms and conditions, the same principle applies.

In case of discrepancies between the German version and any translations, or in case of ambiguity, the German version of this Agreement shall prevail.

24      Contact Information

If you have any questions or concerns about this Agreement or the Platform, please contact KulturCart at anbieter@kulturcart.de.

By using the KulturCart Platform, the Seller acknowledges that they have read, understood, and agreed to be bound by the terms and conditions of this Agreement.