Terms and conditions for Shoppers (end-users)
Last updated: [01 November 2016]
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE
This Online Intermediary Agreement (the “Agreement”) establishes the terms and conditions (“T&Cs”) on which Niazzo (“we”, “us” and “our) offer you (the End-User) access to and use of the services that we have made available to you through our online platform (the “Platform”), which is accessible at http://www.niazzo.com/ (the “Website”), including the browsing for and purchase of items which have been listed for sale on the Platform (together, the “Services”).
Any End-User must agree to abide by the T&Cs contained in this Agreement in order to engage the use of our Services.
If you do not wish to be bound by these T&Cs, please leave this website immediately and do not use our Platform or Services.
We reserve the right to modify and/or revise any of the T&Cs set out in this Agreement, including any policies referred to hereto; which right may be exercised by us at our sole discretion and at any point in time. By continuing to use our Platform or Services after these T&Cs have been updated, you are indicating that you agree to be bound by the modified T&Cs. You are, therefore, responsible for your own continued monitoring of the Website, and for reviewing any changes to these T&Cs which may, from time to time, be implemented by us. If you do not consent to the changes effected by us, you must immediately refrain from continuing to make use of our Platform and Services. Your continued use thereof will constitute your acceptance of such changes.
1.1 For the purpose of this Agreement, the term “Applicable Law” shall, as far as possible, be taken to solely refer to the laws of Malta.
1.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 Clause and paragraph headings have been inserted for the sake of convenience, and shall not affect the interpretation of this Agreement.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 References to “clauses” and “parts” are to the clauses and parts of this Agreement.
2.1 Use of our Services is limited to End-Users that can lawfully enter into and conclude contracts under Applicable Law. This excludes, amongst others, minors or persons who have been interdicted or incapacitated pursuant to a Court order.
2.2 Upon confirming an order you have placed for an item listed on our Platform (Check-Out), you will then be directed to our contracted third-party payment gateway operator (Paypal) and will be asked by to supply your billing information, including valid credit card information, and delivery details.
2.3 The information you supply pursuant to Clause 2.2 must be accurate and complete, failure of which will result in the order being rejected.
3.1 We provide an online functionality which, via our Services, enables you, the End-User, to browse the listings found on our Platform and to either directly purchase a listed item over the Platform, or indirectly by contacting the retailer who has made this listing (hereinafter, the “Retailer”).
3.2 In all cases, we are neither a direct party nor an indirect party to any transactions which may be contemplated and/or concluded between yourself and a Retailer. Thus, our provision of the Services to you should, in no way, be construed as us acting as the agent for the Retailer using our Platform, or making any representations to such an effect. We do not represent in any way whatsoever, whether directly or indirectly, the Retailers using our Platform.
3.3 By entering into this Agreement, you agree to perform your obligations arising hereto, as established by these T&Cs, including the payment of the total price upon checkout. Thus, you acknowledge that your failure to fulfil the obligations imposed on you under this Agreement may be legally actionable. This may include, but is not limited, to effecting a fraudulent payment once you have placed an order for a listed item.
3.4 Nevertheless, when selecting to order and purchase an item listed on the Platform, you enter into a direct relationship with the Retailer concerned. All legal and contractual obligations relating to the invitation to purchase and/or actual sale of an item listed on the Platform, including the price thereof, are the sole responsibility of the Retailer linked to the item in question.
3.5 Accordingly, you accept that, when purchasing an item which has been listed on our Platform, you enter into a direct (legally binding) contractual relationship with the Retailer concerned. You also acknowledge that we are:
(a) not involved in the conclusion of any such transaction;
(b) solely acting as an intermediary between you and the Retailer; and
(c) not providing any guarantees in respect of the condition of the items offered for sale by Retailers on our Platform.
3.6 All orders are subject to acceptance and availability, and items in your shopping basket are not reserved and may be purchased by other End-Users.
4.1 In line with our role as being merely that of an online intermediary, as set out under Clause 3, we do not bear any responsibility for the content and/or information which has been provided by Retailers in relation to their listings.
4.3 Consequently, you (the End-User) acknowledge and agree that we shall not, in any way, be held responsible for, amongst others, any omissions, inaccuracies or false assertions with respect to any content or information which has accompanied or relates to a listed item on our Platform.
Furthermore, you also agree that your reliance on any content accompanying or relating to a listed item, including the manner in which it affects your use of the Services, is entirely at your own risk and you hereby agree to defend, indemnify and hold us harmless for any damages that you may suffer as a consequence of such reliance.
5.1 You agree that you are making use of the Services at your own risk and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis.
5.2 You also warrant that your use of the Services for your private, non-commercial use and that you will not link the Platform and/or the Services to any other website or activity, or exploit the information available through the Platform and/or the Services, in any way whatsoever, whether for your commercial or other gain, or otherwise.
5.3 You accept that, as a precondition to your use of the Services, you will not and will not allow others to:
(a) violate any laws, these T&Cs and any policies which have been incorporated by reference into this Agreement;
(b) manipulate the price of or interfere with the placement of any listed item found on the Platform;
(c) circumvent or bypass any technical measures which we use to provide the Platform and Services;
(d) carry out any framing, mirroring or data mining through the Platform or Services, or carry out any activity which in our view could or does restrict the use of the Platform or the Services by others;
(e) use any robot, spider, scraper or other automated means to access our Platform or Services for any purpose;
(f) distribute viruses or other technologies that may harm our interests, such as functioning of the Platform, or the interests of Retailers; and
(g) post on any media, including the Website, any false, deceptive, slanderous or otherwise misleading content, in the form of comments, feedback, reviews or otherwise, regarding the Platform, the Services or the items listed on the Platform. or otherwise attempt to carry out any of the above.
5.4 You understand and accept that you will be held liable for damages if you commit or attempt to pursue any of the activities mentioned in Clause 5.3.
6.1 You acknowledge and agree that the availability of our Services does not authorise you to make use of any content or material (irrespective of its form or media) found on the Platform or as otherwise made available to you via the Services, in breach of either third-party or our intellectual property rights, or other proprietary rights (collectively, “IPRs”). For the purposes of this Agreement, the term “IPRs” shall be construed in its widest possible terms and shall include, without limitation, copyright, neighbouring and related rights, moral rights, patents, utility models and rights to inventions, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
6.2 Your failure to abide by this Clause 6 will expose you to damages and, in the case of a breach of any third-party IPRs, including those appertaining to Retailers, you agree to defend, indemnify and hold us harmless against any claims, actions or suits which may be brought by such third parties in connection with your breach of this aforesaid Clause 6.
7.1 We cannot guarantee continuous, error-free access to and use of our Platform and Services, or that defects emerging therefrom will be corrected immediately. Whilst we shall use reasonable efforts to ensure your uninterrupted, error-free access to and use of our Platform and Services, we cannot guarantee this and do not hereby give any promises or warranties (whether express or implied) to this effect.
7.2 In view of Clause 7.1 above, we expressly disclaim, to the fullest extent permitted under Applicable Law, all warranties and representations relating to the Services, including, without being limited to, those pertaining to quality, durability, fitness for a particular purpose.
7.3 In addition to the above, we assume no responsibility and you also accept that neither we, nor any of our officers, directors, employees, representatives, affiliates or agents, shall be liable to you any damages of whatever kind or nature, including special, indirect or consequential damages, or damages sustained to your computer equipment, or the degree thereto, that you may suffer in connection with your access to the Platform or use of the Services.
7.4 Further to Clause 7.3, you also accept that we shall not be responsible to you for any defects (as construed in its widest possible sense) relating to a listed item found on our Platform that you have ordered. In all such cases, you accept that your right of recourse shall, at all times, lie against the Retailer concerned, in accordance with our role as an online intermediary, as further described under Clause 3 above.
7.5 If, notwithstanding this Clause 7, we are still found to be liable to you, then, by way of pre-liquidated damages, our maximum liability to you (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise), or that of our officers, directors, employees, representatives, affiliates or agents, is hereby being set in respect of any one claim to the lesser of: (a) the amount of actual damages suffered, or (b) €100 (Euros).
7.6 Without prejudice to the aforesaid, nothing in this Clause 7 shall exclude or in any way limit our liability for (i) death or personal injury, (ii) fraud, (iii) fraudulent misrepresentation or (iv) any liability that cannot be excluded or limited in terms of Applicable Law.
8.1 If you are not satisfied with an item purchased through the Platform, you, the End-User, may have the right under Applicable Law, or the law otherwise applicable to your jurisdiction, domicile or residence, to return the item to the Retailer and be reimbursed the amount paid, and this may be carried out by following our Return Policy set out in this Clause 8.
8.2 You are invited to contact us directly at http://www.niazzo.com/contact to find out whether our Return Policy applies to your particular jurisdiction, domicile or residence and, in particular, to you.
8.3 Our Return Policy applies exclusively to items that are listed on our Platform, whether purchased directly by means of the third-party payment gateway operator (Paypal) utilised by the Platform or otherwise.
8.4 If you wish to obtain invoke our Return Policy, and obtain a reimbursement of the payment supplied, then you are required to inform us of your decision by an unequivocal statement, such as by means of a letter sent by post or via electronic e-mail, using the appropriate contact details set out below: (a) [Address Details] (b) [E-Mail Address Designated for Returns].
8.5 As an alternative to the procedure set out in Clause 8.4, you may use our model return form, which you may request, but this is not obligatory. You may submit this model form electronically to us, or by means of conventional mail, using the appropriate contact details listed in Clause 8.4.
8.6 Upon receipt of your notice, whether issued in the manner set out in Clause 8.4 or Clause 8.5, we will then provide you with an acknowledgement via the contact details you have designated for this purpose, and inform the Retailer concerned of your decision to withdraw from the contract concluded between you and this Retailer.
8.7 In respect of our Return Policy, you are not obligated to provide any reasons for returning the item, and may demand the appropriate refund without the obligation to provide reasons thereto, subject to the same being applicable to you and your purchase concerned.
8.8 Nevertheless, in all cases where you wish to invoke our Return Policy, and such is applicable to you and your purchase, this intention will need to be communicated to us within the applicable fourteen (14) day period or otherwise granted to you, the End-User, under statutory law.
8.9 In most cases, the applicable period mentioned above in Clause 8.8 will begin to from the date you, or the person indicated by you, acquires physical possession of the item concerned. As regards a single order for multiple items, this cooling-off period shall generally commence to run from the date you, or the person indicated by you, acquires physical possession of the last item. You are advised to contact us at Hello@niazzo.com in order to verify if and when your statutory cooling-off period begins to run.
8.10 You shall have exercised your right to invoke our Return Policy within the cooling-off period applicable to you if your notice of withdrawal is sent by you (electronic or conventional mail) before the relevant expiration date.
8.11 Once we have processed and verified a notice of withdrawal which you have issued to us, we will then proceed to inform you, by contacting you via the details you have provided for this purpose, as to the location where you are to deliver the item(s) concerned for our onward return to the retailer concerned.
8.12 In respect of Clause 8.11, you shall be responsible for bearing the direct costs of delivering the item to this location.
8.13 In any event, you are to deliver the item to the location which we have communicated to you by no later than fourteen (14) days from the date of our relevant communication. Given this, we also reserve the right to withhold from remitting the refund to your designated bank account until the item(s) have been received by us at this specified location.
9.1 The Website contains links to other independent third-party websites. These links are only provided by way of convenience to you. We are not responsible and have not checked and approved their content or privacy policies.
9.2 You will thus need to make your own independent judgement regarding your interaction with any of these independent third-party websites, including the purchase and use of any products or services that are accessible through them.
10.3 When you subscribe to use our Services, you accept that some personally identifiable information about you, including your order history and/or browsing history or keyword searches may be processed by us, and can be used to, amongst others, recommend items listed on our Platform to you.
11.1 We may suspend, terminate and/or permanently block your access to and use of our Platform and/or Services, at any time for any valid reason, including due to improper use of Platform or Services or, in particular, your failure to comply with the T&Cs contained herein, without prior notice.
11.2 You accept that, where we have taken any or all of the actions described under Clause 11.1, this shall not affect any right to relief and/or damages that we may be entitled to against you under Applicable Law or otherwise.
12.1 We may transfer our rights and obligations under this Agreement to another entity or organisation. This Agreement, however, is personal to you. You may only transfer your rights or obligations arising under this Agreement to another person if we agree to this in writing. Furthermore, this Agreement is between you and us. No other person shall have any right to enforce any of its terms.
12.2 If any court or authority finds any clause of this Agreement, or part thereof, to be illegal, the rest of this Agreement, including the unaffected part of the clause concerned, will continue to apply in full force and effect.
12.3 If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breach of this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
12.4 This Agreement does not confer any rights onto any third party to enforce any of the T&Cs set out herein or part thereof.
12.5 This Agreement, including the provision of the Services, and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes) or the provision of the Services, shall be governed by and construed in accordance with the laws of Malta.
12.6 You and we both agree that any dispute or claim arising out of or in connection with this Agreement and / or the provision of the Services shall be exclusively referred to arbitration in Malta. The number of arbitrators shall be one (1) and the arbitrator shall be appointed by mutual accord of the Parties. Should the Parties fail to reach an agreement within fifteen (15) days from notice of arbitration being given, the Malta Centre for Arbitration shall appoint an arbitrator at its own discretion. The language of the arbitration shall be English and the arbitration procedure shall be regulated by the rules regulating the Malta Arbitration Centre in the Arbitration Act (Chapter 387 of the Laws of Malta).