1 Preamble

1.1. Digitec Galaxus AG, Pfingstweidstrasse 60, 8005 Zurich (hereinafter “Galaxus”) operates the two online shops http://galaxus.ch and http://digitec.ch and sells products there in its own name. These online shops have been expanded by Galaxus to include a merchant programme that enables independent third parties (hereinafter “merchants”) to sell their products in their own name to customers based in Switzerland or Liechtenstein (hereinafter “customers”) (hereinafter “marketplace”).

1.2. The merchant is interested in using the marketplace to sell his products

1.3. To this end, the merchant accepts these Terms of Use and concludes a contract with Galaxus in accordance with these Terms of Use.

2 Contract conclusion/Scope

2.1. The merchant's consent to these Terms of Use is an application to conclude a contract. The contract between the merchant and Galaxus regarding the use of the marketplace (hereinafter “contract”) shall only be concluded upon express acceptance by Galaxus.

2.2. This contract, its annexes and the other documents referenced therein conclusively regulate the use of the marketplace by the merchant for the sale of products in Switzerland and Liechtenstein. The sale of products outside Switzerland and Liechtenstein is not covered by this contract. Deviating, conflicting or supplementary General Terms and Conditions of the retailer shall only become part of the contract with the written and explicit consent of Galaxus.

2.3. Any business relationships between Galaxus and the retailer for the purchase of products are not affected by these terms of use.

3 Conclusion of contract with customers / contracting parties

3.1. The merchant concludes all purchase contracts via the marketplace in its own name, for its own account and at its own risk. The merchant is the sole contractual partner of the customer and is solely responsible for the entire fulfilment and processing of all purchase contracts (including delivery, warranty, guarantee, reversal, etc.).

3.2. The purchase contract between the customer and the merchant is concluded at the time the customer places the order on the marketplace or in one of the Galaxus branches or by telephone or e-mail with Galaxus Customer Service, and at the conditions visible to the customer on the marketplace at that time (in particular sales price, delivery time). The merchant is obliged to fulfil this purchase contract in full.

3.3. Galaxus only acts as an intermediary for sales in which the merchant is the seller. The merchant recognises that Galaxus is not a party to the purchase contract concluded between the merchant and the customer.

3.4. For the purposes of Swiss or Liechtenstein value added tax (domestic tax; hereinafter ‘VAT’), Galaxus is deemed to be the supplier of services to the customer. It settles the VAT thus owed on all deliveries from purchase contracts that the merchant concludes via the marketplace with the Federal Tax Administration in its own name. If products sold on the marketplace are delivered from abroad to Switzerland or the Principality of Liechtenstein, the merchant shall ensure that the import is always carried out in its own name (e.g. by means of a declaration of subordination abroad) and then provides Galaxus with a (VAT-exempt) domestic delivery for VAT purposes. The merchant remains solely responsible for import tax and all other taxes, duties or fees in connection with all sales made by the merchant via the marketplace.

3.5. As Galaxus wants to offer a transparent and customer-friendly marketplace, the same general contractual conditions should apply to all purchase contracts that the customer concludes with different merchants. For this reason, Galaxus provides these contractual terms and conditions (hereinafter ‘GTC’). The merchant is obliged to use the GTC drawn up by Galaxus. The GTC, together with the applicable legal provisions of Switzerland, govern the entire purchase contract between the merchant and the customer.

3.6 The merchant acknowledges and confirms that all purchase contracts concluded via the marketplace are concluded in Swiss francs, are subject to substantive Swiss law (excluding the Vienna Sales Convention) and stipulate the customer's domicile/registered office as the exclusive place of jurisdiction.

3.7 The merchant shall ensure and guarantee that it fulfils the GTC at all times. Galaxus is authorised to amend the GTC at any time with a notice period of 60 days.

3.8 If the merchant does not conclude the purchase contracts in accordance with the GTC or if the merchant does not fulfil the purchase contracts in accordance with the GTC, Galaxus shall set the merchant a one-time deadline of 14 days for compliance. If the merchant fails to comply within this period, Galaxus shall be entitled to exclude the merchant from using the marketplace without further notice.

3.9 Galaxus shall set up a so-called merchant details page for the merchant based on the information provided by the merchant. The merchant shall ensure and guarantee that he always provides clear, complete and up-to-date information about his identity and contact address (including postal address and e-mail address) on his seller details page, as well as easily accessible information about his processing of personal data.

4 No exclusivity and pricing

4.1. Galaxus does not grant the merchant any exclusivity. Both Galaxus and any other merchant are authorised to sell the same and/or similar products as the merchant on the marketplace. Conversely, the merchant does not grant any exclusivity to Galaxus. The merchant is authorised to sell its products via any other channels (online and/or offline). The merchant is only prohibited from advertising for other channels on the marketplace.

4.2. The merchant operates the business on the marketplace at his own risk. In particular, the merchant acknowledges that Galaxus makes no assurances or guarantees regarding the turnover that can be achieved by the merchant on the marketplace.

4.3. The merchant is completely free to set the sales prices for its products. However, he undertakes to observe paragraphs 4.4 and 4.5.

4.4. It should be as easy as possible for users of the marketplace to compare prices. To ensure this, the merchant must ensure that all prices submitted by him for publication on the marketplace are final prices that include all taxes (with the exception of VAT), any advance recycling fees (vRG), as well as costs for packaging, delivery costs, minimum quantity surcharges and all other possible duties, fees or costs to be paid by the customer. The merchant is obliged to inform Galaxus of the VAT rate applicable by law for each product. Galaxus shall add the VAT to the price communicated by the merchant (hereinafter ‘sales price’).

4.5 The merchant must ensure that its pricing always complies with the applicable legal provisions in force in Switzerland.

5 Marketplace assortment

5.1 Galaxus determines at its own discretion the groups of goods and product ranges that may be sold on the marketplace (hereinafter ‘marketplace assortment’). The current marketplace assortment can be found on the marketplace in the navigation on galaxus.ch - pretty much everything and/or digitec.ch - the online shop for all things digital. Galaxus is authorised to change the marketplace range at any time. Significant restrictions to the product range will be announced 14 days in advance. The merchant is obliged to keep himself constantly informed about the current marketplace assortment so that paragraph 5.2 of these terms of use is complied with.

5.2 The merchant may only offer products on the marketplace that are part of the marketplace assortment.

5.3 The merchant shall refrain from offering the product groups and products designated as excluded in Annex 3 on the marketplace, even if these products are in principle part of the marketplace assortment. The merchant undertakes to fulfil the sustainability requirements contained in Annex 3. Galaxus may amend Annex 3 at its own discretion at any time for justified reasons (e.g. revisions to the law, negative media coverage of certain products/manufacturers, safety concerns, quality concerns, etc.).

5.4 The merchant shall ensure and guarantee that no products offered by it on the Marketplace are contrary to public decency (in particular no discriminatory or otherwise offensive material or material potentially damaging to the reputation of Galaxus or a company of the Migros Group) and do not infringe any third-party rights, including intellectual property rights (in particular personal rights, copyrights, trademark rights and patent rights). Migros Group companies include all Migros Cooperatives and the Federation of Migros Cooperatives as well as all companies controlled by them individually or jointly, directly or indirectly. Furthermore, the merchant shall comply at all times with the sanctions and embargo regulations applicable in Switzerland and in the EU.

5.5 The merchant shall only offer unused products in their original packaging on the marketplace. The merchant may only offer used products and/or products not in their original packaging in the goods and product groups of the marketplace assortment listed in Annex 4 and in accordance with the quality requirements defined therein.

5.6 The merchant is obliged to provide his offer feed with complete and correct data. Incorrect offers can be removed from the marketplace by Galaxus at any time. Incorrect data includes, for example, incomplete or incorrect information on a product, an incorrect VAT rate, multiple listings of the same product, etc.

5.7 The merchant acknowledges that all (domestic and foreign) merchants who place products on the market in Switzerland must pay an advance disposal fee for certain products as well as any other duties and fees (e.g. vRG, VOC emissions taxes, copyright fees).

If the merchant is domiciled abroad, he undertakes to designate a representative in Switzerland where necessary in order to fulfil his obligations under the relevant laws. He also undertakes to take all measures to ensure that the fees due are paid.
Should Galaxus be held liable by third parties or authorities in connection with the advance disposal fee owed by the merchant or other duties and fees, the merchant is obliged to indemnify Galaxus in full.

5.8 The merchant is responsible for compliance with all legal obligations and requirements for the products offered by him on the marketplace. This includes in particular

• Compliance with general product safety and product-specific regulations applicable in Switzerland and the Principality of Liechtenstein, such as (but not limited to) food law, chemicals law, therapeutic products law, energy law, agricultural law, environmental law, etc.;

• Obtaining and/or securing certifications and/or conformity tests as well as the authorisations and/or permits required for marketability;

• Compliance with all general and product-specific advertising, claiming and labelling regulations, including regulations on the origin of goods, on offers using distance communication technologies, on hazard warnings, on the prohibition of misleading and deceptive advertising, on consumer information, on the energy label, etc;

• Ensuring all traceability requirements;

• Fulfilment of post-market obligations under product law, including product monitoring measures (e.g. sampling and analysis, keeping complaint logs, carrying out recalls, compliance with reporting obligations, etc.);

• Fulfilment of documentation and retention obligations (e.g. product information files, data sheets, technical documents, safety data sheets, conformity assessment documents, certification documents, product authorisations and product approvals);

• Ensuring that the products do not infringe the intellectual property rights of third parties, in particular copyrights, design rights, trademark rights and patent rights, or the law on fair trading.

Galaxus is entitled to demand proof of the requirements listed in this paragraph from the merchant at any time.

5.9 In the event of a planned recall and/or withdrawal by the merchant, the merchant shall notify Galaxus immediately and inform Galaxus in full of all measures taken by the merchant and/or the competent authorities.

5.10 If the merchant offers products on the marketplace that violate paragraphs 5.2, 5.3, 5.4, 5.5, 5.6, 5.7 or 5.8, Galaxus may immediately remove these products from the marketplace and/or completely exclude the merchant from using the marketplace.

6 Technical framework of the marketplace

6.1 The technical framework conditions of the marketplace are set out in Annex 1 (hereinafter ‘Technical Framework Conditions’). Galaxus decides independently on the further technical development of the marketplace and is authorised to adjust the Technical Framework Conditions at any time with a notice period of 60 days.

6.2 The merchant had the opportunity to familiarise himself with the Technical Framework Conditions before concluding this contract. The merchant is solely responsible for ensuring that its technical infrastructure is adapted to the current Technical Framework Conditions so that it can use the marketplace.

6.3 Galaxus endeavours to ensure the uninterrupted availability of the marketplace. The merchant acknowledges that the marketplace is based on a technically complex solution and that availability cannot be guaranteed at all times. Availability may be limited as a result of maintenance work, system adjustments or malfunctions. There is no entitlement to claims for damages in connection with temporary interruptions to the marketplace and/or the technical connection.

7 Order and delivery

7.1 The customer places orders with Merchants in the online shop pursuant to the order process specified there.

7.2 The online shop confirms the order to the customer and the Merchant.

7.3 The Merchant delivers the ordered products directly to the customer.

7.4 The Merchant assures that the customer can identify the delivery as coming from the Merchant (name/consignor of the Merchant on the packaging). The Merchant is prohibited from including advertising materials or similar documents with the delivery.

7.5 The details for the process sequence of an order or delivery are described in Annex 1 under general technical conditions. The Merchant is obligated to comply with them.

7.6 The Merchant must manually or automatically perform the operational processing and execution of the order and delivery process using the interface specified in Annex 1.

7.7 The Merchant may specify a delivery period for its products at the outset. The Merchant shall notify Digitec Galaxus AG of the product availability («Product Availability») for the products it offers, via the interface and in the manner specified in Annex 1. Digitec Galaxus AG automatically measures the delivery time of the Merchant («measured delivery time») and adjusts the delivery time if necessary. The delivery duration, which is displayed in the online shop, results from the two factors product availability and measured delivery duration.

7.8 For material reasons, Digitec Galaxus AG may withhold orders (e.g. suspicion of fraud), refuse to process them, and/or cancel them, as well as exclude customers from the online shop. The Merchant acknowledges that Digitec Galaxus AG is however not obligated to do so.

8 Returns

8.1 The Merchant agrees to grant the customer a right of return that satisfies at least the conditions specified in the general terms and conditions.

8.2 The Merchant is obligated to provide an address in Switzerland for returns.

8.3 As a rule, the customer bears the postage fees for sending the return, other than for clothing and shoes and in special cases, which are noted in the return policy in the online shop. Postage fees that are not incurred by the customer are charged on to the Merchant.

8.4 The details concerning returns are described in the process sequence for returns in Annex 1 under general technical conditions. The Merchant is obligated to comply with them.

8.5 The Merchant must manually or automatically perform the operational processing and execution of the return process using the interface specified in Annex 1.

9 Customer service and warranty

9.1 Digitec Galaxus AG's customer service is also available to the Merchant's customers who have made purchases via Digitec Galaxus AG's online shop for questions regarding products, deliveries, invoices and payment modalities, etc. The Merchant shall name a contact person to Digitec Galaxus AG who will provide information in the event of questions concerning the Merchant. The Merchant shall name a contact person to Digitec Galaxus AG who will provide information in the event of questions concerning the Merchant. Digitec Galaxus AG is entitled to refer the customer to the Merchant in case of questions.

16.2 All changes and amendments to this contract must be written, but do not require the signature of both parties to be valid. Verbal contract amendments are not valid.

9.3 The Merchant must provide customers with a warranty for all products sold in the online shop that corresponds at a minimum to that in the general terms and conditions.

9.4 The Merchant expressly acknowledges that it is solely responsible to the customer for all warranty claims, as well as those for wrong or late delivery, defective products, etc. The Merchant confirms that Digitec Galaxus AG is not directly or indirectly liable for any such claims.

10 Commission

10.1 The Merchant agrees to pay Digitec Galaxus AG a commission for referring customers (hereinafter referred to as the «commission»). The amount of the commission is set forth in Annex 2. The sales fee includes a cost-covering compensation for the collection of the customer's pur-chase price receivables or compensation for the assumption of the default risk in the case of purchase on account (see section 11.5 below).Digitec Galaxus AG is entitled to adjust the commission at any time with 60 days advance notice.

10.2 The commission is based on the product’s sales price, not including VAT. The commission calculated in this way is always net of VAT. Any VAT that is owed is added.

10.3 The commission is owed for all purchase contracts that the Merchant concludes with customers in the online shop. The claim to the commission arises when the purchase contract is concluded pursuant to section 2.2.

10.4 The commission is not owed if, in conformity with the general terms and conditions, the customer makes use of his or her right of return or the purchase contract is subsequently cancelled. In this case, Digitec Galaxus AG shall waive the commission to the Merchant or transfer the already paid commission back to the Merchant.

11 Invoicing, assignment, debt collection and payment

11.1 For the payment for the products, the customer can make use of the payment options offered in the online shop.The Merchant instructs Digitec Galaxus AG to take over the collection of the receivables arising within the framework of the purchase contract between the Merchant and the customer (hereinafter referred to as the «purchase price claims»).

11.2 Upon conclusion of this Merchant agreement, the Merchant assigns all purchase price claims to Digitec Galaxus AG. The latter accepts the assignment. The assignment of the individual pur-chase price claims shall take place when they arise, i.e. upon conclusion of the purchase agreement in accordance with section 2.2. The Merchant shall be liable for the existence of the purchase price claims against the customer at the time of the assignment.

11.3 Once the assignment has been made, Digitec Galaxus AG will arrange for the nominal amount of the purchase price claim to be paid out to the Merchant . The Merchant can choose from var-ious payment models. Digitec Galaxus AG shall be entitled to ancillary rights and claims against the customer, such as interest on arrears and reminder costs.

11.4 If the customer makes use of his right of return in accordance with the GTC, Digitec Galaxus AG shall waive collection vis-à-vis the customer or refund the amount already paid to the cus-tomer. In this case, no payment of the nominal amount of the purchase price claims shall be made to the Merchant, or the Merchant shall pay back any amounts already paid out to Digitec Galaxus AG.

11.5 In the case of purchase on account, Digitec Galaxus AG checks the creditworthiness of the cus-tomer in advance and assumes the default risk (del credere). The compensation for this as-signment in the amount of 0.1% (10bp) of the nominal amount of the purchase price claims is included in the commission.

11.6 Digitec Galaxus AG is entitled to offset its claim for payment of the commission against the Merchant’s claim for payment of the nominal amount of the purchase price claims.

11.7 Digitec Galaxus AG prepares a statement for the Merchant on a monthly basis, which shows the purchase price receivables and the corresponding commission charges incurred during this period. Returns are listed as negative items.

11.8 The Merchant shall raise any objections to this statement within seven (7) working days upon receipt. After expiry of this deadline, the settlement statement is deemed approved without reservation.

12 Data protection and data use

12.1 The contracting parties mutually undertake to comply with all provisions of data protection law as amended from time to time for the data processing for which they are responsible. Both contracting parties shall take appropriate measures to ensure that their employees and agents are aware of and comply with the obligations under data protection law.

12.2 Digitec Galaxus AG is the responsible party under data protection law for all data collected in the online shop about the user behaviour of individual end customers. This also applies to user data that is collected when calling up sub-pages of the online shop on which the retailer offers its goods/services.

12.3 End customers can open a customer account in the online shop. Within the scope of opening and maintaining the customer account, personal data of the end customers will be processed. This includes first name, surname, date of birth, delivery address, and information about products/services purchased from Digitec Galaxus AG or its dealers. Digitec Galaxus AG is responsible for the processing of this data in the sense of data protection law.

12.4 In the case of personal data of end customers that is not processed by Digitec Galaxus AG, but by the merchant himself as the person responsible under data protection law and/or by another order processor of the merchant (e.g. address data for the purpose of delivery of goods), the merchant must ensure that all data protection requirements are complied with in the context of this data processing. In particular, the merchant must conclude an agreement on order processing with any order processors that complies with the legal requirements. In addition, the merchant must take appropriate technical and organisational measures to protect the data.

If the data is processed by other third parties who are not deemed to be order processors of the merchant, but are deemed to be data controllers under data protection law, the merchant must make sufficient contractual arrangements with these third parties for the protection of the data as well as the purpose limitation to be complied with by the third parties.

12.5 Data that the Merchant collects in the context of the offer and the sale of products/services in the online shop may only be used by the Merchant for the provision of the offer and the processing of purchase transactions. Any use for third-party marketing purposes or other own purposes is prohibited.

12.6 The Merchant is obliged to permanently delete all data of the end customers made accessible to it after the contract has been executed and at the latest after the expiry of any warranty or guarantee period or other statutory retention periods.

12.7 The merchant is obliged to provide the end customers with information that complies with existing legal data protection requirements. Digitec Galaxus AG offers the merchant the option of storing this information in the merchant profile in the online shop.

12.8 The merchant is obliged to fulfil the rights of data subjects asserted against him (e.g. information, deletion, data portability, etc.) vis-à-vis the data subjects (end customers).

12.9 Data of legal persons are generally not relevant under data protection law. Insofar as data that the merchant provides to Digitec Galaxus AG (e.g. as part of the onboarding process) and/or that Digitec Galaxus collects via the merchant in any other way (e.g. IP addresses) fall within the scope of data protection law despite this circumstance, the privacy policy of Digitec Galaxus AG shall apply.

12.10 The merchant grants Digitec Galaxus AG the royalty-free and unlimited right to use all data (in particular product data) that the merchant posts on the online shop. This includes in particular the right to publish this data for advertising purposes in print media, online or other communication channels and to adapt it for this purpose. This right of use shall continue after termination of this contract.

13 Term and termination

13.1 This contract is concluded for an unlimited term and may be terminated by either party by registered letter with 60 (sixty) days notice, effective at the end of a calendar month.

13.2 Where cause exists that makes it unreasonable to expect a party to perform this contract, such party may at any time terminate by registered letter with immediate effect.

13.3 Both parties are obligated to satisfy in full their contractual obligations in connection with all purchase contracts that were concluded on or before the date of termination of this contract regarding the online shop, even where the acts of satisfaction take place in the period after termination of this contract.

14 Assurances, warranties, and exclusion of liability

14.1 The Merchant warrants and assures to Digitec Galaxus AG that with respect to all products offered by the Merchant in the online shop:

a) the Merchant is entitled to sell them;
b) to the best of the Merchant's knowledge and belief, they are free of defects;
c) the sale and other use does not infringe statutory provisions or rights of third parties.

14.2 The Merchant shall carry out the processing of Customer data (insofar as permitted in accordance with Clause 12.1 above) on his own responsibility under data protection law and undertakes to comply fully with the applicable data protection legislation and the Digitec Galaxus AG data protection declaration. In particular, the Merchant is obliged to provide the Customer with the information required by data protection legislation for the processing carried out under its own responsibility and to store this information in the Merchant profile on the online shop.

14.3 The Merchant warrants and assures to Digitec Galaxus AG that it will satisfy in full all purchase contracts that it concludes in the online shop and that it is solely responsible to the customer under such purchase contracts (including defect-free, timely delivery, warranty, product liability, etc.).

14.4 Any liability of Digitec Galaxus AG is excluded to the extent permitted by statute. In particular, Digitec Galaxus AG is not liable for mere simple negligence on its part or for actions by auxiliary persons that it engages. Any liability for consequential damages and lost profit is excluded.

15 Compliance with statutory provisions

In connection with the conclusion and performance of this contract, the Merchant undertakes to act in conformity with all applicable statutory and regulatory provisions and to refrain from taking or omitting any action whatsoever that could damage the reputation of Digitec Galaxus AG or a company of the Migros Group. Failure to comply with these obligations constitutes cause within the meaning of section 13 (2) of this contract.

16 Final provisions

16.1 The content of this contract (including Annexes) and the related data (such as the Merchant's sales, commission of Digitec Galaxus AG, etc.) are confidential information, which both parties must treat in confidence and may not disclose to third parties. Exempt from the foregoing is the right of Digitec Galaxus AG to present a similar contract to other potential Merchants, as well as to make a disclosure as a result of statutory obligations. This obligation of confidentiality applies during the term of this contract and for a period of 24 months after its termination.

16.2 All amendments and additions to this contract must be in writing but do not require the signature of both parties to be valid. Verbal amendments to the contract are not valid.

16.3 If individual provisions of this contract should be void, ineffective or invalid, either in whole or in part, this does not affect the validity of the remaining provisions or parts of such provisions. The void, ineffective, or invalid provisions are to be replaced by those that most closely approximate in economic terms the spirit and purpose of the void, ineffective, or invalid provisions in a legally valid manner.

16.4 This contract is subject exclusively to Swiss substantive law, under exclusion of conflict-of-law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.

16.5 The exclusive place of jurisdiction for all disputes under or in connection with this contract is Zurich 1, Switzerland.

Annex

Annex 1: General technical conditions

Annex 2: Comission

Annex 3: Definition of chemical groups

Annex 4: Merchant KPIs