General sales, delivery and payment conditions
General sales, delivery and payment conditions of Ego Lifestyle , hereinafter Ego:
Article 1: GENERAL
a) All offers of, and agreements with Ego to sell Products and/or Services to the Consumers and other Customers and the performance thereof are exclusively governed by these Conditions. If a provision of these Conditions only applies to Consumers or only applies to non-Consumers, this fact will be mentioned.
b) With regard to non-Consumers, these Conditions exclude the applicability of other Conditions unless otherwise agreed in writing.
c) If any provision of these Conditions is declared void or voidable, the other provisions of these Conditions will remain in full effect. In such case Ego and the Customer will, in consultation, agree new provisions to replace the void or voidable provision. The intent and the scope of the void or voidable provision must be taken into account as much as possible in this respect.
Article 2: AGREEMENT
a) Every order of Products and/or Services is deemed an offer of the Customer to purchase the Products and/or Services subject to the applicability of these Conditions.
b) Subject to the provisions hereafter, an agreement with Ego will only be made after Ego has accepted or confirmed the offer in writing, whereby the date of the confirmation is decisive. The order confirmation is deemed to accurately and fully represent the agreement, unless the Customer presents a written objection within a term of three (3) Working Days.
c) Any subsequent additional agreements or changes only bind Ego if Ego has confirmed them in writing.
d) For transactions for which no offer or order confirmation is sent regarding the nature and scope, the invoice is deemed to accurately and fully set out the agreement, subject to objection by the Customer within six (6) working days.
e) Every agreement is entered into on the part of Ego on the dissolving condition that the Customer – exclusively to be determined by Ego – is sufficiently creditworthy for monetary performance of the agreement.
f) Ego is at all times entitled, before effecting (further) performance, to demand whole or partial payment from the Customer.
g) Ego is entitled, if Ego deems such necessary or desirable for the proper execution of an order granted to Ego, and after consultation with the Customer, to engage others in the performance of the agreement, the costs of which will be charged to the Customer in accordance with the quoted prices.
Article 3: ACCEPTANCE AND RECONSIDERATION PERIOD
a) Non-Consumers may reject Products for non-conformity, visible deviations from what has been agreed, within seven (7) days after delivery. After this period Products are deemed to have been accepted.
b) Reconsideration period: the Consumers may unilaterally dissolve the sale of Products and/or Services without giving any reasons therefore within seven (7) Working Days after receipt of a Product. Ego may not request written confirmation. The Consumer is responsible for returning the Product in the original packaging and will bear the transport costs. The purchase price paid by Consumer will be paid back to Consumer within thirty (30) days after dissolution of the agreement. In case of any relating transport costs paid by Ego, these costs will be deducted from the amount to be repaid to Consumer. Further details relating to dissolution in the reconsideration period are described in the Return Policy, the repayment in the Refund Policy.
c) Consumers must inform Ego within two calendar months after discovery or the time when they could reasonably have discovered such, of non-conformity, visible deviations from the order confirmation. The Return Policy applies.
d) This provision does not affect the rights of the Consumer with regard to defects in Products and/or Services.
Article 4: OFFERS/ CHANGES
a) Offers of Ego are valid during the term set out in the offer. If such a term is lacking, the offer is valid for ten (10) days after the offer date.
b) Ego reserves the right to change the specifications of Products with Follow-up orders, in which case Ego guarantees at least equivalent functionality and performance.
Article 5: PRICES AND RATES
a) Unless otherwise stated the prices and rates of Ego are:
- Based on delivery ex Ego's factory or warehouse or ex factory or warehouse of third parties;
- Exclusive of VAT, import duties, other taxes, charges and levies imposed by a public authority;
- Exclusive of the costs of packing, loading and unloading, installation, transport and insurance.
b) The Customer must immediately contact Ego, at latest within 24 hours after receipt, when he discovers a fault in the order or a deviation from the order confirmation and/or a mistake in the invoice.
c) Ego applies various payment options for Consumers. These are described in the Payment Policy.
d) Non-Consumers are to make payment prior to the delivery of Products and/or Services, unless a payment term of thirty days after the invoice date has been agreed.
e) Ego can adjust its prices for Follow-up orders to changes in exchange rates, taxes and charges, insurance, transport costs and purchase prices unless otherwise agreed in writing.
f) If no payment has been received on the due date, after notice of default the Customer will owe the statutory interest over the amount still owing. Non-Consumers owe the statutory interest increased by 2%.
g) If Ego has to take collection measures, the Customer will owe extrajudicial costs, in accordance with the rates laid down in the "Preliminary Work II Report". Delivery of Products and/or provision of Services can be suspended until payment of the invoice price.
Article 6: TERMINATION OF THE AGREEMENT
a) Subject to the conditions set out in Article 6 of these Conditions, either party only has the right to dissolve the agreement if the other party, after having been given proper written notice of default, which is as detailed as possible, giving a reasonable term to rectify the default, defaults on the performance of essential obligations under the agreement.
b) If after an agreement of purchase and sale for Products and/or Services has been made the Customer wishes to cancel such agreement, 40% of the order price (increased by VAT, import duties, other taxes, charges and levies imposed by a public authority) will be charged as a cancellation fee, without prejudice to Ego's right to full compensation, including lost profit. For Consumers this section only applies after expiration of the terms mentioned in article three (3).
Article 7: DELIVERY
a) The Delivery Date set out in the order confirmation is indicative. The place of delivery will be set out in the order confirmation.
b) Ego is entitled to deliver in part shipments, which Ego can bill separately.
c) The delivery date will be indicated to the best of Ego's knowledge on the basis of details which were known to Ego at the time of entering into the agreement. Delivery dates will be observed as much as possible. Ego will not be in default by the mere exceeding of the (delivery) term. Ego is not bound to (delivery) terms which pass due to circumstances beyond its control after making the agreement. Ego and the Customer will contact each other as soon as possible if there is a risk of a delivery term being exceeded and if so desired will confirm this in writing.
d) As of the delivery date the goods are fully at the risk of the other party. Unless otherwise agreed, delivery is ex physical point of sale and/or ex Ego's warehouse. Delivery will only be effected free of charge if and insofar as Ego has agreed such with the Customer and such is set out on the invoice or otherwise.
e) The time of delivery is the time when the goods are ready for transport. With regard to Consumers, physical delivery constitutes the delivery date.
f) When the goods have not been physically accepted by the Customer after the expiry of the delivery time, they will be stored at the Customer's disposition. Ego is entitled to charge the Customer for all costs made in this respect.
g) Upon acceptance of the delivery at one of the physical points of sale and/or warehouses of Ego, Ego can ask the Customer (or the transporter or third party appointed by the Customer) to present valid ID and Ego will not be liable for acceptance of the delivery by unauthorised persons.
h) Delivery to Consumer will occur within 30 days after the date of order. Consumer is entitled to immediate dissolve the purchase agreement if this delivery time is exceeded, unless this delay is due to force majeure (article 11 of these terms) and unless parties hav agreed upon a different delivery date.
Article 8: TITLE AND RISK
a) Title in the Products passes when Ego receives full payment.
b) The risk for Consumers passes at the time of de facto delivery of the Products. The risk for non-Consumers passes at the time described in Article 7.e of these Conditions.
Article 9: TRANSPORT
a) If no specific agreements have been made with the Customer, Ego will determine the method of transport, sending and packing on the basis of what is reasonable.
b) Specific wishes of the Customer regarding the transport or the sending will only be carried out if the Customer has stated he will pay the additional costs therefore.
Article 10: GUARANTEE
a) Ego guarantees that its Products, with the exclusion of Batteries and with the exclusion of products of Third Parties as defined in Article 21, will be free of defects during a period of 12 months as of the Delivery Date unless otherwise agreed between the parties. If the Product shows a defect within the stipulated guarantee term, Ego will rectify or replace it within a reasonable term free of charge. Batteries for Notebooks, or for the Tulip Ego, will be delivered with a six (6) month guarantee, which cannot be extended.
b) Ego is responsible for a period of six months with regard to Products of Third Parties which Ego has delivered to the Consumer that the delivered product corresponds with the agreement. In the event of an apparent defect or defect in delivered Products of Third Parties within the guarantee term, the Product of Third Parties will be repaired or replaced in accordance with the guarantee provisions of the manufacturer or supplier. The Customer can directly approach the manufacturer or supplier to repair or replace a Product of Third Parties. Guarantees which the manufacturer and the supplier give to Ego will always be transferred to the Customer. A guarantee for Software will be given by the licensor of the Software.
c) The guarantee lapses if the other party and/or third parties engaged by him, made inexpert, non-normal use of the goods.
d) The guarantee will also lapse if the other party and/or third parties engaged by him carries/carry out work or changes to the goods without Ego's prior written consent.
e) If Ego replaces parts to perform guarantee obligations, the replaced parts will become Ego's property.
f) If the other party does not perform any obligation ensuing from the agreement made between the parties, does not perform such obligations in part or in time, Ego is not bound to the guarantee for as long as that situation continues.
g) Ego's liability, regardless of whether it ensues from contract or wrongful act, for defects to Products of which Ego was informed after delivery, is limited to the performance of the guarantee obligation, with the exception of the liabilities accepted by Ego in Article 13. These guarantee provisions do not affect the Consumer's statutory rights.
h) This guarantee does not apply if the defect is the result of an external cause including, but not limited to, accidents, damage, exposure to water.
Article11: FORCE MAJEURE
a) Ego is not bound to perform any obligation if it is prevented from doing so by force majeure.
b) There is force majeure on the part of Ego if after making the agreement it is prevented from performing its obligations under the agreement as a result of war, risk of war, civil war, riot, fire, water damage, flooding, work strike, company occupation, exclusion, import and export restrictions, government measures, defects in machinery, disruptions in the supply of energy, all in Ego's company and that of third parties, and disruptions in storage or during transport, whether or not under its management, and furthermore due to all other causes arising beyond Ego's control and risk. Only hindrances which are due to Ego's own intent or gross negligence are at Ego's risk.
c) There will furthermore be force majeure on the part of Ego in the event of default on the part of its supplier(s) or of agents engaged by Ego, even if such default is due to intent or gross negligence on their part.
d) If performance by Ego is delayed by two months or more due to force majeure, both Ego and the other party have the right to consider the agreement dissolved. Ego is entitled to demand payment for the activities it carried out with regard to the performance of the agreement before the circumstance which caused force majeure became apparent.
e) If Ego believes it is in a situation of force majeure, it must immediately give the other party notice thereof.
Article 12: LIABILITY
a) Product liability. If Products other than those of third parties, or Products of Third Parties which Ego imports into the Netherlands from outside of the European Union cause damage to persons or goods which fall in the private sphere, Ego is liable for damage due to death or personal injury and for damage to goods which fall in the private sphere, insofar as Ego is subject to any liability, if this damage is higher than EUR 500, in words five hundred euros with a maximum of the amount which is paid out by the insurers in this respect and in any event a maximum of EUR 1,000,000, in words 1 million euros.
b) Liability based on wrongful act. Insofar as Ego is held liable for damage caused by third parties or by Products of Third Parties, the Customer is obliged to assign its claims on such Third Parties to Ego free of charge.
c) If Ego is liable for any damage to goods or persons, such liability is limited per incident to a maximum of EUR 250,000, in words two hundred and fifty thousand euros or the Price, depending which amount is the lowest.
d) Contractual liability: Ego's liability under the heading of the agreement is limited to a maximum amount equal to 125% of the Price. Ego does not accept any liability to customers for: (I) damage due to a defect or shortcoming in Products which Ego replaced or repaired within a reasonable term; (II) indirect damage or pure financial loss such as lost business opportunities, lost turnover and lost profit; (III) damage which the Customer could have prevented by following Ego's advice and instructions; (IV) damage caused because Ego made use of materials specified or delivered by the Customer, or acted in accordance with the Customer's wishes; and (V) damage is caused because the Customer failed to save complete and up to date copies of his computer programs and details in accordance with the criteria for proper computer use.
e) Outside of the cases referred to in this article, Ego is not subject to any obligation or liability for compensation whatsoever, regardless of the grounds on which a claim for compensation is based.
f) Ego's liability for default on the performance of the agreement between Ego and the Customer only arises if the Customer gives Ego written notice of default immediately after determination thereof, in any event within 24 hours, by recorded mail, setting a reasonable term to rectify Ego's default, and Ego continues to default on the performance of its obligations after expiry of said term.
g) A prerequisite for the arising of any right to compensation is always that the Customer must immediately report the damage, in detail, to Ego by recorded mail as soon as possible after the arising of the damage, but at latest within three working days after the arising of the damage.
h) The Customer indemnifies Ego against all claims of third parties because of product liability as a result of a defect in any product or system which the Customer delivered to a third part and which (partly) consisted of equipment, software or other materials delivered by Ego, insofar as the damage was not directly caused by Ego Products and if changes have been made to the Products.
i) In particular, the Customer has no right to claim compensation on the basis of alleged default on the performance of the agreement, for any damage suffered by the Customer or third parties, as a result of force majeure, disruption in the operations of Ego, default or delay in the delivery, replacement or rectification if such is necessary as a result of normal wear and tear of the goods delivered.
Article 13: COMPLAINTS
a) Ego will only take complaints into consideration if they are presented to Ego in writing within six (6) working days after the relevant delivery or performance, precisely setting out the nature and grounds of the complaints.
b) Complaints on invoices must also be presented in writing, within six (6) working days after the invoice date.
c) After the expiry of this term the Customer will be deemed to have approved the delivery or the invoice. In such case Ego reserves the right to no longer take complaints into consideration.
d) If Ego holds the complaint to be well-founded, Ego is only obliged to effect the agreed performance, unless Ego prefers crediting.
e) Only if and insofar as the complaint is held to be well-founded will this suspend the Customer's payment obligations, until the time when the complaint has been handled.
f) Returning the delivered goods can only be effected after Ego's prior written consent, on conditions to be set by Ego.
Article 14: REPAIRS
a) Unless otherwise agreed in writing, all repair work to be carried out by Ego will be carried out at the applicable rate and all replaced parts and/or materials will become the property of Ego.
b) Ego is at all times entitled to retain any property of the Customer which Ego is holding under any title until the time that the Customer has paid everything it owes Ego, or has given sufficient security therefore. If Ego feels forced to exercise this right of retention, Ego is also entitled to charge the Customer all related costs, including storage costs.
Article 15: RETURN SHIPMENTS
a) Without Ego's prior written consent, Ego is not obliged to accept the Customer's return shipments.
b) Receipt of return shipments does not in any way imply acknowledgement by Ego of the grounds which the Customer has indicated for the return of the shipment. The risk in the returned goods remains with the Customer until they have been credited by Ego.
Article 16: INTELLECTUAL PROPERTY AND SOFTWARE
a) Ego is the party entitled to all intellectual property rights, patent, trademark, model, copyright, design rights, applications thereof, know-how, confidential information, trade names and comparable rights, with regard to the Products which are not Products of Third Parties. The Customer indemnifies Ego against all costs, damage and liability on the basis of complaints of third parties that intellectual property rights, patent, trademark, model, copyright, design rights, applications thereof, know-how, confidential information, trade names and comparable rights, which the Customer has transferred to Ego, infringe the intellectual property rights, patent, trademark, model, copyright, design rights, applications thereof, know-how, confidential information, trade names and comparable rights of such third party.
b) Additional (licensing) conditions can apply to the use of Software. Rules relating to intellectual property rights, patent, trademark, model, copyright, design rights, applications thereof, know-how, confidential information, trade names and comparable rights and Software are to be found in the Intellectual Property Rights and Software Policy.
Article 17: PROTECTION OF CUSTOMER DETAILS
Article 18: CONFIDENTIALITY
Each of the parties must treat all confidential information or information which appears to be confidential which it receives from the other party with the strictest confidentiality.
Article 19: CONSUMER RIGHTS
These Conditions have been drawn up in accordance with Dutch legislation and will be regularly updated. If a provision of these Conditions is not in accordance with Dutch consumer legislation, the legislation will prevail.
Article 20: APPLICABLE LAW AND DISPUTES
a) All offers of and agreements with Ego and these Conditions are exclusively governed by Dutch law.
b) All disputes, including those which are only deemed a dispute by one party, ensuing from or connected with the agreement to which these Conditions apply or the relevant Conditions themselves and their interpretation or performance, both of a factual and a legal nature, will be decided by the competent court within whose jurisdiction Ego has its place of business.
c) Ego is nevertheless entitled to have the dispute adjudicated by arbitration, in which case Ego will give the Consumer written notice thereof. The Consumer will then have a period of one month to express his preference for adjudication by the civil court.
d) In the event the dispute is adjudicated by arbitration, three arbitrators will adjudicate the matter fairly. The arbitrators will be appointed in such way that each of the parties will appoint one arbitrator and the third arbitrator will be appointed by the two arbitrators already appointed acting jointly. The costs of the arbitrators and their fee will be charged to the parties in such way as the arbitrators determine. Insofar as there is no deviation therefrom above, the provisions of Book IV of the Code of Civil Procedure apply.
Article 21: DEFINITIONS
a) Consumer: natural person who buys Ego Products and/or Service for private use;
b) Services: service and support by Ego or contractors of Ego;
c) Ego: Ego Lifestyle BV, having its registered office at Parade 15, 5211 KL in 's-Hertogenbosch, seller of Products and/or Services;
d) Customer: natural or legal person who buys or undertakes to buy Ego Products and/or Services;
e) Delivery date: date specified by Ego when, or period within which, Products and/or Services will be delivered;
f) Products: goods which Ego's other party undertakes to buy;
g) Products of Third Parties: Products not produced, assembled or manufactured by, or on instruction of, Ego, including operating systems and application software;
h) Follow-up orders: orders which form part of a series of orders which have been placed over time or for which the deliveries have been postponed;
i) Conditions: these General sales, delivery and payment conditions;
j) Work days: all days with the exception of Saturdays and Sundays and public holidays.