Terms and Conditions of the OFFSPEC.EU portal

LEGAL NOTICE, TERMS OF USE, LIMITATION OF LIABILITY, COMMISSION RULES AND TRANSACTION CONDITIONS OF OFFSPEC.EU 1. Platform Operator The operator of the website and online platform OffSpec.eu is: WSMD d.o.o. Spodnja Polskava 100 2331 Pragersko Republic of Slovenia Company registration number: 9907793000 VAT ID number: SI 20418094 IBAN: SI56 6400 0000 0922 384 Contact: info@wsmd.eu For the purposes of these terms, WSMD d.o.o. shall be referred to as the "Platform Operator", "operator of OffSpec.eu", "OffSpec.eu", or "we", unless the context clearly requires otherwise. 2. General Legal Notice The website and online platform OffSpec.eu is intended for the publication, presentation, search, negotiation and facilitation of business contacts between suppliers and potential buyers of factory-new products which, due to certain manufacturing, technical, dimensional, visual, packaging, certification, market-related or other deviations, do not meet the usual standard requirements of the mass market or the primary market for which such products were originally manufactured, intended or designed. Products published on OffSpec.eu may be factory-new, may be subject to a supplier's or manufacturer's warranty, and may be shipped from a central warehouse or another logistics location determined by the supplier. However, such products may contain specific characteristics, limitations, deviations or non-standard features compared to products intended for regular commercial sale on the standard mass market. By accessing, browsing, registering on or using OffSpec.eu, every user, supplier and buyer acknowledges and accepts the specific nature of so-called off-spec products and understands that such products may differ from standard commercial, technical, market, regulatory or consumer expectations. 3. Legal Status of OffSpec.eu OffSpec.eu operates as an online platform for the publication of products and for the facilitation of contact between suppliers and buyers. Unless expressly, clearly and separately agreed in writing, the Platform Operator does not act as: seller; manufacturer; importer; exporter; distributor; reseller; commercial agent; guarantor; broker; logistics provider; payment service provider; certification body; quality control body; contractual party to the sales transaction between supplier and buyer. All offers, product listings, descriptions, specifications, technical information, prices, photographs, certificates, warranty conditions, delivery terms, delivery periods, quantities, origin details, compliance statements, restrictions of use and other information published on OffSpec.eu are provided by the individual supplier. The Platform Operator does not guarantee that any information published by a supplier is accurate, complete, current, technically correct, legally compliant, marketable or suitable for any particular purpose. 4. Nature of Off-Spec Products Products published on OffSpec.eu may include products which: are factory-new; are subject to a warranty provided by the supplier, manufacturer or another responsible party, if such warranty is expressly stated in the relevant listing; originate from production, stock, surplus inventory, non-standard production, incorrect production, modified production batches, special batches or other commercial sources; deviate from standard specifications, expectations, requirements or market standards of the primary market; are not suitable for the ordinary mass consumer market; may be suitable for industrial, project-based, technical, wholesale, processing, servicing, research, professional or other special use; may require additional inspection, adaptation, testing, certification, homologation, customs verification or other assessment prior to use, installation, resale or distribution. Publication of a product on OffSpec.eu does not mean or imply that the product is suitable, lawful, certified, compliant, approved or fit for any specific market, country, industry, purpose, installation, resale, import, export or end-user application. 5. Responsibility of the Supplier The supplier is solely, exclusively and fully responsible for: the accuracy, completeness and legality of all information published on OffSpec.eu; the truthfulness of all statements concerning the product; the technical specifications of the product; the conformity of the product with applicable laws and regulations; the safety of the product; the warranty conditions; the quality of the product; the origin of the product; the supplier's legal right to dispose of and sell the product; compliance with export, import, customs, tax, safety, technical, environmental and other applicable regulations; any third-party rights, including intellectual property rights; the accuracy of information regarding the central warehouse, logistics, delivery and availability; the handling of complaints, warranty claims, defects, non-conformities, returns and other buyer claims; the fulfillment of all contractual, pre-contractual and statutory obligations toward the buyer. The supplier warrants that the products published on OffSpec.eu are not illegal, unsafe, counterfeit, stolen, subject to prohibited trade, subject to sanctions or embargoes, or otherwise prohibited under the laws of the supplier's country, the buyer's country, the storage country, the dispatch country, the import country, or any other relevant jurisdiction. 6. Responsibility of the Buyer Before entering into any transaction, the buyer must independently, carefully and professionally verify all relevant circumstances relating to the product, including but not limited to: product description; technical specifications; deviations from standard requirements; warranty conditions; delivery terms; price; tax, customs and logistics costs; suitability of the product for the buyer's intended purpose; compliance of the product with the laws and regulations of the country in which the product will be used, installed, sold, resold or distributed; restrictions on import, export, sale, distribution or use; the identity, reliability and legal status of the supplier; the legal consequences of entering into the transaction. The buyer expressly acknowledges that the designation off-spec means that the product may deviate from standard requirements of the mass market and that such deviation shall not in itself constitute a defect, provided that the deviation was disclosed or reasonably identifiable from the listing or transaction documents. 7. Transactions Between Supplier and Buyer Each legal transaction, agreement, order, purchase contract, pro forma invoice, invoice, delivery, warranty, complaint or other legal relationship concerning a product is formed directly between the supplier and the buyer, unless expressly stated otherwise in writing by the Platform Operator. The Platform Operator is not a party to such legal transaction and assumes no liability for its formation, validity, performance, non-performance, delay, defects, warranty, payment, delivery, complaints, returns, damages or any other consequence arising from the relationship between supplier and buyer, unless expressly agreed otherwise in writing. A transaction concluded between the supplier and the buyer is final in accordance with the terms agreed between them and applicable law. Such finality does not limit or exclude mandatory legal rights that cannot be excluded by contract, particularly where the buyer acts as a consumer or where applicable law imposes mandatory rights, obligations or liabilities. 8. Warranties and Guarantees Any warranty relating to a product, if applicable, is solely the warranty of the supplier, manufacturer or another responsible party expressly identified in the relevant listing or transaction documents. The Platform Operator does not provide any independent warranty, guarantee or representation concerning any product published on OffSpec.eu. The Platform Operator does not warrant or guarantee: product quality; fitness for any particular purpose; conformity with the buyer's requirements; conformity with the laws of the buyer's country; compliance with industrial standards; accuracy of technical data; availability of the product; delivery times; existence or scope of any warranty; enforcement of warranty claims; correction of defects; replacement of products; refund of purchase price; resale value or usability of the product. All warranty claims, complaints, claims for defects, contractual claims, tort claims, restitution claims, damages claims or any other claims of the buyer shall be made directly against the supplier or another responsible party identified in relation to the product. 9. Limitation of Liability of the Platform Operator To the fullest extent permitted by applicable law, the Platform Operator shall not be liable for any direct, indirect, consequential, special, punitive, commercial, financial, contractual, non-contractual or other damages arising out of or in connection with: use of OffSpec.eu; inability to use OffSpec.eu; publication of a product; purchase of a product; use of a product; resale of a product; installation of a product; modification or processing of a product; incorrect, incomplete or misleading information provided by the supplier; delayed delivery; non-performance by the supplier; product defects; product non-conformity; unsuitability of the product for a particular purpose; customs, tax, transport or regulatory issues; loss of profit; loss of business opportunity; loss of data; claims by third parties; acts or omissions of the supplier, buyer, carrier, warehouse operator, manufacturer or any other third party. Nothing in these terms shall exclude or limit liability where such exclusion or limitation is not permitted under mandatory applicable law. 10. Compliance With Slovenian, European Union and International Law The supplier and the buyer are solely responsible for determining which law applies to their legal relationship, including but not limited to Slovenian law, European Union law, the national law of the supplier's country, the national law of the buyer's country, customs regulations, tax rules, export and import restrictions, product safety rules, consumer protection rules, competition law, intellectual property law and the rules governing international sale of goods. Where an international sale of goods between business entities is involved, international conventions, including the United Nations Convention on Contracts for the International Sale of Goods, may apply if the conditions for their application are met, unless validly excluded by the contracting parties or otherwise inapplicable due to the nature of the transaction. The Platform Operator does not provide legal, regulatory, customs, tax, technical or certification advice on whether a particular product is lawful, suitable, approved or compliant for a particular market, country, use, industry or buyer. 11. Consumers and Business Users OffSpec.eu is primarily intended for business users, professional buyers, industrial buyers, wholesale buyers, distributors, manufacturers, project developers, contractors, traders and other entities that understand the nature and risks of off-spec products. Where a buyer acts as a consumer in a particular case, mandatory consumer protection provisions apply and cannot be excluded by these terms, legal notices or any agreement between the parties. The supplier is solely responsible for correctly determining whether it sells to consumers or exclusively to business entities and for complying with all obligations imposed on it as seller, trader, supplier or other responsible party under applicable law. 12. Central Warehouse and Delivery Any statement that a product is shipped from a central warehouse is based solely on information provided by the supplier or another responsible party. The Platform Operator does not guarantee the actual location of the product, stock availability, dispatch time, shipping method, shipping costs, customs procedures, transport conditions or successful delivery. The risk of transport, transfer of risk, insurance of shipment, customs clearance, import, export and acceptance of the product shall be determined directly between the supplier and the buyer or in accordance with the rules applicable to their transaction. 13. Prohibited Use of OffSpec.eu It is prohibited to publish on OffSpec.eu any product that is: illegal; unsafe under applicable law; counterfeit; stolen; subject to prohibited trade; subject to sanctions, embargoes, export prohibitions or import prohibitions; published with false, incomplete or misleading information; published without the supplier's legal right to dispose of it; infringing intellectual property rights; contrary to mandatory law, public order or good business practice. The Platform Operator reserves the right, without prior notice, to remove any listing, restrict access, request additional evidence, refuse publication or temporarily or permanently disable use of OffSpec.eu if there is a suspicion of breach of law, infringement of third-party rights, breach of these terms or harm to the legitimate interests of OffSpec.eu or the Platform Operator. 14. Reporting Disputed Listings Any user, buyer, rights holder, public authority or third party may notify the Platform Operator that a listing is allegedly illegal, misleading, unsafe, inaccurate or otherwise disputed. Such notice must contain sufficient information to allow the Platform Operator to identify the disputed listing, understand the nature of the alleged violation and contact the reporting party where necessary. The Platform Operator may, at its discretion, temporarily restrict access to a listing, request explanations from the supplier, remove the listing or take other reasonable measures where necessary for legality, safety, user protection or protection of OffSpec.eu. 15. No Legal, Technical or Business Advice The content of OffSpec.eu, including product descriptions, listings, categories, tags, technical data and other information, does not constitute legal, technical, financial, tax, customs, safety, certification or business advice. Before purchasing, using, importing, exporting, installing, reselling or distributing a product, the buyer must obtain its own professional advice where necessary, depending on the nature of the product, value of the transaction, intended use or applicable regulations. 16. Obligation to Conclude Transactions Through OffSpec.eu The supplier and the buyer expressly, irrevocably and bindingly agree that all legal transactions, orders, purchase contracts, deliveries, repeat orders, additional orders, order extensions, order amendments, successive deliveries, partial deliveries, framework agreements, subsequent transactions and all other commercial arrangements arising from the first contact, listing, inquiry, offer, communication or transaction made through OffSpec.eu shall be concluded exclusively through OffSpec.eu. This obligation applies to all transactions between the same supplier and the same buyer where the business contact between them arose directly or indirectly through OffSpec.eu, regardless of whether the subsequent transaction concerns the same product, a similar product, a substitute product, an additional product, a larger quantity, another production batch, another delivery or any other commercial matter economically connected with the original contact made through OffSpec.eu. The supplier and the buyer undertake not to bypass OffSpec.eu, the Platform Operator or the Platform Operator's right to commission by any act, omission, direct or indirect arrangement, use of affiliated persons, use of third parties, change of legal entity, change of contact person, direct payment, direct order or any other form of conduct. 17. Commission of the Platform Operator For each transaction concluded through OffSpec.eu or arising from a business contact established through OffSpec.eu, the Platform Operator shall be entitled to a commission of 5% of the total gross amount of the individual order, unless otherwise agreed in writing between the Platform Operator and the supplier. The total gross amount of the order means the full contractual value of the order, including the value of goods, additional quantities, surcharges, packaging costs, logistics costs, preparation costs, handling costs, additional services and all other amounts paid by the buyer in connection with the transaction, unless taxes, customs duties or other public charges are expressly excluded from the commission base in the invoice or settlement statement. The commission of the Platform Operator shall be calculated automatically upon payment of the individual order and deducted from the total amount paid by the buyer for that transaction. After completion of the transaction, the supplier shall receive the net amount reduced by the applicable commission of the Platform Operator and any other costs previously agreed or stated in the terms of use of OffSpec.eu. The supplier and the buyer expressly acknowledge that the commission of the Platform Operator represents compensation for establishing the business contact, use of OffSpec.eu, technical infrastructure, publication of products, order processing, administrative support, protection of the transaction process and other services enabling the conclusion or execution of the transaction. 18. Prohibition of Direct Contact and Circumvention The supplier shall not directly or indirectly establish direct business contact with the buyer, and the buyer shall not directly or indirectly establish direct business contact with the supplier, where the first contact between them was established through OffSpec.eu, except where such contact is strictly necessary for: resolving a complaint; enforcing a warranty; remedying defects; arranging collection or delivery, if previously approved by the Platform Operator; complying with legally mandatory communication obligations; communication expressly permitted by the Platform Operator in written or electronic form. Any direct communication between the supplier and the buyer intended to conclude a transaction outside OffSpec.eu, agree on a price outside OffSpec.eu, make payment outside OffSpec.eu, avoid commission, transfer the order to another natural or legal person, conceal the actual transaction value or otherwise bypass OffSpec.eu shall constitute a material breach of these terms. Circumvention of OffSpec.eu shall also include any transaction performed through an affiliated company, agent, distributor, branch, business partner, employee, family member, alternative account, another company or any third party where the purpose or effect of such conduct is to avoid the obligation to use OffSpec.eu or to avoid paying commission to the Platform Operator. 19. Payment of Purchase Price to the Platform Operator and Holding of Funds All amounts paid by the buyer for an individual transaction shall be paid to the Platform Operator or, according to its instructions, to a payment account, payment system, escrow account, fiduciary account or account of an authorized payment service provider designated by the Platform Operator. The Platform Operator or an authorized payment service provider shall hold the received funds until completion of the individual transaction. Funds shall not be released to the supplier before completion of the transaction, unless expressly agreed otherwise in writing for a particular transaction. For the purposes of these terms, completion of the transaction means the moment when the goods have been delivered to the buyer or when objective documentary evidence shows that delivery has been performed in accordance with the agreed terms. Completion of the transaction may be evidenced in particular by: signed bill of lading; signed delivery note; carrier's proof of delivery; electronic confirmation from a logistics provider; warehouse acceptance document; buyer's confirmation of receipt; any other reliable document showing that the goods were delivered to the buyer or to a person authorized to receive them. After the completion of the transaction has been established, the Platform Operator or the authorized payment service provider shall first calculate and retain the applicable 5% commission of the Platform Operator and shall then transfer the remaining amount to the supplier's payment account specified in the supplier's user account or contractual documentation. 20. Holding of Funds in Case of Complaint, Dispute or Irregularity If, before the funds are released to the supplier, the buyer submits a complaint, objection, notice of non-conformity, notice of non-delivery, notice of incorrect delivery, notice of damaged goods or another substantiated notice of irregularity, the Platform Operator shall be entitled to hold all funds or a proportionate part of the funds until the relevant circumstances are clarified. The Platform Operator may request from the supplier and the buyer additional evidence, explanations, photographs, transport documents, reports, certificates, delivery notes, communication records or other documents necessary to assess whether the transaction was properly completed. Holding of funds shall not constitute acknowledgment of liability by the Platform Operator for the product, delivery, quality, warranty, conformity or obligations of the supplier. The purpose of holding funds is solely to ensure the orderly execution of the transaction and to protect the proper course of the transaction process. If it is established that the complaint was unfounded or that delivery was duly performed, the funds shall be released to the supplier after deduction of the Platform Operator's commission. If it is established that delivery was not performed, was performed incorrectly or that another material breach of the agreed terms exists, the Platform Operator may hold the funds until an agreement between the supplier and the buyer is reached, until a final decision of a competent authority is issued, until a settlement is concluded or until another legal basis for payment or refund exists. 21. Prohibition of Direct Payments The buyer undertakes not to pay any amount directly to the supplier for any transaction arising from OffSpec.eu, unless the Platform Operator has expressly approved such payment in advance in writing. The supplier undertakes not to request, accept or enable any direct payment from the buyer for any transaction arising from OffSpec.eu, unless the Platform Operator has expressly approved such payment in advance in writing. Any direct payment between the buyer and the supplier that has not been previously approved in writing by the Platform Operator shall be deemed a material breach of these terms and a circumvention of OffSpec.eu. In the event of breach of this provision, the supplier and the buyer shall be jointly and severally liable for payment of the Platform Operator's commission, together with any collection costs, statutory default interest and any other damages incurred by the Platform Operator as a result of such breach. 22. Contractual Penalty for Circumvention of OffSpec.eu If the supplier or the buyer breaches the obligation to conclude transactions through OffSpec.eu, the prohibition of direct contact, the prohibition of direct payments or any other provision intended to protect the Platform Operator's right to commission, the breaching party shall pay a contractual penalty to the Platform Operator. The contractual penalty shall amount to 15% of the total value of the transaction concluded or performed outside OffSpec.eu, but not less than EUR 1,000.00 for each individual breach, unless the Platform Operator proves higher damages. Payment of the contractual penalty shall not affect the right of the Platform Operator to claim the regular 5% commission, damages, collection costs, statutory default interest and any other claims available under applicable law. If both the supplier and the buyer participate in the circumvention of OffSpec.eu, they shall be jointly and severally liable for all obligations toward the Platform Operator. 23. Obligation to Disclose Subsequent Transactions The supplier and the buyer must immediately disclose to the Platform Operator any subsequent transaction, order, agreement, framework agreement, successive delivery or other business cooperation arising from the first contact established through OffSpec.eu. This obligation applies even if the subsequent transaction is concluded under different terms, for different quantities, for different products, through an affiliated person, through another company or through another commercial channel. If the supplier or buyer fails to disclose a subsequent transaction, it shall be presumed that such party acted with the intention of circumventing OffSpec.eu, unless proven otherwise. 24. Right to Suspend or Terminate User Account The Platform Operator may temporarily or permanently restrict, suspend, block or terminate the user account of a supplier or buyer if there is reasonable suspicion that the user has: attempted to bypass OffSpec.eu; established unauthorized direct contact; requested or made a direct payment; concealed a subsequent transaction; provided false or incomplete information; breached the obligation to pay commission; endangered the rights, interests or reputation of OffSpec.eu or the Platform Operator. The Platform Operator may, where appropriate, allow the user to provide an explanation before termination of the account. In urgent cases, particularly where there is a risk of damage, fraud, abuse, illegal trade or circumvention of OffSpec.eu, the Platform Operator may restrict the account without prior notice. 25. Payment Compliance The provisions concerning receipt, holding, release and transfer of funds shall apply only to the extent permitted by applicable laws and regulations governing payment services, anti-money laundering, tax obligations, consumer protection, electronic commerce and other mandatory legal requirements. The Platform Operator may use a licensed payment service provider, bank, payment institution, escrow provider or another legally permitted solution for the receipt, holding, processing and transfer of funds. If applicable law requires that a particular payment service be performed by a licensed, authorized or registered entity, such service shall be performed exclusively through a duly authorized entity. Users undertake to comply with the terms and conditions of such payment service provider where its use is required for the execution of a transaction. 26. Priority of Commission, Payment and Anti-Circumvention Provisions The provisions concerning the obligation to conclude transactions through OffSpec.eu, prohibition of circumvention, prohibition of direct payments, commission of the Platform Operator, holding of funds and contractual penalties constitute essential terms of use of OffSpec.eu. Without accepting these provisions, the supplier may not publish products on OffSpec.eu and the buyer may not submit inquiries, orders or conclude transactions through OffSpec.eu. Any use of OffSpec.eu constitutes express confirmation that the user understands, accepts and undertakes to comply with these provisions in full, to the maximum extent permitted by applicable law. 27. Governing Law and Jurisdiction The use of OffSpec.eu, the relationship between the user and the Platform Operator, and the interpretation of these terms shall be governed by the law of the Republic of Slovenia, unless mandatory rules of European Union law, private international law or other mandatorily applicable law provide otherwise. For disputes between a user and the Platform Operator, the competent court in the Republic of Slovenia shall have jurisdiction, unless mandatory applicable law provides otherwise. This provision does not necessarily determine the governing law or jurisdiction for disputes between the supplier and the buyer, as their relationship shall be governed by the terms agreed between them and the law applicable to their transaction. 28. Mandatory Law Prevails If any provision of these terms is contrary to mandatory law, such provision shall apply only to the extent permitted by applicable law. The invalidity, illegality or unenforceability of any individual provision shall not affect the validity, legality or enforceability of the remaining provisions. In the event of conflict between these terms and mandatory consumer rights, product safety rules, liability rules, data protection rules, electronic commerce rules or any other mandatory legal provisions, such mandatory provisions shall prevail. 29. Acceptance of Terms By using OffSpec.eu, the user confirms that they have read, understood and accepted these terms, that they understand the nature of off-spec products, and that they accept the limitation of liability of the Platform Operator to the fullest extent permitted by applicable law. By publishing a product, the supplier additionally confirms that all information entered by the supplier is true, complete, lawful and non-misleading, and that the supplier assumes full responsibility for the published product, its specifications, warranty, quality, conformity, delivery and legal relationship with the buyer. By submitting an inquiry, order or entering into a transaction with the supplier, the buyer confirms that the buyer had the opportunity to review all essential information concerning the product and understands that the legal transaction is concluded directly with the supplier and not with the Platform Operator, unless expressly agreed otherwise in writing. 30. Final Provision OffSpec.eu enables products which, due to their specific characteristics, do not meet the standard requirements of the mass market to reach suitable buyers who understand their nature, limitations and potential usability. The platform does not assume responsibility for business decisions of suppliers or buyers, but provides a technical and informational environment for publication, search, transaction support and establishment of business contact. All transactions, agreements, warranties, complaints, claims and disputes relating to an individual product shall be resolved directly between the supplier and the buyer, unless mandatory applicable law provides otherwise. The Platform Operator shall be entitled to its commission for all transactions arising from the use of OffSpec.eu, and suppliers and buyers undertake not to circumvent OffSpec.eu, not to make direct payments, and not to establish direct commercial relations outside OffSpec.eu in violation of these terms.