APPENDIX NO. 6a TO THE TERMS AND CONDITIONS - BUY RISK FREE UP TO EUR 5,000
The security of your Transactions concluded through merXu is of paramount importance to us. That is why we have created the 'Buy Risk Free up to 5,000 EUR' program which aims to provide security for the Buyer in the event of various types of improper behaviour by the Seller. Having fulfilled the conditions of the Program we will compensate you for the damage you have suffered up to the amount of the Compensation Limit. .
We take care of the security of the Transaction by ensuring that it takes place under the terms and conditions indicated in the Program. Both the Seller, who makes an offer, and the Buyer, who accepts it, agree that the agreement they conclude is in accordance with the provisions of the Program. That is why every Transaction concluded through merXu is in compliance with the terms and conditions of the Program.
Before using the Program, contact the Seller yourself to resolve the problem (see clause 3.2 below)!
Below you will find more detailed description.
1. Definitions
Compensation Limit - the maximum compensation value of EUR 5,000.00 which applies to all Transactions with a given Seller and its Related parties.
Habitual residence - has the meaning assigned thereto in Article 19 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ EU. L. 2008, No. 177, p. 6, as amended), i.e.:
o the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration;
o the habitual residence of a natural person acting in the course of its business activity shall be its principal place of business;
o where the contract is concluded in the course of the operations of a branch, agency or any other establishment, or if, under the contract, performance is the responsibility of such a branch, agency or establishment, the place where the branch, agency or any other establishment is located shall be treated as the place of habitual residence;
-whereby for the purposes of determining the habitual residence, the relevant point in time shall be the time of the conclusion of the contract.
Related party - has the meaning assigned thereto in the Commission Regulation (EC) No. 1126/2008 of 3 November 2008 adopting certain international accounting standards in accordance with Regulation (EC) No. 1606/2002 of the European Parliament and of the Council (OJ L 320, 29.11.2008, p. 1, as amended), i.e. IAS 24, with no relevance to the preparation of financial statements.
Program - this 'Buy Risk Free up to EUR 5,000’ program.
Relevant merXu Company - the company managing the Platform competent for the Seller's habitual residence, i.e.:
1)for Sellers from Czechia or Slovakia - merXu s.r.o., IČ 09296573, se sídlem Mostní 5552, 760 01 Zlín, společnost zapsaná v obchodním rejstříku vedeném Krajským soudem v Brně pod sp. zn. C 118319, která je poskytovatelem a provozovatelem platformy merXu v České republice;
2) for Sellers from Germany – merXu GmbH with its registered office in Germany, in der Pappelallee 78/79, 10437 Berlin, USt-ID Nr. DE350319278: mit einem Stammkapital von 25 000 EUR, eingetragen im Unternehmerregister, Charlottenburg HRB 232042 B;
3)for Sellers from Poland and other European Union countries - merXu sp. z o. o. with its registered office in Poznań, Poznań (60-518), ul. Kraszewskiego 4/8, Regon: 385853514, NIP: 7792514527, KRS: 0000835832, with the share capital in the amount of PLN 1,000,000.00, entered in the register of entrepreneurs kept by the District Court Poznań-Nowe Miasto i Wilda in Poznań, VIII Commercial Division of the National Court Register;
4)for Sellers from Romania - MERXU ONLINE S.R.L., cu sediul social în București, Strada Cluj nr. 73A, camera 4, sector 1, înregistrată în Registrul Comerţului București sub nr. J40/20020/2021, cod unic de înregistrare 45227152;
5)for Sellers from Hungary - merXu Kft., székhelye: 1025 Budapest, Csévi utca 7/B, adószáma 27426562-2-41 (közöségi adószáma HU27426562), cégjegyzék száma 01-09-389563, alaptőkéje 3.000.000,- Ft.
Whenever within the Program we use a term with a capital letter and which is not defined herein, the definition of that term can be found in merXu Terms and Conditions.
2. Introductory declarations of the Users
2.1.By entering into an agreement within the Transaction, you as a User (i.e. both as a Seller when making an Offer and as a Buyer when accepting an Offer) declare that:
2.1.1.the provisions of the Program, in particular with regard to the termination of the contractual obligation (condition subsequent) or the rescission (with the Seller having habitual residence in Germany) constitute a binding part of the agreement concluded between the Seller and the Buyer;
2.1.2.the agreement concluded as part of the Transaction and all legal relations relating thereto and arising therefrom shall be governed by the law of the country in which the Seller has its habitual residence;
2.1.3.any and all disputes relating to the agreement concluded as part of the Transaction and any legal relations related thereto and arising therefrom shall be settled exclusively by the court having territorial jurisdiction over the Seller;
2.1.4.the United Nations Convention on Contracts for the International Sale of Goods, drawn up in Vienna on 11 April 1980, and the Convention on the Limitation Period in the International Sale of Goods, drawn up in New York on 14 June 1974, shall not apply to the agreement concluded as part of the Transaction;
2.1.5.the Program is identical in each language version, however, in case of unforeseen discrepancies between the language versions of the Program for the Seller and the Buyer, the language version for the Seller shall be binding;
2.1.6.the foregoing provisions supersede any other prior or simultaneous written or oral agreements, representations, understandings or contracts entered into with respect to the subject matter covered by these provisions.
2.2.By applying to the Program as a Buyer, being a natural person, you simultaneously represent that the agreement concluded by you within the Transaction has been concluded for the purpose of your business or professional activity.
3. Prerequisites for Buyers participating in the Program
3.1. You can participate in the Program if the payment method of the Transaction to which the application relates is an electronic payment made available on the merXu platform.
3.2. You can participate in the Program if you have contacted the Seller to solve the problem regarding the Transaction on your own before applying to the Program and it did not bring any result. If the Seller has its habitual residence in Germany, you can participate in the Program if you have requested subsequent performance from the Seller (Appendix no. 6b - Request for proper performance) and the period for subsequent performance has expired without result or the Seller definitely refused subsequent performance.
3.3. You can use the Program if you have your habitual residence in one of the member states of the European Union or the European Economic Area.
3.4.You can use the Program if you have entered into the agreement as regards the Transaction for a purpose related to your business or professional activity.
3.5.You should not apply for the Program if you intend to pursue a claim for damages against the Seller, because your claims for damages against the Seller may be terminated as a result of an acceptance of your application to the Program (and for this reason you will not be able to successfully claim damages).
3.6. You cannot benefit from the Program if you have concluded the Transaction using merXu Pay and you have not yet settled your obligation towards us.
3.7. You cannot use the Program if you use the chargeback procedure and your application has not yet been considered yet or has been approved (even partially).
3.8. You cannot benefit from the Program if you have entered into a Transaction covered by the subject matter of the application with a Related party.
- see also clause 10 below (Exemptions).
4. Compensation for the Buyers
4.1.We will provide you with compensation if you have suffered damage while using the Platform as a Buyer in a particular Transaction. By damage we understand the following circumstances:
o you have paid for a Product but have not received it;
o you have received a Product not in conformity with the Offer, of a significantly lower value (also incomplete or which presents defects);
o you have received only part of the purchased Products - fungibles;
o you have received only part of the purchased Products of a specific type, priced separately (individually) as part of the Transaction.
4.2.Compensation covers the value of the damage you have suffered as a result of the Transaction in question. It may amount to a maximum of the value of the (gross) Transaction cost incurred by you - the Product including shipping costs, if any, but not more than Compensation Limit.
4.3.Compensation Limit is paid in the currency in which you paid for the Product in accordance with the Offer.
4.4.The Compensation Limit will be converted into the relevant currency at the foreign currency reference exchange rate to the euro currency of the European Central Bank on the last business day preceding the day of the Transaction.
4.5.Compensation will be paid to you by the Relevant merXu Company.
5. Applying for the Program by the Buyers
5.1.To apply for the Program, send an e‑mail to pomoc@merxu.com. You should do this 30 days after the Transaction at the earliest, but no later than 90 days thereafter. Under reasonable circumstances, we may accept your application submitted at another time.
5.2.In your e-mail, describe in detail the situation which resulted in your damage. Be sure to include the following information and documents:
o Order number;
o sales document (e.g. a VAT invoice);
o business bank account number to which you wish to be compensated;
o proof that you have contacted the Seller prior to your application to the Program in order to solve the problem concerning the Transaction on your own and it has not been successful, and if the Seller has a habitual residence in Germany, additionally a request for performance under penalty of rescission from the agreement in accordance with Appendix no. 6b - Request for proper agreement;
o in case you filed a notification on the possibility of committing a crime to your detriment by the Seller to law enforcement authorities, a confirmation thereof together with the case reference number;
o if:
- you have received only part of the purchased Products - identical or of identical value of fungibles,
- you have received only part of the purchased Products of a specific type, priced separately as part of the Transaction
- information whether you wish to keep the part of the Products you have received (to what extent you want to terminate/rescind the agreement concluded within the Transaction).
5.3.We may ask you to provide us with additional information or documents in particular confirmation of the filing of a notification on the possibility of committing a crime to your detriment by the Seller to law enforcement authorities with a case number. You should always submit the relevant information within 7 days of receiving the email (14 days in case of a notification on the possibility of committing a crime).
6. Handling applicationsfrom the Buyers
6.1.We will respond to your application to the e-mail address from which we received your request within 14 days of receipt thereof or receipt of the last information or document pursuant to clause 5.3 hereinabove. In the meantime, we will contact the Seller to clarify the situation.
6.2.If we accept the application, together with acceptance we will make you a compensation proposal. However, if the situation is clarified in the meantime, e.g. by delivery of the Product, refund or other arrangement with the Seller, the application will not be accepted.
6.3.If the Seller has a habitual residence in Germany, you should rescind the agreement concluded under the Transaction after our acceptance of the application. To do so, submit a statement to the Seller in accordance with Appendix no. 6c - Statement of rescission. You may submit the statement to the Seller via email. The statement should be submitted to the Seller no earlier than 14 days after the submission of the statement in accordance with Appendix no. 6b - Request for proper performance referred to in clause 5.2 above.
6.4.You should respond to our compensation proposal. Along with a positive response to the compensation proposal, if the Seller has a habitual residence in Germany, additionally send us via e-mail the statement referred to in clause 6.3 above together with proof of its sending to the Seller. You should send a positive response to the compensation proposal no later than within 6 months from the date of the Transaction, since after the expiration of this period it will not be possible to consider the application and the proposal for compensation will expire (see clause 7.1 below).
6.5.We will then address to you and to the Seller, via e-mail, the statement referred to in clause 7.1 below, unless the Seller has a habitual residence in Germany (in which case the statement will not be necessary, since the legal relationship between you and the Buyer has expired by virtue of the statement referred to in clause 6.3 above).
6.6. Then, we will send you an assignment agreement on behalf of the Relevant merXu Company with the wording compliant with Appendix no. 6d - Assignment agreement. If you wish to receive compensation, you should state in the return message that you agree to the assignment agreement and you should attach a scan of the signed assignment agreement and an accounting note thereto (or other relevant accounting document) for the value of the compensation. Based on the accounting note (or other relevant accounting document), Relevant merXu Company will pay you the compensation within 30 days from the date of receipt of the aforementioned documents.
6.7.At the time of assignment, you declare that the Seller has no mature claims against you that could be subject to set-off and that the claim in question has not been previously assigned.
6.8.We will not consider another application for the same Transaction unless the circumstances of the Transaction have changed.
7. Consequences of accepting an application to the Program
7.1.The legal relationship arising from the concluded Transaction shall terminate at the moment when any Relevant merXu Company submits to you (the Buyer) and the Seller a declaration of termination of the legal relationship (condition subsequent) as a result of acceptance of the application to the Program; if the application concerned only a part of the purchased Products - fungibles or only part of the purchased Products of a specific type, priced separately (individually) as part of the Transaction, the legal relationship shall terminate only as to the part of the Products covered by the application. The submission of the declaration of will shall be deemed to constitute itself a condition subsequent covered by the agreement concluded within the Transaction. If the Buyer received only a part of the purchased Products - fungibles or only part of the purchased Products of a specific type, priced separately (individually) as part of the Transaction, it shall be entitled to choose in its application (see clause 5.2 above) that the legal relationship between the Buyer and the Seller terminates in the full amount, i.e. with reference to all Products (however, we are entitled to accept the application only in respect of the part of the Products not received, see clause 10.3 below). The Buyer will have the right to automatically consider the legal relationship arising from the concluded Transaction as terminated to the extent specified in the aforementioned declaration, with immediate effect, without additional time for performance or notice of default, without court intervention and without any other formalities. In order for the legal relationship to be terminated, the statement should be made no later than 6 months from the date of the Transaction. In consequence, both what you and the Seller have previously rendered to each other as a result of the Transaction (in the case of partial termination - the corresponding part of the performance) shall be returned unchanged.
7.2. If the Seller has a habitual residence in Germany, the legal relationship resulting from the concluded Transaction is transformed into an obligation to return upon the submission of the statement referred to in clause 6.3 above. Clause 7.1 above shall apply within the remaining scope.
7.3. Within the assignment agreement referred to in clause 6.6 above, entered into with merXu sp. z o.o. as an authorized proxy of the Relevant merXu Company, you declare that upon payment of the compensation you transfer to the Relevant merXu Company the claim to which you are entitled against the Seller for reimbursement of the price paid arising as a result of the termination or, if the Seller has its habitual residence in Germany, rescission from the agreement concluded under the Transaction up to the amount of the compensation received (assignment of claims). The Relevant merXu Company will notify the Seller of the assignment of the claim.
8. Additional obligations of the Buyer
8.1. You should inform us immediately if there is any material change in circumstances after you have made your application, in particular if your damage is repaired, you receive any benefit for the Transaction from the Seller, on the Seller's initiative, from the manufacturer or any other entity.
8.2. If, after receiving compensation, you receive a monetary benefit from the Seller, on its initiative, from the manufacturer or any other entity in connection with the Transaction, you are obliged to inform us of this fact and to transfer it to us on account of the claim and up to the assigned amount of the compensation - immediately, but no later than within 14 days.
8.3. You should inform us immediately if your bank account number or e-mail address changes after the application is made.
8.4. You should cooperate with us in our enforcement of the Seller's claim. In particular, we may ask you to provide documentation, make statements, etc. for the purposes of a dispute with the Seller.
9. Reimbursement of compensation
9.1. We can demand the return of compensation if:
o you fail to inform us of an event as referred to in clause 8.1 hereinabove;
o you fail to provide us with a monetary benefit pursuant to clause 8.2 hereinabove;
o you fail to cooperate with us pursuant to clause 8.4 hereinabove;
o you accept the Product from the Seller (if you have not already received it);
o you accept any consideration from the Seller, on the Seller's initiative, from the manufacturer or any other entity on the account of the Transaction, in particular if this has resulted in the rectification of a material part of your damage;
o we believe that the Seller has effectively set off the claim or a part thereof against the claim it had against you;
o any statement made by you in connection with the relevant application has proved to be false, inconsistent with the Terms and Conditions, and in particular inconsistent with the Program;
o your application could not be accepted due to the exemptions listed in clause 10.1 below.
10. Exemptions
10.1. The Program does not cover all situations, i.e. your application may not be accepted if:
o you do not meet the conditions for participation in the Program pursuant to clause 3 hereinabove;
o by making a Transaction, you have breached the Terms and Conditions;
o the agreement concluded within a Transaction has been concluded on terms other than those set out in the Terms and Conditions and in particular in the Program;
o you have not paid all amounts owed to us (e.g., resulting from applications to the Program in Transactions in which you were a Seller, from merXu Pay);
o a period specified in clause 7.1 above has expired;
o the Product falls within the scope of the Appendix nr. 2 - Prohibited and Restricted Products to the Terms and Conditions;
o as at the moment of concluding the agreement within the Transaction you knew that the Product is faulty or incomplete;
o you have made an incorrect application (e.g. you did not attach the relevant documentation or you made the application after the deadline);
o you have received any consideration for the Transaction from the Seller, on the Seller's initiative, from the manufacturer or any other entity, which may have led to a termination of the Seller's obligation or to the remedying of a material part of your damage;
o we are entitled to believe that the Product has been damaged or lost in transit.
o you have entered into a Transaction being subject matter of the application with a Related party.
10.2. If you have only received a part of the Products and you wish to terminate or rescind the agreement (in the case of a Seller having habitual residence in Germany) within the Transaction as to its entirety, in justified cases (e.g., if the unreceived part of the Products constitutes a small part of the Transaction value) we shall only be entitled to accept your application in respect of the part of the Products not received. You will then only be compensated for the part of the Products not received.
11. Choice of law / jurisdiction
11.1.The assignment agreement referred to in clause 6.6. and 7.3 hereinabove, and all legal relations relating thereto and arising therefrom shall be governed by the law of the country in which the Seller has its Habitual residence. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) and the Convention on the Limitation Period in the International Sale of Goods, drawn up in New York on 14 June 1974, shall not apply.
11.2. Any and all disputes relating to the assignment agreement referred to in clause 6.6 and 7.3 hereinabove, and any legal relations related thereto and arising therefrom shall be settled exclusively by the court having territorial jurisdiction over the Seller.
12. Final provisions
12.1.Our bank account number for billing purposes is as follows PL35 1140 1124 0000 5726 4300 1009.
12.2.Following an application, we may suspend the Seller's account pursuant to clause 12 of the Terms and Conditions until the matter is resolved or full reimbursement by the Seller.
12.3.In the absence of acceptance of the application, the User shall not be entitled to any claims against merXu sp. z o.o. or any other Relevant merXu Company, in particular for the payment of compensation.
12.4. To the maximum extent permitted under applicable law, we shall not be liable for any damage caused in the implementation of the Program (including, in particular, the payment of compensation or the enforcement of claims.
12.5. Please be advised that we may suspend or terminate the Program at any time, but we will inform you of this fact in accordance with the Terms and Conditions. This will not affect your already acquired rights.