GENERAL TERMS & CONDITIONS
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(1.1.) In these general terms and conditions (hereinafter referred to as “Terms”), the following definitions shall apply:
(1.1.1.) BREKR: The private company with limited liability under Dutch law registered under the name of Smart Commute B.V., its registered offices located in Doetinchem, the Netherlands;
(1.1.2.) Client: all natural or legal persons with whom BREKR enters into an Agreement or with whom BREKR is negotiating about the conclusion of an Agreement;
(1.1.3.) Agreement: any and every agreement entered into between BREKR and a Client, any amendment thereto and any actions or legal transactions connected with the execution of that Agreement and, seen in retrospect, any and all actions and legal transactions necessary for entering into that Agreement;
(1.1.4.) Products: any and all goods which are the subject of an Agreement;
(1.1.5.) Order: any order issued by a Client to BREKR in any form whatsoever.
(2.1.) These Terms shall comprise a part of all Agreements and shall be applicable to all BREKR’s and Client’s actions and legal transactions. Unless the nature or specific contents of any stipulation in the present Terms should oppose this, the provisions of the Terms shall also be applicable to Agreements under the Terms of which BREKR does not act in its capacity of seller.
(2.2.) These Terms shall apply in the version applicable at the time of conclusion of the contract.
(2.3.) These Terms shall apply exclusively. Any contrary or deviating terms and conditions of the customer shall only be recognized when expressly approved in writing by BREKR.
3. Establishment of the Contract: quotations, product descriptions, definitions & payments
(3.1.) The presentation of the BREKR product range on its website or in catalogues, price lists, etc. does not constitute a binding offer to conclude a contract. Pictures printed in catalogues or published on the website are for illustrative purposes only and are not binding.
(3.2.) A quotation or (price) offer shall not be binding on BREKR and shall qualify only as an invitation to the Client to place an order.
(3.3.) The prices shown on the website shall be understood as indicative prices including VAT.
(3.4.) BREKRs prices are in EUR unless expressly stated otherwise. Insofar as prices are stated in another currency than EUR, then such statement of price is deemed to be based on the EUR equivalent of such price at the date that the price statement was made.
(3.5.) Any change in factors having an impact on the prices of BREKR, including but not limited to rates of third parties, currency exchange rates, insurance rates, import and export duties and any other charges payable upon importation or exportation, freight charges and other charges, levies or taxes, may be charged on to Client by BREKR.
(3.7.) An Agreement shall only be concluded to the extent that BREKR accepts an Order from the Client in writing or where BREKR executes an Order. If at the request of the Client BREKR carries out any work for the Client before an Agreement is concluded then the Client shall remunerate BREKR thereof in accordance with BREKRs customary rates.
(3.8.) BREKR shall observe due care in informing the Client of the figures, measurements, weights, features and other information applicable to the Products, but cannot warrant that these shall be free from deviations. Any specifications or samples demonstrated or made available shall be no more than indications of the Products concerned. If the Client should be able to demonstrate that the products supplied by BREKR deviate from the information provided by BREKR or from the samples or specifications in such a way that the Client can no longer be obliged to comply with the order concerned, the Client shall have the right to dissolve the Agreement, to the extent however that such a dissolution should be necessary in reason and without BREKR being liable for damages.
(3.9.) After acceptance of an Order BREKR shall at all times be entitled to cancel such Order without stating its reasons, in which case BREKR shall not be obliged to refund any more than advance payments already made by the Client, if any.
(3.10.) After receipt and examination of an Order, BREKR shall contact the Client and inform them of the order status. The purchase contract shall be deemed to have been concluded upon agreement of the payment terms between BREKR and the Client.
(3.11.) Any subsequent amendment of the Order is fundamentally excluded unless agreed upon otherwise in writing. Any amendment to the Agreement shall require the prior consent of BREKR in all cases. All costs arising out of the amendment shall be at the expense of the Client.
(3.12.) The Client is bound to make payment in advance of fulfilment of the contract. In the case of payment by credit card, by bank or giro transfer, or in the case of cash transfer, the remaining purchase price shall be deemed to have been paid only when the corresponding financial institute confirms the unconditional receipt of payment to BREKR. The ordered goods shall be handed over only after receipt of payment in accordance with the Agreement with BREKR.
(3.13.) Should, in exceptional cases, the goods be handed over before full payment of the purchase price, or if the payment should later be found to have not been made in full, BREKR shall be entitled to reclaim the delivered Products.
4. Online Shop
(4.1.) The online shop offers the Client the possibility to configure the BREKR bike to their personal wishes and requirements using the online configurator provided and to place a binding Order with BREKR online.
(4.2.) BREKR offers an extra service for tailor-made product to the specific wishes of the customer. Upon receipt of the Order BREKR will send out a confirmation email to the Client to finalise on all details of the customised order. After the Client has responded to this email and given the go ahead for the Order to be processed, changes to the Products can no longer be made.
(4.3.) In addition to the BREKR bikes, the Client can also order a variety of accessories.
5. Delivery Period
(5.1.) The delivery period indicated by BREKR shall be based on the circumstances applicable to BREKR at the time the Agreement is entered into and, to the extent dependent on performance by third parties, on the information that those third parties provided to BREKR.
(5.2.) The delivery period shall commence on the date of BREKR’s written Order confirmation. If, in order to execute the Order, BREKR requires information from the Client, the delivery period shall commence on the date on which BREKR disposes of all the necessary information or resources, but not earlier than the date of the written Order confirmation.
(5.3.) The Client shall not be entitled to claim any compensation in the event of an overdue delivery period. Neither shall the Client be entitled to dissolve the Agreement in such an event, unless the Client proves that it cannot in reason be required to comply with the relevant part of the Agreement. In such case, the Client shall be entitled to dissolve the Agreement, provided it has informed BREKR thereof in writing and without prejudice to BREKR’s right to supply the Products concerned and to require payment thereof within three weeks of the receipt of such a notification.
(5.4.) BREKR shall, at all times, be entitled to deliver in part-consignments.
(5.5.) If the Client should fail to collect the Products it has ordered or should fail to do so promptly, it shall be in default without requiring a written notice of default. In such event BREKR shall be entitled to store the Products for the Client’s account and risk and to sell these to a third party. The Client shall remain liable for the purchase price plus the interest and costs (by way of compensation) after the deduction of the net proceeds of such sale to a third party, if any.
6. Products and Services of Third Parties
BREKR shall be entitled to engage third parties to fulfil (parts of) an Agreement at all times. If BREKR calls in third parties, the terms and conditions that apply between such third parties and BREKR apply to the Agreement, notwithstanding the rights and obligations of BREKR and the Client arising from the Agreement. This will be enforced to the extent that if these rights and obligations deviate, the Terms that bind BREKR to any third party shall prevail. The terms and conditions that bind BREKR to third parties as described above will be provided by BREKR to the Client free of charge at the Client’s first request.
7. Retention of Title
(7.1.) Irrespective of the actual delivery date, the title to the Products shall not be transferred to the Client until it has paid BREKR the sum outstanding in respect of the Products in full, including the purchase price, any surcharges, interest, taxes and costs payable pursuant to the Terms and any services rendered or to be rendered in respect of the Products.
(7.2.) The Client shall not be authorized to rent, let or make the Products available in use to third parties, to pledge them or to otherwise encumber them in favour of third parties until BREKR has transferred the title of those Products to the Client.
(7.3.) If and as long as the title to the Products has not yet been transferred to the Client, the Client shall inform BREKR forthwith in writing in the event that the Products are seized, attached, garnished or if any other claim should be made with regard to the Products.
(7.4.) In the event of attachment, seizure, garnishment, bankruptcy, involuntary liquidation or a (provisional) moratorium of payments, the Client shall immediately inform the administrator or liquidator, the bailiff or the process-server serving the seizure, garnishment or attachment, of BREKR’s rights of title.
8. Inspection and complaints
(8.1.) The Client shall be obliged to carefully inspect the Products immediately upon arrival at their destination or to have these examined upon receipt by the Client itself or any third party acting at its instructions, whichever is earlier. BREKR must be informed in writing of any complaints in respect of defects to the Products or any discrepancies in quantity, weight or quality between the Products supplied and the specification thereof in the relevant order confirmation or invoice no later than 5 days after the receipt of the Products. The Client must notify BREKR of defects that could not in reason have been discovered within the above-mentioned period in writing immediately after discovery, but in any case no later than within 30 days of the receipt of the Products. Should the Client fail to inform BREKR within the abovementioned term, its right to exercise any of its rights in regard to such irregularity or defect will lapse.
(8.2.) The Client shall be obliged to immediately cease use of the Products concerned after discovering any irregularity or defect, under penalty of lapse of the right to exercise any of its rights with regard to such irregularity or defect. The Client shall provide any cooperation BREKR may require in order to investigate the complaint.
(8.3.) The Client shall not be entitled to return Products to BREKR before BREKR has agreed in writing to such return. The costs of the return consignment shall be for the Client’s account, and the Products shall remain at risk of the Client after receipt by BREKR of such Products.
(8.4.) Other obligations and responsibilities of the Client
(8.4.1.) The Client shall at all times make any and all information necessary for the execution of BREKR’s activities available in a timely manner and shall warrant the accuracy and comprehensiveness thereof.
(8.4.2.) The Client shall not be entitled to remove or make invisible any trademarks or identifying marks on the Products, any documents accompanying and/or regarding the Products.
9. Force Majeure
(9.1.) If BREKR is unable to fulfil any of its obligations towards the Client due to force majeure, these obligations shall be suspended during the force majeure situation.
(9.2.) If a force majeure situation has lasted for 1 month, both parties have the right to dissolve the Agreement in writing entirely or in part. In the event of a force majeure which affects only BREKR, the Client is not entitled to any compensation or damages, not even in the case that BREKR would enjoy any benefit as a result of such force majeure.
(9.3.) Force majeure on the part of BREKR is to be understood as a case of ‘overmacht’ as mentioned in article 6:75 Dutch Civil Code, and furthermore any circumstance beyond the control of BREKR hindering the fulfilment of its obligations towards the Client entirely or in part or because of which BREKR cannot be expected in all fairness to fulfil its obligations, regardless whether such circumstance could have been foreseen at the time when the Agreement was concluded. Such circumstances include but are not limited to fires, acts of terrorism, strikes and lockouts, stagnation or other production problems suffered by BREKR or its suppliers, or problems in the transportation provided by BREKR or any third parties, any government measures, as well as the inability to obtain any permit or licence from any governmental body.
(9.4.) Parties shall notify each other as soon as possible of any (possible) force majeure situation.
(10.1.) Any liability on the part of BREKR shall at all times be limited to the sum insured that shall be paid in such case under the liability insurance policies taken out by BREKR. These insurance policies have limited cover, inter alia with respect to the amount of the damages and the number of insured events per year. Upon request, access may be obtained to the insurance cover note. Should no payment be made by virtue of aforementioned insurance policies, regardless of the grounds, the liability of BREKR shall be limited to the fee that was invoiced by BREKR and paid by Client in connection with the delivery at hand during a twelve month period directly preceding the date on which the event leading to liability occurred, up to a maximum liability of € 10,000 (ten thousand Euro).
(10.2.) In the event that BREKR involves third parties, BREKR shall not accept any liability whatsoever for failure to perform on the part of such third party except for failure to perform on the part of BREKR itself. If the Client brings legal action directly against a third party, the Client shall indemnify BREKR against any claims by such third party in connection with such claim as well as against all expenses to be incurred by BREKR.
(10.3.) All rights of legal action and other powers of the Client towards BREKR in connection with the Products delivered by BREKR shall lapse upon expiry of a one year term after the date on which the Client has become aware of – or could in all fairness have been aware of – the existence of such rights and powers.
(11.1.) If the Client fails to fulfil any of its obligations arising from the Agreement properly or in time, Client shall be in default and BREKR shall be entitled without any default notice:
(11.1.1.) to suspend the fulfilment of the Agreement until payment has been adequately guaranteed; and/or
(11.1.2.) to dissolve the Agreement with the Client entirely or in part;
(11.1.3.) all this without prejudice to BREKR other rights under any Agreement whatsoever and without BREKR being held to any damages.
(11.2.) If BREKR exercises its right of dissolution as mentioned in article 11.1, BREKR is authorized to off set any amount which may possibly be refunded to the Client with a remuneration for activities already carried out as well as with a compensation for loss of profit.
(11.3.) In the event of bankruptcy, (provisional) suspension of payment, liquidation or attachment of one or more assets of the Client or if the Client is aware that any of these situations may occur, the Client must notify BREKR thereof as soon as possible.
(11.4.) In case of a situation as referred to in article 11.3, all Agreements with Client shall be dissolved by operation of law, unless BREKR notifies the Client that it wishes (part of) the Agreement concerned to be fulfilled, in which case BREKR is entitled without any default notice:
(11.4.1.) to suspend completion of the Agreement(s) concerned until payment has been adequately guaranteed; and/or
(11.4.2.) to suspend all its payment obligations, if any, towards the Client;
(11.4.3.) all this without prejudice to BREKR’s other rights under any Agreement whatsoever and without BREKR being held liable for any damages.
(11.5.) In the event of a situation as referred to in article 11.3, all BREKR’s claims against Client shall be immediately payable in full.
12. Severability Clause
Should a provision of an agreement be or become ineffective or unenforceable, this shall not affect the validity of the remaining provisions. The ineffective or unenforceable provision shall be deemed replaced by an effective and enforceable provision that comes closest to the economic purpose pursued by the ineffective or unenforceable provision. This shall apply analogously if a loophole in an agreement becomes manifest.
13. Data Protection and Data Processing
(13.1.) BREKR will process personal data in keeping with Dutch data protection laws.
(13.2.) Various data must be collected, stored and processed in order to allow certain BREKR functions (e.g. BREKR app?) to be used. The data are collected primarily via the BREKR Products, the data storage and data processing, on the other hand, is carried out on a central server of BREKR or Third Party.
(13.3.) The Client also has the possibility of having additional personal data registered and managed.
(13.4.) The Client is aware that the electronic links between BREKR Model B, user’s computer and/or smartphone and the BREKR servers result in an identification of the user. With the acceptance of these Terms, the Client expressly declares their consent that the data generated within the context of the use of certain BREKR app are collected, stored and processed.
14. Applicable Law and Venue
(14.1.) The law of the Netherlands shall be applicable to the present Terms and to all other Agreements. The applicability of the Uniform Law on the International Sale of Movable Property, the Uniform Law on the Formation of International Contracts for the Sale of Goods as well as the Vienna Convention on the Sale of goods is excluded.
(14.2.) Any disputes arising from the Agreement or these Terms shall be brought exclusively before the competent court in the Netherlands.
15. Amendment of Terms/Additions
These terms may be amended on the part of BREKR by mere notification to Client. In the absence of any protest within 30 days after notification the amended Terms shall apply to all new Agreements as from the day of notification as well as to all current Agreements if and insofar as these are carried out after the day of notification.