Smashtag Terms and Conditions of Sale
SECTION 1: DEFINITIONS
The following terms shall have the following meanings:
- Smashtag: Smashtag Ltd;
- Customer: any counterparty or counterparties and prospective counterparty or counterparties of Smashtag for the sale and delivery of Products;
- Delivery: in case of tangible movable property, the physical delivery thereof to the Customer or end user, and in case of services, their completion;
- Product(s): tangible movable property, intangible property, property rights or part thereof sold and/or delivered by Smashtag to the Customer, as well as services performed by Smashtag, such as – but not limited to – consulting and validation services.
SECTION 2: GENERAL2.1 THE APPLICABILITY OF GENERAL CONDITIONS USED BY THE CUSTOMER IS HEREBY EXPLICITLY REJECTED.
2.2 These general terms and conditions may only be deviated from by means of a written contract between Smashtag and the Customer.
2.3 These general terms and conditions shall apply to all legal relations of Smashtag acting as seller or supplier of Products or potential seller or supplier.
SECTION 3: OFFERS AND INTELLECTUAL PROPERTY
3.1 All of Smashtag’s offers – in any form whatsoever – are made without any engagement, unless expressly provided otherwise. All of Smashtag’s offers shall be valid for a period of thirty (30) days, as of the date of the offer, after which validity period all prices are subject to change without notice.
3.2 All tangible movable property liable to intellectual property rights made available to the Customer by Smashtag or through the intermediary of Smashtag shall remain subject to the intellectual property rights of the original owner. The Customer undertakes to treat all information and know-how provided to him by or through the intermediary of Smashtag confidentially and to respect all intellectual property rights. The Customer is obliged to return to Smashtag upon Smashtag’s first request all documents and other data containing works or information protected by intellectual property rights as referred to in the previous sentence, insofar as these are not required within the context of the execution of the contract concerned.
3.3 Documentation and brochures, as well as product samples that are shown and provided to the Customer, are only intended as an indication or an example and in no way imply that the Products to be delivered will be exactly the same.
SECTION 4: ESTABLISHMENT OF THE CONTRACT
4.1 A contract shall only be concluded and Smashtag shall only be bound when the order confirmation has been dispatched by Smashtag in writing or if Smashtag commences the execution of the order.
4.2 Changes to a contract shall only be binding if agreed in writing.
4.3 The Customer shall not transfer any of its rights or obligations towards Smashtag to third parties without Smashtag’s prior written consent.
SECTION 5: OBLIGATIONS OF CUSTOMER
5.1 The Customer shall be responsible towards Smashtag for taking correct and timely delivery of the Products and/or for a correct and timely execution of all conditions necessary for the positioning of the Product and the correct operation of the Product. In the event of non-performance of the obligations by the Customer all costs arising out of this non-performance should be paid by the Customer.
5.2 Smashtag will only take care of the transport of the Products to a designated address upon written request from the Customer. Transport will be at the risk and cost of the Customer.
SECTION 6: PRICES
6.1 The prices mentioned in the offer and order confirmation respectively are exclusive of VAT and other government levies on sale and delivery and are based on EX WORKS IN THE UK, unless otherwise agreed in writing. Prices are quoted in GBP, US Dollar or EURO.
SECTION 7: DELIVERY
7.1 Delivery takes place the moment Smashtag places the Products at the disposal of the Customer and in any event no later than from the moment the Products leave the premises at MELBOURN IN THE UK. At the Customer’s request Smashtag can arrange the transport of the Products, this transport will be for the risk and the account of the Customer.
7.2 The times for delivery indicated by Smashtag are estimates only and are no strict deadlines. Smashtag shall not be in default unless and until it has received a written notice of default upon the expiry of the agreed delivery period or an extended delivery period, and has been granted a reasonable period in which to perform, which has lapsed without performance. Even if the default would have commenced by (operation of) law without a written notice of default or written demand or written notice.
7.3 Exceeding the delivery period shall not entitle the Customer to engage third parties in the execution of the contract without (i) Smashtag’s prior written consent or (ii) submitting a final judgement to that effect.
7.4 Without prejudice to what has been stipulated elsewhere in these general terms and conditions with respect to extension of the delivery period, it shall be extended by the period of the delay occurring on the part of Smashtag as a result of the Customer – or any third party engaged by the Customer – failing to comply with any obligation arising from the contract or lack of cooperation that may be demanded from the Customer – or any third party engaged by the Customer – in the execution of the contract.
7.5 Smashtag is not obliged to question the Customer about the intended use of the Products or the circumstances under which the Products will be used.
SECTION 8: RISK AND TRANSFER OF TITLE
8.1 The Products sold or the parts designated for that purpose shall be at the Customer’s expense and risk from the moment of Delivery (Section 7.1), and in any event no later than from the moment the Products leave the premises at MELBOURN, UK.
8.2 Without prejudice to what has been stated in Section 8.1, Smashtag retains title relating to the Products delivered or to be delivered until the Customer has fulfilled all of its obligations (including its obligations to pay) in respect of (i) all Products supplied or to be supplied pursuant to the contract, (ii) all activities performed or be performed pursuant to the contract, and (iii) all claims arising from the non-performance of such obligations.
8.3 Without prejudice to any other rights Smashtag shall without any notice of default or court intervention irrevocably be authorized by the Customer to disassemble and obtain possession of the Products it has delivered, if the Customer has not timely complied with its obligations (including its obligations to pay) towards Smashtag. All costs relating to the repossession of the Products shall be borne by the Customer.
SECTION 9: WARRANTY
9.1 Smashtag provides the following warranty:
- for a maximum period of twelve (12) months from the date of sales against defects in materials or workmanship.
- this warranty shall only apply to all Products that were new at the date of sales.
9.2 The warranty referred to in Section 9.1 shall lapse if one or more of the following circumstances should occur:
- the malfunctioning, defect or failure is caused by any cause beyond the control of Smashtag including but not limited to any malfunctioning, defect or failure resulting from incorrect use, misuse or installation or operation contrary to published specifications, improper or inadequate maintenance, modification by the Customer or any third party, accident, fire, flood or normal wear and tear;
- activities were performed to the Products by the Customer or third parties without written permission from Smashtag;
- the Customer has failed to perform any obligation arising from the contract (including the obligation to pay or any other obligation) and the Customer has not at a later moment remedied the non-performance within a reasonable period as stated in a notice of default.
9.3 The Products that are to be repaired or replaced, to be determined at Smashtag’s sole discretion, reasonably qualifying as such, shall be returned to Smashtag by the Customer upon Smashtag’s request. If Smashtag repairs a Product, it may use new or reconditioned replacement parts. If a Product is replaced, it will be replaced with one of a similar design. The repaired or replaced Product will remain under its original warranty period based on the original date of sales and the warranty period shall not recommence from the time the Products in question were put into use after the repair or replacement.
9.4 The warranty is only valid and exercisable for the original purchaser and may not be assigned without Smashtag’s prior written consent. Repair or replacement (at Smashtag’s sole option) is the sole remedy.
9.5 SMASHTAG DOES NOT WARRANT THAT THE PRODUCT WILL BE FIT FOR THE PURPOSE FOR WHICH THE CUSTOMER PURCHASED THE PRODUCT. SMASHTAG IS NOT RESPONSIBLE FOR THE QUALITY OR CONDITION OF ANY GOODS SHIPPED BY THE CUSTOMER OR ANY OTHER PARTY.
9.6 SMASHTAG GIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. SMASHTAG DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.7 Smashtag gives no warranty and/or is not otherwise responsible for the use or application of any software. The Customer assumes full responsibility for data entry and data maintenance.
SECTION 10: COMPLAINTS
10.1 If the Products do not conform to the contract, Smashtag’s obligations shall be limited to, at its election, supplying the missing part, repairing or replacing the Products delivered or reimbursing the purchase price in exchange for the return of the relevant Products. The Customer is obliged to follow any instructions given by Smashtag with respect to the storage or return of Products which are to be replaced or repaired.
10.2 If a defect is not directly visible upon Delivery, the Customer is under the obligation to notify Smashtag thereof, in writing and with an explanation, immediately after discovery of the defect. The Customer may no longer assert that a Product does not conform to the contract if this notice was not given immediately, but in any event no later than fifteen (15) days (i) after Delivery of the Product or (ii) in case of a non-visible defect, after it should reasonably have been discovered by the Customer.
SECTION 11: LIABILITY
11.1 Irrespective of the legal basis for a claim, Smashtag shall only be liable for damage and losses up to the amount paid by the Customer for the Products that caused the relevant damage or losses.11.2 IRRESPECTIVE OF THE LEGAL BASIS FOR A CLAIM, SMASHTAG SHALL NOT BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODS OR DATA, OTHER LOSSES SUFFERED, LOSS OF CONTRACTS, MISSED SAVINGS, DAMAGE RESULTING FROM LIABILITY TOWARDS THIRD PARTIES, DAMAGE RESULTING FROM EXCEEDING THE DELIVERY PERIOD AND DAMAGE TO GOODS OR PRODUCTION AND/OR BUSINESS INTERRUPTIONS OR DELAYS. INSOFAR THESE RISKS ARE INSURABLE, THE CUSTOMER SHALL EFFECT THIS INSURANCE AT ITS OWN EXPENSE.
11.3 IRRESPECTIVE OF THE LEGAL BASIS FOR A CLAIM, IN NO EVENT SHALL SMASHTAG BE LIABLE FOR DAMAGE AND LOSSES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCTS THAT CAUSED THE RELEVANT DAMAGE OR LOSSES.
11.4 Smashtag may engage one or more third parties in the performance of the contract. Any limitation of liability by such a third party may be invoked by Smashtag against the Customer.
11.5 Smashtag shall not be liable for damage and losses caused by wilful intent or conscious recklessness on the part of natural persons or legal entities other than Smashtag and/or its top-level management,including its employees and/or its independent contractors and other natural persons or legal entities involved in the performance of the contract.
11.6 All legal and contractual defences available to Smashtag against the Customer may also be invoked by all natural persons or legal entities — including both employees and independent contractors — involved in the performance of the contract and for whom/which Smashtag is liable by law.
11.7 If the Customer has assembled, treated, processed, packaged and/or finished the Products in any manner, the Customer is obliged to indemnify and hold Smashtag harmless against any and all claims of third parties relating to the Products. These shall include but are not limited to claims, expenses, legal costs and liabilities based upon or arising under or in connection with Section 6:162 or Sections 6:185 up to and including 6:193 of the Dutch Civil Code (product liability) or any similar statutory provisions of the laws of any other jurisdiction.
11.8 Smashtag shall not be liable for:
- violation of patents, licences or other rights of third parties as a result of the use of information supplied by or on behalf of the Customer;
- damage or losses for whatever reason of goods, raw materials, materials, semi-finished products, models, tools or other matters of the Customer.
11.9 The provisions in this Section shall not affect liability under mandatory provisions of Dutch law and apply irrespective of the legal basis for a claim.
SECTION 12: FORCE MAJEURE
12.1 Force majeure shall in these general terms and conditions be taken to mean any circumstance the cause of which is not reasonably within the control of the party — even if at the time of conclusion of the contract it could already have been foreseen — which permanently or temporarily prevents performance of the contract, such as, rules issued or to be issued by any public authority which impede or restrict the use of the Products supplied or to be supplied, deficits of raw or auxiliary materials for the production of the Products, labour shortages, strikes, import, export and/or transit bans, transport problems, non-performance by Smashtag’s suppliers or transport companies, production failures, natural and/or nuclear disasters, wars and/or threats of war, terrorist attacks and/or actions, fire, riots and uprising.
12.2 If as a result of force majeure the Delivery is delayed by more than two (2) months both Smashtag and the Customer shall be authorized to rescind the contract with immediate effect by means of a written notification addressed to the other party by registered mail, without being entitled to a claim for damages.
12.3 When force majeure takes effect at a time when the contract has already been executed in part, the Customer shall be authorized, in the event of the remainder of the Delivery being delayed by more than two (2) months as a result of force majeure, either (i) to retain the part of the Products already delivered and settle the purchase price in respect thereof, or (ii) to rescind the contract, including the part already executed, by notice of recission, while being under the obligation at Customer’s expense and risk to return to Smashtag what was already delivered to the Customer, on the condition that the Customer can prove that the part of the Products already delivered can no longer be effectively used by the Customer as a result of the remaining Products not being delivered.
SECTION 13: PAYMENT
13.1 Unless otherwise expressly agreed in writing invoicing will take place as follows:
100% at date of Delivery. Payment must be made by the Customer within thirty (30) days of the invoice date.
13.2 If payment is not received by the due date, the Customer shall be liable for statutory interest on the outstanding amount (of the invoice) plus 5% until full payment is received, without prejudice to any other rights and remedies that Smashtag may have, and without any written notice of default being required. All invoices shall become immediately due and payable and all consequences of non-performance shall take effect immediately.
13.3 In the event of winding-up, bankruptcy of the Customer (including a petition for bankruptcy) or a suspension of payment of the Customer (including an application for suspension of payment) its obligations will become due and payable forthwith.
13.4 Payment shall be made without discount, suspension or set off. No tangible movable property are accepted by Smashtag in exchange.
13.5 All payments made by the Customer shall be applied first to settle all costs and interest due and then to those invoices which have been outstanding for the longest time, even if the Customer states that the payment relates to an invoice of a later date.
13.6 If the Customer should be in default or should fail to perform one or more of its obligations, all extra-judicial costs, which expressly includes costs relating to the drafting and sending of demand letters, the conduct of settlement negotiations and the performance of any other acts relating to the preparation of possible legal proceedings, as well as judicial costs which Smashtag might incur as a result of non-performance by the Customer shall be borne by the Customer. The Customer shall in any event be due 15% of the principal sum for the extra-judicial costs with a minimum of Euro 400 (four hundred euro). If Smashtag proves that more costs were incurred which were reasonably necessary, these shall also qualify for compensation.
SECTION 14: RESCINDING THE CONTRACT
14.1 In case the Customer fails to comply with any of its obligations under the contract or if a suspension of payment in respect of the Customer is applied for or granted, a petition for the Customer’s bankruptcy is filed or the Customer is declared bankrupt, the Customer makes an arrangement with its creditors or takes any other steps with a view to the restructuring of its debts, the Customer’s control over its assets is lost or restricted in any other way, the Customer ceases its operations or transfers them to another country, the Customer is wound-up or dissolved, the Customer merges or is split up or a decision to this effect has been taken, or a change occurs in the natural person or legal entity with the power to direct the management and policies of the Customer whether that power is exercised through the ownership of voting shares, by contract or otherwise, or the USA or EU export restriction and/or sanction policy prohibit delivery, Smashtag shall be entitled to rescind the contract in whole or in part with immediate effect, all without prejudice to any other rights or remedies Smashtag may have and without becoming liable for compensation.
14.2 In the event of the contract being rescinded pursuant to Section 14.1 or by a court decision, Smashtag shall be entitled to full compensation. Unless Smashtag wishes to calculate the damage otherwise, the damage will be fixed at 75% of the compensation due in respect of the (part of the) contract not yet executed, without being liable to prove the existence of any loss or damage. This does not prejudice Smashtag’s right to claim additional compensation or performance of the contract. Smashtag shall be entitled to take back Products that were delivered within the context of a contract not yet executed in full against cash crediting entry of the price paid by the Customer in respect thereof less all expenses incurred by Smashtag.
14.3 In the cases referred to in Section 14.1 Smashtag can also suspend the execution of the contract and at once demand full payment of all that is or might become payable by the Customer under the contract. In this case Smashtag shall moreover be entitled to demand compensation for the damage it sustains as a result of the suspension and the consequences thereof.
SECTION 15: PARTIAL INVALIDITY
If any provision of these general terms and conditions or contract, or part thereof, is invalid, illegal, not binding, or unenforceable, the other provisions shall remain in full force. The parties shall make every effort to reach agreement on a new provision which differs as little as possible from the relevant provision, taking into account the substance and purpose of these general terms and conditions and the contract.
SECTION 16: GOVERNING LAW
All legal relationships between Smashtag and the Customer shall be governed by English law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
SECTION 17: COMPETENT COURT
Any dispute between Smashtag and the Customer arising from or in connection with the contract including these general terms and conditions shall be submitted to the exclusive jurisdiction of the English Courts
SECTION 18: PERSONAL DATA PROTECTION
For the purpose of this Section 18, “Personal Data”, “Processing”, “Consent” (in relation to a data subject), and “Recipients” shall have the meaning ascribed to them in the the UK Data Protection Act 2018 amended from time to time, or any successor to such Directive.
18.1 Purposes of Processing
The Customer acknowledges and agrees that, in the course of providing the Products contemplated by the Agreement, including those Products which entail the use of electronic means of communication, Smashtag will collect, Process, or have collected and Processed, Personal Data, including in the form of electronic communications, related to the Customer and/or its employees, directors and officers and all other agents or representatives appointed by the Customer to deal with Smashtag (the aforementioned persons, the “Data Subjects”).
Such collection and Processing will be made for the following purposes:
- for the performance of Smashtag’s obligations under the Agreement;
- to administer the contractual relationships between Smashtag or any of its affiliates and the Customer;
- to manage and improve Smashtag’s and its affiliates’ businesses and Products (including to monitor the quality of Products,
- implement standard sales strategy, consolidate information and provide market intelligence, measure sales force efficiency and increase productivity or for training or risk-management purposes);
- to promote, market and provide information regarding Products provided by Smashtag or any of its affiliates;
- for legal and compliance purposes;
- to prevent abuses or fraud;
- to prepare statistics, tests, customer profiles; and/or
- for anti-money laundering, anti-terrorism financing and fraud prevention.
The Customer shall procure the Consent of the Data Subjects for Smashtag to Process Personal Data for the aforementioned purposes. Refusal of a Data Subject to the collection or Processing of Personal Data may prevent, obstruct or otherwise affect the Customer’s contractual relationships with Smashtag.
18.2 Recipients of Personal Data
Recipients of Personal Data relating to the Data Subjects may include: any affiliate of Smashtag, including their agents, employees having reason to access and process such Personal Data; institutions, sub-contractors, agents or third parties used by Smashtag or any of its affiliates for the purposes of providing any of the Products that may from time to time be provided to the Customer by Smashtag or any of its affiliates; regulatory, prosecuting and other governmental authorities, courts and litigation counterparties.
18.3 Transfers of Personal Data outside the UK
Smashtag reserves the right to transfer and store or have stored Personal Data outside of the UK to its affiliates, subcontractors or service providers. The Customer shall procure the Consents of the Data Subjects to the transfer of Personal Data related to the Data Subjects to Recipients located in countries outside the UK.
18.4 Right of Access, Correction and Objection
The Data Subjects have legal rights of access to, correction and deletion of their Personal Data as well as the right to object to the Processing of their Personal Data on legitimate grounds. They may exercise any of those rights by contacting such person, department or service as Smashtag may specify to the Customer from time to time.
18.5 Information and Consent of Data Subjects
The Customer will inform all relevant Data Subjects with regard to the matters set out in this Section and obtain their Consent to the Processing of their Personal Data as set forth herein, including in respect of the transfer of their Personal Data outside the UK. The Customer will also provide the Data Subjects with all necessary information to exercise their legal rights to access, correct or object to the Processing of their Personal Data, as provided above. At Smashtag’s request, the Customer will provide Smashtag with evidence of the Data Subjects’ Consent and information pursuant to the foregoing, in a form reasonably acceptable to Smashtag.