(5) The nature of the relationship between providers of online_intermediation_services and business_users might also lead to situations in which business_users often have limited possibilities to seek redress where unilateral actions of the providers of those services lead to a dispute.
In many cases, those providers do not offer accessible and effective internal complaint-handling systems.
existing alternative out-of-court dispute settlement mechanisms can also be ineffective for a variety of reasons, including a lack of specialised mediators and business_users’ fear of retaliation.
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(10) A wide variety of business-to-consumer relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem-building business model.
In order to capture the relevant services, online_intermediation_services should be defined in a precise and technologically-neutral manner.
In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating of direct transactions between business_users and consumers, irrespective of whether the transactions are ultimately concluded online, on the online portal of the provider of online_intermediation_services in question or that of the business_user, offline or in fact not at all, meaning that there should be no requirement for any contractual relationship between the business_users and consumers as a precondition for online_intermediation_services falling within the scope of this Regulation.
The mere inclusion of a service of a marginal character only should not be seen as making the aim of a website or service the facilitation of transactions within the meaning of online_intermediation_services.
In addition, the services should be provided on the basis of contractual relationships between the providers and business_users which offer goods or services to consumers.
Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal manner on a durable_medium, without an express written agreement necessarily being required.
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(20) In order to protect business_users and to provide legal certainty for both sides, non-compliant terms_and_conditions should be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.
This should however only concern the specific provisions of the terms_and_conditions which are not compliant.
The remaining provisions should remain valid and enforceable, in as far as they can be severed from the non-compliant provisions.
Sudden changes to existing terms_and_conditions may significantly disrupt business_users’ operations.
In order to limit such negative effects on business_users, and to discourage such behaviour, changes made in contravention of the obligation to provide a set notice period should therefore be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.
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(34) In the same vein, it is important for business_users to understand whether the provider shares with third parties any data which has been generated through the use of the intermediation service by the business_user.
Business users should in particular be made aware of any sharing of data with third parties that occurs for purposes which are not necessary for the proper functioning of the online_intermediation_services; for example where the provider monetises data under commercial considerations.
To allow business_users to fully exercise available rights to influence such data sharing, providers of online_intermediation_services should also be explicit about possibilities to opt out from the data sharing where they exist under their contractual relationship with the business_user.
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(44) Various factors, such as limited financial means, a fear of retaliation and exclusive choice of law and forum provisions in terms_and_conditions, can limit the effectiveness of existing judicial redress possibilities, particularly those which require business_users or corporate_website_users to act individually and identifiably.
To ensure the effective application of this Regulation, organisations, associations representing business_users or corporate_website_users, as well as certain public bodies set up in Member States, should be granted the possibility to take action before national courts in accordance with national law, including national procedural requirements.
Such action before national courts should aim to stop or prohibit infringements of the rules set out in this Regulation and to prevent future damage that could undermine sustainable business relationships in the online platform economy.
In order to ensure that such organisations or associations exercise that right effectively and in an appropriate manner, they should meet certain criteria.
In particular, they must be properly established according to the law of a Member State, be of a non-profit making character and pursue their objectives on a sustained basis.
Those requirements should prevent any ad hoc establishment of organisations or associations for the purpose of a specific action or specific actions, or for the sake of making profits.
Furthermore, it should be ensured that there is no undue influence by any third party providers of financing on decision-making by those organisations or associations.
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(46) Member States should be required to ensure adequate and effective enforcement of this Regulation.
Different enforcement systems already exist in Member States, and they should not be obliged to set up new national enforcement bodies.
Member States should have the option to entrust existing authorities, including courts, with the enforcement of this Regulation.
This Regulation should not oblige Member States to provide for ex officio enforcement or to impose fines.
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