General conditions of sale and delivery of Pure Tuning
Article 1 General information and applicability of the general terms and conditions
1. Fuel Saving Technology B.V., also trading under the name of and hereinafter referred to as "Pure Tuning", is listed in the Chamber of Commerce of Flevo- Gooi en Eemland, the Netherlands, under file reference no. 59000511.
2. On the instruction of buyers (hereinafter referred to as “Buyers”), Pure Tuning sells and supplies Files and Products for the optimisation of engine management systems. In these terms and conditions, “Files” are taken to mean all services and/or software (files) in relation to the modification, creation and supply of (computer) files. In these terms and conditions, “Products” are taken to mean all movable property purchased by the Buyer through Pure Tuning.
3. These terms and conditions apply to all offers, deliveries and/or services by Pure Tuning and/or all agreements and subsequent agreements or orders, including agreements concluded via the Internet with Pure Tuning, as well as all agreements under which Pure Tuning engages third parties (including suppliers) for the performance thereof, which third parties can directly invoke these terms and conditions. Provisions that differ from these terms and conditions are valid only when explicitly agreed with Pure Tuning in writing. Prior to concluding an agreement, and/or accepting a final instruction, the Buyer has read these terms and conditions of Pure Tuning and he/she has accepted these terms and conditions.
4. Pure Tuning does not accept the general terms and conditions of the Buyer, unless explicitly agreed otherwise in writing. In the event that the Buyer refers to his own terms and conditions and declares them applicable, the parties will, by accepting these terms and conditions of Pure Tuning, agree that Pure Tuning is not bound by the Buyer's terms and conditions and that the terms and conditions of Pure Tuning will apply.
5. The fact that Pure Tuning does not require strict compliance with these terms and conditions at all times, does not automatically mean that the provisions detailed therein no longer apply, or that Pure Tuning would lose the right to require strict compliance with these terms and conditions in other cases.
6. Pure Tuning is entitled to change these general terms and conditions. Changes are announced via the website of Pure Tuning and directly to the Buyer, if possible and required. The changes come into effect from the moment they are announced, or from the date given in the announcement.
Article 2 Offers, information and formation of an agreement
1. All offers, tenders and quotes from Pure Tuning are free from obligation and are valid for 30 days, unless agreed otherwise in writing. However, Pure Tuning is at all times entitled to revoke the offer.
2. The agreement with Pure Tuning is formed after both parties have declared their agreement in writing or by e-mail.
3. Pure Tuning is not obliged to agree with the acceptance of a part or component of the offer, tender or quote submitted.
4. Any agreements, promises and/or changes made in the agreement (offered) after the confirmation of instruction are binding, subject to written agreement between the parties.
5. All prices, brochures, website and other information provided with the offer have been compiled with great care. If it later appears that mistakes were made in the information provided, Pure Tuning is entitled to correct these mistakes without being liable for any damage in that respect. The Buyer’s use of the aforementioned information other than within the framework of the agreement in question is permitted only after having obtained the written consent of Pure Tuning.
6. Pure Tuning is entitled to refuse instructions and/or not to deliver the Products and/or Files requested, without being obliged to pay any compensation or damages.
7. Pure Tuning assumes and the Buyer is responsible for the correctness of the information and specifications provided by the Buyer, such as but not limited to providing or retrieving (tuning) files or software and Pure Tuning is not obliged to investigate the matter any further. Furthermore, prior to the agreement being concluded and/or placing a (partial) order, before it is performed, the Buyer is obliged to report any defects in the vehicle and/or the engine management system.
8. All brochures and/or price lists provided and/or sent along with the offer and all material and images and/or other information provided and shown with the offer remain the explicit property of Pure Tuning. The Buyer’s use of the aforementioned information other than within the framework of the agreement in question is permitted only after having obtained the written consent of Pure Tuning.
Article 3 Working method and delivery of files
1. Only computer files read out with Slave tools supplied by Pure Tuning or uncoded/open files can be processed by Pure Tuning. The Buyer sends the original, read computer files to Pure Tuning via the website of Pure Tuning. Prior to that, the Buyer has paid the price for the software modification to be supplied by Pure Tuning via the credit system of Pure Tuning. Pure Tuning then supplies the Files via the e-mail address used and specified by the Buyer, or via the file service on the website. Files are delivered approximately between one (1) hour and two (2) working days. If the Buyer wants the files to be delivered faster, Pure Tuning recommends contacting them by telephone in advance. When using the file service, the Buyer receives an e-mail for every modification that is ready.
2. All (delivery) dates given by Pure Tuning are, to the best of their knowledge, based on the information known to Pure Tuning at the time the agreement was concluded. Delivery dates are never final deadlines. Mere failure to comply with a stated or agreed (delivery) date does not imply that Pure Tuning is in default or in breach. In the case of deviations from the (delivery) time given, Pure Tuning will consult with the Buyer.
3. The Buyer will promptly provide Pure Tuning with any useful and necessary data or information and fully cooperate in order to properly perform the agreement, at all times. Additional costs incurred by Pure Tuning as a result of the Buyer's failure to sufficiently cooperate are payable by the Buyer.
Article 4 Working method and delivery of Products
1. A Product is delivered to the Buyer by it being handed over to the haulier, unless agreed otherwise. Pure Tuning arranges transport at the expense and risk of the Buyer. The Buyer pays for a Product in advance, using the credit system of Pure Tuning.
2. The Buyer is obliged to accept the Product offered. If the Buyer does not accept the Product, Pure Tuning is entitled to store the Product at the expense and risk of the Buyer.
3. If and as soon as the Buyer orders more than one Product, Pure Tuning is at all times entitled to make partial deliveries.
4. If the parties agree that the Buyer will collect a Product, the Buyer must collect the Product within seven (7) days from Pure Tuning’ confirmation, at the location specified by Pure Tuning. If the Buyer fails to do so, any costs demonstrated and reasonably incurred by Pure Tuning, such as the costs for storing the Products and late collection, are payable by the Buyer.
5. The delivery dates given by Pure Tuning are always approximate times and never final deadlines, unless the parties have explicitly agreed otherwise.
6. The Buyer is obliged to inspect each Product upon delivery or at least as soon as possible. As part of that process, the Buyer must inspect whether the quality corresponds to the agreement, that is, whether it meets the relevant requirements in the normal course of business and trade.
Article 5 Credit system, prices and costs
1. Payment is made via the credit system of Pure Tuning, unless otherwise agreed in writing. The Buyer has to purchase credits from the website of Pure Tuning beforehand. These credits are linked to the personal and non-transferable account of the Buyer. Once credits have been purchased, they cannot be exchanged for cash or transferred to a third party; in principle, credits that have been purchased are valid indefinitely. When a Buyer does not or no longer logs into his account, the credits laps in accordance with the appropriate statutory limitation periods. Any refunds will also be settled with the Buyer by means of credits in the Buyer’s account.
2. Quoted prices for consumers are always given in Euros, inclusive of VAT and exclusive of any shipping costs and statutory levies. Prices, VAT and levies for businesses are always broken down.
3. Quoted prices or credits are based on prices, wages and levies at the time the offer/tender is submitted. Pure Tuning is entitled to change the prices or credits once a year, on 1 January, in accordance with the price index figure of family consumption.
4. Pure Tuning is entitled to pass price increases on to the Buyer when they take place three (3) months after concluding the agreement. Price rises may occur on account of for instance but not limited to the rise of raw material prices, production costs, transport costs, war, weather conditions, emergencies, etc. The maximum price rise is 15% per year, except in the case of highly exceptional circumstances. Price rises are announced promptly and in writing. Price rises that are the result of government measures will be passed on to the Buyer by Pure Tuning directly and in full.
5. If, after having concluded the agreement, the Buyer wants it changed and/or supplemented, or if he provides incorrect data (files), it may affect the price. Pure Tuning is entitled to pass on the additional costs to the Buyer in all reasonableness.
Article 6 (Subsequent) payment, (collection) costs and interest
1. If and insofar as payment is not made by means of the credit system prior to delivery for whatever reason, a payment term of 14 days applies. After this payment term has lapsed, the Buyer is in default of prompt payment and from that date onwards, collection costs will be charged. These collection costs are 10% of the amount due, subject to a minimum of €40.00, unless the law prescribes a lower percentage or amount, in which case the costs will be calculated in accordance with the legal provisions.
2. In the case of an agreement or instruction from a consumer, Pure Tuning will send a reminder or notice of default when payment is not forthcoming, giving the Buyer 14 days to pay the amount due, saying that after that, collection costs will be payable. In the case of an agreement or instruction from a business, collection costs are payable from the invoice due date, without a notice of default being required.
3. From the date on which the Buyer is in default of prompt payment, Pure Tuning is entitled to charge interest on the outstanding amount. If the Buyer is a consumer, he owes statutory interest on the outstanding amount, pursuant to Section 6:119 of the Netherlands Civil Code. If the Buyer is a business, it owes commercial interest on the outstanding amount, pursuant to Section 6:119a of the Netherlands Civil Code.
4. In addition, Pure Tuning is entitled to claim any subsequent costs and/or damage caused by late payment from the Buyer.
5. In the event of liquidation, bankruptcy, asset seizure, or moratorium of the Buyer, claims brought by Pure Tuning will be payable with immediate effect.
Article 7 Intellectual property rights
1. All intellectual property rights, including the rights on the software, the Files and Products delivered by Pure Tuning, including preparatory material and related materials, in the broadest sense of the word, rest with Pure Tuning. For the use of the Files in the vehicle in question, Pure Tuning grants the Buyer a limited, non-exclusive licence to use the Files in a single vehicle. These terms and conditions and/or agreement do not constitute a transfer of intellectual property rights to the Buyer in any way.
2. Without the explicit written consent of Pure Tuning, the Buyer is not permitted to change, edit, publish or multiply the aforementioned works of Pure Tuning, to prepare them for consultation or multiplication via the Internet, or to copy them for use other than exclusively for the Buyer’s own use. Buyers who purchase Files for one of their customers are entitled to use the Files for that customer or that vehicle once.
3. If the Buyer infringes the intellectual property right of Pure Tuning, it will be regarded as non-fulfilment of the agreement, which gives Pure Tuning the right to dissolve or suspend the agreement, and to demand compensation for any damage from the Buyer.
4. In the event of a violation or infringement of the intellectual property rights of Pure Tuning, the Buyer also owes Pure Tuning a penalty of €2,500 per event and €500 for each day (or part thereof) that the violation continues, without prejudice to Pure Tuning’ right to claim full compensation from the Buyer on top of that.
Article 8 Complaints
1. Claims and/or complaints in relation to the work carried out, Files and/or Products delivered must be announced to Pure Tuning in writing within five (5) working days of delivery and/or availability thereof. If the event that the fault could not reasonably have been discovered within this term, the Buyer has to report this to Pure Tuning in writing within a reasonable period, yet within at least one (1) month. In the latter case, the Buyer has to prove that the subject of his complaint could not have reasonably been discovered sooner.
2. Complaints about Files must be submitted to Pure Tuning within the term referred to in paragraph 1, as detailed as possible, along with a correct (technical) report, logfile or generated error code, from which it is clearly apparent that the complaint and substantiation ensue. Complaint in relation to failure to comply with any specifications given, composition or presentations given by Pure Tuning will be processed as a complaint and qualify for a claim only when the aforementioned (capacity test) results produce a deviation of more than 15%.
3. Claims do not suspend the Buyer's obligation to pay. The Buyer is never entitled to postpone or refuse payment on the basis of a claim or to suspend or refuse payment of other services of Pure Tuning.
4. When a claim is justified with regard to a delivered File or Product, the Buyer can choose to have the File or Product rejected by him repaired or re-delivered, to have the calculated invoice amount proportionally adjusted or to have the agreement not (or no longer) performed in full or in part, provided this is in proportion to the complaint. Refunds are always made in credits.
5. Pure Tuning outsources the processing and resolving of complaints with regard to the proper functioning of the Product to its supplier. The Buyer explicitly agrees that Pure Tuning passes on any complaint or complaints to this supplier and that the Buyer will resolve the complaint or complaints directly with this supplier. The Buyer must give Pure Tuning and/or the supplier the opportunity to investigate a complaint.
6. If the Buyer has not submitted a complaint or has not fulfilled the obligation (or burden of proof) referred to in paragraph 2 within the term referred to in paragraph 1, all his rights of whatever nature in relation to his complaint or which he could have complained about within that term and would have had to demonstrate, will lapse.
7. When the Buyer installed the File using products other than those supplied by Pure Tuning, the Buyer has to prove that the complaint is not the result of the use of poorer quality third-party equipment.
Article 9 Warranty and installation of Files
1. Pure Tuning warrants the proper performance of the delivered Files in itself (without having been installed) for a three-year period counting from the delivery date, provided the Buyer pays the invoice in time. If during this period the Files’ performance shows imperfections, Pure Tuning will remedy this free of charge, subject to the provisions in the previous article. However, the Buyer is personally responsible for properly installing the Files in the vehicle and the requested modification. Pure Tuning advises the Buyer, also dealer, to limit any warranty furnished to its customer by means of the text below, which conditions also apply to any installations of Files by Pure Tuning at Buyers.
2. In addition to these terms and conditions, Pure Tuning applies further provisions when it installs the Files itself, to which situation these terms and conditions are in principle not applicable. If the Buyer asks Pure Tuning to also install the Files in the vehicle, the parties hereby agree that the additional terms and conditions for the installation of Files as seen on the website of Pure Tuning also apply. If a Buyer, who takes care of the installation for his customer, wishes to apply similar warranty provisions, Pure Tuning can make a copy of the provisions in question available to the Buyer for the latter’s own use.
3. Pure Tuning gives a one-year warranty for the Product, not being Files, delivered to the Buyer by Pure Tuning, counting from the moment of delivery to the Buyer.
Article 10 Liability and personal responsibility of Buyer
1. The Buyer is aware of the fact that the use or deployment of the Files and/or Products may violate (local) legislation, is banned or that it may violate the (warranty) rights of third parties such as the manufacturers of vehicles. The Buyer declares that he will use the Files, Products and/or the vehicle in which they are installed at his own risk and that he is individually responsible to investigate or ask if the use or application of the Files and/or the Products is permitted. For that reason, Pure Tuning hereby urgently advises the Buyer to use the Files and Products only on private land and/or on a test or racing track, in accordance with the above.
2. Furthermore, the Buyer realises that the use of the Files and/or Products may pose a (greater) burden on the vehicle, the potential consequences of which are at the expense and risk of the Buyer.
3. Furthermore, Pure Tuning is only liable for damage suffered by the Buyer that is the direct result of an attributable shortcoming of Pure Tuning to fulfil its best efforts obligations or the delivered Product.
4. Pure Tuning is never liable for indirect damage, including consequential damage, lost profits, the (temporary) inability to use a vehicle, fines, lost savings and/or damage due to business interruptions or the expiry of manufacturer's warranties.
5. Pure Tuning is not liable for damage that is the result of the Buyer failing to fulfil his duty of disclosure, his obligation to investigate and instructions ensuing from these terms and conditions or the result of the Buyer providing incorrect, incomplete or unreliable information, or the result of incorrect or unlawful use of the Files or the Product.
6. Pure Tuning is at all times entitled to limit damage suffered by the Buyer to the greatest possible extent or to undo it, in which the Buyer is obliged to cooperate. The Buyer himself is also obliged to reduce damage to a minimum.
7. The Buyer indemnifies Pure Tuning against any third-party claims with regard to damage in connection with or ensuing from the work carried out or Files and/or Products delivered by Pure Tuning, if and insofar as Pure Tuning is not liable for that towards the Buyer pursuant to the provisions in this article.
8. If the Buyer has insured any risks in connection with this agreement or if he can invoke any other (warranty) right, the Buyer hereby indemnifies Pure Tuning against such risks.
9. Pure Tuning will exclude liability in at least the following situations (this list is not exhaustive):
Damage to the hardware or the vehicle as a result of the Files or Products delivered by Pure Tuning;
Damage in connection with defects and/or parts of objects or (software) files provided by the Buyer;
Damage to the vehicle itself and/or objects in the vehicle (cargo) when installing the Files;
Damage as a result of incomplete and/or incorrect information provided by the Buyer;
Damage as a result of an incorrect quote or budget on the part of Pure Tuning;
Damage as a result of advice given, products or services provided by third parties for the Buyer;
Damage as a result of transport, temporary storage or the objects being given by the Buyer for processing;
Damage as a result of modifications, overwriting, or de-installation of the Files delivered;
If the vehicle, Files or Product have been presented for recovery or repairs to another party without the explicit written consent of Pure Tuning;
If the defect can be fully or partially blamed on incorrect use, incorrect actions by the Buyer, manipulation of the Files and/or the engine management system after delivery by Pure Tuning, or if it can otherwise be attributed to the Buyer;
Personal injury directly or indirectly related to Files and/or Products delivered by Pure Tuning.
10. Before the Buyer invokes the liability regime in this article, Pure Tuning [note from the translator: the Buyer?] must comply with the conditions in article 8 in connection with the prompt and correct submission of a complaint and give Pure Tuning the opportunity to take (corrective) measures. If Pure Tuning is not given the opportunity (to correct matters), the Buyer is in principle not entitled to compensation.
11. In the event that Pure Tuning does appear to be liable in connection with the work carried out and/or Files and/or Products delivered, its liability, following on from the provisions above, is regulated as follows and limited to (in separate and descending order):
The amount that can be recovered from third parties and/or auxiliary persons that were engaged;
The amount that the insurer of Pure Tuning may pay out;
12. If the liability of Pure Tuning does not fall under the aforementioned exclusions and Pure Tuning still appears to be liable at law, its contractual and/or statutory liability is limited to either free recovery or redelivery of defective Files or Product, or to compensation to the amount of the invoice amount for the Files and/or Product, but at all times subject to a maximum of €1,000 (in words: one thousand Euros). The only exception to the aforementioned list is when the damage is caused by intent or gross negligence on the part of Pure Tuning.
13. The limitations of liability set out in this article’s provisions above are also stipulated for the third parties engaged by Pure Tuning for the performance of the agreement, which means they can invoke those limitations of liability directly.
Article 11 Retention of title
1. Pure Tuning reserves the ownership of all Products delivered to the Buyer by them and/or on behalf of them until payment thereof, plus any shipping and/or transport costs, has been made in full.
2. Until the invoice from Pure Tuning has been paid in full, the Buyer cannot derive any rights in connection with objects and/or services delivered by Pure Tuning.
Article 12 General expiry period
Defects and attributable shortcomings on the part of Pure Tuning must be reported to Pure Tuning in writing within a reasonable period after having been discovered, but at least within two (2) months of delivery of the Files or Products, or execution of the work, failing which the right to compensation lapses.
Article 13 Indemnity
The Buyer indemnifies Pure Tuning against all third-party claims in connection with services, objects and/or products delivered to the Buyer by Pure Tuning, as a result of which those third parties may have or may still incur damage, regardless of the cause or time at which the damage has arisen.
Article 14 Nullity or nullification of provisions
1. If any of the provisions in these terms and conditions appear to be fully or partially null, nullified or otherwise invalid, it will not affect the validity of the other provisions in these terms and conditions. The provisions that are legally invalid or that cannot be legally applied will be replaced by provisions that coincide with the purport of the provisions to be replaced to the greatest possible extent, which the parties will consult each other about.
2. In the event of uncertainties regarding the interpretation of one or more provisions of these terms and conditions, the interpretation must be ‘in the spirit’ of these provisions in these terms and conditions.
Article 15 Applicable law and choice of forum
1. All agreements concluded under these terms and conditions are governed exclusively by Dutch law, while international treaties such as the Vienna Sales Convention are hereby explicitly excluded if and to the extent possible.
2. Disputes will be submitted to the competent court of the Central Netherlands.
1. These terms and conditions were drafted in the Dutch language. Any translations of these terms and conditions are provided for convenience only. In the event of any conflict or difference in interpretation between the Dutch language version of these terms and conditions and any translation of them, the Dutch language version and interpretation shall prevail.