Terms and Conditions

 

 

GENERAL TERMS AND CONDITIONS DEEMED TO FORM AN INTEGRAL PART OF THE FULFILLMENT SERVICES AGREEMENT

 

RECITALS

WHEREAS,SC Frisbo Efulfillment SA has developed a complex service and a fulfillment platform, which is defined as the service whereby an operator takes over the entire order fulfillment process on behalf of an online store, from warehousing, order taking, packaging and delivery, using cloud-based order management, reporting, and tracking systems;

WHEREAS, the Seller wants to convert its indirect operating costs arising from operations such as warehousing, order taking, merchandise management, invoicing, packaging, and preparation for delivery into a direct cost related to the number of fulfilled orders and the quantity of goods in stock, considering that the Seller carries out direct or online sales activities via its own platform or the platforms of other online players;

WHEREAS,in accordance with the terms and conditions set out in the fulfillment services agreement (made and entered into by and between Frisbo and the Seller), and in these general terms and conditions attached to the fulfillment services agreement, the Seller has confirmed and is willing to grant SC Frisbo Efulfillment SA the right to operate E-fulfillment services, either directly or through a third-party partner, Frisbo having the right to store the Products at premises other than those belonging to it.

 

NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the Seller and SC Frisbo Efulfillment SA, the Seller confirms that these terms and conditions fully reflect its entire will and accepts to be bound by the same in fulfilling its obligations under the fulfillment services agreement, it being understood and agreed by the parties that these general terms and conditions shall form an integral part of the fulfillment services agreement. By signing the fulfillment services agreement, the parties acknowledge their full, express and unequivocal acceptance of these general terms and conditions related to the fulfillment services agreement.

 

DEFINITIONS

Frisbo: SC Frisbo Efulfillment SA, with the registered offices at the address: Braşov county, Brasov city, 15 Noiembrie street, no. 38, ap.1, e-mail: laura.frincu@frisbo.com, registered with Oficiul Registrului Comerţului de pe lângă Tribunalul Braşov (Trade Register Office attached to Brașov County Court) under Company Registration No. J8/1447/2013, VAT number RO32302244, IBAN RO59BRDE080SV20687880800 opened with BRD Braşov, dully represented by Bogdan COLCERIU, acting in his capacity as Chairman of the Board of Directors;

Seller: The legal person or any legal entity that benefits from the fulfillment services provided by Frisbo pursuant to a fulfillment services agreement executed with Frisbo;

Agreement: The legal agreement of which these general terms and conditions are an integral part, as well as any and all annexes and addenda governing the contractual relationship between Frisbo and the Seller regarding the fulfillment services provided by Frisbo to the Seller in exchange for the Price, by granting Seller access to these services through the Frisbo software application, in accordance with the terms of the legal agreement and these General Terms and Conditions;

Products: The products marketed by the Seller through the online sales platform used by Seller;

Frisbo application: The software application using cloud-based management systems through which Frisbo grants the Seller access to the fulfillment services, which include, but are not limited to, the following operations: storage of the Products owned and sold by the Seller, management of the Products, taking orders from the online sale platform used by Seller, Product invoicing on behalf of the Seller, packaging and preparation for delivery of each order, and fulfillment of orders on behalf of the online store used by Seller. The Frisbo Application shall be deemed to include any Plugin/Module developed by Frisbo in order to connect the online stores to its services.

Client: The natural person or any legal entity that is the addressee of the order placed by the Seller in the Frisbo Application

Order: Request sent by the Seller through the Frisbo Application regarding the preparation for delivery to the Client of Seller’s Products kept in Frisbo’s warehouses.  

Storage order: Request sent by the Seller to Frisbo (via the Frisbo Application), whereby the latter is instructed to initiate the e-fulfillment services, consisting in Seller communicating to Frisbo the codes and designation of the Products subject to the storage order, the quantity, date, address and delivery schedule, as well as any other additional requests/information required by Frisbo with a view to fulfilling the purpose of the Agreement.

Art. 1. PRODUCT STORAGE. ORDERS. SELLER’S AND FRISBO’S OBLIGATIONS

1.1. Any natural or legal person or any other legal entity wishing to benefit from Frisbo’s fulfillment services may enter into a business relationship with Frisbo, after signing the fulfillment services agreement and completing the Frisbo Platform registration process. For the purpose of registration, the natural / legal person / legal entity has to create an account / request Frisbo to create an account in its name on the Frisbo Online Platform, fill in the requested information and upload the documents required for registration, upload the Product catalogue as well as their attributes (including, but not limited to, product type, size, weight etc.). The Seller represents and warrants that the information and documents made available to Frisbo during the registration process are timely, accurate and complete.

The Seller will subsequently send to Frisbo a storage order instructing it to initiate the e-fulfillment services for itself, and stating the codes and designation of the Products subject to the storage order, the quantity, date, address and delivery schedule, as well as any other additional requests/information required by Frisbo with a view to fulfilling the purpose of the Agreement (“Storage Order”).

1.2. Within 48 (forty-eight) working hours following the issuance of the Storage Order, Frisbo undertakes to confirm (either in writing via e-mail or via the Frisbo Online Platform) the Product storage and take-over order and the place (county, locality, address) where the Products will be stored. Any Storage Order that does not contain the information set out in the previous paragraph will not be confirmed within the set time limit, and may be refused or partially accepted by Frisbo. Thus the reception must be communicated and announced in advance by the Client with a minimum of 2 (two) working days.

1.3. The Seller undertakes to deliver the Products related to each and every Storage Order, within the time limit and in the quantities confirmed by Frisbo, according to the accepted Storage Order, at the storage facility communicated by Frisbo in the notice of receipt of the order or in the response automatically generated by the Frisbo online Platform.  

1.4. The Parties undertake to fulfil and understand to be responsible for the fulfilment of the following obligations regarding the storage, handling, taking over and delivery of the Products to the end customers and the processing of returns from the end customers as follows:

A. Frisbo hereby undertakes:

a) to process on behalf of the Seller Orders for its Products

b) to store Seller’s Products under the terms and conditions set forth in this Agreement

c) to process Seller’s Orders through its own cloud-based systems for order management, registration, processing, reporting and tracking.

d) to start taking orders placed by the end customer and prepare the parcels for delivery within 48 (forty-eight) working hours following takeover of Seller’s goods, the Seller understanding that such time is required for the acceptance and shelf placement of the Products. This time limit is accepted by Frisbo for orders of up to 800 products only (50 SKU maximum), provided always that the Products have, at the time of takeover, labels showing the specific codes previously communicated in the Storage Order. The parties agree that the operation whereby Frisbo cannot perform a standard takeover of Seller’s Products due to the absence of the barcodes required by the Seller (or any other type of code required by Frisbo) or in case of additional quantities sent by Frisbo shall be considered stocktaking (and therefore charged at a rate of 10 eurocents per piece of product).

e) to take the Orders and issue the invoice on behalf of the Seller (should the Seller chose so), to carry out the pick and pack operations, to issue air waybills (transport documents) and prepare the Products for the picking of the parcel / parcels by the courier service in order to have them delivered to the end customers. In order for Frisbo to perform the invoicing service on behalf of the Seller, the latter will authorize Frisbo and provide it with all the mandatory information specified in the national legislation regarding the invoicing process.

f) to allow the Seller access to its cloud-based reporting system by means of the username and password received upon conclusion of the Fulfillment Services Agreement, which shall enable the Seller to view the number of Orders and the stock. Stocks are updated every 24 hours at the minimum.

g) depending on the monthly volume of Orders taken and fulfilled by Frisbo, the latter will calculate and invoice to the Seller the price of the e-fulfillment services according to the Pricelist in Schedule 1 to the Fulfillment Services Agreement signed by the parties, of which these General Terms and Conditions form an integral part.

h) to operate during the normal working days, between 09:00 AM and 05:00 pm, Monday to Friday. Frisbo shall prepare for delivery Seller’s online orders registered on working days until 15:00 before the end of the day. This term is assumed by Frisbo only if two conditions are cumulatively fulfilled: orders must be automatically taken (plugin or API integration) from the cloud-based reporting system made available to the Seller by Frisbo and only if Frisbo ensures the transport of these Products to the final customer. Orders placed on Saturdays and Sundays, as well as on bank or public holidays, will be processed and handed over to the courier until the end of the first working day following the non-working day. These terms apply to standard online orders of up to 10 products identified with barcode labels, according to the order placed by the Seller in the Frisbo Application. For larger orders, the parties shall agree upon and set forth in the agreement the time limits for order preparation. These terms do not apply to products that are not labelled as per Seller’s order. Moreover, Frisbo will not process orders while stocktakes of Seller’s products are being performed.

Orders wrongly delivered due to Frisbo’s fault will not be considered eligible to be settled by the Seller, and Frisbo will not include them in the invoice. For orders delivered to the wrong address due to Frisbo’s fault, the return and re-shipment costs shall be borne by Frisbo.

i) to take out an insurance policy for the entire acquisition value of Seller’s Products kept in its warehouses. In this case, the “entire acquisition value” shall mean the acquisition value of the Products (the invoice shall serve as supporting document in case a compensation claim is filed for an insured event). If the value of the insurance premium is higher than 3% of the annual value of the provided services, the excess can be recharged to the Seller. In case of occurrence of an insured event, Frisbo will use the amount received as compensation to indemnify (to the extent of the value of the insurance policy) the Seller up to the amount of the incurred loss. The “amount of the incurred loss” shall mean the acquisition value (the invoice shall serve as supporting document in case a compensation claim is filed for an insured event).

j) to receive the Products (Product unloading and storage costs shall be borne by Frisbo) from the Seller, provided always that the Seller shall comply with the data contained in the acknowledged Order, the deadlines, the unloading schedules of the Frisbo warehouses, the agreed delivery addresses, the quantity, type and quality of the Products received from the Seller, the loading and palletizing structure. The costs for the transport to the place of delivery indicated by Frisbo will be borne exclusively by the Seller.

k) Frisbo hereby represents and warrants that, at any time, the stocks reported in the Frisbo Application are consistent with the physical stocks existing in its warehouses, which constitutes the book value. If, however, the Seller requests a physical stocktaking, Frisbo will perform this stocktaking on dates mutually agreed upon by the parties. The Seller understands and accepts that any physical stocktaking thus requested will be invoiced as an order, without however taking into account the weight of the products. During the stocktaking, Frisbo’s obligations related to order processing and preparation of the packages for delivery shall be suspended. Any inventory stock discrepancies attributable to Frisbo will be covered by Frisbo up to the acquisition value proven by the Seller based on the stocktaking report and the tax invoice issued by the Seller, within maximum 15 calendar days from issuance of the relevant invoice.

m) From the moment of takeover of the Products from the Seller, Frisbo shall ensure the preservation of the Products and shall take all appropriate measures to prevent their deterioration/alteration/degradation/ destruction/disappearance/loss. Furthermore, Frisbo undertakes not to dispose of / mortgage / pledge or constitute any other charge or encumber in any way the Products subject to the Agreement. Frisbo understands and agrees that by signing this Agreement it does not acquire any title or other right in respect of Seller’s Products, unless otherwise expressly stated hereunder. However, Frisbo cannot guarantee to its Sellers that the Products will not naturally altered in the warehouses, and the Seller understands, declares and guarantees Frisbo that it will not be able to claim any compensation (of any nature) for the Products that have been degraded naturally;

n) Frisbo shall promptly inform the Seller about any factual or formal disturbance from any third party regarding the Products taken over from the Seller, and shall take all necessary measures to ensure their preservation and limit losses;

 

B. The Seller hereby undertakes:

a) to deliver to Frisbo a Storage Order at least 48 hours prior to the delivery of new Product stocks (as specified in the Storage Order). In case of non-compliance with such deadline, the Seller will have to pay an additional fee of EUR 30 + VAT / order. For purposes related to Product storage and the preparation of orders for delivery to the Clients, the Seller undertakes to make available to Frisbo all materials required for the storage and preparation of the orders for delivery. Such materials shall include, without limitation (depending on the specifications requested by Frisbo), the materials, documents, photographs, information, technical characteristics and specifications of the Products, etc., required for the documentation and handling of the Products within the warehouse. The materials shall be prepared in the format specified by Frisbo for the correct and complete handling of the Products through Frisbo. Any Product delivered with the intent to be managed and handled by Frisbo, without the Seller making available the necessary material requested by Frisbo, will be accepted subject to Frisbo’s agreement.

b) to send, prior to submitting the Storage Order and whenever changes occur, the information specific to each Product/category of Products/model which Frisbo needs to know for the purposes of the work performed and the operations it needs to perform in connection with the storage and handling of the Products. Thus, the Seller will provide the necessary information regarding the storage, handling, transport using loading equipment, marketing, and maintenance; in respect of each SKU (stock keeping unit), it will communicate the volume and weight to each and every type of product for Frisbo to be able to issue the invoice and the AWBs. The Seller will make every effort to ensure the proper storage of the Products by Frisbo;

c) to transmit the Products to Frisbo observing manufacturer’s specifications valid at the time of submission of the Order, and also the security, compliance, quality and packaging requirements in accordance with the Romanian and European legislation in force. Frisbo will prepare the Products for delivery to the end Clients in the same manner they were received (to the extent that such a thing is possible taking into account the Product’s specifications and the packaging method).

d) to notify courier companies or other carriers of their obligation to load the packages to be delivered to the end clients at Frisbo’s warehouses only until 05:00 PM, in case the delivery is carried out under an agreement executed directly between the Seller and courier company or other carrier.

e) The measurement, handling, loading, shipping and transport of the Products to the place of delivery indicated by Frisbo will be performed by the Seller at its expense.

1.5. With a view to comply with the obligations stipulated in section 2.4, the Seller shall guarantee that the Products sent for storage meet the following conditions:

     The Products are delivered in packaging capable of ensuring their integrity/rigidity during transport, handling and storage;

     for each SKU (stock keeping unit), the Seller has to communicate the volume and weight of each and every product;

     The Products are delivered in packaging capable of ensuring their integrity/rigidity during transport, handling and storage (polystyrene, foil). The Products will be delivered in packaging complying with the good use and quality standards.

 

2. PRODUCT TAKEOVER AT THE STORAGE FACILITIES

2.1. The acceptance as regards quantity of the Products subject to each Order will be carried out by Frisbo representatives at the time and place of delivery specified in the acknowledged Storage Order, after verification of compliance with the requirements stated in the Order, and any quantitative discrepancies shall be notified to the Seller.

2.2.Considering that the delivered Products are accepted by Frisbo for the exclusive purpose of their storage and preparation for delivery to the end customers, the Parties agree that the acceptance as regards quality of the Products will be performed under the conditions laid down in section 3.1., and will be limited to the apparent defects of the packaging (the largest packaging in which the Products have been delivered).

2.3.The apparent defects of the Products or the quantitative deficiencies that could not be ascertained at the time of acceptance will be timely notified to the Seller when and if discovered.

2.4. Title to the Products handed over by the Seller to Frisbo will remain vested in the Seller. The risks of destruction, disappearance, loss or fortuitous loss of the Products covered by this Agreement shall pass from the Seller to Frisbo at the time of their takeover by Frisbo, in accordance with the stipulations of the agreement executed by and between the parties and of section 2.1 or wherever else in the agreement of the parties.

 

3. REFUSING DELIVERY AND RETURN OF THE PRODUCTS IN THE STORAGE FACILITIES

3.1.Upon taking delivery or within the time limit stipulated in section 3.3., Frisbo may ascertain that:

     The quality of the Product and/or the packaging does not comply with the specifications provided to Frisbo;

     The code of the Products is not identical to the product code in Seller’s Order or the code agreed upon by the parties;

     The Products and/or the packaging are damaged;

     Other Products than those specified in the Order approved by Frisbo are delivered;

     The Products are not delivered in the quantity specified in the Order approved by Frisbo;

     The Products are not delivered at the time and/or place specified in the Order approved by Frisbo;

     The Products do not comply with the applicable legal provisions regarding transport and marketing;

     The Products have been prohibited by the relevant authorities;

      Other cases contemplated in these general terms and conditions of the fulfillment services agreement or provided for by the Romanian and European legislation in force.

3.2. Should Frisbo apprise the Seller, on the occasion of the acceptance as regards quantity or within the period stipulated in section 3.3, of one or more of the situations referred to in section 4.1., Frisbo will have the following options:

     refuse delivery of the Order, and return the Products at Seller’s expense;

      partially accept the Products if a quantity less than that specified in the Order is delivered, or certain products do not comply with the Order  

3.3. In all the cases listed above, in the event of a refusal to take delivery of the Products, the cost of taking over and shipping the Products will be borne by the Seller. Frisbo will prepare the Products for return and notify to the Seller, by e-mail or other means of communication agreed by the Parties, the status of the stock of Products to be returned and the place where the Seller is to collect the returned Products. The Seller will have the obligation to organize the transport of the returned Products, at its expense, within one business day (from receipt of Frisbo’s notification).

3.4. If, after receiving Frisbo’s notification, the Seller refuses to take over/is late in taking over the returned Products, Frisbo will be entitled to store the Products at Seller’s expense, and all costs incurred with the storage will be borne by the Seller.

3.5.The Seller shall deliver the Products with a return option, which means that Frisbo will have the possibility to return 100% of the non-compliant Products if the same do not comply with the Order and/or the General Terms and Conditions of the Fulfillment Services Agreement and/or the legislation in force.

3.6.If, for any reason, restrictions are imposed by any relevant authority with respect to the storage of the Products by Frisbo, the Seller undertakes to accept the return of the Products concerned by the restriction, within maximum 5 (five) working days from the date of receipt of Frisbo’s notification.

3.7.If the return of Products is forbidden or restricted by law and/or the Seller refuses to take over the Products, Frisbo will endeavor to have the Products destroyed and all the expenses incurred in the process will be borne by the Seller. In this respect, Frisbo will send to the Seller a notification stating the designation of the Product, the quantity and reason for the Products being destroyed, 5 (five) business days prior to the destruction process. The costs incurred in destroying the Products will be refunded to Frisbo within 3 (three) days.

3.8.None of the costs listed in this section, without limitation, are or will be borne by Frisbo: the costs incurred in connection with the packing, transport, transport insurance, travel costs of the personnel accompanying the Products, handling outside the warehouse facilities, customs duties and charges, surcharges, excise duties, destruction of perishable goods in accordance with the legal regulations in force (if any), any situation contemplated in section 4.7 or elsewhere in the agreement, etc. If the Client chooses to exercise its right to withdraw from the distance agreement or submit an Application for the return of the Products, for any reason, Frisbo shall have no responsibility whatsoever, the responsibility for reimbursing to the Client the price of the returned Products within the time-limit fixed for that purpose in the applicable Regulations lying solely with the Seller.

 

4. PRODUCT CONFORMITY. WARRANTY

4.1. The Seller shall be solely responsible to the end customers for any lack of conformity of the Products found by the customers who purchase the Products on the sales platforms. The warranties for the Products are the sole responsibility of the Seller.

4.2. TheSeller shall be held liable to Frisbo, as well as to any third party, including but not limited to associations of consumers, control bodies, authorities, clients, etc., for any acts and/or damages that may be caused to them as a result of the lack of conformity or defects in Products.

4.3.Should any penalties be imposed on Frisbo (as applicable) by the relevant authorities, including as a result of legal actions initiated against the Seller on account of its failure to comply with the legal provisions on the marketing of Products, as regards the Products delivered to Frisbofor storage, the Seller undertakes to compensate in whole the damage and pay the penalties imposed by the authorities, within 7 (seven) days of receipt of the relevant notification from Frisbo, subject to payment of a late payment penalty in the amount of 0.1% of the outstanding amount / day of delay, until achieving full payment, as well as to cover the losses incurred by Frisbo as a result of its activity being blocked as a result of the checks carried out. Any fine, expenses (costs, attorney fees, etc.) or damage incurred by Frisbo in connection with the storage of the Products as a result of acts attributable to the Seller shall be reimbursed by the Seller to Frisbo or Frisbo shall be indemnified by the Seller, within 7 calendar days from receipt of Frisbo’s notification, subject to payment of a late payment penalty in the amount of 0.1% of the outstanding amount / day of delay, until full payment thereof. In this respect, Frisbo will send to the Seller, as soon as possible, copies of supporting documents such as: reports prepared by control institutions/bodies, applications lodged by / against Frisbo versus clients/other control institutions/bodies, court orders and other deeds/documents supporting applications filed by Frisbo. This clause also applies in the event that Frisbo (as applicable) is sanctioned by the relevant authorities, including as a result of legal actions, for failure by the Seller to comply with the legal provisions regarding the Fiscal Code or the Fiscal Procedure Code, in case the Seller provides erroneous and/or incomplete information with respect to the issuance by Frisbo, on behalf of the Seller, of the tax documents accompanying the Products.

4.4.The Seller undertakes to make sure that the Products delivered in order to be stored and subsequently delivered to the end customers are in an adequate condition and can be delivered to the end customers. Except for its own fault, the acceptance by Frisbo of the Product, without raising objections regarding quantity or quality, does not exonerate the Seller from liability for any product defects found by end customers. The end customer has the right to lodge complaints regarding quantitative or qualitative deviations and defects of the Products, caused by any kind of faults.

4.5.In the event that, as a result of Frisbo’s fault, the Product(s) delivered to the end customer are refused by the latter due to Frisbo’s exclusive fault, Frisbo will bear the return costs.

4.6.Moreover, the Seller shall provide Frisbo with reports and written information about the legislation in force regarding Product storage and/or handling, and the exact mode of issuing, on behalf of the Seller, the fiscal documents accompanying the Products. Frisbo shall be exempted from any liability if the Products are damaged/deteriorated or destroyed as a result of Seller’s failure to provide such information to Frisbo, or of any errors contained in the fiscal invoices issued for and on behalf of the Seller.

4.7.„In the event that upon termination of the contract, the Seller must pick up products from the storage spaces made available by Frisbo, the deadline for preparing them for picking shall be communicated by Fribo.”

 

5 RETURN POLICY

5.1. In the event that the end customers return unopened packages, they will be taken over by Frisbo, who will thereafter proceed as follows:

     inspect the packages in order to identify possible damage caused during transportation that does not require specific knowledge,

     issue a credit note on behalf of the Seller, if the Seller so requests,

      open the packages, inspect the Products and re-enter them in the initial stock or the return stock, depending on Seller’s decision after being apprised of the damages.

5.2. In the event that the end customers return opened packages, they will be taken over by Frisbo, who will thereafter proceed as follows:

     inspect the reported issue (if any), if such inspection does not require specific knowledge;

     confirm or infirm the issue to the Seller, with recommendation level, without however taking responsibility for any erroneous assessment;

     inspect the Product to determine whether it has been used or not, for advisory purposes;

     issue to the Seller an opinion on the wear and tear following the inspection for advisory purposes;

     issue a credit note on behalf of the Seller, if the Seller so requests;

     depending on Seller’s decision, re-enter the Products in stock or, as the case may be, or the return stock and send all returns to the Seller, upon request

5.3. Frisbo shall inspect the reported issues (if any) and the potential use of the Products, within 48 hours from receipt of the returned Products, provided always that such inspection does not require specific knowledge, and that the wear is visible.

5.4.The Seller can request access to Frisbo’s warehouse for the purpose of inspecting the returned Products. In any situation where the Seller requests Frisbo to deliver the Products to its own premises, the shipping costs will be borne by the Seller.

 

6. SELLER’S REPRESENTATIONS

6.1. The Seller hereby represents and warrants as follows:

a.    It sells – and entrusts to Frisbo for storage – only safe Products that comply with the stated requirements or the conditions imposed by the legislation in force;

b. It does not sell dangerous products or products that have non-compliant security parameters, which can be detrimental to or endanger the life, health and/or security of Frisbo’ employees who operate and handle the Products;

c. The Product packaging ensure the integrity and protection of their quality and are in accordance with the legal provisions regarding occupational health, environment protection and the safety of Frisbo’ employees who operate and handle the Products;

d. The Seller hereby undertakes to refrain from any acts and/or deeds that are deemed/constitute or could be deemed/could constitute illegal activities or practices that entail or could result in penalties against Frisbo. The Seller hereby acknowledges and agrees that any such illegal practices (irrespective of their nature) fully exonerate Frisbo, and the Seller takes full patrimonial responsibility of these practices. For the avoidance of doubt, the Seller hereby agrees to pay in full and without the right to dispute or invoke any benefit of division or discussion, any fine or pecuniary sanction imposed on Frisbo by any national or community authority for the perpetration of any practices that are contrary to law, custom and/or morality.

e. The Seller guarantees the delivery of the Products to the end customers through Frisbo and/or any third party, in accordance with all applicable regulations, and in particular with the legal provisions regarding the manufacturing, movement and marketing of products, including the provisions on product labelling and consumer protection.

f.   The Seller understands to be held liable to both the Customers and third parties (as the case may be) in matters regarding the quality and conformity of the Products, including the obligation regarding the warranty for the Products delivered by Frisbo on its behalf.

g. The Seller takes full responsibility for the quality of the information provided and displayed for each Product in the event of discrepancies between the physical Product and the presented and displayed information, Seller being solely responsible for such discrepancies and undertaking to cover in full any damages caused to the Customer, third parties and Frisbo. Moreover, the Seller understands to be held liable (and shall be solely accountable to any state authority) for the quality of the financial and/or fiscal information submitted to Frisbo for the issuance on behalf of the Seller of the fiscal documents relating to the Products. In the event of any non-compliance, unlawfulness, error, etc. relating to the fiscal documents issued by Frisbo on behalf of the Seller, the latter shall be solely responsible for such errors, taking the liability of fully indemnifying the damage caused to the Customer, third parties and Frisbo, and paying any fines/penalties for delay/enforcement costs/attorney fees, etc., in accordance with the provisions of section 4.3, or any clause in the agreement and/or the general terms and conditions or any normative act.

h. The Seller undertakes not to use the Frisbo Platform abusively and not to try to access data and information about other sellers that are not public or accessible to the general public;

I.   The Seller undertakes not to use automated applications in order to gain unauthorized access to the Frisbo Platform for the purpose of automatically retrieving information, thereby affecting functionality, natural traffic and statistics.

J. The Products are sent for storage in accordance with the national laws of the State in which the Products are marketed and the European laws, as well as any other legal provisions regarding the quality of the Products, packaging, labelling, marking, conformity, testing, certification, list of ingredients, foreseeable risks, instructions for use, handling, storage or keeping, contraindications, additional remarks by groups of products, while observing the legislation on consumer rights and any other normative acts, standards, rules, decisions etc; The Seller undertakes to hand over all documents regarding the quality of the Products at the time of delivery to Frisbo, including the Declaration of Conformity for the delivered Products;

6.2. Each Party represents and warrants to the other Party that: (i) it is an officially incorporated and registered company, validly existing under the laws of its country of incorporation; (ii) it has secured all necessary internal approvals and has the legal right and full power and authority to make and enter into the fulfillment services agreement and, therefore, to abide by these general terms and conditions; (iii) the performance and fulfillment of the obligations arising from the fulfillment services agreement and these general terms and conditions that are applicable to the agreement and any other documents that will be prepared in accordance with the agreement and the general conditions will not result in any violation of the applicable law, of the Memorandum of Association or any other agreement, arrangement or understanding to which it is party or by which it is bound; and (iv) has the legal right and full authority, according to its articles of incorporation and organization, as well as the final and binding authorizations it holds, to carry out each of the activities that need to be performed in accordance with these General Terms and Conditions.

6.3. The Seller hereby represents and warrants that it has the legal authority to dispose of the Products subject of this Agreement, and that it has secured and shall maintain valid all necessary licenses and/or authorizations, that it has prepared/obtained and shall maintain valid all documents required by law in this respect (including from the manufacturer of the Products, as the case may be), observing the requirements regarding the content, format and time limits provided by law, subject to the sanctions provided for in any applicable normative act, the fulfillment services agreement and/or these general terms and conditions.

6.4. The Seller represents and warrants that the Products shall be marketed and delivered in accordance with all applicable Regulations and, in particular, the legal provisions regarding the production, movement and marketing of non-food products and foodstuffs, as applicable, including the provisions regarding consumer protection, e-commerce and distance agreements.

6.5. Frisbo declares that it is the owner of the Frisbo Application and, upon acceptance by the Seller of these General Terms and Conditions and the conclusion of the Fulfillment Services Agreement, Frisbo will make available to the Seller storage space on this Platform, where it shall store its Products.

6.6. The Seller understands and agrees that Frisbo shall be free to provide the same services through the Frisbo Platform to its direct competitors, or provide the same services to legal entities that sell Products that are identical or similar to Seller’s Products or other kinds or products.

 

7. INTELLECTUAL PROPERTY RIGHTS

7.1. The Seller hereby represents and warrants that it owns the intellectual property rights required for the marketing of the Products, takes full responsibility for the promotion and marketing of the Products and shall be solely responsible in case of claims involving an alleged violation of any intellectual property rights or any other third party right related to the Products.

7.2. The Seller understands and agrees that its having access to the Frisbo Application shall in no case constitute a transfer of title thereto, or of their source codes or any related rights associated with these IT tools. All intellectual property rights associated therewith and any subsequent changes and/or updates brought to such instruments including Application-related developments, and as of their creation, any and all intellectual property rights derived from any work, equipment or invention created/developed by Frisbo over these IT tools is and shall remain the exclusive property of Frisbo. Frisbo grants the Seller a non-exclusive right and license to use these IT tools during the term of the agreement. Furthermore, all the technology and know-how incorporated into Frisbo’s services, whether patented or not, shall remain the exclusive property of Frisbo.

7.3. In the event that Frisbo receives from a third party/another seller a claim or notification regarding an alleged infringement of intellectual property rights by the Seller, Frisbo shall be entitled to Block the stored Products until the clarification of the situation mentioned in the claim or notification, and shall not be held liable for any damages or unearned revenue. Until the situation is clarified, the Seller undertakes not to take any action with respect to the Products subject to the claim or notification.

 

8. CONFIDENTIALITY AND PERSONAL DATA PROCESSING

Confidentiality:

8.1.1. The Parties undertake not to disclose, both during the term hereof and after the expiry of this Agreement, any privileged or confidential information (E.g.: all tangible or intangible, professional, commercial, technical, financial or any other type of information created, developed, received, collected or used in the course of or in connection with the activities carried out by the Parties, including, but not limited to, information related to the identity of affiliates, business partners, consultants, employees of the parties, also including, but not limited to, trading conditions, business methods, corporate plans, management systems, finance, crystallization of new business opportunities, or research and development projects implemented by the parties or their business partners or affiliates, costs, contractual terms, market researches, owned or used intellectual property rights, IT Infrastructure, promotion policy, proposals for the development and expansion of the activity of the parties, or any other aspects relating to the promotion or sale of any past, present or future Products or Services of the Parties or their affiliates or business partners, including, without limitation, information and plans about sales, market shares and price statistics, marketing plans, market research reports, sales techniques, price lists, purchase prices, structure of sales and discounts, promotional and advertising materials, names, addresses, telephone numbers and contact names of actual and prospective Clients and actual and prospective suppliers of the Parties or their affiliates or business partners, the nature of their activity, trade formulae, processes, inventions, drawings, know-how, discoveries and technical information about the design, manufacturing and supply/provision of any past, present or futureproducts or services of the Parties or their affiliates or business partners), in the sense that the Parties hereby undertake to:

a. keep strictly confidential and not disclose or allow the disclosure to any person of any confidential information;

b. not use any confidential information except to fulfill its obligations under this Agreement and for no other purpose, and not to allow the use of any confidential information by any third party other than with the written approval of the other Parties.

8.1.2. In case of breach of the confidentiality clause, the disclosing Party shall be liable to pay damages to cover the prejudice caused to the other Party.

8.1.3. The above provisions shall not apply if and to the extent that the disclosure concerns information with respect to which the Parties have agreed in writing that it is not confidential and/or confidential information that the party is obligated to disclose according to the applicable law or regulations and/or pursuant to an order issued by a relevant authority; should this be the case, as soon as a disclosure request is received, the disclosing Party shall inform the other Party and make all reasonable endeavours to cooperate with the other Party in the actions the latter may deem appropriate in order to protect its interests. In any case, the disclosure shall refer strictly to that part of the confidential information required to be disclosed and the Parties will agree on the date and content of the disclosure, and will make sure that the persons to whom the information is disclosed are aware of their confidential nature and continue to respect it;

Personal data processing:

8.2.1 The processing of the Personal Data by Frisbo (acting in capacity as Processor in its relationship with the Seller, in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) in the name and on behalf of the Seller (acting in capacity as Controller in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) will be performed in accordance with the provisions of the dedicated chapter of the general terms and conditions.

 

9. NOTIFICATIONS

9.1. Any communication, notification or notice sent by one of the Parties to the other shall be valid only if it is transmitted by at least one of the following modalities: (i) personal delivery, (ii) courier delivery, (iii) e-mail or (iv) registered letter with acknowledgment of receipt, to the respective addresses of the parties that can be found in the recitals of the fulfillment services agreement.

9.2. If sent by e-mail, the notification shall be deemed to have been received if no error or “out-of-office” message has been generated by recipient’s server and/or if there is a confirmation report, on the same day, if the notification has been sent on business days between 09:00 and 17:00 hours or on the next working day if the notification has been sent outside of these hours.

9.3. In case the mailing address and/or e-mail address indicated by the parties for exchanging communications, notifications or notices changes, as well as in case of changes regarding the contact persons / representatives appointed for the performance of this Agreement, the relevant Party shall immediately notify the other Parties in writing. Moreover, the Parties undertake to inform each other in writing as soon as any of the following events occur: change in the identification data of the company, initiation of a winding-up, liquidation, insolvency, judicial or voluntary reorganization and/or bankruptcy procedure by or against one of the Parties.

 

10. GOVERNING LAW. DISPUTES

10.1. These General Terms and Conditions and the Fulfillment Services Agreement will be governed by and construed in accordance with the Romanian laws. The Parties will use their best endeavors to settle amicably any dispute arising out of or in connection with these General Terms and Conditions, which form an integral part of the Fulfillment Services Agreement entered into by the Parties. In case of failure to reach an amicable settlement, the dispute will be referred to the courts of competent jurisdiction at the place where Frisbo has its registered office.

 

11. MISCELLANEOUS

11.1. These General Terms and Conditions (including all annexes thereto), as well as the Fulfillment Services Agreement entered into by the Parties (including all annexes thereto), constitute the entire agreement of the parties relating to the subject of the fulfillment services, and supersede and cancel all previous agreements, representations and arrangements of the Parties in relation to the subject matter contemplated therein.

11.2.Any amendment or modification of the General Terms and Conditions shall be made in writing, in electronic form, in accordance with the provisions of this clause. Frisbo reserves the right to modify any of the provisions contained in the General Terms and Conditions relating to the Fulfillment Services Agreement (including all annexes thereto) at any time. The Seller will be informed of the changes at least 5 (five) calendar days before the same become effective. If the Seller does not agree with the proposed changes, it will have the opportunity to unilaterally terminate the fulfillment services agreement and, implicitly, the General Terms and Conditions, as laid down in Chapter 9 of the Agreement “Termination of the Agreement”. If the Seller does not terminate the General Terms and Conditions within the above-mentioned time limit, it will be deemed to have accepted the changes at the expiration of the time limit. The updated versions of any of the documents that form an integral part of the General Terms and Conditions will prevail.

11.3. The Parties hereby agree that they will not make any press statements and/or other public statements (including in the online environment) likely to harm the image of the other Party, under penalty of being sued for damages.

 

 

12. Data Processing

This chapter lays down specific rules regarding the processing of personal data by the Seller, acting as Controller, through SC Frisbo Efulfillment SRL, acting as Processor, in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as well as any subsequent national legislation on the protection of personal data (hereinafter referred to as “GDPR”).

12.1.With regard to the processing of the Personal Data, Frisbo shall act in capacity as Processor in its relationship with the Seller, in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and shall process the Personal Data in the name and on behalf of the Seller (acting in capacity as Controller in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data).

It is the Controller who establishes the purposes and limits of the processing of Personal Data under this Agreement, and, where appropriate, the means by which these data are processed and other processing details, depending on the specificity of the contemplated processing. The processing of Personal Data will be performed in accordance with the provisions of this chapter. The Personal Data will be processed only at the request and within the limits stipulated in the instruction sent in writing or in electronic format by the Seller (acting as Controller) within the limits laid down in the agreement, the general terms and conditions applicable to the agreement, adjacent to this chapter, including as regards the transfer of Personal Data to a third country or international organization. If the transfer obligation lies with the Controller i.e. Frisbo, under the provisions of the EU or Romanian laws (the “Applicable Law”), without such an instruction being required, the Processor will notify the Controller before the processing takes place or at the latest before performing a transfer, if it is required by law during the processing, unless disclosure is forbidden according to some legal provisions of public interest.

Frisbo, in its capacity as Processor, will process the Personal Data only within the limits and as necessary to fulfill the purpose of the processing as laid down in the relevant chapter, and will not process the data for other purposes or in a manner which is not stipulated in Seller’s instructions, or is contrary to the provisions of the Agreement or the Governing Law.

As far as the processing of Personal Data is concerned, Frisbo will maintain the confidentiality of the Data, in particular with regard to all information derived from the results of the processing, except for disclosures made after obtaining a written authorization from the Seller.

In accordance with the applicable legislation and taking into account the state-of-the-art and the risk of varying degrees of probability and severity for the rights and freedoms of natural persons, in order to assess the adequate level of protection, special consideration should be given to the risks associated with the processing: – unintentional or unlawful destruction, loss, alteration, unauthorized disclosure or unauthorized access to such personal data. In particular, the Controller will implement within its own company the technical and organizational measures agreed in the relevant schedule.

In the event that a claim is lodged against the Controller in connection with the purposes and limits of the processing of Personal Data performed under this Agreement by the Processor for the Controller, by reason of a loss or damage caused by processing activities that infringe the data privacy regulations by a Data Subject, the Controller may under no circumstances subsequently file recourse proceedings against the Processor for the recovery of the amount of compensation corresponding to the liability limits agreed by the Parties.

The Seller will indemnify the Processor, i.e. Frisbo, in full for and against any direct or indirect material or moral damage, including proceeding costs and Processor fees or sanctions imposed by any relevant authority, as a result of a negligent performance, non-performance or inadequate or late fulfillment of any obligations laid down in this Agreement or the Applicable Law or deriving from. Seller will indemnify and hold the Processor, i.e. Frisbo, harmless from and against any and all damage to its image or reputation, loss of profits or unearned revenue that may result from breach of the Agreement or the provisions of the Applicable Law in connection with the performance of this Agreement.

12.2. Terms

As used in this chapter, the terms will be interpreted in accordance with the GDPR and, where applicable, they will have the definitions given in section 4 of the GDPR.

12.3. Purpose of processing

The purpose of the processing of personal data is the processing by the Processor of the personal data sent by the Controller for the purpose of providing the services stipulated in Frisbo master services agreement.

12.4. Collected data

The personal data made available by the Controller and processed under this agreement are data entered in the following fields:

 

12.4.1. Order-related data, including data collected through a call-center service:

 

company

 

management

 

order date

 

delivery date

 

order reference number

 

 

 

 

 

End customer – delivery

street, number

 

locality

 

county

 

country

 

telephone

 

e-mail

End customer – invoicing

street, number

 

locality

 

county

 

country

 

telephone

 

e-mail

 

TIN/PIN

 

bank account

 

 

order description

 

currency

 

 

As regards the ordered products, with details entered in the following fields:

 

search code

designation

description

item category

sub-category

packaging

VAT

EAN

SKU

size

 

price list

 

properties

 

links

 

12.4.2. Delivery data

 

End customer – delivery

street, number

 

locality

 

county

 

country

 

telephone

 

e-mail

 

12.4.3. Invoicing data

 

End customer – invoicing

street, number

 

locality

 

county

 

country

 

telephone

 

e-mail

 

TIN/PIN

 

bank account

 

12.5. Categories of Data Subjects

The categories of Data Subjects are Seller’ end customers who place an order in any of the modalities used by the Controller for sale.

12.6. Specific instructions

On the basis of the agreement and the general terms and conditions applicable to the fulfillment services agreement, the Seller gives the Processor the following specific instructions:

     to collect and process personal data received from the Controller directly for the purpose laid down in section 12.8. These data are those specified in Section 12.4.

     any other instruction sent in writing – in electronic format or hard copy – by the Seller, which concerns the activities performed under the agreement and is not contrary to the GDPR, according to the Processor.

12.7. Processing duration

The duration of the processing of personal data is the same as the term of the master services agreement.

12.8 Nature and purpose of the processing

The nature and purpose of the processing are those established by the Seller on the grounds of the Fulfillment Services Agreement, namely the provision of Frisbo’s e-fullfilment services.

12.9. Sub-processors

If the processing of Seller’s data or certain parts of the processing are being performed by the Processor through other persons, appointed as sub-processors, the following principles must be complied with:

12.9.1. Under this section, the Seller understands and agrees to authorize the Processor, i.e. Frisbo, to process its data through the following sub-processors for the following activities:

 

    for the data in section 12.4.1.

    TeamShare, Romania – technical brokering services

    Digital Ocean, USA – hosting services. Digital Ocean is certified under the EU-USA Privacy Shield program.

    Optivoice, Romania – call center services (exclusive for customers who activate this service)

    for the data in section 12.4.2.

    Frisbo partner halls (identified depending on the customer), Romania – services consisting of storage, packaging and preparation for delivery, as well as operation of returns from the End customers

    Couriers and Carriers (identified depending on the customer), Romania – delivery services

    for the data in section 12.4.3

    Frisbo partner halls (identified depending on the customer), Romania – services consisting of storage, packaging and preparation for delivery, as well as operation of returns from the End customers

12.9.2. For future sub-processors, the Processor, i.e. Frisbo, is given a general authorization to subcontract with any provider in the EU, EEA or other country with an adequate level of protection recognized through a decision of the European Commission that is required for certain parts of the data processing under the agreement and provides an appropriate level of security, at least at the level of the agreement and the general terms and conditions, which form an integral part of the fulfillment services agreement. This authorization includes the obligation to inform the Seller through a message sent through the account on Frisbo’s website or via e-mail. The seller has the opportunity to raise objections within 2 business days.

12.10. Seller’s Rights and Obligations in its capacity as Controller

Rights:

– to receive information from the Processor or to verify through an appointed auditor whether the Processor, i.e. Frisbo, has and implements appropriate technical and organizational measures to ensure the processing complies with the requirements of the GDPR; the verification will be performed on the basis of a prior written notification sent at least 14 business days before the verification is scheduled to be carried out;

– to receive support from the Processor, i.e. Frisbo, in particular in connection with the fulfillment of its obligation to respond to the applications submitted by the data subjects in the exercise of their rights under the GDPR;

– to object to other sub-processors according to section 12.9.2;

Obligations:

– to comply with the provisions of the GDPR as regards its obligations as Controller with respect to the personal data collected or processed by the Processor on its behalf;

– to notify the data subjects according to the GDPR, including with respect to the information regarding the processing of data by the Processor under this Agreement;

– to be solely responsible for defining the legal basis for the processing of personal data subject to this Agreement;

– to implement appropriate technical and organizational measures according to the GDPR, including ensuring the security of the data transferred to the Processor;

The Seller understands that once the data are deleted after completion of the provision of the services by the Processor according to the obligations laid down in the GDPR and section 12.11, the Data can no longer be retrieved and it is Seller’s sole responsibility to ensure that it has made a full copy of such Data.

In all situations where the Seller is the one who has to perform an obligation, such as informing the data subject about a breach relating to its personal data, the Processor cannot be held liable for Seller’s inactions with respect to that obligation.

12.11. Frisbo’s Rights and Obligations:

Obligation:

– to immediately inform the Seller if, in Processor’s view, an instruction is contrary to the GDPR and/or any other legal provision on the processing of personal data;

– to ensure the security of the personal data processed on behalf of the Seller in accordance with Section 32 of the GDPR and the provisions of this Chapter;

– to inform the Seller, without undue delay, of any breach of Seller’s personal data security occurring during the processing performed by the Processor;

– to facilitate to the Seller all information required for the purpose of notifying, if applicable, the relevant Authority of a data breach incident, without however substituting itself to the Seller as regards its obligation to send the notification;

– to assist the Seller in ensuring compliance with the obligations laid down in sections 32-36 of the GDPR;

– to assist the Controller in processing the applications submitted by data subjects or to forward the Controller any application received from the data subjects in connection with personal data that were collected and processed by the Processor, within maximum 5 calendar days from receipt. This assistance does not apply if the Seller already has in the technical tools provided by the Processor the possibility to directly solve the application of the data subject (E.g.: Right of access – where the Seller already has all the information about the data it collects);

– not to disclose personal data and/or confidential information, which may be personal data which have come into its possession during the performance of the agreement;

– to provide training to the personnel authorized to process personal data on the confidentiality of such data;

– to ensure the employees and sub-processors are bound by the same confidentiality obligations;

Rights:

– to disclose certain personal data at the request of an authority, public institution or court of competent jurisdiction, or other third party authorized according to the law, by virtue of a legal obligation or other conditions prescribed by the law.

– to recruit sub-processors under the provisions of this chapter or in the event that it has secured approval from the Controller;

– to be reimbursed the costs incurred in providing assistance to the Controller in the situations provided for by the GDPR, if the amount of such costs exceeds the monthly cost of the services provided by the Processor.

– to use anonymised statistical information obtained following the activities performed under the agreement  or in the normal course of business.

– the obligation to delete all data collected under and in connection with this Agreement in its capacity as Processor within maximum 3 to 6 months following termination of the agreement. In case a data subject expressly requests the deletion of data, the Processor shall comply with such request in accordance with the express requirements laid down in the governing law.

The Processor may not establish purposes or means of processing of personal data, this responsibility lying solely with the Controller.

12.12 Security of processing

12.12.1. The Processor must implement adequate technical and organizational measures to ensure appropriate risk-based measures in keeping with the industry best practices. In determining the appropriate level of security, the Processor, i.e. Frisbo,, should take into account the current state of technological progress, the costs of implementation and the nature, scope, context and purposes of the processing, as well as the risk of varying degrees of probability and severity for the rights and freedoms of natural persons, as well as the risks associated with the processing, especially those that may result in the unintentional or unlawful destruction, loss, alteration or unauthorized disclosure of the personal data sent, store or processed in another manner, or the unauthorized access to such personal data.

These measures are centralized in the Internal Security Policy, which is available on request.

12.12.2. The Processor can voluntarily and periodically send to the Controller summaries of the security auditors’ findings (after deletion of business or confidential information), in order to demonstrate its continued activities on this subject.

12.13. Limitation of liability

The Seller hereby agrees to exempt the Processor, i.e. Frisbo, from any liability for damages that may arise from:

– failure to perform its obligations under the agreement due to events beyond Processor’s control;

– the observance or failure to observe Controller’s instructions preceded by a notification regarding its unlawfulness;

– lack or invalidation of the consent of the data subjects or the use of wrong legal grounds by the Controller;

– breach of contract due to certain actions of the Controller.

12.14. Delineation of liability

The Seller and the Processor, i.e. Frisbo, hereby delineate their responsibilities with regard to ensuring the protection of personal data (E.g.: confidentiality or security of processing), depending on the access and actual control over the data, both from a contractual and technical point of view.

 

 

 

13. Final provisions.

The Seller acknowledges that it has taken note of all the general terms and conditions applicable to the fulfillment services agreement for the fulfillment of its obligations. The Seller confirms that these terms and conditions constitute the expression of its will and that it agrees to be fully bound by the same in the fulfillment of his obligations, it being understood and agreed that these general terms and conditions shall form an integral part of the agreement executed by and between the parties.

By signing the agreement, the parties state their knowledge and express and unambiguous acceptance of the provisions of the General Terms and Conditions applicable to the Fulfillment Services Agreement.

 

 

 

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