For clarity and comprehension, we have defined certain words used in these Terms of Service. Additional definitions might be included elsewhere in the Terms of Service.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. For the purpose of this Agreement, an entity is considered as controlling another when having, directly or indirectly, the majority of the voting rights of that other entity and/or when able to determine, by the voting rights it has, the decisions of that entity.
- “Brand features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- “Buyers” means any entity which completed our enrolment process, and which uses the Services to buy goods to a Seller.
- “Indemnified liabilities” means (i) any settlement amounts approved by the indemnifying party, (ii) any damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction and (iii) any attorney fees incurred by the indemnified party to get indemnified if not included in the costs awarded by the competent court of the competent jurisdiction.
- “Intellectual property rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
- “Legal process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- “Seller” means any entity which completed our enrolment process, and which uses the Services to sell its goods to a Buyer.
- “Services” means the matchmaking service offered and handled by Marketparts through its website, available on marketparts.com, thanks to which (i) the Sellers can publish offers of automotive spare parts and (ii) the Buyers can have access to such offers and buy such automotive spare parts directly from the Sellers.
- “Third-party legal proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
Scope of the Services
When offering the Services, Marketparts acts as an intermediary in the name and on behalf of both the Seller and the Buyer.
The Services only consist in a matchmaking service. Therefore, Marketparts does not control neither the selling and buying terms and conditions of respectively the Seller and the Buyer nor their payment and factoring processes.
Enrolment to the Services
To begin the enrolment process, you must become a registered user on marketparts.com and request the activation of the Services. You may choose among different categories of subscriptions to the Services. By requesting the activation of or using the Services, you confirm that you chose the Services based on your own due diligence and consideration. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable law. As part of the application, you must provide us with your name, email address, phone number, country and job title, and the legal name of your organisation. In order to fulfil our legal, regulatory or contractual obligations, we may also have to ask you, at any time, to provide information allowing us to confirm your identity and/or assess your creditworthiness. Any refusal from you could be considered as a material breach of the Agreement and would allow us to suspend performance or terminate the Agreement, in accordance with section “Termination of the Agreement”.
Modifications of the Services
We may make changes to the Services from time to time. In case of a material change to the Services, we will inform you by sending an email to the email address you provided upon enrolment to the Services.
Discontinuance of the Services
At our sole discretion, we may discontinue the Services for any technical or legal reason at any time without liability to you. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
Access to, and use of, the Services is contingent upon payment of subscription fees. The amount of such fees will depend on the category of subscription you choose during the enrolment process. Subscription fees will be invoiced in advance according to the schedule specified in your Specific Terms of Service. Subscription fees are not refundable unless otherwise indicated in your Specific Terms of Service or these Terms of Service.
Delinquent fees may bear interest at the rate of one-and-one-half percent (1.5 %) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Marketparts in collecting such delinquent amounts, except where such delinquent amounts are due to our billing inaccuracies.
Any invoice disputes must be submitted before the invoice due date. If both parties determine that certain billing inaccuracies are attributable to Marketparts, we will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, we will apply the credit memo amount to the disputed invoice and you will be responsible for paying the resulting net balance due on that invoice.
You are responsible for any taxes, and you will pay us for the Services without any reduction for taxes. If we are obligated to collect or remit taxes imposed on you, the taxes will be invoiced to you, unless you provide us with a timely and valid tax exemption certificate (or other documentation as required for the exemption) authorised by the appropriate taxing authority. In some jurisdictions, the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale.
Suspension of the Agreement
Suspension for violation of the Agreement
If you do not comply with the Agreement (or if we have reasonable grounds to suspect or are investigating suspected non-compliance), we may suspend your use of the Services or take any other steps we consider appropriate. The duration of any suspension for violation will be until you have cured the breach that caused the suspension.
Suspension to comply with applicable laws
At our sole discretion, we may suspend the provision of the Services at any time if required to comply with any applicable law. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
During the course of your use of the Services, each party may receive information relating to the other party that is marked as confidential or would normally be considered confidential information under the circumstances (hereinafter “Confidential Information”).
Unless otherwise indicated in this section, the recipient will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, or professional advisors (hereinafter the “Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfil obligations under the Agreement, while using reasonable care. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
Disclosure of Confidential Information
The recipient may disclose the discloser’s Confidential Information:
- In accordance with a legal process; or
- With the discloser’s written consent.
Before the recipient discloses the discloser’s Confidential Information in accordance with a legal process, the recipient will use commercially reasonable efforts to promptly notify the discloser (for example, we will inform you by sending an email to the email address you provided upon enrolment to the Services). The recipient does not need to provide notice before disclosure if the recipient is informed that:
- It is legally prohibited from giving notice; or
- The legal process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
The recipient will comply with the other party’s reasonable requests opposing disclosure of its Confidential Information.
Intellectual property rights & brand features
Intellectual property rights
Except as expressly stated, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in your data and we own all intellectual property rights in the Services.
Display of brand features
We may display only those brand features of yours authorised by you (such authorisation is provided by you uploading your brand features into the Services) within designated areas of the webpages displaying the Services. We may also display our brand features on the webpages displaying the Services to indicate that the Services are provided by Marketparts. Neither party may display or use the other party’s brand features beyond what is allowed in the Agreement without the other party’s prior written consent.
Brand features limitation
Any use of a party’s brand features will inure to the benefit of the party holding intellectual property rights in those brand features. A party may revoke the other party’s right to use its brand features under the Agreement with written notice to the other and a reasonable period to stop the use.
In connection with your use of the Services:
- You may state publicly that you are a Marketparts customer; and
- We may orally state that you are a Marketparts customer and we may include your name or brand features in a list of Marketparts customers in our online or offline promotional materials. Neither party needs approval if it is using the other party’s name or brand features in a manner that is substantially similar to a previously approved manner.
Obligations of the Seller
The Seller agrees to use the Services exclusively for the sale of automotive spare parts. In this respect, the Seller agrees not to publish on our website any advertisements for selling other goods than automotive spare parts.
Using the Services for a different end would be considered as a material breach of the Agreement and would allow us to suspend performance or terminate the Agreement, in accordance with section “Termination of the Agreement”.
The Seller is personally and solely responsible for the content appearing in any of its offers as well as for the goods sold following such offer. In this respect, the Seller is responsible, in particular, for the delivery, conformity, authenticity and warranty of such goods as well as the related customer and after sales services.
Term of the Agreement
The term of the Agreement depends on the type of plan you subscribe to.
A short-term plan (less than twelve months) remains in effect for a set period of time, defined in your Specific Terms of Service. You can subscribe to the lowest period of a short-term plan (less than two months) only if you were not a Marketparts client in the twelve (12) months preceding the activation date of your plan.
A short-term plan is not subject to auto-renewal.
Any plan subscribed for twelve months or more is subject to auto-renewal.
An auto-renewal plan remains in effect for the initial term specified in your Specific Terms of Service. At the end of the initial term, the Agreement will automatically renew for consecutive renewal terms as specified in your Specific Terms of Service, and subscription fees will be due.
You can unsubscribe at any time by providing us with written notice of your decision not to renew at least ninety (90) days prior to the termination date.
We may revise our rates at any time. In such a case, we will provide you written notice (which may be by email) at least one hundred and twenty (120) days before the revised rates apply.
Termination of the Agreement
Termination for Cause
Either party may suspend performance or terminate the Agreement if:
- The other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice;
- The other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or
- The other party is in material breach of the Agreement more than two times notwithstanding any cure of such breaches.
Effects of Termination
If the Agreement terminates or expires, then:
- The rights granted by one party to the other will cease immediately (except as stated otherwise in these Terms of Service);
- We will provide you with access to, or the ability to export, your data for a commercially reasonable period of time after the effective date of termination or expiry of the Agreement;
- All fees owed by you to us are immediately due upon receipt of the final invoice;
- We will delete your data in accordance with the Privacy statement; and
- Upon request, each party will promptly use reasonable efforts to return or destroy any remaining Confidential Information of the other party.
Representations and Liability
Each party represents that:
- It has full power and authority to enter into the Agreement, on its own behalf or on the behalf of the business it represents; and
- It will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION “EXCEPTIONS TO LIMITATIONS”:
- NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT FOR: (i) THE OTHER PARTY’S LOST REVENUES, PROFITS OR BUSINESS; (ii) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (iii) EXEMPLARY OR PUNITIVE DAMAGES;
- EACH PARTY'S TOTAL LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT IS LIMITED TO THE AMOUNT PAID BY YOU DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY;
- NEITHER MARKETPARTS NOR ITS SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE FOR THE GOODS APPEARING ON THE WEBSITE THAT YOU ADVERTISE, OFFER OR PURCHASE, FOR THE CONTENT APPEARING IN ANY OF THE ADVERTISEMENTS OR OFFERS, OR FROM ANY RELIANCE PLACED ON THE CONTENT OF ANY ADVERTISEMENT BY ANY USER OF OUR WEBSITE.
Exceptions to limitations
NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR:
- DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS;
- FRAUD OR FRAUDULENT MISREPRESENTATION;
- INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS;
- PAYMENT OBLIGATIONS;
- OBLIGATIONS UNDER SECTION “DEFENSE AND INDEMNIFICATION”; OR
- MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
- NEITHER PARTY NOR ITS SERVICE PROVIDERS MAKES ANY OTHER WARRANTY AND THERE ARE NO CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT;
- NEITHER MARKETPARTS NOR ITS SERVICE PROVIDERS WARRANTS THAT OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED;
- MARKETPARTS PROVIDES THE SERVICES ON AN "AS IS" BASIS ONLY AND MAKES NO REPRESENTATIONS ABOUT ANY GOOD, CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. WE DISCLAIM ANY AND ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH GOOD, CONTENT OR INFORMATION BY ANY USER OF OUR SERVICE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF THEM.
Some jurisdictions prohibit the disclaimer of certain warranties or conditions or the limitation of certain types of liability. In such circumstances, to the extent that such prohibitions prohibit any exclusions and limitations in these Terms of Service, such exclusions and limitations will not apply to you strictly to the extent necessary to make these Terms of Service consistent with such prohibitions.
Defence and indemnification
Our indemnification obligations
We will defend and indemnify you against Indemnified liabilities in any third-party legal proceeding to the extent arising from any allegation according to which your use in accordance with the Agreement, of the technology used to provide the Services (excluding any open source software) or of our brand features infringes the third party's intellectual property rights.
Your indemnification obligations
To the maximum extent permitted by applicable law, you agree to defend (at the indemnified party’s option), indemnify, and hold Marketparts and its insurers harmless from and against any action, proceedings, claims, causes of action, demand, debts, losses, damages, charges and costs, including reasonable legal costs and/or any amount paid to settle any action or to satisfy a judgement and expenses of any kind and character whatsoever incurred by us relating to or arising from:
- Any of your data or brand features; or
- Your use, in violation of applicable law, of any personal data you may have to process.
To the maximum extent permitted by applicable law, the Seller agrees to defend (at the indemnified party’s option), indemnify, and hold Marketparts and its insurers harmless from and against any action, proceedings, claims, causes of action, demand, debts, losses, damages, charges and costs, including reasonable legal costs and/or any amount paid to settle any action or to satisfy a judgement and expenses of any kind and character whatsoever incurred by us relating to or arising from any allegation or claim from any individual or entity, including the Buyer, related to a good sold by the Seller using the Services.
Marketparts has the right at any time to forego the indemnification and assume the defence of any claim. Notwithstanding the foregoing, it is not the intent of Marketparts to affect its rights or those of its insurers to assume the defence or settlement of any claim against Marketparts for which insurance coverage is sought under any applicable insurance policy.
This section will not apply to the extent the underlying allegation arises from:
- Modifications to the indemnifying party’s technology or brand features by anyone other than the indemnifying party; or
- Combination of the indemnifying party’s technology or brand features with materials not provided by the indemnifying party.
Obligations under this section are conditioned on the following:
- The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded third-party legal proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and third-party legal proceeding. If breach of this notification obligation prejudices the defence of the third-party legal proceeding, the indemnifying party’s obligations under this section will be reduced in proportion to the prejudice; and
- The indemnified party tenders sole control of the indemnified portion of the third-party legal proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
If Marketparts reasonably believes the Services might infringe a third party’s intellectual property rights, then we may, at our sole option and expense:
- Procure the right for you to continue using the Services;
- Modify the Services to make them non-infringing without materially reducing their functionality; or
- Replace the Services with a non-infringing, functionally equivalent alternative.
If we do not believe the remedies in this section are commercially reasonable, then we may suspend or terminate your use of the impacted Services. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
Sole rights and obligations
Without affecting either party’s termination rights, this section states the parties’ only rights and obligations under the Agreement for any third party's intellectual property rights allegations and third-party legal proceedings.
Other legal provisions
The Terms of Service are current as of 24th October, 2019.
We reserve the right to make commercially reasonable changes to the Terms of Service from time to time. If we make a material change to the Terms of Service, we will inform you by sending an email to the email address you provided upon enrolment to the Services. If the change has a material adverse impact on you and the change is not a result of Marketparts complying with a court order or applicable law, you may notify us within thirty (30) days after being informed of the change that you do not agree with the change. If you notify us as required, then you will remain governed by the terms in effect immediately before the change until the end of the then-current term, unless the modification to the Terms of Service is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated Terms of Service.
When you use the Services, we need to collect, use and disclose your personal information (whether previously collected or to be collected), in accordance with and for the purposes identified in the Privacy statement, as it may be updated from time to time.
In these Terms of Service:
- the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms of Service;
- the word "including", the word "includes" and the phrase "such as", when following a general statement or term (whether or not non-limiting language such as "without limitation" or "but not limited to" or other words of similar import are used with reference thereto), are not to be construed as limiting, and the word "or" between two or more listed matters does not imply an exclusive relationship between the matters being connected; and
- all references to websites addresses or URLs will also include any successor or replacement websites containing substantially similar information as the referenced websites.
No implied waiver
If you do not comply with this Agreement, and we do not take action immediately, this does not mean we are giving up any rights that we may have (such as taking action in the future). No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of that right or remedy or the exercise of another right or remedy.
Unless specified otherwise herein, any notice, consent, waiver, approval, authorisation or other communication to be delivered in connection with the Agreement:
- by us to you will be deemed to have been effectively and validly given if sent to the email address you provided upon enrolment to the Services;
- by you to us will be deemed to have been effectively and validly given only if in writing and delivered or submitted via the email address firstname.lastname@example.org.
Neither party may assign or transfer any part of the Agreement without the written consent of the other party, except to an affiliate, but only if:
- The assignee agrees in writing to be bound by the terms of the Agreement; and
- The assigning party remains liable for obligations incurred under the Agreement before the assignment.
Any other attempt to transfer or assign is void.
You agree that no joint venture, partnership, fiduciary, employment or agency relationship exists between you and us because of these Terms of Service.
Change of control
Upon a change of control of your entity (for example, through a stock purchase or sale, merger, or other form of corporate transaction):
- You will provide us with a written notice within thirty (30) days after the change of control; and
- We may immediately terminate the Agreement any time between the change of control and thirty (30) days after we receive the above-mentioned written notice.
No third-party beneficiaries
There are no third-party beneficiaries to the Agreement.
Nothing in the Agreement will limit either party’s ability to seek equitable relief.
Governing law and Jurisdiction
The Agreement is governed by French law. Any dispute arising out of or relating to the agreement shall be subject to the exclusive jurisdiction of the Courts of France.
Upon expiration or termination of the Agreement and for the period necessary to execute the obligations arising from the Agreement, the following sections will survive such expiration or termination: section “Definitions”, section “Fees”, section “Confidentiality” sub-section “Intellectual property rights” of section “Intellectual property rights & brand features”, sub-section “Effects of termination” of section “Termination of the Agreement”, section “Defence and indemnity, section “Limitation of liability” and section “Other legal provisions”.
Neither party will be responsible for a failure to fulfil its obligations under the Agreement or for delay in doing so if such failure or delay is due to circumstances unpredictable and beyond its reasonable control, in accordance with applicable law, such as acts of nature, acts of government, war, riots, strikes and accidents in transportation, but excluding a lack of financing, cash or credit.
The parties agree to assume the potential consequences of any change of circumstances, unforeseeable at the conclusion of the contract. Neither party will be forced to renegotiate the terms of this contract.
The parties have requested and agree that these Terms of Service and all documents relating thereto be drawn up in English. In the event of any discrepancies between these Terms of Service and any translation of these Terms of Service, this English version shall prevail.
In the event that any clause or any part of any clause in this Agreement is declared invalid or unenforceable, by the judgment or decree by consent or otherwise of a court of competent jurisdiction from whose decision no appeal is or can be taken, all other provisions contained in this Agreement shall remain in full force and effect and shall not be affected by such finding for the term of this Agreement.