Termos e Condições
Version 2.4, last amended 2021-08-25
- General Provisions
- Platform is an online venue that provides video game enthusiasts with a safe space to connect and purchase various gaming related content, offered by Vendors participating within the Platform.
- Please note that the Platform is not an online shop, but an online platform and all the transactions are being conducted between Users and Vendors while ENEBA, unless expressly provided otherwise, does not engage either in selling or purchasing of the digital content.
- For avoidance of doubt:
- sales carried out through the Platform are made between the respective Users and Vendors while ENEBA only provides secondary services related to establishing and maintaining the Platform and providing additional services related to ensuring a smooth and safe experience for Users and Vendors;
- these Terms and Conditions set out contractual relationships between ENEBA and Users, and between ENEBA and Vendors in relation to ENEBA administering the Platform;
- these Terms and Conditions do not govern relationships between Users and Vendors;
- in particular these Terms and Conditions do not set the terms of specific transactions being concluded between Users and Vendors such as: purchase price, content and quality of the Digital Content, safety, warranty and liability provisions related to the sale of Digital Content via the Platform. ENEBA does not verify the veracity and accuracy of data provided by Users and Vendors.
- Notwithstanding the above, solely for the purposes of maintaining ENEBA brand, ensuring smooth functioning of the Platform, and avoiding unfair practices and illegal activities on the Platform, ENEBA reserves the right to set out general guidelines related to selling and buying content via the Platform.
- Please be advised that these Terms and Conditions may change from time to time in accordance with the procedure provided in Section 3.6 below. ENEBA strongly recommends Users and Vendors to read the Terms and Conditions from time to time in order to fully familiarize themselves with the particular terms in force at any given time.
Account – an account which gives a possibility for the User or the Vendor to use Services provided in the Platform and get all of the benefits from it.
Digital Content – digital content which has the activation code and can only be used after it is activated on the User’s computer platform or other digital content offered for purchase by Vendors via Platform.
ENEBA – UAB Helis play, with its registered office at Gyneju St. 4-333, Vilnius, the Republic of Lithuania.
Platform – this platform is made available on the Internet under the address: www.eneba.com and/or through the app.
Sales Contract – any contract between the User and the Vendor which obliges the Vendor to transfer the access to the Digital Content to the User and the User to pay the price thereof.
Service – one of the services which are provided by ENEBA as described in these Terms and Conditions.
Terms and Conditions – this set of rules that determines the rights and obligations of Users, Vendors, and ENEBA and the terms regulating the use of the Platform.
User – a natural person who acts in relation to these Terms and Conditions for the purposes other than their trade, business, craft, or profession (i.e., consumer), and has registered an Account on the Platform and (or) has an intention to purchase Digital Content by using Services provided by ENEBA.
Vendor – an entrepreneur operating in any form who sells Digital Content to Users via the Platform.
- Applicability of these Terms and Conditions
- Users who are prohibited from using the Platform due to regulations of the respective state or regional restrictions, including the country/region of current residence of the User and place of use of services, are hereby asked to refrain from using the Platform.
- Each User confirms that they are at least 16 (sixteen) years old or have reached the age under respective country’s laws which allows them to assume responsibility for obligations emerging from contractual relations and has a full capacity to take legal actions. Also, each User confirms that there are no restrictions under respective country’s laws for them to use Services provided by ENEBA.
- Each Vendor confirms that they are an entrepreneur and accept these Terms and Conditions. Each Vendor hereby states that there are no factual or legal grounds preventing them from accepting these Terms and Conditions and concluding Sales Contracts with the Users via the Platform aimed at the sale of Digital Content to the Users.
- ENEBA has the right to make changes and modifications to these Terms and Conditions, including the right to draw new provisions and withdraw the old ones, at its own discretion, unilaterally and at any time by announcing the amendments of the Terms and Conditions on the Platform. By further using of the Platform and the Services, Users and Vendors confirm being bound by all changes to these Terms and Conditions. The amendments of the Terms and Conditions come into effect in 10 (ten) days after the announcement on the Platform unless it is explicitly stated otherwise.
- Users and Vendors may enter into additional separate agreements with ENEBA. In case of any conflict between the provisions of these Terms and Conditions and such additional agreements, the provisions of additional agreements shall prevail unless explicitly provided otherwise in the said additional agreements.
- ENEBA communicates with Users and Vendors by sending e-mails, through the Platform Account’s electronical system by leaving notices to them, or through distribution of notices via communication channels within other services. Users and Vendors unconditionally consent to receive communications electronically and agree that all agreements, notices, disclosures and other communications that ENEBA electronically provides shall meet any legal requirements of such communication in writing.
- Service Fees
- Unless expressly provided otherwise, ENEBA collects its commission and any other possible fees from the prices determined by the Vendor in relation to each transaction. During the process of creating and auction a Vendor is provided with all the information on commissions and other fees which the Vendor is subject to in relation to listing a particular auction with the Platform.
- Using the Platform, creating an Account and buying Digital Content through the Platform is free of charge for the Users. ENEBA’s commission is collected from the sale price of Digital Content specified by the Vendor. However, Users may be charged for additional services contracted from ENEBA via the Platform. To the amount of the fees for such additional services ENEBA may add the amount of Value Added Tax (VAT) at the rate applicable at the User’s place of residence on the territory of the European Union which is related to VAT obligations in conformity with the Community Law, in particular Art. 58 of Council’s Directive 2006/112/WE and the Implementing Regulations No 282/2011 and 1042/2013.
- Users and Vendors are solely responsible for paying fees and taxes relating to their use of Services available on the Platform. Users and Vendors are particularly responsible for paying due taxes, fees or other due amounts required in connection to the contracts entered into via the Platform on their own. In any case ENEBA shall not be responsible for settling such fees and taxes. If a certain payment method shall fail or an invoice is overdue, ENEBA reserves its right to demand payment by way of another method of payment including all possible additional costs of such method.
- Whenever ENEBA provides Services to any person who is considered to be an entrepreneur, such person acknowledges and agrees to account for any due Goods and Services Tax (GST), VAT, Sales Tax or any similar tax via the applicable reverse charge mechanism.
- Each User is obliged to disclose their place of residence. Users are hereby informed that ENEBA may use tools to detect the localization of computer network device (and the connection) as regards the country of origin from which the registration is performed. ENEBA may refuse to set-up the Account or suspend or terminate such in case the place of residence indicated by the User differs from the results of verification made by ENEBA, in particular by localization of computer network devices (and the connection), as regard the country of origin from which the Platform is accessed. Each User is entitled to set up only one account, unless expressly agreed otherwise on a case-by-case basis. For avoidance of doubt, Users must not use VPN connection during the use of Platform, unless expressly agreed otherwise on a case-by-case basis.
- As per its internal procedures ENEBA may from time to time carry out KYC procedures and request from its Users and Vendors presentation of proper documents and information related to their identity and activities within the Platform. Such may include User’s identification documents as well as various Vendor’s documentation, confirming Vendor’s legal status, registered address, authorization to represent the Vendor, VAT identification number and other data that may be necessary in a given case. Failure to provide such documents and information within the term set by ENEBA may constitute the reason to refuse registration and (or) be the grounds for suspending or terminating an already registered Account.
- Following correct registration on the Platform by the User, they are provided with an access to the full functionality of the Platform after entering their login and password.
- At any time if ENEBA believes that the Account is at high risk of making damage to any person, ENEBA has all the rights to suspend the use of the Account by restricting access logging into the Account, withholding transactions and etc. After the risk is eliminated (in the sole discretion of ENEBA), ENEBA shall reactivate the Account. In the situation where the manager of an Account violates law or these Terms and Conditions, ENEBA has the right to terminate the Account. ENEBA shall be entitled to suspend or terminate the use of the Account provided that in the opinion of ENEBA any other circumstances occur which may result in risk to any person or breach of laws.
- Users are responsible for reasonable care of their Account and they must ensure that their e-mail address is up to date. ENEBA is not responsible for situations where Users do not receive information because of their negligence.
- In the situation where ENEBA decides that the Platform must be modernized or it is having technical problems, ENEBA has the right to restrict the possibility of logging into Accounts or using respective Services or even general access to the Platform.
- Users acknowledge that giving away login details of their Account to another person could cause damage to ENEBA or third persons. Users are liable for securing that type of information and in the case where they fail to ensure that, Users are responsible for eliminating all caused damage.
- The Account is made available to the User by ENEBA free of charge and allows them to use the Services offered through the Platform, which is possible from any place in the world via the Internet network.
- Services (or any other functionalities incorporated into the Platform) may differ between different countries or regions. ENEBA does not provide any guarantee to the effect that a service or functionality of a certain type or reach will be available for all Users. ENEBA reserves the right to restrict, decline or create another level of access relating to the use of Services (or any other functionality incorporated into the Platform) for different individual Users.
- Accounts are also created for Vendors. In order to start selling via the Platform the Vendor must contact ENEBA by filling up the registration form and providing the requested documents and information. After successful registration, ENEBA shall create an Account and shall provide the Vendor with the login details, that later may be changed by the Vendor.
- In case of any violations of these Terms and Conditions and the applicable laws by the Vendor, ENEBA reserves the right to suspend or terminate the Vendor’s Account. Sections 5.6-5.9 apply to Vendors as well.
- Notwithstanding the above, the Account of the Vendor may also be suspended or terminated if it is noticed that the Digital Content put on sale violates third party intellectual property rights or had already been used.
- Users and Vendors shall not use other Accounts and will not make their Accounts available to other User or any third parties. The above shall not apply to the Vendors’ making their Account available to the persons duly authorized to act on their behalf as well as their employees, authorized by the Vendor to use the Account. To the extent permitted by law, ENEBA shall be exempted from any liability against Users and Vendors related to such violating this provision. For avoidance of doubt, Users and Vendors shall assume all liability for actions and outcomes of actions of persons whom they provided with the access to their Account.
- Both Users and Vendors are obliged to keep their registration data up-to-date and swiftly inform ENEBA on any changes of such data.
- Terms and Conditions of Use
- In accordance with these Terms and Conditions, ENEBA grants Users a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services provided by ENEBA. Such license is strictly limited to functionalities of the Platform and does not extend to any licences to Digital Content (including game activation codes offered by Vendors via the Platform). For avoidance of doubt any licences to Digital Content may only be granted upon discretion of their owners or other authorized persons.
- All rights not expressly granted to the Users in these Terms and Conditions are reserved and retained by ENEBA or their owners, licensors, suppliers, publishers or other authorized persons.
- Any intellectual property objects such as any texts, graphic materials, interactive functions, logos, photographs, files, software on the Platform, except for those uploaded, transmitted, made available, published by Users and Vendors, as well as the selection, organization, coordination, compilation of the materials and the general outline and nature of the Platform constitute the intellectual property of ENEBA. They are protected by copyrights, trademarks, patents, industrial design rights and any other rights and provisions, including international conventions and property rights. Any such rights are reserved for ENEBA. Any trademarks, marks and trade names constitute ENEBA property.
- Unless with written express ENEBA consent, neither Users nor Vendors are allowed to: duplicate, copy, download, disseminate, sell, distribute or resell any services, information, texts, graphics, video clips, sounds, screenplays, files, databases or lists whatsoever available on or via the Platform nor use them otherwise. It is forbidden to retrieve the Platform content systematically to create or compile, either directly or indirectly, a collection, compilation, database and catalogue (by using robots, search engines, automatic or manual devices) without express written permission of ENEBA. The use of any content or materials available on the Platform for purposes not specified in the Terms and Conditions is prohibited, especially any use, publication, copying in any form – whether electronic, mechanic, photographic or other (All Rights Reserved).
- ENEBA is allowed to provide Users hyperlinks on the Platform (i.e., banners, channels) with access to the content, products or services offered by other providers leading them to the Platforms of such providers. ENEBA is not liable for the certainty, accuracy or trustworthiness of information submitted by mentioned providers. ENEBA recommends reading all documents on sites of such providers. Users acknowledge that ENEBA has no control of these providers actions.
- Users and Vendors including, but not limited to, confirm and state that they:
- will not publish any improper or faulty information which may be harmful to ENEBA, other Users, Vendors or third persons;
- will not upload or spread any information on the Platform which could violate laws, contractual agreements or third persons’ rights. Such potentially sensitive information could be copyrighted material, personal data, trade secrets and other;
- will not impersonate another person or entity, whether existing or fictional, or falsely maintain to be related to any other person or entity, nor access other User’s or Vendor’s Accounts, nor provide any false information which could mislead ENEBA, other Users or Vendors;
- will not attempt to hack, modify, disable or affect in any other way the Platform or challenge its security;
- will not use the Platform for any other purposes than as it is intended to be used considering the purposes of ENEBA Services;
- will not try to collect any personal data which is being held at the Platform system without the consent of particular data subject and will not offend or deceive other Users or Vendors;
- will not use the Platform for any illegal purposes or for violating any laws, including provisions relating to copyright, intellectual property rights and other property rights protection;
- will not try to interfere with the Platform’s activity or prohibit other Users or Vendors from using the Platform (or making it difficult to use);
- will not transfer for remuneration nor in any other way make available for remuneration part or whole of their Account;
- will not make transactions with money from illegal or undisclosed sources.
All the actions mentioned above include attempts of performing one of them or creating circumstances for such actions to materialize.
- By posting or publishing their own materials on the Platform or by any other distribution of such to ENEBA, Users and Vendors within the scope permitted by the laws grant an irrevocable, permanent and free of charge license for ENEBA to use these materials, including, but not limited to, present, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create content related and otherwise, in any way and for any purpose whatsoever that might be beneficial to the operation of ENEBA, currently or in the future. Users and Vendors acknowledge and warrant to ENEBA that they have sufficient means and rights to ensure such license.
- VENDORS ARE STRICTLY PROHIBITED FROM LISTING AND SELLING ANY DIGITAL CONTENT WHICH INFRINGE THE APPLICABLE LAWS, THIRD PARTY RIGHTS (INCLUDING COPYRIGHT) OR THESE TERMS AND CONDITIONS.
- Dealings between Users and Vendors and the role of ENEBA
- ENEBA being an administrator of the Platform, provides Vendors meeting certain requirements with an opportunity to sell Digital Content to the Users via the Platform.
- Each Vendor determines the price of the Digital Content which they intend to sell via the Platform. Unless expressly provided otherwise and subject to Sections 4.1-4.2 ENEBA collects its commission and any other possible fees from the amount of such price. Users and Vendors confirm their understanding that ENEBA and individual Vendors may also agree in additional agreements indicated in Section 3.7 on other commissions and fees.
- By listing Digital Content on the Platform, Vendor instructs ENEBA to publish on the PlatformVendor’s invitation to conclude an agreement for Users willing to purchase Digital Content at a price determined by the Vendor. As such it shall not constitute a sales offer within the meaning of the civil law. Vendor shall be entitled to change the price of the offered Digital Content, provided that no Users have expressed the will to purchase such. Each Vendor acknowledges and consents that the product prices and descriptions are made public and are available for all Users of the Platform.
- For the purposes of listing Digital Content on the Platform, Vendors provide information on the products to be put on sale on the Platform and consent to ENEBA reviewing and finalizing the descriptions in order to ensure the general standard of the listing descriptions on the Platform. Each Vendor undertakes to provide true and complete information necessary to complete such descriptions. Provided information must properly reflect the real features of the product. ENEBA shall not be responsible for any inaccuracies of the product descriptions arising due to Vendors providing ENEBA with incorrect information. Vendors hereby authorize ENEBA to use information indicated in this Section free of charge, to prepare descriptions of products being sold, including modifications, alterations and translations of this information.
- Each User is aware and hereby acknowledges that by expressing their will to purchase Digital Content (i.e., placing an order connected with the purchase of Digital Content) from the Vendor via the Platform may entail an obligation to pay, provided that a will to conclude a contract and to charge the User is expressed by the Vendor. For avoidance of doubt, Users expressing their will to purchase the Digital Content must be aware that the Vendor may be entitled to withdraw from entering into a Sales Contract according to the delivery and payment authorization preferences chosen by the Vendor.
- ENEBA does not authorize delivery of Digital Content sold by Vendors and is not responsible for and does not authorize payments for Digital Content delivered via the Platform by Vendors.
- ENEBA enables Users and Vendors to have due payments of the Users paid by means of specific payment channels available on the Platform. For avoidance of doubt, Vendors may allow such payments to be made outside the ENEBA ecosystem in which case the Users shall be responsible for ensuring that the payment has been duly and securely made, documented and all information has been communicated with the Vendor. With regards to the payments made within the ENEBA ecosystem, hereby each Vendor consents and grants permission to ENEBA to deduct its commissions and other fees from the funds collected on its banks account and transfer the remaining part to the Vendor’s bank account.
- ENEBA encourages amicable resolution of any disputes between Users and Vendors. For this purpose, ENEBA provides Users and Vendors with a dispute resolution mechanism – via help centre functionality available on the Platform. Therein Users and Vendors may agree to have the funds returned to the User or have the purchased faulty product exchanged. To maintain ENEBA brand, avoid unfair practices and illegal activities on the Platform, ENEBA may participate in the said process as an intermediary, however, the right to resolve such disputes shall remain with the Vendors. In case the User is not satisfied with the conclusion of such resolution, they may raise the respective claims against the Vendor at court or in any other way.
- Users and Vendors acknowledge that entering in any contracts on the Platform involves the risk of dealing with abusive people. ENEBA acts carefully and uses reasonable measures in order to verify the truthfulness of the information and data provided by Users and Vendors for the purpose of identifying respective Users and Vendors and determining their suitability to use this Platform and dispose of Accounts. Nevertheless, Users and Vendors should also use reasonable endeavours to make sure that the respective User or Vendor is suitable for any business transactions and relationships.
- Users and Vendors are personally responsible for observing all the terms and conditions of transactions conducted on, via or as a result of using the Platform or Services, in particular, the Terms and Conditions and other commitments. This also includes, but is not limited to, payment terms, warranty, returns, delivery, time of delivery, insurance, fees, taxes, licenses, or penalties.
- In order to unify rules of transactions performed via the Platform and to ensure standard of fair practice when conducting the above Users and Vendors hereby confirm that the Sales Contract between the User and the Vendor becomes valid once the provision of the access to the Digital Content and the charge to the User are authorized by the Vendor. All further actions connected with the Sales Contract, rights and obligations, are regulated by adequate laws or agreements between Users and Vendors.
- ENEBA will cooperate with Users and Vendors with regards to all of the questions related to appropriate provision of Services. Communication between ENEBA, and Users and Vendors will proceed through the Platform’s help centre, e-mail or other communication channels agreed separately.
- ENEBA will provide Users and Vendors with technical support provided they encounter any problems in relation to the functionality of the Account or the Platform.
Sale of Digital Content via the Platform may trigger an obligation for the Vendors to document such sale with respective bills (Transaction Documentation). As ENEBA has the technical resources necessary to issue such Transaction Documentation, Vendors hereby authorize ENEBA to issue such in the name and on behalf of the Vendor concerning its sales made via the Platform. Vendors may opt-out of such outsourcing by contacting ENEBA directly.
Vendors agree to disclose and provide ENEBA with all the information necessary for preparing such Transaction Documentation. Vendors confirm their understanding that such Transaction Documentation shall be made available to Users purchasing Digital Content from the Vendor.
While ENEBA exercising due care when issuing such Transaction Documentation, ENEBA does not in any way guarantee compliance with all laws and regulations of such Transaction Documentation. Vendors are advised that it remains the sole responsibility of each Vendor to ensure that any and all Transaction Documentation complies with applicable laws.
ENEBA Transaction Documentation service shall be provided on “as is” basis and each Vendor confirms that ENEBA does not make any representations or warranties whatsoever, express or implied, whether oral or written, with respect to the Transaction Documentation service, including but not limited to any implied warranties of accuracy or compliance.
Each Vendor shall defend, indemnify and hold harmless ENEBA, its related companies, and its and their directors, officers, employees, agents and licensees, from and against any claims, allegations, suits, losses, damages, liabilities, costs, settlements and expenses (including reasonable attorneys’ fees) arising from or related to any third party claim, suit or proceeding resulting from an act or failure to act on the part of the Vendor or any of their officers or employees, that may occur during or which may arise out of the performance of the Transaction Documentation services. This defence and indemnification obligation set forth in this Section will survive termination of these Terms and Conditions.
The sole remedy of the Vendor for any error, defect or failure in the Transaction Documentation shall be the correction of such defect or error.
Users are entitled to request Vendors to issue invoices related to purchases made by Users of Digital Content via the Platform. Pursuant to the applicable law, each Vendor may be obligated to issue and deliver the requested invoice as soon as possible, however, no longer than provided by the respective applicable laws.
Each Vendor acknowledges that it may be obligated to issue an invoice to the User for the sale of Digital Content pursuant to applicable laws. The said invoice may be delivered by the Vendor to the User as a result of uploading it on the Platform.
Each Vendor acknowledges, agrees and confirms that it is aware that ENEBA shall not be responsible for issuance and delivery of the invoice due to the sale of Digital Content in accordance with applicable law. Vendor hereby agrees to defend, indemnify and hold harmless ENEBA, its related companies, and its and their directors, officers, employees, agents and licensees, from and against any claims, allegations, suits, losses, damages, liabilities, costs, settlements, and expenses (including reasonable attorneys’ fees) arising from or related to any third party claim, suit or proceeding resulting from an act or failure to act on the part of the Vendor or any of its officers or employees, that may occur during or which may arise out due to failure or improper performance of the obligation related to issuance and delivery of an invoice to the User. The defence and indemnification obligation set forth in this Section will survive termination of these Terms and Conditions.
- Obligations of Vendors
- By accepting these Terms and Conditions, and by placing any Digital Content for sale on the Platform, each Vendor warrants and acknowledges that:
- it has a full capacity and right to accept the Terms and Conditions any related documentation, to grant licences and authorizations and assume obligations described herein;
- such Digital Content is legally obtained and originates from legal sources, is free from any defects and any third-party rights and claims, and the Vendor possesses all the necessary licenses, rights, permits and consents to their use, distribution, posting, publication, sale, including the right to sale through the Internet, online system, as well as that the rights are not limited in any way;
- such Digital Content does not violate any third-party rights, including copyrights, trademarks, patent rights, trade secrets, privacy rights, image rights, nor any other ownership rights or intellectual property rights;
- it commits to use the Platform and Services in line with these Terms and Conditions, applicable laws and good practices;
- it will not engage in any activities that could be detrimental to ENEBA brand or which may have negative effect on the Platform, or the Digital Content sold via the Platform;
- it will not use the Platform for any money laundering related activities nor for any actions that may in the view of ENEBA raise the risk of being accused of using the Platform for money laundering purposes;
- it will not use the Platform to resell Digital Content acquired free of charge or with a discount related to a charity event or supporting such an event;
- will not use VPN connection during the use of Platform, unless expressly agreed otherwise on a case-by-case basis;
- will not list and will not sell on the Platform Digital Content which contains or may be used to receive, directly or indirectly, illegal contents and services.
- Each Vendor agree and acknowledge that it:
- is the seller and supplier of the Digital Content and this will be clearly defined in their contractual arrangements with the Users, as well as the relevant invoices, bills or sales receipts;
- will set general terms and conditions of the sales made to the Users;
- will authorize the relevant charge to the Users and the delivery of Digital Content;
- is solely responsible for paying VAT, GST, Sales Tax or any similar tax liabilities in compliance with the applicable laws resulting from the sale of Digital Content to Users via the Platform (if any).
- In case the Vendor is a business representative of the legal entity, it warrants, represents and certifies that as such a representative they possess the necessary consents and authorizations from their principal to act as a sales representative and publish the contact details necessary for conducting business.
- Vendors are obliged to provide information or documents related to their business, company or Digital Content at first request of ENEBA. Each Vendor represents, warrants, acknowledges and takes full responsibility that:
- the information and documents submitted during the registration process or further use of the Platform are true, accurate, valid and complete;
- it will immediately report all changes to the documents accordingly in order to keep them true, valid and complete.
- Each Vendor agrees to provide all necessary information, materials and permissions and all reasonable support and cooperation to ENEBA, for the latter to provide its Services depending on whether or not the Vendor has violated the Terms and Conditions and/or a complaint against the Vendor has been filed. If failure to do so is caused by any delay, suspension or denial of access to any Service, ENEBA will not be obliged to extend the term of such a service or held liable for any loss or damage caused by such a delay, suspension or denial.
- Each Vendor agrees and acknowledges that they are obliged to act in conformity with all the laws and regulations applicable to themselves, the transaction and the respective User.
- Unless expressly provided otherwise by ENEBA, Vendors acknowledge and agree that they will only use Platform to sell products in a digital form, meaning that products will be available for download by Users to their hard drives and will not be delivered or stored on material media carriers.
- With regards to post-sale communication, each Vendor undertakes to:
- use functionality indicated in Section 7.8 to resolve all post-sale issues;
- not engage in unfair practice and resolve arising issues in good faith, i.e., to actively try to resolve Users’ issues and avoid delay in response beyond what is reasonably necessary to investigate and resolve such issues;
- not to post, promote or transmit any unlawful, harassing, libellous, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
- not mislead the Users or post false information;
- not refer to ENEBA as the party responsible for resolving post-sales issues, other than in the case of malfunction of the Services provided by the Platform.
- ENEBA reserves the right to take actions against any Vendor that would be found in breach of terms set forth in Section 8.8 above, up to, and including restricting Services provided via the Platform. For the avoidance of doubt, ENEBA acts only as an intermediary and is not responsible for the contents of the conversations between Users and Vendors.
- By accepting these Terms and Conditions, and by placing any Digital Content for sale on the Platform, each Vendor warrants and acknowledges that:
- ENEBA’s liability is excluded in relation to:
- any adverse consequences resulting from access, use of or inability to use the Platform due to reasons beyond ENEBA control;
- any actions taken by ENEBA in relation to Users or Vendors related to infringement of these Terms and Conditions or applicable laws. Such include suspending or terminating Accounts or limiting functionality of the Platform;
- implications of any access to data and information being reached by third persons in an unauthorised way which was not possible to track in time, unless ENEBA did not take reasonable actions as soon as possible to prevent the consequences, also where any adverse consequences to private data occur subject to actions and omissions of Users and Vendors;
- any adverse consequences due to viruses, trojan horses etc. which may be transferred to the Platform or through the Platform by third parties, except that ENEBA shall ensure that all the reasonably available measures are taken to remove such threats;
- laws or any third-party rights infringed by Users and Vendors, in particular in relation to any damages caused to third parties by Users and Vendors as a result of violating copyrights, industrial property rights, etc., in particular for any demands in relation to the transmission, distribution, publication, offering, presentation of data to which the third persons have the claims or rights to the Digital Content;
- transaction of purchase being not completed because of the technical problems in one of the proposed payment methods on the Platform;
- purchased Digital Content not working in a way that it should be;
- ENEBA cannot reasonably ensure that Users and Vendors have the full capacity to perform any Sale Contracts concluded on the Platform. Users and Vendors are solely responsible for the performance of their Sale Contracts.
- ENEBA declines all guarantees that consist of condition, suitability, quality or functioning warranties related to the services available on the Platform, as well as Digital Content sold by Vendors. ENEBA is only liable for proper availability of using Services. Vendors shall be solely responsible for the Digital Content sold via the Platform. ENEBA shall not bear any liability against any third parties related in particular to non-performance or improper performance by Vendors of their Sale Contracts entered into with Users, or to any delict committed by Vendors, any infringement by Vendors of the law in force or related to any false information, assurances or statements submitted by Vendors. If any claims, complaints, petitions, pretensions, etc. be directed by third parties to ENEBA, related to any Vendor’s behaviour indicated in this Section above, such Vendor shall be obliged to take full responsibility against these entities and the Vendor shall bear all and any costs related thereto and borne by ENEBA. Moreover, where third parties would file any claims against ENEBA related to any violations on part of any Vendor, in particular violation of copyrights, such Vendor shall replace ENEBA in such proceedings or shall act as a third-party respondent.
- To the fullest extent permitted by law, all services provided by ENEBA on or via the Platform are made available on an AS IS, IF AVAILABLE, and WITH ALL DEFECTS basis, and ENEBA hereby expressly declines all warranties, including but not limited to any warranty of condition, quality, durability, functioning, reliability, merchantability or suitability for any specific purpose of the Digital Content sold by Vendors, unless consumers rights protection laws provide otherwise.
- The total liability of ENEBA against Vendors is limited to the amount of EUR 300. The foregoing sentence does not waive the need to prove and document the respective damage alleged to be sustained by the Vendor. Vendors must prove suffered damage in order to acquire the right to require the amount of damage from ENEBA. Any claims to ENEBA must be raised within 20 (twenty) days after the date on which a problem occurs. In countries where limitation of liability against consumers is possible, the terms of the first and second sentence of this Section shall apply accordingly.
- Each Vendor shall fully indemnify, hold harmless and defend (for the purposes of this Section 9, indemnify and indemnification) ENEBA and its directors, officers, employees, agents, stockholders and affiliates (for the purposes of this Section 9, Indemnified Parties) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), which arise out of or relate to (i) any breach of any representation or warranty of the Vendor contained in these Terms and Conditions, (ii) any breach or violation of any covenant or other obligation or duty of the Vendor under these Terms and Conditions or under applicable law, (iii) any alleged breach or violation by the Vendor of third party rights, including intellectual property rights, (v) any claim related to the auction or transaction listed by the Vendor or listed by ENEBA on behalf of the Vendor in each case whether or not caused by the negligence of ENEBA or any other Indemnified Party and whether or not the relevant claim has merit.
- Each Vendor shall inform ENEBA in writing of any claim, demand or suit and shall fully cooperate in the defence thereof. No Vendor will agree to the settlement of any such claim, demand or suit prior to the final judgment thereon without the consent of ENEBA whose consent may be withheld at ENEBA sole and entire discretion.
- Unless the applicable law provides otherwise, ENEBA is entitled to make, at its absolute discretion, any set-off from funds accumulated by any Vendor.
- Each Vendor acknowledges and agrees that during the validity of these Terms and Conditions and after their termination or expiration for any reason whatsoever, Vendor shall continue to bear liability for all indemnification obligations pursuant to these Terms and Conditions and all other amounts due or which may become due under these Terms and Conditions. This liability is not subject to any limitation of liability that may be expressed elsewhere in these Terms and Conditions.
- ENEBA’s liability is excluded in relation to:
- Events Outside ENEBA Control
- ENEBA will not be liable or responsible for any failure to perform, or delay in performance of, any of ENEBA obligations under these Terms and Conditions that is caused by an Event Outside ENEBA Control. An Event Outside ENEBA Control is defined below in Section 10.2.
- An Event Outside ENEBA Control means any act or event beyond ENEBA reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
- If an Event Outside ENEBA Control takes place that affects the performance of ENEBA obligations under these Terms and Conditions:
- ENEBA will contact the affected Users and Vendors as soon as reasonably possible to notify such; and
- ENEBA obligations under these Terms and Conditions will be suspended and the time for performance of ENEBA obligations will be extended for the duration of the Event Outside ENEBA Control.
- In case the User has complaints about the Digital Content purchased subject to the provisions of Section 7.8 they may file a complaint to the Vendor within the help centre functionality available on the Platform. In such cases ENEBA only helps in initiating the complaint procedure and facilitates communication between disputing parties but does not resolve the complaint.
- If the User purchased the Digital Content and has not reviewed such on ENEBA platform, they may return such Digital Content provided that the Vendor grants the User a right to return purchased Digital Content. Vendors shall unequivocally determine and indicate in its terms of sale whether they grant such right with regard to a given Digital Content or a given User.
- Users are entitled to submit complaints regarding services supplied by ENEBA to State Consumer Rights Protection Authority (Vilnius St. 25, 01402 Vilnius, Lithuania, email firstname.lastname@example.org, tel. +370 5 262 67 51, Platform www.vvtat.lt), or file a request form on ODR platform, accessible at http://ec.europa.eu/odr/.
- Users and Vendors can terminate the agreement with ENEBA by removing their Account from the Platform. It can be done by submitting the request at their Account’s system. ENEBA deletes the Account within 7 (seven) days after the day the request was submitted. During this period, the respective User or Vendor has the right to cancel the removal of the Account.
- During the period of agreement termination, the User or Vendor cannot create another Account on the Platform.
- ENEBA may temporarily restrict or suspend access to User’s or Vendor’s Account if its security is compromised in any way or if significant violations of this agreement or the law (by the Users or Vendors) are discovered (if ENEBA does not terminate the agreement because of this). Execution of decisions provided in this Section 12 cannot violate consumer rights.
- Final Provisions
- Without the permission of ENEBA, Users have no right to transfer their obligations, claims or rights to third persons. Users agree that ENEBA shall have the right to transfer its rights and obligations arising from the agreements to third persons. ENEBA will inform of such transfer on the Platform.
- If any provision of these Terms and Conditions is held to be illegal, invalid or unenforceable by a court or arbitral tribunal, the other provisions of these Terms and Conditions will remain in full force and effect. Any provision of these Terms and Conditions held to be illegal, invalid or unenforceable only in part, or to a certain degree, will remain in full force and effect to the extent that it is not held illegal, invalid or unenforceable.
- These Terms and Conditions and the relations between ENEBA and Users in respect to these Terms and Conditions (including the execution, validity, invalidity, implementation and termination of these Terms and Conditions) are governed by and interpreted in accordance with the laws of the Republic of Lithuania unless the domestic law applicable to the User being a consumer provides otherwise. Any dispute, controversy or claim, arising out of or relating to these Terms and Conditions, their breach, termination or validity shall be finally settled in the respective court of the Republic of Lithuania subject to the rules of jurisdiction, unless the domestic law applicable to the User being a consumer provides otherwise.
- Except otherwise provided in these Terms and Conditions, no delay of ENEBA or User to exercise any right or to perform an obligation under these Terms and Conditions shall be considered as a waiver of such right or excuse from the performance of such obligation and separate or partial performance of any obligation. Separate or partial exercise of any right shall not mean that this obligation need not be performed, or this right may not be exercised in the future.
- All the data and information stored on the Platform can be used by ENEBA on purpose to its functioning.
- Communication with ENEBA support proceeds through the e-mail address email@example.com.
- Different countries’ laws may cause unavailability for some Users or Vendors to use respective services of the Platform.
- In the event Terms and Conditions are translated into other languages and if there are differences between the English version and such translation, the English version shall prevail, unless provided otherwise or unless such apparent inconsistency arises out of a difference in legal requirements in a specific jurisdiction.