Conditions Générales d’Utilisation

Conditions Générales d’Utilisation

Conditions Générales d’Utilisation

 

CONDITIONS OF DELIVERY

 

Gadgy.com and Gadgy are registered trade names of Gadgy B.V., with its registered office and place of business at Vleuten, the Netherlands, entered in the Register of Companies of the Utrecht Chamber of Commerce under No. 61964115.

1.         SCOPE

a.      These conditions apply to all agreements concluded by Gadgy.com and to all special offers and/or quotes made by Gadgy.com, insofar as Gadgy.com has not departed from them.

b.      Gadgy.com shall not be bound by conditions of purchase or other conditions declared applicable by the customer unless Gadgy.com has explicitly accepted such conditions in writing. Such acceptance shall not be construed from omission by Gadgy.com to counter a statement by the customer that it     declines to accept the conditions of Gadgy.com and declares other conditions applicable. Gadgy.com explicitly rejects customers’ own General Terms and Conditions.

c.      If a competent court of law rules that any provision of these conditions is inapplicable or breaches public order or the law, only the provision concerned shall be considered void and all other conditions shall remain fully in force.

 

2.         QUOTATIONS AND ORDERS

a.      Save as explicitly otherwise agreed in writing, all quotations and offers of any kind by Gadgy.com shall be without engagement. Gadgy.com is not obliged to fulfil its obligations under any agreement it has concluded if there are any printing or clerical errors in the quote. Quotations and offers shall be valid for the term stated in the quotation or offer. If no such term is stated the quotation or offer shall be valid for ten calendar days.

b.      On receipt the customer shall read the order confirmation and shall immediately inform Gadgy.com in writing of any discrepancies. The order confirmation shall be binding if and insofar as Gadgy.com receives no comments.

 

3.         PRICES

a.      Unless explicitly otherwise indicated, the prices stated by Gadgy.com shall be for delivery ex-warehouse exclusive of VAT and other government duties.

b.      Published prices and/or discounts shall be subject to change at any time by Gadgy.com without notice.

c.      Prices stated by Gadgy.com shall be those applicable at the time of the offer or order confirmation, as the case may be. However, Gadgy.com reserves the right to charge on to the customer subsequently increased royalty and/or production costs, introduced or increased taxes, import duties or other duties government duties, and the effects of exchange-rate changes, or price increases otherwise, without this entitling the customer to cancel its order, regardless of whether the change was foreseeable by Gadgy.com at the time the offer was made or the contract was concluded.

 

4.         DELIVERY

a.      Gadgy.com shall state all delivery times in quotations, offers, confirmations and/or contracts in good faith and shall endeavour to meet them if possible, with the proviso that they may not be construed for Gadgy.com as binding or a deadline. Failure to meet stated delivery times for any reason whatsoever shall not constitute a ground for dissolving or cancelling the agreement.

b.      Under no circumstances whatsoever shall Gadgy.com accept liability for any kind of damage, costs or losses incurred by its customers or third parties due to non-delivery or late delivery of products, even if a strict deadline for delivery applies.

c.      If doubt exists regarding the customer’s creditworthiness or due to other reasons, Gadgy.com reserves the right to require the customer to provide prepayment or security for initial or subsequent deliveries and to suspend or refuse delivery if the required prepayment and/or security is not provided to the satisfaction of Gadgy.com.

d.      Gadgy.com shall take out credit insurance on its customers. Gadgy.com reserves the right to suspend or refuse deliveries if the credit insurer withdraws its limit for the customer or if the balance of outstanding invoices plus the deliverable order exceeds the credit limit.

e.      A delivery may be made in distinct parts. If the customer refuses full or partial delivery without the consent of Gadgy.com, the customer shall reimburse Gadgy.com for the expenses or losses incurred through such refusal, including storage costs, until such time as the customer accepts delivery.

f.       If Gadgy.com and a customer have agreed on a call-off period, Gadgy.com will charge the customer for all reasonable costs incurred as a result of the customer’s failure to purchase the products within the time specified. In any event, the customer will still be obliged to purchase the products agreed upon.

g.      Customers may only terminate agreements if they have obtained prior written consent thereto from Gadgy.com. If an agreement is terminated with Gadgy.com’s consent, the customer must pay Gadgy.com all costs incurred by Gadgy.com, as well as the loss of profits suffered by Gadgy.com.

 

5.         COMPLAINTS AND WARRANTY

a.      As used in these conditions a complaint means any complaint of the customer concerning the quantity, quality and/or soundness of deliveries.

b.      Complaints concerning outwardly observable deficiencies shall be made in writing and motivated within eight days of delivery of the products, with the proviso that claims against Gadgy.com in respect of such deficiencies shall be forfeited on expiry of this term. In such cases the customer shall be deemed to have accepted the delivered goods. Complaints concerning hidden deficiencies shall be made in writing as soon as possible and in all instances within eight days of their observance (and within the warranty term applicable to the products), with the proviso that claims against Gadgy.com in respect of such deficiencies shall be forfeited on expiry of this term.

c.      When making a complaint the customer shall provide Gadgy.com with a precise statement of the nature of and ground for the deficiencies and shall quote the invoice number or in its absence the dispatch note or order confirmation, thereby submitting documentary evidence of the alleged defects and/or faults.

d.      If a customer submits complaints to Gadgy.com concerning the products supplied, the customer must allow Gadgy.com to inspect and examine the products at the earliest possible opportunity. If it emerges that the complaints are unfounded, the costs that Gadgy.com has incurred in this respect will be payable by the customer. The merits of the complaint will be exclusively assessed by Gadgy.com.

e.      If a customer fails to submit a complaint as referred to in this Article, or if a customer fails to submit such complaint in the manner prescribed, the customer will no longer be entitled to submit such complaint to Gadgy.com. In such an event, the customer will no longer be entitled to claim that the products supplied are not in conformity with the agreement, nor will the customer be entitled to invoke any right of suspension vis-à-vis Gadgy.com. Moreover, the customer will not be entitled to request a reduction in the purchase price (if such entitlement exists), nor will the customer be entitled to terminate the agreement (if such entitlement exists).

f.       A complaint about a certain delivery shall neither suspend the customer’s payment obligation for the delivery and other deliveries nor entitle the customer to set off any counter-claims.

g.      Subject to the limitations stated below, Gadgy.com shall warranty the soundness of the goods that it delivers:

-       the warranty shall apply only if the deficiencies manifest themselves within thirty days of delivery;

-       no warranty shall exist for minor variations in qualities, finishing and/or soundness of delivered goods that are deemed permissible or technically unavoidable in the industry in which Gadgy.com operates;

-       the warranty shall cover only goods for which the customer demonstrates that the deficiencies are due to a deficient design or deficient materials and that occur during normal and judicious use of goods and materials under normal conditions for the purpose for which intended;

-       the warranty for products delivered by Gadgy.com shall be limited, in substance and duration, to the warranty given by the supplier of Gadgy.com. Under no circumstances whatsoever shall Gadgy.com be bound by a more extensive warranty in relation to its customer than the one to which Gadgy.com is entitled in relation to its supplier.

f.       All warranty rights shall cease to exist if the customer fails to fulfil or to fulfil on time its obligations under the agreement(s) concluded with Gadgy.com.

g.      The warranty of Gadgy.com is explicitly limited to the repair of deficiencies or replacement of deficient goods, or the full or partial dissolution of the agreement, without recourse to the courts and pro rata crediting, in each instance at the choice of Gadgy.com. Gadgy.com shall have the right to reverse an earlier choice.

h.      After receiving consent in writing from Gadgy.com the customer shall return at their expense in their original state the products that are the subject of the complaint.

i.       Complaints about invoices shall also be submitted in writing within eight days of the invoice date. On expiry of this term the customer shall be deemed to have accepted the invoice.

 

6.         LIABILITY

a.      The liability of Gadgy.com for delivery of goods shall be limited to fulfilment of its warranty obligation described in article 5 concerning which the customer has submitted a complaint within the time specified. The liability of Gadgy.com for damage resulting directly from services that it renders to the customer (other than the delivery of goods) shall be limited to cases where Gadgy.com has imputably failed in fulfilment of its obligations and shall further be limited to € 4.500 per event or series of interrelated events with a common cause, unless a greater limitation stems from article 6 (b). Gadgy.com shall not be liable for unlawful acts that it commits, except insofar as they are a consequence of gross negligence or wilful action by its personnel. Gadgy.com explicitly excludes any greater liability than provided for under this article for direct damage incurred by the customer and also any liability for indirect damage incurred by the customer, regardless of reason, including but not confined to delayed delivery of goods and services.

b.      If for any reason Gadgy.com is obliged to provide compensation for damage, notwithstanding or on the grounds of the provisions of article 6 (a), the compensation for each event or each series of interrelated events with a common cause shall never exceed an amount equal to the invoiced value of the delivered goods or rendered service that occasioned the damage.

c.      Any claim against Gadgy.com shall expire after six months have passed since the claim arose, unless legal proceedings have already been brought against Gadgy.com.

d.      The customer indemnifies Gadgy.com and its staff, or persons employed by Gadgy.com or on its account, against all claims and/or claims for liability made by third parties or claims for compensation for any damage or loss suffered by the latter, of any nature whatsoever, caused by or otherwise relating to products supplied by Gadgy.com, including but not limited to claims made by third parties in respect of product liability and infringement of intellectual property rights. The customer also indemnifies Gadgy.com against all costs of legal assistance incurred by Gadgy.com in this connection.

e.      The customer shall indemnify and hold harmless Gadgy.com, its personnel and persons engaged by or on behalf of Gadgy.com against all claims lodged by third parties and claims for compensation for damage incurred by third parties insofar as caused by or related in any way to goods originating from Gadgy.com.

f.       All remedies that Gadgy.com may obtain from the agreement concluded with the customer to decline liability may be invoked against the customer by personnel of and third parties engaged by Gadgy.com for performance of the agreement as if such personnel and third parties were party to the agreement.

g.      Conditions that third parties may invoke against Gadgy.com with a view to limiting, excluding or determining liability conditions may also be invoked by Gadgy.com against the customer.

 

7.         RETURNED ITEMS

Gadgy.com shall not take back delivered and accepted products. If there is any departure from this provision - exclusively in writing - the products shall be delivered carriage paid to an address stated by Gadgy.com.

 

8.         PAYMENT

a.     Payment of the full amount stated on the invoice must be effected by the customer no later than 14 days after the invoice date by transferring the aforesaid amount to the bank account given to the customer by Gadgy.com. If the customer exceeds this payment term, the customer will be in default ipso jure vis-à-vis Gadgy.com, without any further notice of default being required. The customer will in any event (also) be in default vis-à-vis Gadgy.com:

-       if the customer is declared bankrupt or a petition for bankruptcy is filed against it;

-       if the customer has been granted a moratorium, or if it has applied for a moratorium;

-       if products supplied or to be supplied by Gadgy.com are seized.

b.     Gadgy.com shall have the right to postpone any delivery until it has received payment of the price of the delivery plus any other amounts that it is owed by the customer.

c.     The customer is obliged at all times to fulfil its payment obligations to Gadgy.com, without any right to deductions or setoff, without any right to suspension due to e.g. an alleged or actual attributable breach or due to an alleged right of recovery, and without any right to block payments by levying an attachment in respect of a counterclaim against Gadgy.com, or in any other way.

d.     If the customer fails to pay within the agreed terms it shall be considered in default at law and Gadgy.com shall have the right, without serving notice of default, to charge the customer from the invoice date 1.5% interest per calendar month (or part thereof) over the entire amount due, without prejudice to the other rights of Gadgy.com, including the right to recover from the customer all legal and extrajudicial costs incurred for debt collection. In all instances the extrajudicial debt collection costs owed by the customer shall equal at least 15% of the unpaid amount, subject to a minimum of €100, without prejudice to the right of Gadgy.com to higher compensation on demonstration that its actual costs exceed the percentage stated above.

e.     All payments made by the customer will first be applied to settle extrajudicial collection costs, secondly to settle all interest payable and/or collection charges and other costs, and lastly to settle the earliest-dated outstanding invoice(s).

 

9.  OWNERSHIP AND RISK

a.      Delivery of the goods shall transfer the risk but not the ownership of the goods to the customer. Gadgy.com shall retain title to all delivered goods until the time of full payment by the customer of everything that it owes Gadgy.com for any reason, including interest and costs. The customer shall not have the right to pledge goods covered by the retention of title or in any other way to provide them as security or to transfer them, unless such transfer occurs as part of the customer’s normal conduct of business. If such events nevertheless occur, the customer hereby pre-assigns to Gadgy.com all rights and entitlements that it obtains from selling or reselling the goods, or the customer shall if necessary bring about such transfer as soon as possible. Without prejudice to any of its other rights, Gadgy.com shall be irrevocably authorised by the customer, if the customer fails to fulfil or to fulfil on time its agreed obligations towards Gadgy.com, to recover the delivered goods and to enter the place where they are located, without notice of default or recourse to the courts. Until such time as full payment has been made the customer shall insure the products and store them separately.

b.      As soon as Gadgy.com sets apart within its company the items intended for a certain customer, the customer shall bear all risks of loss, degradation or damage, regardless of the cause thereof and notwithstanding the circumstance that Gadgy.com may still hold title under the provisions of the first clause.

c.      Gadgy.com shall arrange dispatch or transport of the products ex-warehouse to the address stated by the customer at the customer’s expense and risk. In all instances Gadgy.com shall have the right to take out transport insurance at the customer’s expense, but shall have an obligation to take out such insurance only if and to the extent that it has explicitly given the customer a written commitment to do so. The costs of transport and insurance are not included in the stated prices and shall be charged separately and be payable prior to delivery. The rates applied by Gadgy.com shall be made known to the customer on request.

d.      If a delivery is made to a customer carriage paid, the customer must ensure that the products are unloaded as soon as reasonably possible after the carrier’s arrival. In this connection, the customer must adhere to a normal unloading time and ensure that sufficient appropriate staff and materials are available. The other party must follow the carrier’s instructions during unloading. Unloading will be at the customer’s own expense and risk.

e.      If a delivery is made ex warehouse, this delivery will be effected by loading the products onto a means of transport of the customer’s choice. Loading will be at the customer’s own expense, even if the loading is done by Gadgy.com, and the risk attaching to the products will in any event be transferred to the customer on loading of the products. If the customer does not take delivery of the products, Gadgy.com will store these products at the customer’s own expense and risk.

f.       The provisions of paragraphs d. and e. of this Article will not apply under certain conditions, including but not limited to an international delivery with its own regime such as Free On Board (among others). With respect to international deliveries, and unless otherwise agreed, Gadgy.com adheres to the most recent Incoterms applicable at the time when the agreement was concluded, together with the respective regimes that form part of these Incoterms.

 

10. FORCE MAJEURE

a.      If by reasonable standards Gadgy.com cannot be required to fulfil one or more of its obligations due to any of the circumstances mentioned in article 10 (b), it shall have the right to suspend performance of the agreement or to dissolve the agreement fully or partially, without recourse to the courts, without being liable to provide any form of compensation.

b.      The circumstances referred to in the previous clause are: restrictive government measures of any kind, whatsoever, such as e.g. import and export barriers, epidemics, mobilisation, war, revolution, strikes, seizure, interruption of production, shortages of raw materials or of semi-manufacturers, auxiliary materials and/or power, natural disasters, complete or partial non-fulfilment by third parties from which goods or services must be obtained, and any other circumstances that were not reasonably foreseeable by Gadgy.com and are beyond its control.

c.      Fulfilment in any cases under the circumstances mentioned in clause 2 of this article shall not in subsequent cases impair the right to seek recourse to dissolution.

 

11. NON-FULFILMENT

a.      If a customer fails to fulfil, fulfil on time or fulfil properly any of its obligations, and also in the event of a petition for bankruptcy, declaration of bankruptcy, a requested or granted suspension of payments or discontinuation or liquidation of the business of the customer, and also if all or some of its assets are seized, Gadgy.com shall have the right, without notice of default and without recourse to the courts, to dissolve the agreement unilaterally, in full or in part, or to suspend performance of the agreement, without being liable to provide any kind of compensation and without prejudice to its further rights, including the right to compensation for damage.

b.      If a circumstance within the meaning of the previous clause occurs, the claims that Gadgy.com has on the customer shall immediately become fully payable on demand and Gadgy.com shall further have the right to suspend or to dissolve all other agreements with the customer.

 

12. DEVIATING CONDITIONS

Departures from these conditions shall be legally valid only if confirmed by Gadgy.com in writing.

 

13. APPLICABLE LAW AND DISPUTES

a.      Dutch law shall govern these conditions and all offers and agreements to which they apply.

b.      All disputes arising between Gadgy.com and a customer, including cases that only one party qualifies as a dispute, shall at the election of the claimant be resolved to the exclusion of all other forums by a competent court of law at Amsterdam or a competent court of law in the defendant’s place of residence.

 

GADGY B.V.                                              Tel. +31-85-4019240

Prices are stated in euro, exclusive of VAT, are subject to change.