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Terms Conditions

Definitions

In these General Terms and Conditions the following terms shall have the following meanings, except where

stated otherwise:

General Terms and Conditions: these general terms and conditions.

Day: calendar day.

thesmartphone.eu B.V: the company thesmartphone.eu B.V, located at Schieland 18, in Beverwijk and

registered with the Trade Register of the Dutch Chamber of Commerce under number85808490.

Customer: every legal person or individual, acting in the conduct of a business or profession, who would like to

enter into a contract with thesmartphone.eu B.V.

Website: name of the website of thesmartphone.eu B.V, being www.thesmartphone.eu.

Applicability

1. These General Terms and Conditions apply to all offers, proposals and agreements made by

thesmartphone.eu B.V and all obligations arising thereto to the customer. To the extent the customer (also)

orders other products or services whereupon special general terms and conditions are applicable, these

special general terms and conditions are also declared applicable to the agreement between the customer and

thesmartphone.eu B.V.

2. In case the customer declares its own general terms and conditions applicable to an agreement with

thesmartphone.eu B.V or refers to it, these general terms and conditions shall not be accepted by

thesmartphone.eu B.V. The General Terms and Conditions of thesmartphone.eu B.V shall prevail, unless

explicitly agreed otherwise at an earlier stage.

3. The General Terms and Conditions are provided to the customer in advance and can be reviewed via the

website and can be downloaded as a PDF file on the website as well. The General Terms and Conditions

shall be provided for free.

4. All the agreed provisions in favour of thesmartphone.eu B.V of these General Terms and Conditions and of

any further agreements, are also applicable to any third party hired, called in or used by thesmartphone.eu

B.V.

5. These General Terms and Conditions do not apply to offers to and agreements with individuals who do not

act in the conduct of a business or profession.

Offers/proposals

1. All offers/proposals qualify as a non-committal offer and/or proposal and can always be revoked, also in

case it includes a term for acceptance. Proposals/offers can also be revoked in writing within seven days

after receipt by thesmartphone.eu B.V, in which case no agreement will be concluded.

2. Offers/proposals can only be accepted in writing (including an acceptance by telefax or those made through

electronic means). However, thesmartphone.eu B.V is entitled to accept an oral acceptance as if this would

have been done in writing. In case the customer places an order on the website of thesmartphone.eu B.V,

this order is final in case the customer clicks on the order button or receives a confirmation of his order by email.

Once the customer of thesmartphone.eu B.V receives a confirmation by e-mail, a binding agreement

between parties is established.

3. Information that is included in advertising material in the broadest sense of the word, such as catalogues,

pricing lists, brochures and websites of third parties, shall never be binding for thesmartphone.eu B.V.

4. Except for written agreements stating explicitly otherwise, specifications of size, weight and other

information are estimates, as accurate and reliable as possible.

Prices

1. All prices provided by thesmartphone.eu B.V are based on price determining factors that are known at the

time of issuance of an offer/proposal.

2. Unless explicitly agreed otherwise in writing, prices provided by thesmartphone.eu B.V are always

excluding VAT and excluding shipment costs.

3. thesmartphone.eu B.V is entitled to adjust the prices or parts thereof for products and/or services that have

not been delivered or paid yet due to changes of price determining factors, such as raw material prices,

wages, taxes, production costs and currency exchange rates.

4. thesmartphone.eu B.V is authorized to adjust the prices with immediate effect in case a legal price

determining factor causes such.

Payment

1. At all times thesmartphone.eu B.V is entitled to request certainty from the customer for the correct and

timely fulfilment of its payment obligations.

2. In case delivery occurs in parts, every part can be charged separately by thesmartphone.eu B.V, unless

agreed otherwise in writing with the customer.

3. Payment shall be made within 14 days after the invoice date.

4. In case of a payment default, thesmartphone.eu B.V is entitled to suspend or cancel the execution of the

agreement and any other related agreement.

5. All payments shall be transferred to a Dutch bank account number provided by thesmartphone.eu B.V.

6. All payments received from the customer shall first be applied to the payment of all costs, expenses and

accrued and unpaid interest and subsequently to the repayment of the oldest overdue invoices, even in case

the customer states that such payment relates to other invoices overdue.

7. The customer waives its right to set off (verrekenen) any amount due by thesmartphone.eu B.V. The

customer is not entitled to set off any amount.

8. Transferring payments by the customer to thesmartphone.eu B.V through electronic means, including via the

internet and by credit cards, is at the customer's own risk. thesmartphone.eu B.V is not liable for any

damages of the customer which are connected to or are the result of such payments through electronic

means. Providing credit card details by the customer to thesmartphone.eu B.V via the internet or otherwise

is at the customer's own risk.

9. thesmartphone.eu B.V maintains the right to request a payment in advance of 50 to 100 per cent to newly

registered enterprises.

Accounts and registration

1. The customer can create an account or otherwise register on the Website. thesmartphone.eu B.V reserves the

right to refuse or cancel any such registration, for example in the event of irregularities.

2. The login details are strictly personal and must not be disclosed to third parties. The customer is responsible

for his login details, even in case this is done without his knowledge.

3. The customer shall immediately alert thesmartphone.eu B.V in case he suspects that his login details are

known by an unauthorized third party or in the event of irregularities.

4. The customer may not create or manage more than one account. Moreover, the customer shall not be

allowed to register or manage an account (again) after thesmartphone.eu B.V has denied the request of the

customer to create an account or after cancellation of the registration.

Delivery

1. At all times the place of delivery is – except where stated otherwise in writing – the customer’s actual

registered office or the registered office that is specified during the order process and/or the registered office

of the party to the agreement.

2. The delivery terms included in offers/proposals, confirmations and/or contracts are given in good

conscience. They will be complied with to the extend possible, though they can never be considered as a

final date.

3. The customer is obliged to enable thesmartphone.eu B.V to perform the delivery.

4. The customer guarantees for its own account and risks:

a. to provide the support that is necessary for thesmartphone.eu B.V to conduct the performance;

b. to purchase the ordered products and/or services; and

c. to enable the delivery to occur under average working conditions, during average working hours

from 8 a.m. to 6 p.m.

5. In case the ordered products and/or services are offered to the customer, yet delivery is not possible due to

the fact that the customer did not fulfil its obligations under paragraph 3 and 4 of this Article, the delivery

will be considered declined. From this moment on, the customer is in default without the requirement of a

formal notice of default from thesmartphone.eu B.V. The day of refusal of the delivery is considered to be

the delivery date of the ordered products and/or services. From this moment on, the products are at the

customer’s own risks as stated under Article ‘Transfer of Risk’ of these General Terms and Conditions.

6. Notwithstanding the obligation to pay, the customer is entitled to repay the damages thesmartphone.eu B.V

has suffered as a result of the refusal referred to under paragraph 5 of this Article, including the costs of

storage and transport. The transport costs are based on local common rates.

Transfer of risk

Notwithstanding the contents of the agreements made between thesmartphone.eu B.V and the customer with

respect to the costs of transport and insurance, the products are at the risk of thesmartphone.eu B.V, until the

moment such products are in the actual power of disposal of property of the customer or of any third party hired

by the customer by means of signing bills of lading, signing lists and/or packing lists or actual delivery.

Retention of title

1. The ownership of products delivered to the customer by thesmartphone.eu B.V shall transfer to the customer

once the customer has met all the terms that thesmartphone.eu B.V may request based on all agreements

made with the customer and the related services or activities performed.

2. Notwithstanding what is stated in paragraph 1 of this Article, the customer is entitled to use the products

received from thesmartphone.eu B.V for its normal business operations.

3. The customer is not allowed to encumber, pledge, transfer as security and/or to loan or to loan for

consumption and/or to license products that are delivered under retention of title (eigendomsvoorbehoud) in

any way. In addition, the customer is not allowed to modify the products in any way.

4. In the event the customer fails to fulfil its obligations, thesmartphone.eu B.V is entitled to retrieve the

products that belong to thesmartphone.eu B.V from where they are at the expense of the customer.

Right to complain

1. During or immediately after the delivery the customer needs to inspect whether the delivered products

and/or the performed services comply with the agreement.

2. If the customer did not perform aforementioned inspection or did not inform thesmartphone.eu B.V

regarding the defects in writing within the applicable term as mentioned hereafter the customer loses his

right to claim.

3. Visible defects need to be reported in writing to thesmartphone.eu B.V within five business days after the

delivery and/or performing the relevant service.

4. Hidden defects need to be reported in writing immediately after the customer discovered them yet within

two months after delivery of the products and/or performing the service at the latest.

5. Products subject to the claim may only be returned to thesmartphone.eu B.V with explicit prior permission

from thesmartphone.eu B.V.

Returns need to be provided with the original packaging. Returns need to occur in accordance with

instructions from thesmartphone.eu B.V at all times. thesmartphone.eu B.V reserves the right to appoint an

address to which the product subject to the claim must be sent to.

6. If according to thesmartphone.eu B.V there are justified and properly submitted complaints,

thesmartphone.eu B.V is obliged, this at her choice and taking into account the customer’s interests and the

nature of the complaint, to either replace/exchange the delivered products and/or performed services or to

grant a price discount.

7. The right of complaint expires in case the delivered product is not in the same condition as it was during

delivery.

8. Complaints regarding invoices need to be submitted in writing within five business days after the date of

sending the invoice.

Liability

1. In the event one of the parties fails in the performance of one or more of its obligations under the agreement

(“default”), the party will be held liable unless the performance of its obligation(s) is permanently

impossible. In that case, the negligent party is in default immediately. The notice of default will occur in

writing, whereby the negligent party will be given a reasonable period of time to still perform its

obligations. The deadline of this period of time is final. The liability of thesmartphone.eu B.V towards the

customer for direct damages in case of performing not at all, not in time or not properly is limited to the net

invoice value of the concerning products and/or services, this, however, to a maximum amount of € 100.

2. The limitation mentioned in paragraph 1 of this Article applies also in the event that thesmartphone.eu B.V

is held liable by the customer for reasons other than this agreement.

3. Direct damage means exclusively:

a. any reasonable costs incurred by a party to repair the default by the other party in order to meet the

agreement. However, these damages are not reimbursed if the other party has terminated the

agreement.

b. the reasonable costs of ascertaining the cause and scope of the damage, to the extent the

determination is related to damage as referred to in the Terms and Conditions;

and/or

c. reasonable costs incurred to prevent or limit damage, to the extent the suffering party is able to

demonstrate that these costs have led to a limitation of direct damage as referred to in the Terms and

Conditions.

4. thesmartphone.eu B.V shall never be liable for any indirect damage, including consequential loss, loss of

profits, lost savings and damage caused by interruption of operations and all damages which are not covered

by direct damage as referred to in these Terms and Conditions.

5. In the event of intent or gross negligence of the directors or managers of thesmartphone.eu B.V the

limitation of liability is not applicable.

6. thesmartphone.eu B.V shall never be liable for the materials that have been made available to

thesmartphone.eu B.V by the customer under the agreement. It is mandatory for the customer to take out a

sufficient insurance regarding these materials.

7. Without prejudice to the abovementioned, thesmartphone.eu B.V shall not be liable in the event the damages

are caused by intent and/or gross negligence and/or imputable acts or incompetent or inappropriate usage of

the delivered products by the customer.

Indemnification

1. The customer indemnifies thesmartphone.eu B.V, to the extent permitted by law, against all liabilities

towards one or more third parties, arisen from and/or connected to the performance of the agreement,

irrespective of whether the damage is caused or inflicted by thesmartphone.eu B.V or by the third parties

appointed by thesmartphone.eu B.V (hulppersonen), by auxiliary materials or the completed Assignment.

In addition, the customer indemnifies thesmartphone.eu B.V, to the extent permitted by law, against all

liabilities from third parties in connection with any infringement of intellectual property rights of these third

parties.

2. The customer shall take care of adequate insurance of the risks and liabilities mentioned above.

3. The customer is always obligated to make every effort to limit the damage to a minimum.

Force majeure and unforeseen circumstances

1. In case compliance by thesmartphone.eu B.V or the purchase by the customer is delayed for more than one

month due to force majeure, each party is – with the exclusion of further rights – entitled to terminate the

agreement in accordance with the law. Anything that already has been performed in accordance with the

agreement, shall be settled pro rata between the parties.

2. Force majeure in relation to thesmartphone.eu B.V shall in any case include:

a. the circumstance where a performance (including a performance of the customer) that is important

regarding the performance to be executed by thesmartphone.eu B.V has not, not in a timely manner

or not properly, been executed;

b. strikes;

c. traffic obstructions;

d. acts of government that prevent thesmartphone.eu B.V from timely and/or proper fulfilment of its

obligations;

e. riots, civil disturbance, wars;

f. extreme weather conditions;

g. fire; and/or

h. transport disruptions.

3. In case an unforeseen circumstance of such a nature occurs that the customer cannot expect

thesmartphone.eu B.V to fulfil because of equity or natural justice, the judge can terminate the agreement as

a whole or partially at the request of one of the parties.

Right of retention

thesmartphone.eu B.V is entitled to retain possession of all customer’s products that thesmartphone.eu B.V

possesses for the customer, until the customer has fulfilled its obligations towards thesmartphone.eu B.V, with

which the concerning products have direct or sufficient coherence. In case thesmartphone.eu B.V loses control

over products covered by this right, thesmartphone.eu B.V shall be entitled to claim these products as if

thesmartphone.eu B.V was the owner.

Termination

1. Each party is entitled to terminate the agreement with immediate effect, as a whole or partially, without any

further notice of default or judicial intervention, in the cases described below and insofar as granted below:

a. in case the other party has applied for suspension of payments (surseance van betaling), in case the

other party has obtained suspension of payments or in case the other party has been declared

bankrupt (faillissement);

b. in case the company of the other party is liquidated voluntarily or involuntarily (opheffing);

c. in case the company of the other party merges or is acquired (fusie of overname);

d. in case a substantial part of the assets of the other party is seized and/or (beslaglegging);

e. in case other circumstances occur in which case the continuation of the company cannot reasonably

be required.

2. Each party is entitled to terminate the agreement in the event the other party – after a notice of default in

writing that is as clear and detailed as possible and includes a proposal for a reasonable period of time to

correct or repair the defects – fails attributably to meet its essential obligations under the agreement,

provided that the defects justifies the termination.

3. In the event the agreement is terminated, the claims of thesmartphone.eu B.V are immediately due and

payable by operation of law and without any notice of default. In the event thesmartphone.eu B.V suspends

the fulfilment of its obligations, thesmartphone.eu B.V maintains its claims deriving under Dutch law and

the agreement.

4. In any case thesmartphone.eu B.V maintains the right to claim (full) damages.

Intellectual property

1. thesmartphone.eu B.V guarantees that products delivered by it do not infringe any Dutch patents, design

rights or any other industrial or intellectual property rights of third parties.

2. Nevertheless if thesmartphone.eu B.V has to acknowledge or in case a Dutch judge determines in a lawsuit

that is no longer appealable, that any product that any product delivered by thesmartphone.eu B.V infringes

any of the third party’s right as referred to under paragraph 1 of this article, thesmartphone.eu B.V shall, at

its own discretion, (i) replace such product with a product that does not infringe this right, (ii) acquire a right

of licence in this respect, or (iii) take back such product against repayment of the paid sum, reduced by

typical depreciations, without being required to further compensation.

3. In case the customer does not inform thesmartphone.eu B.V in a timely manner or not in full regarding the

claims of third parties as referred to in paragraph 2 of this Article, the customer will not be entitled to the

rights of performance as referred to in paragraph 2 and, in addition, thesmartphone.eu B.V has not been able

to properly defend its right in this matter as a result thereof.

Transfer

The customer is not entitled to transfer its rights and obligations arising from any agreement concluded with

thesmartphone.eu B.V to third parties, without the written permission of thesmartphone.eu B.V.

Privacy and security

1. thesmartphone.eu B.V respects the privacy of the customer. thesmartphone.eu B.V treats and processes all

personal data transmitted to it in accordance with the applicable legislation, in particular the Personal Data

Protection Act. The customer agrees to this processing. For the purpose of protecting the customer’s

personal data, thesmartphone.eu B.V observes appropriate security measures.

2. For more information regarding privacy, reference is made to the Website of thesmartphone.eu B.V.

Final provisions

1. Any possible derogations in respect of these General Terms and Conditions may be agreed upon only in

writing. No rights can be derived from these deviations with regard to future agreements.

2. The administration of thesmartphone.eu B.V serves as proof of purchase orders and requests of the

customer, unless the customer proves otherwise. The customer acknowledges that electronic communication

can serve as proof.

3. In case and to the extent that any provisions of these General Terms and Conditions are cancelled or

declared invalid, thesmartphone.eu B.V shall draw up a new provision to replace the null/nullified provision,

duly observing as much as possible the object and purpose of the annulled provision.

4. The place of the performance of the agreement is deemed to be the place where thesmartphone.eu B.V is

located.

Governing law and jurisdiction

1. All disputes between thesmartphone.eu B.V and customer in relation to an agreement between these parties,

or the agreements concluded in the performance of or in connection with such agreement, will be submitted

exclusively to the competent of the district of the location of thesmartphone.eu B.V, unless

thesmartphone.eu B.V and the customer have agreed otherwise in writing.

2. All agreements, and any non-contractual obligations arising thereto, between thesmartphone.eu B.V and the

customer to which these General Terms and Conditions apply to, are governed by the laws of The

Netherlands. The Vienna Sales Convention 1980 is explicitly excluded.

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