1.1. These General Sales Terms and Conditions will apply to all offers or quotes made, contracts concluded and the execution thereof, and deliveries and services carried out by or on behalf of FeelYoung2 BV (hereinafter: Supplier). Deviations from these Terms and Conditions will only be effective if agreed upon in writing by Supplier and Other Party.
1.2. All quotes and prices will be free of obligation and valid within the term stated by Supplier, unless stated explicitly otherwise in writing in the quote. Price lists, brochures, catalogues, folders and other information provided by or on behalf of Supplier have been put together as carefully as possible, but are not binding for Supplier.
1.3. Possible General and/or Special Sales, Tender, Delivery, or other Sales Conditions from Other Party will not apply, unless explicitly accepted by Supplier in writing.
1.4. An agreement between Supplier and Other Party will be concluded the moment Supplier has accepted and confirmed an assignment or order from Other Party in writing; the scope and content of the agreement is as follows from the written confirmation by Supplier.
1.5. For work or assignments for which, given their nature or scope, no quote or confirmation of assignment has been sent, it will apply that the agreement is concluded the moment that Supplier or another party on behalf of Supplier will actually start with the execution of the agreement, while in such a case the invoice will be considered the confirmation of assignment, which is also deemed to reflect the agreement accurately and completely.
1.6. Other Party will undertake towards Supplier not to assign any rights and/or obligations arising from the agreement concluded between them, or to transfer these rights or obligations in another way, other than with prior permission in writing from Supplier.
1.7. Amendments in an agreement will only be valid when made in writing and if both parties have agreed to the amendment.
In these Terms and Conditions, the following definitions apply:
Services: the services and working activities to be carried out by Supplier for the benefit of Other Party on the basis of an Agreement, and in the scope of these performances and/or efforts, as well as all forms of advisory services and training programme(s).
Documentation: user and/or technical manuals belonging to the Product.
Office hours: hours between 8 am and 4 pm on Working days.
Employee: the person who is charged with the actual execution of the Agreement on behalf of Supplier.
Agreement: the contract as concluded by Supplier and Other Party.
Products: the EMF Products, other Health Products and/or Documentation as to be delivered by Supplier and as specified in the Agreement.
Confidential information: Documentation and related materials, user information and/or reports and/or quotes and all other information regarding Supplier of which Other Party knows, or reasonably should know the confidential nature.
Other Party: organizations or natural persons using the products and/or services of Supplier.
Working days: calendar days on which working activities are carried out, with the exception of weekends and generally acknowledged holidays.
3.1 The products to be delivered by Supplier on the basis of the agreement will be delivered to Other Party at the address as agreed. Supplier will inform Other Party timely regarding the expected delivery date. The risk regarding the Products will be transferred to Other Party at the moment of delivery.
3.2 Stated delivery times will always be approximate and will be determined by Supplier based on data as known to Supplier at the moment the agreement was concluded. If a delivery date or time is likely to be exceeded, then Supplier will consult with Other Party. The mere fact that the delivery period will be exceeded will not cause Supplier to be in default. Supplier will not be bound to delivery terms that cannot be met as a result of circumstances not controlled by Supplier which occurred after the Agreement was concluded
3.3 The deadlines stated under 3.1 and 3.2 will never be considered final deadlines.
3.4 A 30 day reflection period will be granted to Other Party after receipt of the Products which were ordered by them, during which Products can be sent back to Supplier, and after which the invoice payment will be refunded. Shipment costs will be borne by Other Party.
3.5 When delivery period exceeds 30 days Other Party has got the possibility to terminate the Agreement.
4. PRICES AND PAYMENTS
4.1. All prices will be exclusive of VAT, other government levies and any shipment costs, unless indicated or agreed upon otherwise in writing. Payments must be made including Dutch VAT.
4.2. The Prices will apply only to the Products and/or Services specifically stated in the Agreement.
4.3. The payment for agreed Services will be invoiced in advance or after the Services have been provided, all this as stated in the Agreement.
5.1. Other Party will pay all invoices in accordance with the payment conditions as stated on the invoice. If no specific conditions are stated, Other Party will pay within five days after the invoice date or paid directly through the webshop. The payment is only deemed to be made after Supplier has received a notification of crediting of the paid sum into one of its accounts.
5.2. Supplier reserves the right to demand surety with regard to the payment before delivery in the form of an advance payment of the full amount as agreed upon between the parties or cash payment of the full amount when the goods/services are delivered.
5.3. If Other Party does not make a payment or payments in accordance with that mentioned above, then Other Party will be in default without further written notice of default. Supplier will then be entitled to charge £25 administration costs to Other Party. As of the date on which Other Party is in default, Supplier will be entitled to charge 1% interest per month over the full amount of the debt or debts which is/are due. All collection costs, extrajudicial and judicial costs in connection with the collection of any claim against Other Party will be borne by Other Party.
6. CONFIDENTIAL INFORMATION AND INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS
6.1. Other Party and Supplier will be bound to take all reasonable precautions to keep the information of a confidential nature received from the other party confidential, to protect this information against disclosure to third parties, not to give this information either for a temporary or longer period for inspection or use to third parties, not to copy or in any way multiply the information, unless explicitly permitted, and Other Party and Supplier should use the information solely for the purpose for which it is made available within the provisions of the Agreement. Confidential information will always be marked as such by the providing party.
6.2 Other Party will acknowledge the copyrights and all other intellectual and related property rights of Supplier and/or its suppliers on Product, Software Module(s), Documentation, advice, reports and related materials provided or to provide by Supplier. Other Party will not be allowed to delete or change any mark regarding copyrights, brands, trade names, or other rights of intellectual property from the Product and/or Software Module, including any details regarding the confidential nature and confidentiality of the Software Module.
6.3 Other Party will acknowledge that all data provided by Supplier will remain property of Supplier at all times and may not be copied or multiplied in any way.
6.4 That stated in this Article will remain in force also after termination of the Agreement or when the Agreement is annulled.
7.1. Supplier cannot be held liable to compensate any damage, of whatever nature, to any movable or immovable property, or person or third party, including trading loss, which is directly or indirectly caused by, or related to the use or application of the Products and/or Services delivered by Supplier, unless if, and insofar this arises from mandatory legal provisions regarding product liability. The Other Party will indemnify Supplier explicitly against all claims of third parties which are based on or related to any such damage. Supplier will in no case be liable for damage or loss directly or indirectly caused by improper and/or careless use of the delivered Products and/or Services or use thereof for another purpose then for which the Products and/or Services are deemed to be fit, or another purpose than that of which Supplier in all reasonableness could assume that Products and/or Services would be used.
7.2 Possible liability of Supplier for damage and regardless whether this is claimed based on attributable breach or wrongful act, will at all times be limited to direct damage with a maximum of the invoiced net invoice amount of the product in question which forms the subject of the claim for liability.
7.3. If and insofar the agreement is a continuing performance agreement, the compensation to be paid by Supplier will in no case amount to more than that part of the total agreed price (exclusive of turnover tax) as stated in the Agreement which is related to the period of three (3) months immediately preceding the wrongful act or attributable breach of Supplier.
7.4. The total liability of Supplier for damage caused by death or physical injury, or for material damage to goods, will be limited to the amount which will be paid in that particular case by the liability insurer of Supplier.
7.5. Any liability for any other form of damage as stated in this Article, including explicitly trading loss, consequential damage (such as financial or commercial losses), loss of profit, loss due to delay, loss of use and or indirect damage, will always be excluded, also during the guarantee period.
7.6. The liability of Supplier due to attributable breach in the performance of an Agreement will only come into existence if Other Party immediately sends a notice of default in writing to Supplier, in which a reasonable term is stated to remedy the default, and if Supplier continues to fail imputably regarding the performance of its obligations after that term. The notice of default must contain a description of the default as detailed as possible, in order to enable Supplier to respond adequately.
7.7. Any claim against Supplier will lapse after a period of 12 months after the damage has become apparent or has been discovered or acknowledged or in all reasonableness should have been discovered or acknowledged.
8. INDEMNIFICATION OF INTELLECTUAL PROPERTY RIGHTS
8.1. Supplier will indemnify Other Party against third party claims regarding any alleged infringement of intellectual and/or industrial property rights as a result of normal use of the product in accordance with the agreement, provided that (a) Other Party will notify Supplier immediately in writing after taking note of these claims, (b) Other Party will provide Supplier with the required authorities, information and cooperation to defend itself, if necessary in name of Other Party, against these claims and (c) will allow Supplier for its account to effect a settlement with that third party.
8.2. Supplier can in no way be held liable for infringement of any industrial or intellectual property right or any other exclusive right that is caused by any change in or to a Product sold or delivered by or on behalf of Supplier or of any use of such Product or any application of such a Product other than the application as prescribed by Supplier.
8.3. With regard to infringement of any intellectual or industrial property right pertaining to a third party, Supplier will not be held to anything more than that which is stated in these Terms and Conditions and that stated in this Article 8.
9.1 While observing that which is stated elsewhere in these General Terms and Conditions, Supplier will guarantee the reliability of the used materials and the promised features and the correct operation in relation to this of the Product delivered by Supplier. This guarantee will apply to new products for a term of 24 months after the delivery date.
9.2 Defects to the Product which are covered by the guarantee will be repaired, or replaced by new delivery, such to the sole discretion of Supplier, if these defects in the opinion of Supplier and/or manufacturer can be blamed on material or manufacturing faults in the product, by reason of which the Product cannot be used by Other Party for the purpose for which the Product was intended. All replaced parts will become property of Supplier. In order to enable Supplier to fulfil its guarantee obligations, Other Party will send the Product to Supplier accompanied by a detailed statement of the complaint.
9.3 The guarantee will not cover faults that are wholly or partly the result of improper, careless or incompetent use, external causes, such as fire or water damage, or damage as a result of the Product falling, or if Other Party has modified the Product or parts of it, or had the Product or parts of it modified, without permission from Supplier.
9.4 Supplier will charge in accordance with the usual rates for work and costs for repair which fall outside the scope of this guarantee.
9.5 Meeting the guarantee obligation will be the only and full compensation.
10. COMPLAINTS AND DISPUTES
10.1 In case of a complaint or dispute with regard to a Product and Service of Supplier, Other Party must in all cases in the first instance report in writing to Support@EMFHealthCard.com. Supplier will respond within 10 working days after receipt of the complaint or dispute in writing regarding the substance, unless this is in all reasonableness not possible. In the latter case Supplier will inform Other Party in writing within 10 working days after receipt of the complaint or dispute when the substantive response will be stated at the latest.
11. DURATION AND CANCELLATION
11.1 Each of the parties will be authorized, regardless of that which is stated elsewhere in this regard in these General Terms and Conditions, to cancel the Agreement wholly or partly, in writing: (a) Without court intervention or notice of default if and as soon as Other Party or Supplier is declared bankrupt; assignment of an estate is arranged; a moratorium has been filed for; a provisional or definitive moratorium is granted to Supplier or Other Party; all or part of the possessions of Other Party or Supplier are attached; (b) Other Party if he/she is a natural person: Becomes legally incompetent; dies; makes it known to be insolvable; (c) After being sent a notice of default in writing, with a reasonable term, if the other party fails imputably to perform substantial obligations arising from the Agreement. All amounts due and claimable by Supplier from Other Party are then immediately due and payable.
11.2 If Other Party cancels the agreement and at the time of cancellation has already received performances as execution of the Agreement from Supplier, Other Party can cancel the Agreement only partly, namely only for that part of the Agreement that has not yet been executed by Supplier. Amounts which were invoiced by Supplier to Other Party before cancellation of the Agreement in relation to that which has already been delivered or executed, will be due regardless of that stated above, and will be due and payable immediately upon cancellation of the Agreement.
12. DISPUTES AND GOVERNING LAW
12.1 Dutch law will apply to all agreements between Supplier and Other Party.
12.2 All disputes pursuant to or arising from agreements concluded by Supplier and deliveries carried out and Services performed by Supplier will be brought before the competent court of the Netherlands.
13.1 None of the parties will be held to perform any obligation if it is hindered in doing so by Force Majeure. The following, among other things, are considered cases of Force Majeure: a non-attributable failure to perform by suppliers of Supplier, strike, extreme weather conditions, transport failures, fire or accidents, operational failure, uprising, riots, etc., etc.
13.2 Both parties will be able to invoke Force Majeure by informing the other party within a reasonable term.
13.3 Supplier will be authorized to outsource the contracted Services to third parties under its responsibility.
13.4 USE AND MAINTENANCE OF PRODUCTSThe provisions stated in this section “Use and Maintenance of Products” will apply along with the General Provisions of these General Sales Terms and Conditions to all Products made available and accepted for maintenance by Supplier.
14. MAINTENANCE OF THE PRODUCT
14.1 The Maintenance of the Product will include the repair costs. Supplier will immediately make an exchange Product available. Other Party will send the broken Product immediately to Supplier. If the maintenance does not fall within the guarantee period, Supplier will in all reasonableness charge the expenses made to Other Party.
14.2 The costs of support as stated under Article 17.1 will be charged fully to Other Party if the faults are or failure is wholly or partly caused by improper, careless or incompetent use, external causes, such as damage caused by fire and/or water, or damage as a result of the Product falling, or if Other Party has made changes to the Product or parts or has changes made, without permission of Supplier.