Part A – General Forecasts

A.1 Preamble and annexes

The preamble and any annexes to the Agreement constitute a substantial and integral part thereof.

A.2 Definitions

For the purposes of this Agreement (including its preamble and any annexes thereto), the following expressions shall have the following meanings:

“Agreement” means the proposal to join the Marketplace and these General Terms and Conditions of Membership, as well as any attachments.

“Buyer” means the Customer who has purchased a Product from the Seller through the Marketplace.

“Purchase” means the purchase, through the Marketplace, of a Product from the Seller.

“AURUX” means the company AURUX DI BORSANI ANDREA with registered office in Via F. Rosselli 24 – 22100 Como (CO), Tax Code and registration number in the 04118020132 Business Register, registered with the Chamber of Commerce of Como.

“Other Errors” means the indication by the Seller to the Client and/or the Buyer, at any time of the relationship with the same, of information that does not correspond to the truth and/or false and/or misleading and/or inaccurate and/or omissive about the Product and/or its specific characteristics and/or its commercial conditions and/or  its qualities or the indication by the Seller to the Client and/or the Buyer of any information that is likely to significantly distort the user’s economic behaviour, including the non-conformity of the Product with the description of the same already existing in the Catalogue.

“Catalogue” means all the Products offered for sale on the Marketplace – including the titles, images of the products and descriptions thereof, entered by the Seller, as made available to Customers from time to time, through the Site.

“Customer” means the person who browses the Site and to whom the offer of the Products is addressed.

“Consumer Code” means Legislative Decree no. 206 of 6 September 2005.

“Privacy Code” means Legislative Decree No. 196 of 30 June 2003 called the “Personal Data Protection Code”.

“AURUX Fees” means how much AURUX collects as commission due. When the buyer pays the purchase price to the Seller, the commission is collected by AURUX.

“General Terms and Conditions of Sale Marketplace” or “T&Cs Marketplace” or “T&Cs” means the general terms and conditions of sale, subject to Italian law, applicable to Purchases and Sales on the Marketplace, which the Seller undertakes to observe in its relationship with the Client and/or the Buyer.

“Seller’s General Terms and Conditions of Sale”  or “Seller’s T&Cs” means the Marketplace T&Cs published on the Site that the Seller undertakes to comply with.

“Purchase Contract” means the Purchase Contract, subject to Italian law, concluded between the Seller and the Customer through the Marketplace.

“Navigation Data” means the domain names of the computers used by the Customers who access the Site, the URL addresses of the requested resources, the time of the request, the method used to submit the request to the server, the size of the file obtained in response, etc.

“Registration Data” means the personal data provided by Customers at the time of registration on the Site.

“Sales Data” means the personal data provided by Customers necessary for the execution of Purchase orders sent through the Marketplace.

“Decree on Electronic Commerce” means Legislative Decree no. 70 of 9 April 2003, as amended.

“Lack of Conformity” has the meaning attributed to this expression, pursuant to and for the purposes of the Legal Guarantee of Conformity, by the Consumer Code or, in the case of a Purchaser who is not a Consumer, the meaning attributed to the expression “defects”, pursuant to and for the purposes of Article 1495 et seq. of the Italian Civil Code and to the  expression “promised or essential qualities” pursuant to and for the purposes of Article 1497 of the Italian Civil Code.

“Right of Withdrawal” has the meaning given to this expression in the Consumer Code.

“Legal Documentation” means the legal documentation (including, in particular, the Marketplace T&Cs) that the Seller undertakes to comply with in relation to the offer of a Product on the Marketplace.

“List of Prohibited Products” means the list of products and/or services that the Seller is prohibited from offering for sale and selling through the Marketplace and that the Seller undertakes to comply with as communicated from time to time by AURUX.

“Legal Guarantee of Conformity” has the meaning given to this expression in the Consumer Code. It also indicates, in the case of a Purchaser who is not a Consumer, the exercise of the rights referred to in the warranty for defects and defects in quality promised or essential referred to in the Civil Code.

“GDPR”: Regulation (EU) 679/2016 on the protection of personal data.

“Mandatory Information” means the information in Italian that the Seller is required to provide, with reference to each Product, before the conclusion of the Purchase Contract and/or after the Purchase, pursuant to the Decree on Electronic Commerce, the Consumer Code, Legislative Decree no. 49 of 14 March 2014, the Applicable Legislation and the Agreement, including,  in particular: (a) the main characteristics and adequate description of the Product, including, where applicable, information relating to: product category and classification; origin; instructions, warnings and/or limitations of use and/or enjoyment; storage and/or disposal, condition of the Product (e.g. new, used, refurbished) (b) method of payment, delivery and execution, date by which you undertake to deliver the goods; (c) the total price of the Products, including taxes and all additional fees and/or charges that the Customer is required to pay in connection with the Product and/or the Purchase; (d) in the event of the existence of a right of withdrawal, the conditions, terms and procedures for exercising such right, as well as the instructions on the withdrawal of the right of withdrawal and any information on the costs of return that the exercise of the right of withdrawal may entail for the Customer; (e) in the event of exclusion of the right of withdrawal, the circumstances and conditions in which the Customer does not benefit from this right; (f) availability of the Products, conditions and terms of the Legal Guarantee of Conformity and, if applicable, the existence and conditions of after-sales service and conventional warranties; (g) digitized images of the Product that accurately and truthfully represent the individual Product and do not include images other than that of the Product; (h) any wording, text, indication, warning, communication, label or other content that the Applicable Law and/or the manufacturer of the Product requires to be displayed as part of the offer, promotion, advertising or sale of the Product; (i) identification details of the Seller and, if required, of the manufacturer; (l) any specifications of the Product; (m) Legal Documentation; as well as (n) any other information that is reasonably requested from the Seller by AURUX and/or that a Customer and/or a Buyer, in accordance with the Applicable Law, should know before purchasing the Product and/or in order to exercise a right relating to the Product and/or the Purchase.

“Confidential Information” means all information that can reasonably be considered confidential information such as technical, commercial, financial, strategic information, together with all documents prepared by the Party that has received such information, which contains, is based on or otherwise reflects or arises in whole or in part from such information, including information stored on any computer,  word processor or other similar device. The term “Confidential Information” does not include information that: (i) is or becomes public knowledge for reasons other than the violation of the provisions of this Agreement or (ii) has been independently learned by the Party that received it or (iii) has been lawfully disclosed in response to a legal obligation or order of any Italian or foreign authority or (iv) has been disclosed to the Party by a third party who was not bound by any obligation of confidentiality with reference to the information provided by him.

“Data Subject” has the meaning given to that term by the GDPR.

“Seller‘s Trademarks” means each and all registered trademarks (figurative, verbal, descriptive, combined, service) and/or de facto, distinctive signs, logos, so-called  trademarks.trade dress, trade names, insignia, domain names, company identifiers referring to and/or referable to the Seller.

“AURUX Trademarks” means the trademarks owned by AURUX as well as logos, insignia that may be used by AURUX to distinguish the Marketplace and/or the Site and/or the Platform and/or in connection with the Marketplace and/or the Site and/or the Platform.

“Third-Party Trademarks”  means the trademarks and/or logos that distinguish the Products offered for sale by the Seller as well as any other intellectual and/or industrial property rights relating to the Products and/or photographs and/or images and/or information concerning and/or connected to the Products, which are provided by the Seller and of which the Seller is not the owner and/or licensee.

”  Marketplace” means the virtual marketplace created and managed by AURUX, through the Platform, called, in full, “AURUX”, and herein, for the sake of brevity, Marketplace, accessible through the Site, within which Sellers can offer and offer for sale their Products and conclude the related Purchase Contracts with Customers.

“Seller Materials” means photographs, both technical and artistic, of the Products, advertising and promotional materials, as well as all data, information and images and/or descriptions relating to the Products provided by the Seller for the purpose of offering the Products through the Marketplace.

“Seller  Marks and Materials” means the Seller Marks and Seller Materials.

“AURUX Materials” means any material provided or made available by AURUX under this Agreement.

“Applicable Legislation” means any law (including, but not limited to: legislative decrees, decree laws, regional or provincial laws, laws (civil, criminal, administrative, tax and/or fiscal), royal decrees, decrees of the President of the Republic, decrees of the Presidency of the Council of Ministers, ministerial decrees, etc.), directive, regulation, rule, order, licence, permit, authorisation, judgment, decision or other provision – of any kind and type, having legal or regulatory content – in force at the time of entering into the Agreement, or coming into force thereafter, which is applicable and relevant to the content of this Agreement and/or the offer, and/or marketing and/or offering for sale of the Products and/or the Purchase and/or Sale and/or disposal of the Products, as issued by the competent authority, including national, EU or non-EU public security authorities, including, in particular, the Decree on Electronic Commerce, the Consumer Code.

“Tax Charges”: means all value-added, sales, consumption, import and export taxes, as well as other taxes, duties and/or charges, customs and/or duties that are imposed, incurred or that are to be collected or paid for any reason by the Seller in connection with the advertising, offering or sale of the Products through the Marketplace.

“Platform”  means the databases, the Site, the Software, the systems, methods, processes, procedures and related know-how developed by AURUX and through which, on the one hand, the Sellers are enabled to offer the Products for sale and to conclude Purchase Contracts through the Marketplace, and, on the other hand, the Platform Services are provided to the Sellers.

“Total Purchase Price” means the purchase price together with delivery charges and any other additional charges and/or costs and/or expenses that the Buyer has paid for the Purchase of the Product.

“Product” means the good that the Seller intends to include in the Catalog for the purpose of listing through the Marketplace,  or, depending on the context, the good that the Seller has actually included in the Catalog and that the Seller therefore offers for sale through the Marketplace.

“Membership Proposal” means the Marketplace membership proposal that the Seller must sign in order to join the Marketplace.

“Return” means the Product sold which, for any reason (e.g. absence of the recipient, non-collection, etc.), is not delivered to the Buyer or is returned by the latter to the Seller, including in the case of return due to Lack of Conformity and the case of return for exercise of the Right of Withdrawal.

“Platform Services” means the set of services and functionalities provided by the Platform and made available to Sellers, as better described in the Agreement.

“Site” means the Site https://aurux.shop/.

“Software” means software,  computer programs (application and operational), codes, methods, algorithms, related indications and instructions, installed or to be installed, including the related software applications, owned by AURUX or third parties and legitimately used and/or directly or indirectly used by the latter for the creation, management, accessibility and operation of the Site and,  in particular, the Marketplace, for the provision of services and activities connected and instrumental to the execution of the Agreement as well as related updates, developments, releases, existing or that may be carried out by AURUX (or by third parties appointed by it) in connection with the Marketplace.

“Data Controller”  or  “Data Controller” has the meaning given to this term by the GDPR.

“Seller” means any person who professionally carries out the activity of retailing goods and/or services in accordance with the Applicable Regulations and who, depending on the context, intends to join the Marketplace or has already effectively joined it through the conclusion of the Agreement.

 

A.3 Duration; Termination of the Agreement; Recess

A.3.1        This Agreement is for a period of 12 months. It is effective from the date on which the Seller accepts the Membership Proposal. The renewal will take place automatically from time to time for a further 12 months, in the absence of written notice from either Party, to be sent within 90 days prior to expiry.

A.3.2        AURUX has the right to withdraw from the Agreement at any time, and without providing any justification, by sending a registered letter with acknowledgement of receipt or certified e-mail with at least 60 days’ notice.

The withdrawal exercised by AURUX pursuant to this article shall not entail the payment of any penalty and/or refund and/or indemnity and/or consideration in favour of the Seller, without prejudice to the Seller’s obligation to pay AURUX, even after the termination of the Agreement, any amount due to AURUX under the Agreement.

A.3.3        The Seller has the right to withdraw from the Agreement, at any time and without any justification, by sending a registered letter with acknowledgement of receipt or certified e-mail, with at least 90 days’ notice. The exercise of the right of withdrawal by the Seller pursuant to this article does not release the Seller from the obligation to pay AURUX, even after the termination of the Agreement, any amount due to AURUX under the Agreement.

Withdrawals exercised pursuant to this Article shall take effect from the date of termination of the Agreement.

 

A.4 Notice to Comply and Termination of Law

A.4.1        The Parties acknowledge and accept that the contract is terminated by law pursuant to Article 1456 of the Italian Civil Code if the Seller fails to fulfil the obligations indicated in Articles 6 (Consideration) and 13 (Declarations, Commitments and Guarantees of the Seller). In this case, the contract will be terminated by operation of law when AURUX has notified the Seller of its intention to make use of this express termination clause. AURUX reserves the right to take action in the appropriate forums for the protection of its rights and for compensation for damages.

A.5 Effects of Termination and Withdrawal

A.5.1        All amounts due by either Party up to the date of termination of the Agreement shall be payable immediately.

A.5.2        The Parties will continue to perform their obligations with respect to any order placed by the Customer prior to the termination or expiration of this Agreement.

A.5.3        Any provision of this Agreement intended, expressly or impliedly, to have, or continue to have, effect at the time of termination or expiration, or thereafter such termination upon expiration, of this Agreement shall remain in full force and effect.

 

A.6 Fees

A.6.1     Upon the purchase of a Product listed in the Catalogue by the Buyer, the Seller shall collect the amount paid by the Buyer, less the applicable AURUX Commission based on the Product category, as specified below:

• 5% (five percent) on the Total Purchase Price of watches,

• 10% (ten percent) on the Total Purchase Price of jewelry and precious gems,

• 15% (fifteen percent) on the Total Purchase Price of accessories.

The AURUX Commission is calculated on the Total Purchase Price, including VAT.

A.6.2        The payment of AURUX Fees will be made as follows: the Seller will receive on his PayPal account the Total Purchase Price paid by the Buyer, less the AURUX Fees and any other amount as defined in the Membership Proposal.

A.6.3        The costs of shipping the Products to the Buyer will be borne by the Seller. Any costs, considerations, fees and/or expenses related to or dependent on the Agreement shall be borne by the Seller, who shall be solely and personally responsible for the payment thereof.

A.6.4 The Seller will be able to check the amounts of sales and any other expense item through his personal page on the Site.

A.7                  Tax charges

A.7.1        The Seller is aware and accepts that it is solely and exclusively responsible for its own Tax Charges, as well as for any other taxes, fees, duties and/or charges and/or tax and/or customs charges, of any kind.

A.7.2        The Seller declares that it is aware of and agrees that AURUX: (i) is not required to carry out any tax audit in relation to the activity carried out by the Seller under the Agreement and, in particular, is not required to determine whether VAT and/or other taxes or duties apply to the sale of the Products; (ii) is not responsible for collecting, remitting or filing any VAT or other taxes arising from such sale, or for the purposes of paying, collecting, collecting and/or remitting the Seller’s Tax Charges.

A.8      AURUX Intellectual Property Rights

A.8.1        The Seller undertakes to:

(a) not to use in its company name any signs that are the same or similar to the AURUX Trademarks;

(b) not to use any sign similar to the AURUX Trademarks;

(c) not to file applications for registration of trademarks concerning signs that are the same or similar to the AURUX Trademarks;

(d) not to apply for assignment and not to use domain names that are the same or similar to the AURUX Trademarks and/or the Domain;

(e) not to file any application for registration concerning, but not limited to, texts, images, sounds or other materials communicated by AURUX under the Agreement and, in any case, applications for other intellectual property rights relating to materials equal to or similar to those covered by AURUX’s intellectual property rights.

A.8.2        In any case, the Seller undertakes to assign to AURUX – at the latter’s simple request and without any amount being due to the Seller – any registration on trademarks, domain names, or other intellectual property rights, obtained, directly or indirectly, in violation of the Agreement, without prejudice to AURUX’s right to compensation for any damage and/or greater damage.

A.8.3        The obligations referred to in this Article shall survive the termination of the Agreement for any reason.

A.8.4        AURUX represents and warrants, during the term of the Agreement, that it has access to all rights in the AURUX Marks and the Domain.

A.9      Intellectual property rights

A.9.1        AURUX is the creator and author, pursuant to Law no. 633 of 22 April 1941 and subsequent amendments and additions, of the Site and all rights are reserved to it.

A.9.2        AURUX owns the Platform, the Site, the Software, the Marketplace, the IT architecture of the Site, the codes, methods, algorithms, instructions representative of technical, creative or organizational improvements, updates, releases and any and all applications to the Platform, whether resulting from or found, used or developed by AURUX – or by third parties appointed by AURUX – for the coordination and interaction of the platforms or for the creation, activation, online management of the Site and of the information elements published on the Site and/or for the provision of Services. In particular, AURUX is recognized as the full owner of the software, know-how, computer programs (application and operational), codes, related adaptations, modifications and customizations of indications, instructions and documents, in any form expressed, installed or to be installed, including those relating to and/or developed in connection with the Site, the Platform, the databases,  the layout of the Site, the online management of the same and of the information and data contained therein and in general in execution of this Agreement.

A.9.3        The Seller acknowledges and accepts that the Catalogue, the AURUX Materials and in general the materials and information elements that will be provided by AURUX are the exclusive property of AURUX and that the latter is the legitimate owner of the AURUX Trademarks and the Domain.

A.9.4        The Seller undertakes not to use in any way (including on advertising, commercial, promotional or similar materials) the AURUX Trademarks, without the prior written consent of the latter. The Seller also undertakes not to express itself in any way (whether positive or negative) in relation to the existing business relationship with AURUX.

A.9.5        The obligations under this section shall be assumed in relation to the whole world and shall survive the termination of the Agreement for any reason.

A.10    Seller’s Intellectual Property Rights

A.10.1     The Seller may grant AURUX, free of charge, with respect to all countries in the world, the non-exclusive right to use, reproduce, publish, communicate, disseminate, display, distribute, adapt, modify, reformat, process, and otherwise exploit for commercial or non-commercial purposes, the Seller’s Trademarks and Materials limited to the purposes set forth in the Agreement and following the express consent of the Seller.

A.10.2     Without prejudice to the provisions of art. A.10.1 above, it is understood that AURUX may not alter the Seller’s Trademarks and Materials, except for the sole purpose of adapting them to the extent necessary for their use and their publication and display on the Site.

A.10.3     With respect to the Seller Marks and Materials, Seller represents and warrants: (a) that it has all rights thereto with respect to all countries in the world; (b) that except for the rights that the Seller Trademarks and Materials possess by virtue of the Applicable Law and/or by virtue of contract and/or other valid legal title, there are no further prohibitions and/or limitations on the right to reproduce, publish, communicate, disseminate, display, distribute, adapt, modify, reformat, process, create derivative works,  and otherwise exploit, for commercial or non-commercial purposes, or sublicense, Seller’s Trademarks and Materials or Materials acquired prior to entering into the Agreement.

A.10.4    The Seller hereby undertakes to indemnify and hold AURUX harmless from any claim, request for reimbursement and/or compensation and/or damage and/or action that any third party may bring with reference to the Seller’s Trademarks and Materials and/or the rights, representations and warranties referred to in this article.

A.11    Duty of Confidentiality

A.11.1     Each Party undertakes, for the entire duration of the Agreement and thereafter, to keep secret, not to disclose, either directly or indirectly, not to communicate to third parties or, in any case, to publish in any form or make accessible to the public the Confidential Information that has been disclosed to it by the other Party. Each Party undertakes to ensure that its duty of confidentiality is observed by its employees, consultants, collaborators and third party contractors and will be liable for the fact of such auxiliaries if they have unlawfully communicated to third parties, disclosed, published in any form or made accessible to the public the Confidential Information.

A.12 Processing of Personal Data

12. 12.1 In relation to the processing of Personal Data provided by Customers and Buyers, the Parties acknowledge that:

(I) AURUX:

(a) act as: (i) the exclusive Data Controller of the Registration Data and Navigation Data as well as any additional Personal Data provided by Customers when requesting information relating to a Product or the activity carried out through the Site;

(b) will process the data referred to in point (i) only to fulfil the obligations incumbent on it as provider of the registration service on the Site and manager of the Marketplace, as well as, subject to the express consent of the Customer, for marketing and profiling purposes.

(II) the Seller:

(a) act as: (i) Independent Data Controller of the Sales Data that may be accessed through the Platform as well as any additional Personal Data that may be provided by Buyers in communications with the Seller; (ii) Exclusive Owner of the Personal Data that the Client or Buyer may have provided, directly to the Seller, not through the Platform;

(b) will process the data referred to in points (i) and (ii) above for purposes strictly related to the execution of the Purchase Agreement and for administrative-accounting purposes related to the sale.

A.12.2     With reference to the Sales Data and/or any Personal Data of Buyers or Customers of which it becomes aware as a result of this Agreement, the Seller declares and guarantees that it will use this data in accordance with the Privacy Code and the GDPR.

A.12.3     The Seller undertakes to indemnify AURUX and hold AURUX harmless from any damage that may arise in the event of a violation of this article.

A.12.4     The Seller is aware and accepts that in the event of termination, for any reason, of the Agreement, his/her Personal Data will continue to reside in the Buyer’s reserved area, present on the Site, with reference to the Purchase Contracts concluded before the termination of the Agreement (e.g. order history and any correspondence with the Buyer through the Platform), for as long as the Buyer’s reserved area is active.

A.13    Seller’s Representations, Undertakings and Warranties

A.13.1     The Seller represents and warrants:

(i) to be a professional qualified to carry out the activity of retail sale of Products, including online, and to be in possession of all the authorizations, requirements, documents necessary according to the Applicable Legislation, including tax regulations, to carry out such activity online and through the Marketplace;

(ii) that in offering and selling the Products through the Marketplace will comply with the Agreement and the Applicable Regulations, with particular reference to the rules set out in the Decree on Electronic Commerce, the Consumer Code, Legislative Decree no. 49 of 14 March 2014, where applicable, and, in general, all the regulations on commerce, e-commerce and distance selling;

(v)      that the Products offered for sale through the Marketplace are genuine and not counterfeit;

(vi) that in the offer and sale of the Products through the Marketplace and in the relationship with the Client and/or the Buyer will not engage in unfair commercial practices, as defined by art. 18 et seq. of the Consumer Code;

(vii) that he/she will not adopt any conduct that may damage the Reputation of AURUX and/or the rights of third parties, including those relating to Third Party Trademarks and that he/she will not engage in any act of unfair competition and/or misleading advertising pursuant to and for the purposes of the provisions of the Applicable Regulations and, in particular,  art. 2595 et seq. of the Italian Civil Code and Legislative Decree no. 145 of 2 August 2007.

A.13.2     The Seller acknowledges that it is the only person responsible for the truthfulness, completeness, accuracy, correctness and non-deceptiveness, pursuant to art. 18 et seq. of the Consumer Code and Legislative Decree no. 145 of 2 August 2007 of any information provided by the Seller to Customers and/or Buyers. The Seller therefore acknowledges that no liability can be attributed to AURUX in relation to such information and therefore undertakes to indemnify AURUX and hold AURUX harmless from any damage, disbursement, cost and/or expense that may arise due to the untruthfulness, inaccuracy, incompleteness, incorrectness or deceptiveness of such information.

A.13.3     The Seller agrees to indemnify and hold harmless AURUX (together with its officers, legal representatives, directors, employees and/or agents) from any and all liabilities, claims, losses, damages, demands, claims, costs, fines, penalties, expenses (including, but not limited to, any attorneys’ fees) or other obligations, pecuniary or non-pecuniary (each a “Request“), which arise from or are connected to: (a) a breach or risk of non-performance of the obligations incumbent on the Seller under the Applicable Law, the Agreement, the Marketplace T&Cs, the Seller’s T&Cs, the Purchase Agreement; (b) the activity carried out through its sales channels and the management of such activity, to the extent that it is relevant for the purposes of the Agreement; (c) the Seller’s Products and/or their offer on the Marketplace, sale and/or management – including, by way of example but not limited to, the fulfillment and/or processing of the Purchase order, the termination of the Purchase Contracts, the cancellation and refund of the Purchase orders, including the management of Returns for the exercise of the Right of Withdrawal and/or the Legal Guarantee of Conformity,  as well as any injuries, deaths and/or damage to property or persons caused by the Products themselves; (d) Seller’s Trademarks and Materials; (e) any conduct of the Seller that is qualified, according to the Applicable Regulations, and even only presumptively, as acts of unfair competition or as violations of copyright and/or intellectual property rights claimed by third parties; (f) the Seller’s tax liabilities and/or the collection, payment or non-collection or non-payment thereof; (g) the sale of a counterfeit Product by the Seller.

 

A.13.4     If the Seller receives a Request, the Seller undertakes to prepare an adequate defense, making use of professionals with proven experience and expertise for this purpose, if necessary. Without prejudice to the provisions of the previous paragraphs of this article, AURUX reserves the right, however, having no obligation to do so, to assist the Seller in its defense with respect to the Request. In the latter case, the Seller and AURUX shall agree on the defensive strategy to be followed, and the Seller shall not enter into a settlement or decide to accept the decision of a third party, public or private, which is still open to appeal, without the prior written consent of AURUX, provided that it is not unreasonably denied.

A.13.5     Seller shall immediately perform all duties (and provide information) reasonably requested by AURUX to enable AURUX to perform its obligations under this Agreement, including:

1. upload the Seller’s logo in digital and vector format to the Website;
2. insert professional photos and digital photos of the Products for sale on the portal on the Website;
3. indicate complete and accurate information on the Products on the Website (descriptive sheets) including details, condition of the Product (e.g. used or new) etc.;
4. communicate by email the minimum and maximum delivery times for each chosen by the Seller;
5. indicate on the Website the availability of the products for sale on the portal;
6. provide and/or indicate on the Site any other relevant information regarding the Products as requested from time to time by AURUX.

A.13. 6 With regard to all orders received by AURUX and communicated to the Seller in accordance with the provisions of this Agreement, the Seller shall:

1. maintain accurate information about the availability of the Product to prevent an order from being unable to be fulfilled due to unavailability of the Product;
2. pack the Products using suitable packaging;
3. dispatch the Products within one day from the date of acceptance of the order (excluding public holidays) and deliver the Products within the deadlines indicated in the T&Cs.

 

13. 13.7 The Seller shall select and appoint the forwarder, unless otherwise agreed between the Parties, for the delivery of the Product(s) to the Customer and shall cooperate with AURUX if requested.
14. 13.8 The Seller undertakes to comply with current legislation with particular reference to art. 128 et seq. of the Consumer Code.
15. 13.9 The Seller undertakes to comply with the Marketplace Terms and Conditions of Sale and the Seller’s General Terms and Conditions of Sale.
16. 13.10 The Seller shall apply and comply with the return and withdrawal policy dictated by the Marketplace T&Cs and the Seller T&Cs.

A.14    AURUX Responsibilities

A.14.1     AURUX, in its capacity as the technical-operational manager of the Platform, undertakes to do everything in its ability and competence in order to ensure the provision of the Services.

A.14.2     AURUX shall not be liable to the Seller or to third parties in the event of delays, malfunctions, and/or interruptions in the activity of the Site or in the provision of the Services caused by:

1. force majeure or unforeseeable circumstances;
2. interruption of the supply of electricity services;
3. lack of connectivity, Software errors, hardware failure, problems with databases, malfunctions, non-delivery of pages and/or images, errors in the algorithms of the product listing and, in general, malfunctions of the Platform that are not attributable to wilful misconduct and/or gross negligence of AURUX and/or that are attributable to the fact of third parties, including any suppliers used by AURUX.

A.14.3     For the purposes of this Agreement, force majeure means any event beyond the reasonable control of the Parties that prevents or delays the performance of any of them, including, but not limited to: strikes, lockouts, riots, civil wars, invasions, wars, government measures, acts of God such as fire, explosion, flood,  floods, earthquakes, tidal waves, epidemics and/or other natural disasters.

A.15    General Provisions

A.15.1     The Seller’s registration on the Platform implies the full and unreserved acceptance by the Seller of the Agreement, the terms and conditions set forth therein and any Annexes to the Agreement.

A.15.2     Seller may not assign this Agreement without the prior written consent of AURUX.

A.15.3     AURUX reserves the right to modify the terms and conditions contained in this Agreement at any time and in its sole discretion. The changes will be effective seven days after they are communicated to the Seller by email.

 

A.16    Relations between the Parties

A.16.1      The Seller and AURUX are independent and autonomous legal entities. Nothing in the Agreement shall be construed to imply that an association, joint venture, agency or franchise agreement, mandate agreement, agency or employment relationship or other equivalent control relationship exists or has been formed between Seller and AURUX,  representation, subordination or coordination.

A.16.2      AURUX does not act as an intermediary between the Buyer and the Seller. AURUX may, at its sole discretion, subcontract or delegate in any way any of its obligations under this Agreement or any third party or agent subject to the terms and conditions of this Agreement. Neither this Agreement nor any right, interest or obligation of the Parties under this Agreement shall be assigned by the Parties without the prior written consent of the other Party. Any unauthorized assignment made by the Parties shall be deemed null and void.

A.16.3      The Seller has no authority to make statements, formulate or accept proposals or offers in the name and/or on behalf of AURUX, nor may it make any statements and/or make any statements (on its sales channel or elsewhere), which may contradict what is stated in this article.

A.16.4      AURUX, in turn, has no power to make statements, formulate or accept proposals or offers in the name and/or on behalf of the Seller.

A.16.5      AURUX is and remains completely extraneous to the Purchase Agreement and the consequent relationship between the Buyer and the Seller.

A.16.6     In no way may the Agreement give rise to an exclusive relationship between the Seller and AURUX. Nothing expressed, indicated or implied in the Agreement shall apply or shall be used to give rise to any rights, rights, rights, claims and/or claims with respect to the subject matter of the Agreement by any person other than the Seller and AURUX. The Agreement and all related terms, conditions, representations, indemnities, warranties, and provisions herein are intended to be, and are solely to the exclusive benefit of, as applicable, AURUX, the Seller, the Customers, and/or the Buyers

A.17    Applicable Law and Jurisdiction

A.17.1     This Agreement is subject to Italian law. For any dispute arising from it and/or in any case connected to it, the Seller recognizes and accepts the exclusive and mandatory jurisdiction of the Court of Como.

 

PART B – Terms and Conditions of Use of the Marketplace

B.1      Requirements

B.1.1        In order to be entitled to use the Platform, the Platform Services and the Marketplace, the Seller must apply for it by signing the Membership Proposal and sending it to AURUX via “Click to accept“.

B.1.2        The effectiveness of the Agreement is subject to the opening and maintenance of the Seller’s PayPal account.

 

B.1.3        Upon entering into the Agreement, the Seller must provide AURUX with and/or enter on the Site all the documents and information necessary to enable AURUX to fulfil its contractual obligations.

 

B.1.4        In any case, AURUX reserves the right to suspend or prevent the Seller from selling through the Marketplace, in its sole discretion if: (i) there is an ongoing legal dispute with the Seller; (ii) the Seller has breached, including in the past, the Agreement; (iii) the Seller has been involved in fraud of any kind and, in particular, in fraud relating to credit card payments; (iv) if the Seller has provided false, incomplete or otherwise inaccurate identification data or has failed to promptly send AURUX the documents requested by AURUX pursuant to this Article and/or the Agreement or has sent it invalid documents; This is without prejudice, in any case, to AURUX’s right to compensation for any damage it may have suffered.

B.1.5        The Seller uses the Platform and any materials, methods, instructions and information made available or provided in connection with it, at its own risk and under its direct and sole responsibility.

B.1.6        The Seller is aware of and acknowledges that it is solely responsible for the activities carried out by it through the Platform.

B.1.7       The Seller declares that it is aware of and accepts that:

1. the same Products may be offered on the Marketplace by different, competing Sellers;
2. access to the Site, the Platform and/or all or part of the Platform Services may be temporarily suspended, as AURUX cannot ensure permanent operation and/or permanent access to the Site, the Platform and/or all or part of the Platform Services;
3. the publication on the Marketplace of offers created by the Seller, both those referring to Products already present in the Catalog and those referring to Products not yet present in the Catalog, may be, at the sole discretion of AURUX, delayed, suspended or refused, in which case AURUX undertakes, in this case, to communicate to the Seller the reasons that determined its decision;
4. AURUX is not required to verify the truthfulness and/or correctness and/or exhaustiveness of the information provided and/or entered by the Seller on the Website and/or in the Catalogue through the Platform, nor is it subject to the obligation to conduct checks on any illegality, non-compliance with the Applicable Regulations, contrary to decency, morality, honour, of such information and/or, more generally, the Seller’s conduct;
5. by prior agreement, AURUX may carry out activities on the Site to promote one or more products of other Sellers, or of the Seller itself.

B.2 Representations by AURUX in relation to the Platform

B.2.1        In its capacity as technical-operational manager of the Platform and the Site, AURUX reserves the right to modify, suspend or interrupt, at any time, the operation of the Platform and/or all or part of the Platform Services, giving, where possible, adequate notice to the Seller.

B.2.2        AURUX also reserves the right to modify and/or redesign, at its sole discretion, all or part of the Platform and/or the Site, as well as the content, format, layout, fonts and any other elements (technical, graphic, Etc.) of the Platform and/or the Site.

PART C – Terms and Conditions of the Sell with the Marketplace Service

The Sell with the Marketplace Service allows the Seller to offer the Products for sale to the Customers and to conclude the related Purchase Contracts with the Buyers, in accordance with the provisions of the Marketplace and Seller GTCS.

AURUX is exclusively the technical and operational manager of the Platform. AURUX, therefore, is and always remains extraneous to the Purchase Agreement. This Part C of the Agreement applies to all Sellers made by the Seller on the Marketplace.

C.1      T&Cs Marketplace

C.1.1        The Seller undertakes to accept the Marketplace T&Cs that will be published on the Site, which will constitute the Seller’s T&Cs that govern the Purchase Agreement and the consequent relationship between the Seller and the Buyer.

C.2      Seller’s Representations and Warranties in Relation to the Offer and Sale of Products

C.2.1        The Seller declares and acknowledges that it is solely responsible for the offer and sale of the Products, the Purchase Agreement and the consequent relationship with the Buyer, as well as for the truthfulness, correctness, completeness, accuracy and non-deceptiveness of the Mandatory Information made available and/or provided to Customers and Buyers and the Legal Documentation.

C.2.2        The Seller declares and acknowledges that he/she is free to determine which Products to offer for sale on the Marketplace and in what quantity, it being understood that he/she may create offers relating to them only on condition that he/she has the availability of such Products at the time he/she creates the offer and at the time he/she puts them up for sale, and this is true whether the offer refers to a Product already present in the Catalog or whether it refers to a Product not yet present in the Catalogue.

C.2.3        The Seller undertakes to offer the Products for sale on the Marketplace under conditions, in particular, of price and quality, at least equal to those that he normally practices on his own sales channels.

C.2.4        The Seller declares and guarantees that the offer and/or sale of the Products on the Marketplace does not infringe the rights of any third party and, in particular, does not infringe the rights of the manufacturer of the Product and/or the owner and/or licensee of the trademarks that distinguish the Products and that they are fully compliant with the Applicable Regulations. In this regard, the Seller declares and warrants that: (i) the Products and the brand(s) that distinguish them are authentic, original and not counterfeit; (ii) the Products have been duly placed on the European Union market and duly purchased; (iii) the Products are not subject to selective distribution agreements and/or agreements prohibiting the distribution of the same, including for the purpose of their online resale, by third parties; (iv), in the event that the Seller is not the manufacturer of the Products, to have purchased the Products from persons entitled to sell and/or distribute them.

C.2.5        The Seller represents and warrants that: the Products(s) comply with the Applicable Regulations (including, but not limited to, compliance with provisions on: distance selling and e-commerce; security; protection of consumer rights; prohibition of sale to minors; labeling; Legal Guarantee of Conformity; protection of copyright and industrial property; protection of fair competition, Etc.); (ii) do not contain erotic, child pornography, pornographic, dangerous, defamatory and/or obscene material; (iii) will not be on the Prohibited Products List.

C.2.6        The Seller represents and warrants that the Products: (i) are free from defects that make them unfit for sale and for the use for which they are intended or harmful to persons and property; (ii) do not constitute infringement of the rights of third parties; (iii) have the manufacturing and packaging characteristics necessary for marketing; (iv) comply with the legislation in force in the country in which they are marketed and delivered.

C.2.7        The Seller further represents and warrants that the Products (including packaging) will fully comply with the characteristics and requirements set forth in: (i) in this Agreement; (ii) in the Purchase Agreement, in the Marketplace T&Cs and in the Seller’s T&Cs; (iii) in the Mandatory Information and in the description thereof on the Website; (iv) within any documents, instructions and/or materials provided to Seller by the manufacturer/distributor/licensee of each Product; (v) on the Website, on the Platform and/or within the reserved area of the Platform and/or, in any case, in any other place where the Seller has provided and/or published information relating to the Products. The Seller undertakes to comply, in any case, with any indications provided by the manufacturer/distributor/licensee of each Product, including those indications that the latter may provide with regard to the launch date of the Product, by means the date before which information regarding the Product may not be disclosed to the public, or before which the Product may not be made available to Customers.

C.2.8        The Seller is, and acknowledges to be, the sole and exclusive responsibility for the compliance of each Product with the characteristics and requirements, including availability, communicated to the Customer and assumes, directly and exclusively, any risk arising from and/or connected with such liability, declaring as of now to indemnify and hold AURUX harmless in this regard.

C.2.9        The Seller declares that it can provide and undertakes to provide, in the format requested by AURUX and for each Product, the Mandatory Information and Legal Documentation. The Seller is, and acknowledges to be, the sole and exclusive responsible for the information concerning him/her, the Mandatory Information (including the truthfulness, correctness, accuracy, updating and exhaustiveness of the same) and its publication and/or presentation on the Site, in the Catalogue, in transactional e-mails, including the order confirmation e-mail and in any other part or place,  also virtual, where they are made, supplied and/or made available to Customers and/or Buyers; he is, and acknowledges that he is, also solely responsible for the compliance of all such information with the Applicable Law and/or any documents, instructions and/or materials provided by the manufacturer/distributor/licensee of each Product. It is therefore the Seller’s responsibility to constantly verify such information, its publication, presentation and/or compliance with the Applicable Regulations, as well as to promptly report to AURUX and correct without delay any inaccuracies, errors, anomalies and/or omissions, of any nature whatsoever; likewise, the Seller hereby undertakes to correct without delay any inaccuracies, errors, anomalies and/or omissions that AURUX may find and have reported to it.

C.2.10     The Seller is, and acknowledges to be, solely and exclusively responsible for, among other things: (i) the recognition and application of the Right of Withdrawal or the exclusion thereof; (ii) the recognition and application or non-recognition and non-application of the Legal Guarantee of Conformity and undertakes to indemnify and hold AURUX harmless from any damage that may arise in relation to the violation of the Applicable Legislation and/or the Marketplace T&Cs and/or the Legal Documentation and/or the Purchase Agreement regarding the Right of Withdrawal and/or delivery and/or the Legal Guarantee of Conformity.

C.2.11     The Seller also undertakes not to redirect Customers and/or Buyers to its sales channels and not to redirect transactions with Customers and/or Buyers outside the Platform, committing itself, as far as possible and permitted by the Applicable Regulations, to communicate with Customers and Buyers through the appropriate messaging system set up by the Platform.

C.3      AURUX Activity

C.3.1        AURUX, in its capacity as technical and operational manager of the Platform and the Site, will do everything in its power to ensure that the Products are promptly included in the Catalogue.

C.3.2        AURUX reserves the right, in any case, to: (i) prevent the Seller from including in the Catalogue or removing from the Catalogue, if already included, Products included in the List of Prohibited Products or not compliant with the Applicable Legislation or with the provisions of the Agreement and/or Legal Documentation and/or Mandatory Information and/or the Purchase Agreement; (ii) suspend the marketing of the Products, when it does not comply with the provisions of the Agreement; (iii) take any action that is reasonably necessary or appropriate to prevent the marketing of Products that do not comply with Applicable Law or are included in the Prohibited Products List.

C.3.3        AURUX and the Seller, to the extent of their competence, undertake to promptly take care of the processing and management of orders and returns.

C.4      Conclusion of Purchase Contracts between the Seller and the Buyer

C.4.1        The Purchase Agreement is concluded directly between the Seller and the Buyer. The Seller, therefore, is and remains the sole and exclusive responsible for the conclusion and execution of the Purchase Contract, AURUX remaining extraneous and exonerated from any liability arising from the conclusion, termination and/or execution or non-execution of the Purchase Contract and committing the Seller, as of now, to hold it harmless and unharmed from any liability,  of any kind, arising from or in any way connected to the conclusion, termination, non-conclusion and/or execution and/or non-execution of the Purchase Contract.

C.5      Cancellation/Cancellation of Purchase Orders

C.5.1        The Seller undertakes not to cancel and/or cancel Purchase orders, except when permitted by the Applicable Regulations and/or the Marketplace T&Cs and/or the Agreement.

C.6      Delivery of Sold Products

C.6.1        For the purposes of this Agreement and unless otherwise indicated, the term of delivery of the Product to the Buyer by the Seller starts from the sending of the Purchase order. The delivery of the Product to the Buyer shall be deemed to have been completed when the Buyer, or a third party designated by the Buyer and other than the carrier in charge of delivering the Product, acquires physical possession of the Product.

C.6.2        In any case, the Seller declares and guarantees that it always and at all times has an availability of the Products that allows it to be delivered to the Buyer within the terms indicated in the Marketplace T&Cs. The Seller undertakes to indemnify and hold AURUX harmless from any damage, including any sanctions from the competent authorities, that may result from the unavailability of the Products Sold and/or the delayed or non-delivery of the same.

6. 6.3 In the Membership Proposal, AURUX and the Seller decide whether the freight forwarder will be commissioned by AURUX or by the Seller. In any case, AURUX shall not be liable to the Seller for any hypothesis of breach of contract by the forwarder appointed by AURUX or for damages that the Seller may suffer as a result of the shipper’s breach of contract. The Seller, therefore, undertakes to take legal action against the freight forwarder in the event of contractual breaches by the latter, committing itself to indemnify and hold AURUX harmless in this regard.

C.7      Right of Withdrawal – Legal Guarantee of Conformity

C.7.1        The Seller is responsible for the recognition and enforcement of the Right of Withdrawal and the Legal Guarantee of Conformity in relation to the Products Sold. The Buyer can and must therefore turn to the Seller to exercise these rights, to which AURUX is completely extraneous. AURUX will promptly forward to the Seller any requests to exercise the Right of Withdrawal and/or the Legal Guarantee of Conformity that are mistakenly received.

C.7.2        The Seller undertakes to promptly notify AURUX of the requests, acknowledgment and application of the exercise of the Right of Withdrawal and/or the Legal Guarantee of Conformity. The Seller therefore undertakes to indemnify AURUX and hold AURUX harmless from any damage that may arise in the event of a violation by the Seller of the Applicable Legislation and/or the Agreement on the Right of Withdrawal and/or the Legal Guarantee of Conformity.

C.7.3. The Seller undertakes to comply with the return policy as published in the General Terms and Conditions of Sale of the Site.

C.8      Handling complaints and disputes between the Seller and the Buyer

C.8.1        The Seller is solely and exclusively responsible for any disputes, claims, demands, controversies, actions, claims, requests for reimbursement and/or compensation – including damages, of any kind and nature – that may be submitted by Customers and/or Buyers, by other Sellers and/or by any other third party (each individually and all jointly, the “Disputes“), as well as for any damage and/or prejudice that Customers, Buyers, other Sellers and/or any other third party may suffer (“Ravages“), depending on:

(i)   non-compliance with the Applicable Regulations, inaccuracies, errors, anomalies and/or omissions, of any nature, regarding the information on the Seller, the Mandatory Information and/or any other information provided by the Seller on the Platform, on the Marketplace, in the Catalog, as well as in any part of the Site, including the Legal Documentation and the Purchase Agreement;

(ii) Other Errors;

(iii) incorrect, incomplete or misleading content of the information on the Seller, the Mandatory Information and any other information entered by the Seller and/or provided by the Seller for inclusion on the Platform, the Marketplace, the Catalog, as well as in any part of the Site, including the Legal Documentation and the Purchase Agreement;

(iv) non-compliance with the Applicable Regulations of the Products and/or Mandatory Information and/or their erroneous, incomplete, misleading and/or non-legitimate publication on the Platform, on the Marketplace, in the Catalog, as well as in any part of the Site;

(v) non-fulfilment, erroneous, delayed or incomplete conclusion and performance of the Purchase Agreement or of one or more obligations arising from the Agreement, the Marketplace T&Cs and/or the Purchase Agreement.

C.8.2        Given that AURUX is not party to the Purchase Agreement, in the event of a Dispute, the Seller hereby releases AURUX (as well as its officers, legal representatives, directors, employees and/or agents) from any liability related to such Disputes and undertakes to hold AURUX harmless and indemnified from any liability, claim for reimbursement and/or compensation, arising from or in any way connected with the Disputes or Damages suffered by the Customers,  by Buyers, other Sellers and/or any other third party.

C.9      Cases of withdrawal from or termination of the Purchase Agreement; exchange or return; repayment

C.9.1        Without prejudice to the provisions of the foregoing articles, the Seller undertakes to:

(i)   manage Buyers’ requests relating to: withdrawal from the Purchase Contract; termination of the Purchase Agreement; exchange or return and/or related refunds, in accordance with the Applicable Regulations, the Agreement, the Legal Documentation, the Purchase Agreement and any Policies that AURUX should notify the Seller in this matter;

(ii)  notify AURUX of refund requests and follow any instructions provided by AURUX from time to time;

(iii) calculate the amount of refunds due, for any reason, by the Seller to the Buyer, in accordance with the provisions of the Applicable Regulations and in accordance with the Agreement, the Legal Documentation, the Purchase Agreement and any Policies by AURUX. Notify AURUX of the amount of refunds due;

(iv) make refunds, for any reason whatsoever, due by the Seller to the Buyer, in accordance with the Applicable Regulations and in accordance with the Agreement, the Legal Documentation, the Purchase Agreement and any Policies of AURUX;

(v)  AURUX may be required to refund the AURUX Commission, received by you, to the Buyer as a result of the refund request. The Seller agrees to pay AURUX the AURUX Fees for the purchases for which reimbursement has been requested, for whatever reason, if AURUX has previously reimbursed the Buyer for the AURUX Fees previously collected.

D.10 PRODUCTION AND TECHNICAL DISCREPANCIES. LIMITATION OF LIABILITY AND TOLERANCES

10.1 All Products are depicted and made visible on the website https://aurux.shop/in a way that corresponds as closely as possible to the actual characteristics.

10.2 At the current state of the art, however, AURUX and the Seller cannot guarantee the perfect correspondence between the actual Product and the image and colors of the same as they may appear on the Buyer/Customer’s monitor; therefore, AURUX and the Seller expressly reserve an acceptable margin of tolerance in the possibility that the Product may have differences in material characteristics, colors, sizes and the like.

D.11 LIMITATIONS OF LIABILITY

11.1 The type of products on  the https://aurux.shop/ website and  their availability may change at any time and the Client, by accepting the General Terms and Conditions of Sale, accepts that this does not entail any liability on the part of AURUX and the Seller towards the same for any variation in availability, whether partial or total.

11.2 In the event of unavailability of a Product indicated as available at the time the Purchase Order is sent by the Client, the Seller shall promptly inform the Client via the Platform or by e-mail that the product is not available and, in the event that the Client does not accept the replacement of the Product with another available product of similar characteristics and/or value,  the Buyer will be refunded the Total Purchase Price. In any case, AURUX shall not be liable for the unavailability of the Products.