General sales and delivery terms and conditions for MyChiptuningfiles
ARTICLE 1 - DEFINITIONS
1. MyChiptuningfiles: Fuel Saving Technology BV, registered with the Kamer van Koophandel in Flevo-, Gooi- and Eemland under number 59000511.
2. Customer: every Consumer or Business customer who orders Service(s) and/or Product(s) from, will purchase from and/or concludes an Agreement with MyChiptuningfiles.
3. Consumer: any natural person who acts as a buyer or customer for purposes that fall outside his business or professional activity.
4. Business customer: every legal person and all customers who are not Consumers.
5. Delivery: the moment at which MyChiptuningfiles provides the Customer with possession of the Product or the File, or makes the vehicle to which a Service has been provided available to the Customer again.
6. Services: all possible work that MyChiptuningfiles performs on and/or with regard to a vehicle and/or adjusting, creating and/or delivering Files.
7. Files: a computer or software file created and/or modified on request and based on information provided by the Customer.
8. Product: all items that MyChiptuningfiles offers, sells and/or delivers to a Customer.
9. Agreement: the provision of Services and/or the sale and delivery of Products to a Customer by MyChiptuningfiles.
10. Distance purchase: the Agreement whereby the Customer is offered Products and/or Services for sale via an online portal and/or system (such as a webshop) created for that purpose by MyChiptuningfiles, which Products or Services the Customer buys via that portal.
11. Credit: An electronic value point or unit issued by MyChiptuningfiles that can be used to make payments for specifically designated Services and/or Products.
ARTICLE 2 - APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
These general terms and conditions apply to all offers and Deliveries by MyChiptuningfiles and/or all Agreements concluded with MyChiptuningfiles and subsequent Agreements, as well as to all Agreements whereby MyChiptuningfiles engages third parties (including suppliers) for the Delivery, which third parties can directly invoke these general terms and conditions. When a Customer, via (the website of) MyChiptuningfiles, makes an appointment with a garage company or third parties for the performance of a Service, MyChiptuningfiles is not a party to that agreement between this Customer and this Business purchaser/third party. This Customer and Business purchaser/third party must record their mutual agreements - if, however, it is (judicially) established or assumed that MyChiptuningfiles is a party to such an agreement between these aforementioned parties, MyChiptuningfiles may invoke the provisions of these general terms and conditions, and these apply in full between MyChiptuningfiles, the Customer and the Business purchaser. Deviating provisions of these general terms and conditions are only valid if they have been explicitly agreed in writing with MyChiptuningfiles in advance. MyChiptuningfiles does not accept any general purchase terms and conditions of the Customer, unless explicitly agreed otherwise in writing. If MyChiptuningfiles does not always demand strict compliance with these general terms and conditions, this does not mean that the provisions thereof are not applicable or that MyChiptuningfiles would lose the right to any extent in other cases and/or at a later time to demand strict compliance with these general terms and conditions. MyChiptuningfiles has the right to change these general terms and conditions. Changes will be announced via the website(s) of MyChiptuningfiles and, if necessary and possible, directly to the Customer. The changes come into effect from the moment of announcement or on such a date as mentioned in the announcement.
ARTICLE 3 - OFFERS, INFORMATION AND CONCLUSION OF THE AGREEMENT
All offers, quotes and price statements from MyChiptuningfiles are without obligation and remain valid for 30 days, unless agreed otherwise in writing. However, MyChiptuningfiles is entitled to revoke the offer at any time. The Agreement with MyChiptuningfiles is established after MyChiptuningfiles has agreed to this in writing or electronically. For a Distance purchase, an Agreement only comes into effect after MyChiptuningfiles has confirmed the Customer's order and/or has proceeded to Delivery. Any agreements, promises and/or changes to the Agreement made after confirmation of the order are only binding if agreed in writing between the parties. All prices, brochures, website and other information provided with the offer have been compiled as carefully as possible. Should it later appear that errors have been made in this information provided, MyChiptuningfiles is entitled to correct these errors and/or (before Delivery has taken place) to adjust or terminate the Agreement without being liable for damages in that regard. MyChiptuningfiles is entitled to refuse Delivery and not to fulfil Agreements regarding Products and/or Services, without being obliged to pay any (damage) compensation. MyChiptuningfiles assumes - and the Customer is responsible for - the accuracy of all information and statements provided by the Customer, such as - but not limited to - supplying information with regard to Files, and MyChiptuningfiles is not obliged to conduct any further investigation into this. The Customer is also required to report any defects in the vehicle and/or engine management system prior to concluding the Agreement.
ARTICLE 4 - THE PRICE
1. The price of Products and/or Services are stated in Euros or Credits and are based on prices, wages and taxes at the time of the offer/quotation. MyChiptuningfiles has the right to adjust the prices or Credits once a year, as of January 1, in accordance with the CBS price index of family consumption for the previous year.
MyChiptuningfiles is authorized to pass on price increases to the Customer if they occur after 3 months after entering into the Agreement. A price increase may arise from, among other things (not exhaustively) an increase in raw material prices, production costs, transport costs, war, weather conditions, calamities etc. The maximum price increase is 15% per year, unless there are very exceptional circumstances. Price increases are announced in a timely manner and in writing. Price increases due to government measures will, however, be charged directly to the Customer through MyChiptuningfiles. If the Customer, after entering into the Agreement, wishes to have additions and/or changes processed therein or provides incorrect data (files), this may affect the price. MyChiptuningfiles may reasonably pass on the extra costs to the Customer.
ARTICLE 5 - DISTANCE PURCHASE OF A PRODUCT OR SERVICE - CONSUMERS
1. In the case of a Distance purchase, the Consumer has the right to dissolve the Agreement within 14 days after full Delivery of all Products ordered simultaneously.
2. The Consumer's right to dissolve expires upon the Delivery of Services, when the Consumer has requested MyChiptuningfiles to urgently repair or maintain a vehicle at an external location and/or after fulfilment of the Agreement. The right of dissolution also does not apply to the creation and Delivery of Files, as this relates to the production of goods on the specifications of the Consumer and/or to the Delivery of goods of digital content. Insofar as necessary, the Consumer explicitly waives the aforementioned rights to dissolution, on which it has been determined in this paragraph that these have lapsed or will lapse.
ARTICLE 6 - METHOD AND DELIVERY OF PRODUCTS
Delivery of a Product to a Business customer takes place by delivery to the carrier, unless otherwise agreed. MyChiptuningfiles arranges for the transport at the expense and risk of the Business customer. Payment of a Product is paid in advance by the Business customer via a method to be determined by MyChiptuningfiles. Delivery of a Product to a Consumer takes place at the moment that a Product is delivered by the carrier to the address specified by the Consumer, after which the risk passes to the Consumer. The Customer is obliged to accept the Product offered. If the Customer does not accept the Product, MyChiptuningfiles is entitled to store the Product at the expense and risk of the Customer and/or to charge the (return) costs to the Customer. If and as soon as the Customer has ordered more than one Product, MyChiptuningfiles is always authorized to execute the Delivery in parts. If it is agreed that Products will be collected by the Customer, the Customer must collect these within seven (7) days after confirmation by MyChiptuningfiles, at the location designated by MyChiptuningfiles. If the Customer fails to do so, the demonstrated costs reasonably incurred by MyChiptuningfiles, such as costs for storing the Products and for not collecting in a timely manner, are borne by the Customer. The periods for delivery stated by MyChiptuningfiles are always targets and not strict deadlines, unless the parties have expressly agreed otherwise.
ARTICLE 7 - METHOD AND DELIVERY OF FILES
Only computer files read by Slave tools supplied by MyChiptuningfiles or uncoded/open files can be processed by MyChiptuningfiles. The Customer sends the original read-out computer files via the MyChiptuningfiles website to MyChiptuningfiles. MyChiptuningfiles then delivers the Files via the e-mail address used and specified by the Customer or via an online portal developed for this purpose by MyChiptuningfiles. When the Customer uses the online portal, the Customer will receive a notification by email when the modification is ready. All (delivery) periods mentioned by MyChiptuningfiles have been stated to the best of its knowledge on the basis of the information known to MyChiptuningfiles when entering into the Agreement. The delivery periods are never strict deadlines. The mere exceeding of a stated (delivery) period does not put MyChiptuningfiles at fault or in default. MyChiptuningfiles will consult with the Customer in case of deviation from the stated (delivery) period. The Customer will always provide MyChiptuningfiles in a timely manner with all the data and information that is useful and necessary for the proper execution of the Agreement and will provide the necessary cooperation in a timely manner. Extra costs that arise for MyChiptuningfiles as a result of the lack of sufficient cooperation and/or provision of information by the Customer will be borne by the Customer.
ARTICLE 8 - THE PROVISION OF A SERVICE
1. If the installation and/or assembly of a Product or Products is part of the Agreement, this concerns a Service, unless it follows from the nature of the Product to be delivered or the description given thereby that no assembly can or will take place.
2. An order given to MyChiptuningfiles for installation, repair, assembly or replacement of Products or repair of a vehicle does not include the order for replacement or renewal of those parts that only become visible after dismantling and then appear to need replacement or renewal, as well as repairing all those defects that become apparent upon disassembly and for which repair is advisable or necessary.
3. MyChiptuningfiles only performs additional repairs or replacements as referred to in the previous paragraph after the Customer has given permission for this.
4. MyChiptuningfiles is not liable for damage caused to a vehicle or parts thereof when the damage is the result of the necessary measures MyChiptuningfiles must take for the purpose of carrying out the repair, assembly or replacement, unless the damage is the result of intent or deliberate recklessness of MyChiptuningfiles.
ARTICLE 9 - STORAGE COSTS AND RIGHT OF RETENTION
1. If the Customer does not collect a vehicle within three working days after the Customer has been informed that the vehicle can be collected, MyChiptuningfiles may charge a fee for storage costs.
The storage costs are the costs that are normally charged by MyChiptuningfiles and - if no fixed storage costs apply at the location concerned - otherwise MyChiptuningfiles will charge a reasonable fee for this, at least € 100.00 per calendar day. MyChiptuningfiles can exercise the right of retention on a vehicle or a component thereof. This means that MyChiptuningfiles will not return the vehicle or any part thereof until the Customer has paid all amounts for this or previous Deliveries or Agreements and/or other costs arising therefrom for MyChiptuningfiles.
ARTICLE 10 - PAYMENTS
The prices quoted for Consumers are always in euros, including VAT and excluding any shipping costs and statutory taxes. The prices, VAT and taxes are specified for Business customers.
2. Unless otherwise agreed, payment takes place upon Delivery. For Products specifically ordered for the Customer and for Files, advance payment may be required by MyChiptuningfiles.
3. If payment does not take place at the Delivery and/or on the agreed date and another form of payment has not been explicitly agreed in writing, then MyChiptuningfiles is entitled to an interest payment pursuant to Article 6:119 of the Dutch Civil Code for a Consumer and pursuant to Article 6:119a of the Dutch Civil Code for a Business purchaser over the outstanding amount.
4. If the Customer fails to pay his debt, MyChiptuningfiles is entitled to charge collection costs. If the Customer is a Consumer, MyChiptuningfiles will first send the Consumer a reminder and set the Consumer a period of 14 days to meet his payment obligations, stating the (collection) costs to be charged otherwise. The collection costs are fixed by MyChiptuningfiles on the costs arising from the Reimbursement for extrajudicial collection costs (WIK) Decree.
5. Payments always firstly settle any interest and costs owed, after which payments are deducted from the oldest invoice, despite any different descriptions when payment is made by the Customer.
6. MyChiptuningfiles also reserves the right to claim any further costs and/or damages that may arise as a result of the Customer's late compliance.
7. In the event of liquidation, bankruptcy, seizure or suspension of payment for the Customer, the claims of MyChiptuningfiles are immediately payable.
ARTICLE 11 - CREDIT SYSTEM
When MyChiptuningfiles makes this possible, payments may be made via the MyChiptuningfiles credit system. Via the MyChiptuningfiles website, the Customer must purchase Credits in advance, which Credits are linked to the personal and non-transferable account of the Customer. Once purchased and/or received otherwise or free of charge by the Customer, Credits can no longer be exchanged for money or transferred to a third party. Any refunds will also be settled with the Customer through Credits on the Customer's account. In principle, Credits have an unlimited shelf life, but if a Customer does not log in to his account (anymore), then these Credits will expire unconditionally after one year.
ARTICLE 13 - LOGIN DETAILS AND ONLINE PORTAL[ST|FK1]
1. The Customer receives login details provided by MyChiptuningfiles, with which details the Customer gains access to the protected parts of the website of MyChiptuningfiles and/or his Credits.
2. The Customer is responsible for the use and management of his account(s), access code(s) and/or password(s) by or on behalf of him. The Customer will keep the password(s) and/or username completely confidential and ensure that they are not used by unauthorized third parties or for other purposes. The Customer will also be careful in the use of these details.
3. MyChiptuningfiles reserves the right to trace every action taken by the Customer, such as logging in, reading, downloading, uploading and sending information via the MyChiptuningfiles website, to the access code with which the Customer logs in.
4. As soon as the Customer knows or suspects that an access code or password is known or may be known to someone else who is not so authorized, he immediately reports this to MyChiptuningfiles. MyChiptuningfiles is not liable and accepts no liability in the event of loss or misuse of these login details and/or the expiration or loss of Credits.
ARTICLE 14 - INTELLECTUAL PROPERTY RIGHT
All intellectual property rights, including the rights to the software, the Files and Products supplied by MyChiptuningfiles, including preparatory material and related materials, in the broadest sense of the word, rest with MyChiptuningfiles. For the use of the Files in the relevant vehicle, MyChiptuningfiles grants the Customer a limited, non-exclusive licence to use the Files in one vehicle. With this Agreement, no intellectual property rights are delivered and/or transferred to the Customer in any way. The Customer is not permitted, without the express written permission of MyChiptuningfiles, to change, edit, make public, reproduce the aforementioned works of MyChiptuningfiles, to make them suitable for consultation or reproduction via the internet, to copy other than exclusively for own use in/on the vehicle for which MyChiptuningfiles has produced the relevant File. Business customers who purchase Files on behalf of one of their customers are entitled to use the Files on behalf of that customer or vehicle once. If a Customer infringes the foregoing or the intellectual property right of MyChiptuningfiles, this will be considered as non-compliance with the Agreement, and this gives MyChiptuningfiles the right to terminate or suspend the Agreement and to claim compensation from the Customer for the damages resulting therefrom for MyChiptuningfiles. In the event of a violation by the Customer of the provisions of this article, the Customer will also and immediately owe MyChiptuningfiles a fine of € 2,500.00 per event and € 500.00 per day (or part thereof) that the violation continues thereafter, without prejudice to the right of MyChiptuningfiles to also claim full damage compensation from the Customer.
ARTICLE 15 - COMPLAINTS
The Customer is obliged to examine or have investigated every Product at the time of Delivery, but in any case within the shortest possible time. In addition, the Customer should examine whether the quality is in accordance with what has been agreed, or at least meets the requirements that apply in normal (commercial) trade. Any complaints regarding the Services provided must be made in writing to MyChiptuningfiles within 5 (five) working days after Delivery and for Products within 2 months after Delivery. If the defect could not reasonably be discovered within these periods, the Customer must report this to MyChiptuningfiles in writing within a reasonable time, but at least 14 days after discovery. In the latter case, the Customer must demonstrate that he could not reasonably have discovered the subject of the complaint earlier. Complaints by Business customers regarding Services, including Files, must be submitted to MyChiptuningfiles within the period referred to in paragraph 2, as detailed as possible, with submission of a sound (technical) report, log file or generated error code from which the complaint and substantiation thereof clearly arise. Complaints from a Customer that refer to the failure to meet statements, composition or performance as stated by MyChiptuningfiles will only be treated as a complaint and give the right to complain when the aforementioned (power test) results show a deviation of 15% or more. Complaints do not suspend the payment obligation of the Customer. The Customer is not entitled under any circumstances to postpone, refuse or suspend payment for other MyChiptuningfiles services. If a complaint is justified regarding a Service or Product delivered, MyChiptuningfiles has the choice between repairing or re-delivering what was rejected, proportionally adjusting the calculated invoice amount, or not fully or partially executing the Agreement, provided that this is in proportion to the complaint. Refunds of orders that have been paid through Credits always take place in Credits. MyChiptuningfiles can leave the handling and resolution of complaints regarding the proper performance of the Agreement to its supplier. The Customer explicitly agrees that MyChiptuningfiles will forward any complaint(s) to this supplier, and the Customer will resolve the complaint(s) directly with this supplier. The Customer must give MyChiptuningfiles and/or the supplier the opportunity to investigate a complaint or to have it investigated. If the Customer has not complained within the period specified in paragraph 2 or (the Business Customer) has fulfilled the (evidence) obligation referred to in paragraph 3, all his rights and claims for whatever reason will lapse with regard to what he has complained or could have complained within that period and/or should have demonstrated, and the Delivery is considered valid. If the Customer has installed the File using Products other than those supplied through MyChiptuningfiles, the Customer must demonstrate that the complaint did not arise due to the use of third-party equipment.
ARTICLE 16 - GUARANTEE AND THE INSTALLATION OF FILES
MyChiptuningfiles guarantees the proper functioning of the delivered Files per se (without being installed) from the date of Delivery for a period of three years, provided that the Customer has paid the invoice in a timely manner. If defects occur during this period in the functioning of the Files, MyChiptuningfiles will repair them free of charge, subject to the provisions of the previous article. If installation is not carried out by MyChiptuningfiles, the Customer is responsible for the proper installation of the Files in the vehicle and the requested modification. MyChiptuningfiles advises the Business customer to limit any guarantee that may be granted to its customer with the present provisions as a starting point. On the Product delivered by MyChiptuningfiles to the Customer, not being Files, MyChiptuningfiles provides a 1-year guarantee from the moment of Delivery to the Customer.
ARTICLE 17 - CUSTOMER LIABILITY AND OWN RESPONSIBILITY
The Customer is aware that the use or use of the Files and/or Products may be in conflict with (local) laws and regulations, may be prohibited or may infringe the (warranty) rights of third parties, such as the producers of vehicles. The Customer declares to use the Files, Products and/or the vehicle to which they are applied at his own risk and to be independently responsible for investigating or inquiring whether use or application of the Files and/or use of the Products is permitted. For this reason, MyChiptuningfiles urgently advises the Customer, taking into account the above, to use the Files and Products only on private property and/or a test or racetrack. Furthermore, the Customer realizes that the use of the Files and/or Products may constitute a (heavier) load on the vehicle, the possible consequences of which will be borne by the Customer. MyChiptuningfiles is furthermore exclusively liable for damage suffered by the Customer that is the direct result of a shortcoming attributable to MyChiptuningfiles in the fulfilment of the effort obligations resting on MyChiptuningfiles or in the delivered Product. MyChiptuningfiles is never liable for indirect damage, including consequential damage, lost profit, (temporarily) becoming unusable for a vehicle, hoist or transport costs, fines, missed savings and/or damage due to business interruption or loss of factory guarantees. MyChiptuningfiles is not liable for damage caused by the Customer's failure to comply with his information obligation, obligation to investigate, instructions or by the information provided by the Customer being incorrect, complete or reliable, or arising from incorrect or unlawful use of the Files or the Product. MyChiptuningfiles is always authorized to limit or undo the damage of the Customer as much as possible, for which the Customer is obliged to cooperate fully. The Customer himself is also obliged to limit the damage as much as possible. The Customer indemnifies MyChiptuningfiles against any claims from third parties with regard to damage, which are related to or ensues from the Services provided by MyChiptuningfiles or supplied Files and/or Products, if and insofar as MyChiptuningfiles is not liable to the Customer under the provisions of this article. If the Customer has insured any risks associated with this Agreement or can invoke another (guarantee) right, the Customer now indemnifies for then MyChiptuningfiles against these risks. MyChiptuningfiles excludes liability at least in the following situations (not exhaustive):
· Damage to the hardware or the vehicle as a result of the Files or Products supplied by MyChiptuningfiles;
· Damage related to defects and/or parts of goods or (software) files supplied by the Customer;
· Damage to the vehicle itself and/or items in the vehicle (load), when installing the Files;
· Damage as a result of incomplete and/or incorrect information provided by the Customer;
· Damage as a result of an incorrect cost estimate/budget from MyChiptuningfiles;
· Damage as a result of advice, services or products provided by third parties on behalf of the Customer;
· Damage as a result of transport, temporary storage or items deposited by the Customer for processing;
· Damage as a result of adjustments, transfer, or uninstallation of the delivered Files;
· if the vehicle, the Files or a Product has been offered for repair or repair to another party without the express written permission of MyChiptuningfiles;
· if the defect is wholly or partly due to improper use, incorrect action by the Customer, manipulation of the Files and/or the engine management system after the Delivery by MyChiptuningfiles, or is otherwise due to the fault of the Customer;
· Personal injury directly or indirectly related to Files and/or Products supplied by MyChiptuningfiles.
9. Before the Customer invokes the liability stated in this article, the Customer must meet the conditions as stated in Article 15 regarding the timely and correct delivery of a complaint and give MyChiptuningfiles the opportunity to take measures (for repair). If this (repair) option is withheld from MyChiptuningfiles, any right to compensation will lapse.
If MyChiptuningfiles turns out to be liable in connection with the Services it has provided and/or Files and/or Products delivered, its liability is in accordance with the aforementioned provisions, arranged as follows and limited to (in separate and descending order):
a) The amount that can be recovered from the third parties and/or auxiliaries engaged by MyChiptuningfiles;
b) The amount that the insurer of MyChiptuningfiles turns out to pay;
c) If the liability of MyChiptuningfiles does not fall under the aforementioned exclusions and MyChiptuningfiles should nevertheless prove legally liable, its contractual and/or legal liability is limited to either free repair or (re-)Delivery of the Services, Files or Product that have proven to be defective or to compensation for the amount of the invoice for the relevant Service(s), File(s) and/or the Product(s), but in all possible situations up to a maximum of € 1,000.00 (in words: one thousand euros). The foregoing only allows an exception if the damage was caused by intent or gross negligence of MyChiptuningfiles.
The liability limitations laid down in the foregoing provisions of this article are also stipulated for the benefit of the third parties engaged by MyChiptuningfiles in the implementation of the Agreement, who can thereby directly invoke those liability limitations.
ARTICLE 18 - RETENTION OF TITLE
MyChiptuningfiles reserves the ownership of all Products and/or Files delivered to the Customer by it and/or on its behalf until payment thereof, plus any shipping and/or transport costs, has been paid in full. Until the invoice from MyChiptuningfiles is fully paid, the Customer cannot derive any rights with regard to the Services and/or Products supplied by MyChiptuningfiles.
ARTICLE 19 - GENERAL EXPIRATION PERIOD
Defects and attributable shortcomings on the part of MyChiptuningfiles must be reported to MyChiptuningfiles in writing within a reasonable time after discovery, but in any case within 2 months after delivery of the Files or Products, or delivery of the Services, failing which the right to compensation to be claimed expires.
ARTICLE 20 - INDEMNIFICATION
The Customer indemnifies MyChiptuningfiles against all claims from third parties with regard to Services, Files and/or Products supplied by MyChiptuningfiles to the Customer, as a result of which those third parties may have suffered or still suffer damage, irrespective of the cause or time of occurrence thereof.
ARTICLE 21 - NULLITY/DESTRUCTION OF PROVISIONS
If any provision of these general terms and conditions proves to be wholly or partially invalid, is voided or is otherwise found to be invalid, then that will maintain the validity of the other provisions of these general terms and conditions. The provisions that are not legally valid or cannot be legally applied will be replaced by provisions that are as close as possible to the scope of the provisions to be replaced, for which the parties will then consult with each other. If there is ambiguity regarding the explanation of one or more provisions of these general terms and conditions, the explanation must be 'in the spirit' of these provisions.
ARTICLE 22 - APPLICABLE LAW AND CHOICE OF COURT
All Agreements concluded under these general terms and conditions are exclusively governed by Dutch law. International treaties, such as the Vienna Sales Convention, are hereby expressly excluded, if and to the extent possible. Disputes will be submitted to the competent judge of the Midden-Nederland district court.