GENERAL TERMS & CONDITIONS WWW.ECUFILES.COM
Article 1. Definitions For the purpose of these General Terms & Conditions, the terms below are defined as follows:
Supplier: Koelewijn BV, also trading under the name Ecufiles or Ecufiles.com.
Customer: The Customer that enters into a purchase agreement or any other agreement with the Supplier regarding tuningsoftware in the course of the customers’ business or profession.
Software: The modification of software for electronic control units of motor vehicles. The Software is a service that the Supplier sells to the Customer. The intended purpose of the Software is using the software for competition purposes on the race-circuit and/or closed track events. The software is not intended for the public road.
Purchase: The purchase of Software whereby the Customer buys credits from the Supplier online in order to purchase Software via the website ecufiles.com.
Parties: The Supplier and the Customer.
Article 2. Applicability
2.1 These General Terms & Conditions (hereinafter referred to as: ‘the Terms’) apply to all offers and contracts pursuant to which the Customer purchases Software or enters into any other agreement regarding services or goods, directly or indirectly related to the Software, with the Supplier.
2.2 Deviations from and additions to the Terms shall only be valid and binding if and insofar they are agreed between the Parties in writing.
2.3 The applicability of any general or standard conditions of the Customer will not be accepted by the Supplier and are explicitly rejected. In any case, the Terms prevail over any general or standard conditions established by the Customer. In the event of a conflict between the provisions of the Terms of the Supplier and a written agreement between the Supplier and the Customer, the provisions of that agreement will prevail.
2.4 If any provision of the Terms is null, void or voided, that will not influence any of the other provisions of the Terms so the other provisions will remain fully effective between the Parties.
Article 3. Offers and agreement
3.1 All offers made by the Supplier, online or in any other way, are subject to the written confirmation of the Supplier, unless the Supplier has explicitly indicated otherwise in writing.
3.2 All offers made by the Supplier are without obligation and non-binding, unless the offer contains a term for acceptance of the offer, in which case the offer will lapse if it is not accepted by the Customer before the term ends.
3.3 If an offer does not contain a term for acceptance, the Supplier is entitled to withdraw the offer before, as well as two working days after, receiving acceptance form the Customer.
3.4 The agreement enters into effect at the moment the Customer agrees with the Suppliers offer. The agreement consists exclusively of the agreed offer or order conformation and the Terms, unless Parties have explicitly agreed otherwise in writing (hereinafter referred to as: ‘the Agreement’).
3.5 The Agreement replaces and sets aside all previous (oral or written) offers, correspondence, agreements or any other communication.
Article 4. Purchase
4.1 Amongst other services and goods, the Supplier sells credits to the Customers in order to purchase Software (hereinafter referred to as: ‘Credits’). The Customer can purchase Credits online via the Suppliers website(s).
4.2 In order to purchase Credits, the Customer will have to register as a ‘member’ on the Suppliers website(s). From the moment of registration, the Terms are agreed and applicable between Parties. After this online account is activated by the Supplier, the Customer orders and receives Credits on its Credit balance after payment and is able to request or upload Software. The purchased Credits remain valid indefinitely.
Article 5. Price & payment
5.1 All prices are stated in Euro’s (EUR) and are excluding value added tax (VAT) and/or any other (inter)national taxes, levies, duties, (import)fees or (delivery)charges.
5.2 The Supplier will provide the Customer with price lists regarding the Credits and the Software. The Supplier is entitled to adjust the price lists at all times.
5.3 All price lists, statements of cost, brochures and other data relating to the Suppliers products and services, including Credits and Software, that are provided by Supplier are indicative and subject to change without prior notice, no rights can be derived from them. Prices will only be binding for the Supplier after the Supplier expressly confirms the order of the Credits and/or the Software in writing.
5.4 Orders will only be accepted after payment of the total amount of the order has been received by the Supplier, without any suspension, deduction or set-off.
5.5 The Customer is obliged to pay either immediately after placing the order by using the provided online payment methods such as iDeal or PayPal, or within 14 days after the invoice date.
5.6 Invoices will be paid by transfer to the bank account appointed by the Supplier. The Customer is in default by operation of law – without being obliged to pay any compensation and without any (further) summons or notice of default required – in the event that the invoice is not paid within the before mentioned payment term of 14 days. 5.7 If the Customer does not pay in compliance with the Terms, including, but not limited to paragraph
5.6, the entire and total owed amount is immediately due and payable. In that event, the Supplier shall be entitled to charge interest at the statutory rate over the outstanding amount including VAT and all other costs as mentioned in paragraph
5.1, which interest will be payable monthly. The interest will be calculated based on the period that elapses between the invoice date and the moment of payment in full.
Article 6. Delivery and complaints
6.1 The delivery of the Software shall take place after full payment. The delivery times mentioned by the Supplier are estimated and can under no circumstances be interpreted as a strict deadline for delivery, unless Parties expressly agree otherwise in writing.
6.2 The delivery of Credits shall take place immediately after the Supplier receives full payment, by transferring Credits into the online account of the Customer. After the delivery of the Credits, the Credits can be used to upload Software or to place a request for downloading Software. After uploading the Software, the Supplier modifies the Software for the Customer. When the modification is finished, the agreed number of Credits relating to that modification are deducted from the Customers’ Credit balance and the Software is delivered.
6.3 The Supplier strives to modify Software that is uploaded during regular working hours as soon as possible. Modifying the Software as soon as possible qualifies as a best effort obligation, because the achievement of the intended result cannot be guaranteed. However, after the Software is uploaded the Supplier will modify the Software within a maximum period of 1 (one) week.
6.4 If and insofar the Software is not modified within the before mentioned period of 1 (one) week, Parties will consult to agree whether the Customer still wants the Software or wants to cancel the order. The sole and exclusive right of the Customer, if the situation occurs that the modification is not performed within 1 (one) week after uploading, is to cancel the order of the Software without deduction of Credits. Credits bought will not be refunded.
6.5 After uploading the Software, the Customer is obliged to instantly check and establish whether the Software is complete and without damages, though in any case within 48 hours.
6.6 The Customer is no longer entitled to invoke any shortcomings or faults in the performance, if the Customer does not file a complaint with the Supplier in writing within fourteen (14) days after the moment the Customer discovered the shortcoming or fault or should reasonably have discovered the shortcoming or fault (loss of rights).
6.7 In case of a timely and just complaint, the sole and exclusive right of the Customer is to give the Supplier the opportunity to solve the problem in the way that the Supplier wants. Only if the problem is not solved within 1 (one) week, the Customer shall be entitled to cancel the order and the Credits deducted will be transferred back to the Customers’ Credit balance. These are the sole and exclusive rights the Customer has in case of a complaint and any other or further liability of the Supplier is excluded. Credits bought will not be refunded.
6.8 Complaints do not suspend the Customers’ payment obligation. 6.9 If it is established that a complaint is (partly) unfounded, the costs of the Supplier, including research costs and legal fees, are entirely at the expense of the Customer.
Article 7. Termination
7.1 In any case, if one or more of the following situations occur: – Full and/or timely payment by the Customer of one or more invoices from Supplier does not take place within 14 days after the invoice date; – The Customer fails to comply with or is in breach with any obligation under the Agreement or resulting from the law; – The Customer uses the Software in contradiction with its intended purpose and/or allows the Software to be used incorrectly or for another purpose than the intended purpose; – The Software is lost, regardless of the cause, including theft and embezzlement; – Suspension of payment or bankruptcy of the Customer is requested or declared; – Possessions of the Customer and/or the products and services delivered to the Customer are attached in execution; – It is decided that the Customer ceases, dissolves or liquidates its company; the Supplier will be (not limited) entitled to extra-judicial dissolution and/or claiming damages and/or compliance, without being obliged to pay the Customer any compensation, and to repossess the Software at the expense of the Customer, and – besides any due payments – to demand immediate payment of the entire and total amount owed by the Customer to the Supplier.
7.2 All costs made by the Supplier, including legal fees, to exercise its rights pursuant to this agreement, shall be at the expense of the Customer. The extra-judicial collection costs amount to 15% of the remaining purchase price, unless the actual costs exceed that percentage, in which case the actual costs shall be at the expense of the Customer.
Article 8. Transfer of risk and retention of title
8.1 The Customer bears the risk of all direct and indirect damages and costs sustained by or to the Software after delivery of the Software as mentioned in the last sentence of paragraph 6.2 of the Terms.
8.2 Any products or services delivered by the Supplier remain the exclusive property of the Supplier until the Customer has fulfilled all of the following obligations:
8.2.1 Full payment of all outstanding invoices and other payments regarding all products and services, including but not limited to Credits and Software, delivered, to be delivered or ordered by the Customer;
8.2.2 Full payment of all of Suppliers’ claims as a result of Customers’ non-performance of or non-compliance with the Agreement.
8.3 Products and/or services delivered by the Supplier subject to the retention of title pursuant to paragraph
8.2, may not be resold. In the event of insolvency or suspension of payment regarding the Customer, reselling is strictly forbidden. Customer is moreover not authorized to pledge or to vest any other right on the products or services subject to the retention of title.
8.4 If the Customer fails to meet its obligations or if the Supplier has a reasonable fear that the Customer will not do so, the Supplier is entitled to withdraw anything delivered products or services that are subject to the retention of title referred to in paragraph 2, or cause the products or services to be withdrawn, from the Customer, or from third parties that possess the products or services on behalf of the Customer. The Customer is obliged to fully co-operate with this withdrawal.
8.5 If third parties wish to vest, or cause to be vested, any right on the products or services that are subject to retention of title, the Customer is obliged to inform the Supplier accordingly and as soon as may reasonably be expected.
8.6 If the Supplier is unable to exercise its retention of title because the products or services delivered have been mixed, deformed, or incorporated in a new product, the Customer is obliged to the make the newly formed items available, or alternatively to pledge them, to the Supplier.
Article 9. Liability9.1 The contractual and non-contractual liability of the Supplier, which liability only exists in the event of direct damages and costs caused by default regarding the Agreement, will always be limited to a maximum of 100% of the net sales price of the amount of credits the Customer used to purchase the Software, except in case of intent or wilful recklessness on behalf of the Supplier. By ‘the amount of credits the customer used’ is meant: the amount relating to the credits used to purchase Software in a particular case, not the total amount of credits in the Customers’ Credit balance.
9.2 The Customer is fully and solely liable for the usage of the Software in compliance with the Software’s intended purpose and in compliance with the applicable (inter)national laws and regulations in the country of usage. The Customer indemnifies the Supplier against all claims from third parties arising as a direct or indirect result from the Customers’ noncompliance with the intended purpose and/or applicable laws and regulations regarding the Software.
9.3 The Supplier is, except in case of intent or wilful recklessness, under no circumstances liable for (not limitative):
9.3.1 Any indirect damages caused by default (non-performance) regarding the Agreement;
9.3.2 Damages suffered by the Customer as a result of acts or omissions by implementers, constructors suppliers or other third parties that the Customer uses to carry out this or any other agreement related to the Software;
9.3.3 Damages to the Software the Supplier delivered as a result of wrongly executed processing by or on behalf of the Customer. At the Supplier’s request the Customer will repeat processing, with new material delivered by the Supplier at the expense of the Customer;
9.3.4 Loss of (manufacturers’) warranty by the Customer or any third party;
9.3.5 Any errors or shortcomings on behalf of third parties (possibly engaged by the Customer);
9.3.6 The nature, qualifications, features, properties, quality, use, safety and/or the application of the products and/or services supplied by the Customer to third parties; and/or
9.3.7 Using the Software incorrectly or allowing the Software to be used incorrectly and/or for any other purpose than their intended purpose.
9.4 The Customer indemnifies the Supplier against all claims from third parties for damages or costs (including any loss of warranty) arising from the Customers’ acts or omissions. The Customer indemnifies the Supplier against all claims from third parties for product liability caused by a defect in a product and/or service that the Customer has delivered to a third party. In other words: the Supplier is under no circumstances liable and indemnified by the Customer (except in case of intent or wilful recklessness) for any claims from third Parties.
9.5 The Customer is solely and fully responsible and liable for processing the Software by (for example) reading out and/or implementing the Software in the engine management of motor vehicles, as well as for providing third parties with the relevant information regarding the Software. Liability is limited because (amongst other reasons) the Supplier does not have any role in or influence on the before mentioned process. The functioning of the Software depends on several external factors such as: technical quality of the vehicle, quality of the fuel, environmental circumstances, wrong modification requests due to incorrect diagnosis of the vehicle, etc. Because the Supplier has no role in or influence on the before mentioned factors, the Customer is fully and solely liable for the functioning and performance of the Software. The Supplier does not provide any warranty regarding the Software.
Article 10. Intellectual property
10.1 The Supplier, including its associated companies, retains and reserves all industrial and intellectual property rights associated with the Software and Ecufiles, including, but not limited to, copyright, trademark rights, patent rights, database rights, model rights, software, trade name rights and the rights to know how.
10.2 The Customer is not allowed to reproduce, disclose or exploit the Software and/or the Credits or any other intellectual products, in the broadest sense of the word, with or without the involvement of third parties or otherwise. Reproducing, disclosing or exploiting shall only be allowed after the Customer received prior written permission from the Supplier.
10.3 The Supplier also retains and reserves all intellectual property rights pursuant to the Copyright Act and/or all other legislation regarding intellectual property.
Article 11. Confidentiality
11.1 The Customer is, both during repayment of the purchase price, as well as 2 years after payment of the last instalment, obliged to observe the strictest confidentiality regarding any information and/or knowledge directly or indirectly related to the Software and Ecufiles. The Customer is obliged not to provide any third party with information and/or knowledge that the Customer has obtained during the term of this agreement of which the Customer knows or can reasonably suspect that it is confidential and/or that disclosing of this information can result in damages, unless disclosing of the information is obligated by law or after prior written permission of the Supplier.
11.2 In case of any breach of paragraph
11.1, the Customer will forfeit to the Supplier an immediately due and payable penalty of € 10.000,- for each infringement without any requirement for notice of infringement to be given, without prejudice to the Suppliers’ rights such as, but not limited to, the right to demand compliance with the Agreement and the right to demand full compensation.
Article 12. Force majeure
12.1 Any failures or shortcomings of the Supplier regarding the performance of the contract constitute force majeure and are not attributable to the Supplier if the failures or shortcomings arise through no fault of the Supplier, and are not for the Suppliers’ expense pursuant to the law, the Agreement, or generally accepted standards, also if foreseen at the time of concluding the Agreement. Delivery and all other obligations the Supplier may have are suspended while force majeure persists.
12.2 In any case, force majeure includes: the Supplier not receiving timely and proper delivery of an important performance of a third party in connection with its own deliverable performance; strikes; traffic disruption; government measures that obstruct supplier in meeting its obligations in a timely or sound manner; a general shortage of necessary materials and other goods or services required for achieving the agreed performance, and excessive absence through illness.
12.3 If performance is delayed because of force majeure for longer than three months, either party, under exclusion of other rights, is authorized to dissolve the contract in accordance with the law, without the Supplier being liable to the Customer or third parties for any damages. 12.4 Supplier is also entitled to invoke force majeure if the circumstance that obstructs (continued) performance occurs after the Supplier should have met its obligation. 12.5 If the Supplier has partially met its obligations at the time force majeure occurs, or if the Supplier is able to meet its obligations only partially, it is entitled to invoice the already delivered or deliverable portion separately, and the Customer is obliged to pay this invoice as if it were a separate contract. However, the above mentioned does not apply if the already delivered or deliverable portion has no independent value.
Article 13. Jurisdiction and applicable law
13.1 The Agreement is exclusively governed by the laws of the Netherlands. The Vienna Convention of the International Sales of Goods (CISG) does not apply.
13.2 Parties hereby consent to the exclusive jurisdiction of the Dutch Civil Court in Suppliers’ business location, in case any dispute arises under the Agreement. Only Supplier may deviate from this provision governing jurisdiction and instead comply with the statutory jurisdiction rules.