Article 1 - General information and applicability general terms and conditions
1. FST, hereinafter to be referred to as "MYchiptuningfiles", which is a trade name of the company, is registered with the Chamber of Commerce of The Netherlands with number 59000511.
2. MyChiptuningfiles sells and supplies software for the optimisation for engine management systems on behalf of dealerships and consumers, hereinafter to be referred to as the client. The client installs the software themselves, or has it installed, in the desired vehicle. For that reason, the client is responsible and liable in case of any faulty installation and/or damages that occur in connection with or as a result of this installation.
3. These terms and conditions apply to all offers, deliveries and/or services of MyChiptuningfiles and/or all MyChiptuningfiles agreements, including agreements concluded over the internet, and all agreements with dealerships and consumers abroad (not the Netherlands) for which MyChiptuningfiles engages third parties in their execution.
Different provisions of these terms and conditions are only valid if they have been agreed on in advance and in writing by MyChiptuningfiles. Prior to the conclusion of the final agreement, and/or entering into the final contract, the other party/client must be aware of these conditions set out by MyChiptuningfiles and he/she accepts these conditions.
4. MyChiptuningfiles does not accept terms and conditions of any other party/client, unless expressly agreed on in writing. In case the other party refers to its own terms and conditions and states them as applicable, the parties must agree, by accepting these conditions of MyChiptuningfiles, that MyChiptuningfiles is not bound by the conditions of the other party.
5. MyChiptuningfiles has the right to change these general conditions. Changes will be made known â€‹â€‹through the website www.ecosetting.nl and directly to the other party where necessary and possible. The amendments shall take effect on the date of publication or on such date as specified in the notice.
Article 2 – Offers, information and concluding the agreement
1. All offers, tenders and quotations of MyChiptuningfiles are without obligation and will remain valid for 30 days.
2. The agreement with MyChiptuningfiles is established after both parties have given their agreement either written or electronic.
3. MyChiptuningfiles is not required to accept a portion or part of the offer, tender or quotation.
4. Optionally, appointments, promises and/or changes in the (offered) agreement made after confirmation of the assignment, are only binding if agreed on in writing between the parties.
5. All prices, brochures and information provided in the offer are compiled as carefully as possible. Should any mistakes in the provided data come to light afterwards, MyChiptuningfiles is entitled to correct these mistakes without any liabilities. The use of that information by the other party/client, other than in the context of the agreement, is permitted only with prior written permission of MyChiptuningfiles.
6. MyChiptuningfiles is entitled to refuse orders and/or not deliver the requested product.
7. MyChiptuningfiles assumes the accuracy of the information and requested assignments provided by the other party and MyChiptuningfiles is not required to perform further investigation. Prior to the conclusion of the contract and before implementation takes place, the client is required to report any defects to the vehicle and/or the engine management system
8. All brochures/price lists submitted with the offer and all issued and shown material and images and/or other data, remain the exclusive property of MyChiptuningfiles. Using the above data, other than in the context of the agreement, by the other party is only permitted with the prior written consent of MyChiptuningfiles.
Article 3 - Modification of an agreement
1. If during the execution of an agreement it should prove necessary to supplement and/or amend the agreement for its proper execution , the parties shall consult in order to make an additional agreement.
2. Amendment and/or supplementation to the agreement may entail changes in price, quality and/or quantity. The parties shall consult in order to make an additional agreement. If the change is the result of a circumstance that can be attributed to MyChiptuningfiles no extra costs will be charged.
Article 4 - Method and Delivery
1.Client sends the original read software to MyChiptuningfiles via the www.mychiptuningfiles.com website. Prior to this, the client has remitted the price for the software modification to be delivered by MyChiptuningfiles through the credit system of MyChiptuningfiles. MyChiptuningfiles delivers the ordered software at the recipient’s address as provided by the client or through the file service. The delivery time may range between approximately 1 hour and 2 days. If the client wishes a shorter delivery time, MyChiptuningfiles advises requesting so in advance by telephone. When using the backup service the client receives an e-mail notification when a modification is ready.
2. All (delivery) dates mentioned by MyChiptuningfiles are given in good faith based on the information known to MyChiptuningfiles upon entering into the agreement. The delivery periods are never deadlines. The single crossing of a (delivery) date does not mean MyChiptuningfiles is in default. In case of any deviation MyChiptuningfiles will consult with the other party/client.
3. The other party will at all times provide MyChiptuningfiles with all relevant data and information time necessary for the proper execution of the agreement, and provide the necessary cooperation. Additional costs for MyChiptuningfiles arising from the lack of sufficient cooperation from the other party, shall be borne by the other party.
Article 5 – Prices and Costs
1. The quoted prices for consumers are always given in euros including VAT and excluding legal fees. For companies prices, VAT and taxes are itemized.
2. The quoted prices are based on prices, wages and taxes at the time of the offer/tender. Once a year, on 1 January, MyChiptuningfiles is entitled, to adapt the prices in accordance with the index of household consumption prices.
3. MyChiptuningfiles is entitled to charge price increases to the other party if they take place 3 months after entering into the contract. Price increase may be caused by, among other things (not exhaustive): rising commodity prices, production, transportation, war, weather, emergencies, etc.
The maximum possible price increase is 15% per year, unless there are exceptional circumstances. Price increases will be announced in due time in advance and in writing.
Price increases by government measures, however, may be immediately charged in full to the other party by MyChiptuningfiles.
4. If, after entering into the contract, the other party wishes to incorporate any additions and/or changes, it may affect the price. MyChiptuningfiles is entitled to charge the additional costs to the other party, to a reasonable degree.
Article 6 – Payment, (collection) costs and interest
1. Payment takes place upfront via the credit system of MyChiptuningfiles.
2. A payment term of 14 days applies if and to the extent to which the payment did not take place prior to delivery. Collection costs are charged after the expiry of this period, and the other party had failed to make timely payment. These collection costs amount to 10% of the amount due, with a minimum of € 40, -, unless the law stipulates a lower percentage/amount, in which case the costs will be calculated in accordance with the law.
4. In case of an agreement/contract with a consumer, MyChiptuningfiles will, when in default with payment, send a warning/notice and give the client 14 days opportunity to pay the invoice, with the knowledge that after this period collection costs are due.
In case of an agreement/contract with a company, collection charges are applicable from the due date of the invoice without further notice.
5. From the date that the other party is in default with timely payment, MyChiptuningfiles is entitled to charge interest on the outstanding amount. The other party, being a consumer, must then pay the statutory interest pursuant to Article 6:119a BW on the outstanding amount. The other party, being a company, must then pay the statutory interest pursuant to Section 6:119a BW on the outstanding amount.
6. MyChiptuningfiles also reserves the right to claim any further charges and/or damage caused by the untimely fulfilment of the other party.
7. In the event of liquidation, bankruptcy, seizure or suspension of payments of the other party, claims by MyChiptuningfiles are due immediately.
Article 7 – Intellectual property
1. All intellectual property rights, including the rights to the software, with respect to the services and products provided by MyChiptuningfiles, including preparatory material and related materials, are, in the broadest sense of the word, owned by MyChiptuningfiles. To use the software in the destined vehicle, MyChiptuningfiles gives the client a limited, non-exclusive license to be allowed to use the software.
2. The other party is not permitted to change, edit, publish, reproduce, make available for consultation or reproduction via the internet or copy for any other reason than personal use without the expressly written permission of ECO.
3. If the other party infringes upon the intellectual property of MyChiptuningfiles this is regarded as a breach of the agreement and gives ECO the right to terminate or suspend the contract and charge the other party for compensation of the consequent damage.
4. In case of violation/infringement of the intellectual property of MyChiptuningfiles the other party must pay MyChiptuningfiles a fine of € 2.500,- per event and € 500, - per day (or part thereof) that the offense continues, without any losso of the right of MyChiptuningfiles to additionally claim full compensation from the other party.
Article 8 – Complaints
1. Complaints relating to the work performed, services rendered and/or products should be made known to MyChiptuningfiles. In the event that the defect could not reasonably be discovered within this period, the other party must so notify MyChiptuningfiles in writing from the time the defect is reasonably supposed to have been known.
2. Complaints do not suspend the payment obligation of the other party. The other party shall in no event on the basis of a complaint be entitled to make, to refuse or suspend payment of other services from MyChiptuningfiles or refuse payment.
3. When a complaint is justified, the other party has the choice between repair or resupplying of that part which was rejected, adjusted in proportion to the calculated invoice amount, or not (no longer) executing all or part of the agreement, provided that it is in relative to the complaint.
Article 9 – Warranty
1. MyChiptuningfiles ensures the proper functioning of the software supplied by itself (without installation) from the date of delivery for a period of three years, provided the customer has paid the invoice in time. If in this period defects occur in the operation of the software, MyChiptuningfiles will repair these free of charge. However, the client is responsible for the proper installation of the software in the vehicle and the requested modification.
Article 10 - Liability
1. MyChiptuningfiles is not liable in the following cases (non-exhaustive):
-Damage caused as a result of the efforts made by MyChiptuningfiles and installed client software. Contractor is aware of the risk that it takes to install the modified software;
- Damage associated with defects and/or parts of goods which have been supplied by the other party;
- Damage to the vehicle itself and/or property in the vehicle (cargo), during the execution of the contract;
- Damage due to incomplete and/or incorrect information by the other party;
- Damage caused by an incorrect cost estimate/budget;
- Damage caused by minor deviations in declarations made, composition, performance;
- Damage due to data by third parties for client advice;
- Damage resulting from: transportation, temporary storage, items to be processed given for safekeeping by the client, unless there is intent or gross negligence by MyChiptuningfiles;
- Damage caused by bank transfer, or the installation of the delivered software;
- For indirect damage, including consequential loss or loss of profits;
2. Before the other party appeals to the liability in this article, MyChiptuningfiles will be given the opportunity, in advance and in writing, to establish the complaint and in that light take measures for repair (if necessary). If MyChiptuningfiles is denied said opportunity, there can be no primary right to reimbursement, or if so be capped at € 1.000,- at all times. Before the other party appeals to the liability as set out in this article, MyChiptuningfiles will be enabled to establish the complaint in writing and take any (necessary) measures to repair the damage. If this repair option is denied to MyChiptuningfiles, there will be no entitlement to compensation above the maximum compensation, which is always capped at € 1.000,-.
3. If MyChiptuningfiles proves to be liable for the work performed by it and/or products delivered, this responsibility is in line with the above provisions, regulated and limited to the following (in separate and descending order):
- The amount that can be recovered from third parties and/or assistants;
- The amount that the insurer of MyChiptuningfiles should be proven to pay;
4. If the liability of MyChiptuningfiles does not fall under the above exclusions and MyChiptuningfiles still proves to be liable its contractual and/or legal liability is limited to either free repair or re-supply of the proven defective software, or for damages in the amount of the invoice amount to a maximum of € 1,000 (in words: one thousand euros).
Article 11 – Retention of ownership
1. MyChiptuningfiles retains the ownership of all products delivered by or on its behalf to the other party until payment thereof, plus any shipping and/or transportation, is paid in full.
2. Until the bill from MyChiptuningfiles is paid in full, the other party can not derive any rights from goods and/or services supplied by MyChiptuningfiles.
Article 12 – General expiry period
1. Defects and deficiencies attributable to MyChiptuningfiles must be reported to MyChiptuningfiles in writing within a reasonable time after discovery, but in any event within one year after delivery of the work and materials, failing which the entitlement to claim damages becomes void.
Article 13 - Indemnification
1. The other party indemnifies MyChiptuningfiles for all claims of third parties with respect to the services, business and/or products provided by MyChiptuningfiles to the other, by which the third party may have suffered or may suffer damages, regardless of the cause or time of occurrence.
Article 14 - Invalidity/annulment of provisions
1. If any provision of these terms in whole or in part is found to be invalid, are destroyed or otherwise appears to be invalid, the validity of the remaining provisions of these terms and conditions remain in force. Those provisions that are not legally valid or can not be applied by law, will be replaced by provisions that as much as possible align with the scope of the provisions to be replaced, to which the parties will consult each other.
Article 15 - Applicable law and jurisdiction
1. Only Dutch law applies to all agreements concluded under these conditions.
2. Disputes will be submitted to the relevant judge of the District Court Central Netherlands (Midden-Nederland).