Beyond Merchant Terms of Service

Last modified April 22nd, 2016

These are terms of service of (“Beyond”) provided by Operation Apps GmbH for its Shopify merchants (“Agreement”), meaning the legal contract between you or your business entity and Beyond when you use Beyond mobile application (“App”), all software integration between You and Beyond for purposes of enabling purchasing facilitated by Beyond and all services, domains and content provided by Beyond (the “Services”). YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES OFFERED BY BEYOND. If you have any questions, please email us at support@beyond-shopping.com

By using the Services, including but not limited to visiting or browsing the App or displaying or selling products on Beyond you (the “merchant” or “you”) agree to be bound by this Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. This Agreement applies to all merchants of the Services.

  1. BEYOND is a social Marketplace

Beyond is as a marketplace to allow merchants who comply with Beyond’s policies to offer and sell certain goods. Beyond facilitates transactions between buyers and sellers. As a result, Beyond does not necessarily have control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of merchants to sell items or the ability of buyers to pay for items. Beyond cannot ensure that a buyer or merchant will actually complete a transaction.

Consequently, Beyond does not transfer legal ownership of items from the merchant to the buyer.

Beyond cannot guarantee the true identity, age, and nationality of a merchant or buyer.

You agree that Beyond is a marketplace and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other merchants, or outside parties on Beyond. You use the Beyond services at your own risk.

  1. Membership Eligibility

Age: Beyond’s merchant services are available only to, and may only be used by, individuals who are of the age of majority in their applicable state (either 18 or 21 years and older) or business entities who can form legally binding contracts under applicable law. You represent and warrant that, if applicable, you are of the appropriate age and that all registration information you submit is accurate and truthful. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement. Beyond may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.

Individuals under the age of majority must at all times use Beyond’s services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the merchant and is responsible for any and all activities.

Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. As set forth further herein, you are responsible for all applicable taxes. In addition, you must abide by Beyond’s policies as stated in the Agreement and the published Beyond website policies, as well as all other operating rules, policies and procedures that may be published from time to time in the App by Beyond, each of which is incorporated herein by reference and each of which may be updated by Beyond from time to time.

Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify Beyond of any unauthorized use of your password or any breach of security. You also agree that Beyond cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than Beyond without Beyond’s express written permission.

Account Information: You must keep your account information up to date and accurate at all times, including a valid email address. To sell items on Beyond you must provide and maintain valid payment information such as a valid PayPal account.

Account Transfer: You may not transfer or sell your Beyond merchant account and username to another party.

Right to Refuse Service: Beyond reserves the right, at Beyond’s sole discretion, to cancel unconfirmed or inactive accounts. Beyond reserves the right to refuse service to anyone, for any reason, at any time.

  1. Fees and Billing

Joining and setting up a shop on Beyond is free. Beyond does not charge fees for listing an item for sale.
Beyond will take a commission (the “Commission”) of specific commission rate (the “Commission rate”) from every order processed, VAT may apply. Standard Commission rate is 10%. However Beyond reserves right to offer promotional Commission rate to selected merchants joining within specific time periods. Promotional Commission rate is 5%. Promotional time periods are and will be listed in section 26 of this document and in any Beyond presentation channels (e.g. Beyond web site).
The commission is calculated from a full price of order (incl. VAT). The Commission is subject to change by Beyond with 30 days notice to you or as a set amount agreed to in a cost contract with Beyond. You will have the right to terminate your merchant account with Beyond upon such notice of a percentage increase if you do not agree to the new Commission. (See termination section below.) Beyond may, at Beyond’s sole discretion, change some or all of Beyond’s Services at any time. In the event Beyond introduces a new Service, the fees for that Service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in Euro (EUR).

In certain situations, including but not limited to a void or invalid transaction, Beyond may issue a credit for the applicable fees to a merchant’s billing statement.

You are responsible for paying all fees and applicable taxes associated with using and selling on Beyond.

Price: Merchants are required to list prices, applicable taxes and shipping costs for the products they sell through the Beyond Marketplace. Beyond’s Commission shall be based on the prices and shipping costs that merchant lists for their products. Beyond reserves the right to adjust the prices or shipping costs displayed to users to optimise sales for our merchants. This does not affect the amount or percentage Beyond has agreed to pay to the merchant for their orders.
Beyond will payout merchant the remainder of all sums less its Commission, and less any applicable taxes that are required by law to be withheld by Beyond.

Beyond uses Stripe, Inc. (Stripe) for payment processing. In order for you to use Stripe’s payment processing services, you must enter into the Merchant Services Agreement (MSA) with Stripe and its sponsoring bank. By accepting this Agreement, you agree: (a) that you have downloaded or printed the MSA, and (b) that you have reviewed and agree to the MSA. Please note that Beyond is not a party to the MSA and that you, Stripe and Stripe’s sponsoring bank and the three parties to the MSA and that Beyond has no obligations or liability to you under the MSA. If you have questions regarding the MSA, please contact Stripe.

A merchant’s shipped transactions may be eligible for payment within ten (10) days of their shipment dates. Transactions that cannot be confirmed as shipped may be ineligible for payment.
This payment will be a net amount: the merchant’s prices (product and shipping) less our Commission and any applicable taxes.

  1. Listing and Selling

Listing Description: By listing an item on the Site or App you warrant that you and all aspects of the item comply with Beyond’s published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your Beyond shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. If the “in stock” quantity is more than one, all items in that listing must be identical.

Shop Policies: All merchants are urged to outline shop policies for their Beyond shop. These policies may include, for example, shipping, returns, payment and selling policies. Merchants must create reasonable policies in good faith and must abide by such policies. All shop policies must comply with Beyond’s site-wide policies. Merchants are responsible for enforcing their own reasonable shop policies. Beyond reserves the right to request that a merchant modify a shop policy.

Binding Sale: All sales are binding. The merchant is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the merchant has a family emergency or (b) the merchant is out of town. In the case of such a circumstance, merchant should communicate with the buyer in a reasonable and timely manner regarding the delay and provide an expected date for shipment.

Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Merchant may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Merchant may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item’s price after a sale for the purpose of avoiding Beyond transaction fees,
misrepresent the item’s location, or use another merchant’s account without Beyond’s prior permission.

  1. Prohibited, Questionable and Infringing Items and Activities

You are solely responsible for your conduct and activities on and regarding to Beyond and any and all data, text, information, usernames, trademarks, logos, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that you submit, post and display on Beyond

Restricted Activities: Your Content and your use of Beyond shall not:

– Be false, inaccurate or misleading
– Be fraudulent or involve the sale of illegal, counterfeit or stolen items
– Infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy
– Violate this Agreement, Beyond’s Merchant Policy, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
– Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall
– Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including Beyond staff or other merchants), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
-Be obscene or contain pornography, nudity, or adult material
-Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
-Host images not part of a listing
-Modify, adapt or hack Beyond or modify another website so as to falsely imply that it is associated with Beyond
-Appear to create liability for Beyond or cause Beyond to lose (in whole or in part) the services of Beyond’s ISPs or other suppliers
– Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, Beyond’s Merchant Policy, or other policy documents as posted on Beyond.
Solicit business for, direct sales to, or promote any website, service, or entity outside of Beyond
Furthermore, you may not list any item on Beyond (or consummate any transaction that was initiated using Beyond’s service) that could cause Beyond to violate any applicable law, statute, ordinance or regulation, or that violates Beyond’s Terms of Service.

  1. Content

License: Beyond does not claim ownership rights in your Content. You grant Beyond a license solely to enable Beyond to use any information or Content you supply Beyond with, so that Beyond is not violating any rights you might have in that Content. You grant Beyond a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the Content, in any media now known or not currently known, with respect to your Content. You agree to allow Beyond to store or re-format your Content on Beyond and display your Content on Beyond in any way as Beyond chooses. Beyond will only use personal information in accordance with Beyond’s Privacy Policy.

As part of a transaction, you may obtain personal information, including name, shipping information and email, from a Beyond user. Without obtaining prior permission from the user, this personal information shall only be used for that transaction or for Beyond-related communications. Beyond has not granted you a license to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the user, you are not licensed to add any Beyond user to your email or physical mail list or to share any user information with any third parties or otherwise disclose or make public any user information or email. For more information, see Beyond’s Privacy Policy.

Re-Posting Content: By posting Content on Beyond it is possible for an outside website or a third party to re-post that Content. You agree to hold Beyond harmless for any dispute concerning this use.

  1. Resolution of Disputes and Release

In the event a dispute arises between you and Beyond or you are required to notify Beyond of a dispute, please contact Beyond in a timely and reasonable manner at the following email: support@beyond-shopping.com

Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration, using the English language. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section.

Should you have a dispute with one or more users, or an outside party, you release Beyond (and Beyond’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Beyond encourages merchants to report merchant-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.

Beyond, for the benefit of merchants, may try to help merchants resolve disputes. Beyond does so in Beyond’s sole discretion, and Beyond has no obligation to resolve disputes between merchants and users or between merchants and outside parties. To the extent that Beyond attempts to resolve a dispute, Beyond will do so in good faith based solely on Beyond’s policies. Beyond will not make judgments regarding legal issues or claims.

Beyond will comply with all judgments or court orders regarding merchant and user disputes.

  1. Beyond’s Intellectual Property

Beyond, and all other Beyond graphics, logos, designs, page headers, button icons, scripts, web pages, and service names are registered trademarks, trade dress or copyright of Operaton Apps, GmbH, in Germanz and/or other countries. Beyond’s copyrights, trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service without Beyond’s prior written approval.

  1. Access and Interference

Much of the information on Beyond is updated on a real-time basis and is proprietary or is licensed to Beyond by Beyond’s merchants or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access Beyond for any purpose whatsoever, except to the extent expressly permitted by and in compliance with Beyond’s API Terms of Use or otherwise without Beyond’s prior express written permission. Additionally, you agree that you will not:

Take any action that imposes, or may impose, in Beyond’s sole discretion, an unreasonable or disproportionately large load on Beyond’s infrastructure
Copy, reproduce, modify, create derivative works from, distribute or publicly display any other merchant Content (except for your Content) from the App without the prior express written permission of Beyond and the appropriate third party, as applicable
Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the App

  1. Breach

Without limiting any other remedies, Beyond may, without notice, and without refunding any fees, delay or immediately remove Content, warn Beyond’s community of a merchant’s actions, issue a warning to a merchant, temporarily suspend a merchant, temporarily or indefinitely suspend a merchant’s account privileges, terminate a merchant’s account, prohibit access to the Services, and take technical and legal steps to keep a merchant off the Services and refuse to provide services to a merchant if Beyond, in its sole discretion, has reason to believe that any of the following apply:

a merchant has breached this Agreement, the Privacy Policy, the Merchant Policy, or other policy documents and community guidelines incorporated herein; Beyond is unable to verify or authenticate any of your personal information or Content; or Beyond believes that a merchant is acting inconsistently with the letter or spirit of Beyond’s policies, has engaged in improper or fraudulent activity in connection with Beyond or the actions may cause legal liability or financial loss to Beyond’s merchants or to Beyond.

  1. Privacy

Except as provided in Beyond’s Privacy Policy, Beyond will not sell or disclose your personal information (as defined in the Privacy Policy) to third parties without your explicit consent. Beyond stores and processes Content on computers located in the United States and in the European Union that are protected by physical as well as technological security.

  1. No Warranty

BEYOND, BEYOND’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND BEYOND’S SUPPLIERS PROVIDE BEYOND’S WEB SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. BEYOND, BEYOND’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND BEYOND’S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM BEYOND SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

  1. Limitation of Liability

IN NO EVENT SHALL BEYOND, AND (AS APPLICABLE) BEYOND’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR BEYOND’S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, THE APP, BEYOND’S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

BEYOND’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF BEYOND’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO BEYOND IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

  1. Indemnity

YOU AGREE TO INDEMNIFY AND HOLD BEYOND AND (AS APPLICABLE) BEYOND’S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY INFRINGMENT.

  1. Termination

Either party may terminate this Agreement for any reason without advanced notice. In order for merchant to terminate this Agreement, merchant must uninstall the Beyond Shopify application. Upon termination, the parties agree to use reasonable efforts to reconcile any amounts due either party under this Agreement, and make any final payments due under this Agreement within 30 days of termination. Beyond may, in its reasonable discretion, suspend merchant’s use of the Services at any time, if in Beyond believes in its reasonable judgment, that such suspension is necessary to protect Beyond’s business and/or customer relations.

  1. No Guarantee

Beyond does not guarantee continuous, uninterrupted access to the Services, and operation of the Services may be interfered with by numerous factors outside Beyond’s control.

  1. Legal Compliance; Taxes

You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services and, if applicable, your listing, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any sales of items you make on the Site or App.

  1. Severability

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.

  1. No Agency

You and Beyond are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

  1. Beyond Services

Beyond reserves the right to modify or terminate the Services for any reason, without notice, and at any time. You understand that Beyond may block, suspend or terminate your access to the Services, and You therefore are not relying on Beyond in any respect to maintain Your access to the Services regardless of how much time, money and resources you expend related to Your use of the Services. Beyond reserves the right to alter this Agreement or other Site or App policies at any time. Please review the policies frequently. If Beyond makes a substantial change Beyond to these Terms will notify you here, by email, by means of a notice on our home page, or other places Beyond deems appropriate.

  1. Choice of Law

This Agreement shall in all respects be interpreted and construed with and by the laws of Germany.

  1. Survival

Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 8 (Resolution of Dispute and Release), 9 (Beyond’s Intellectual Property), 10 (Access and Interference), 11 (Breach), 12 (Privacy), 13 (No Warranty), 14 (Liability Limit), 15 (Indemnity), 16 (Termination), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.

  1. Notices

Except as explicitly stated otherwise, any notices shall be given by postal mail to Operation Apps, Zirkusweg 1, 20359 Hamburg (in the case of Beyond) or, in your case, to the email address you provide to Beyond (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Beyond may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Beyond in your Merchant Account. In such case, notice shall be deemed given three days after the date of mailing.

  1. Disclosures

The Services hereunder are offered by Operation Apps, GmbH, Zirkusweg 1, 20359 Hamburg, Germany

  1. Promotional time periods

For any merchant joining Beyond within any of the prescribed time periods, the promotional 5% commission rate will apply for the first 12 months or until termination of the merchant Beyond account.

  • April 22nd, 2016 – May 31st, 2016

Contact

If you have any questions, complaints, or claims with respect to the Services, you may contact us at support@beyond-shopping.com.