General terms and conditions
In these general terms and conditions (the “General Terms and Conditions”) the following are understood to be:
Smappee NV, having its registered office at Evolis 104, B-8530 Harelbeke, registered with the Crossroads Bank for Enterprises under number BE0849.366.642 (RPR/RPM Ghent, division Kortrijk), e-mail: email@example.com & affiliate companies.
Smappee Services BV, having its registered office at Evolis 104, B-8530 Harelbeke, registered with the Crossroads Bank for Enterprises under number BE0835.376.866 (RPR/RPM Ghent, division Kortrijk), e-mail: firstname.lastname@example.org & affiliate companies.
Smappee Inc., having its registered office at 55 Madison Avenue, Suite 400 55, Madison Avenue, Suite 400, Morristown, New Jersey (US)07960, United States; listed under enterprise number VAT. EIN61-1750640, e-mail: email@example.com & affiliate companies.
“Buyer”: every Consumer or Company who purchases Products from Smappee and/or who wishes to enter into a contractual relationship of any nature with Smappee.
“Consumer”: a consumer in the meaning of the Code of Economic Law or in the meaning of article 1649 bis § 2.1. of the Civil Code, i.e. a natural person who acts for purposes which are not related to his professional or commercial activity.
“Company”: a company in the meaning of the Code of Economic Law, i.e. a natural or legal entity who pursues an economic aim on a long-term basis and acts in that capacity.
“Parties”: the Buyer and Smappee together.
“Products”: the subject of one or more Agreements, in this case – but not exclusively limited to – the energy product ‘Smappee’, consisting of hardware components, software components, websites, and web services. The existing range of Smappee products consists of products designed for non-commercial use by consumers and also of products for commercial use. These products can also serve for combined use. Smappee has its own licencing terms and conditions.
“Agreement”: the binding agreement formed between Smappee and the Buyer for the purchase of one or more Products.
The definitions written in plural include the singular and vice versa.
2.1. Any (legal) relationship between Smappee and the Buyer regarding the purchase of one or more Products is governed by these General Terms and Conditions. These General Terms and Conditions apply (without limitation) to every offer from Smappee, to all agreements closed between the Parties, to all orders, order confirmations, invoices and other documents issued by Smappee and any services provided by Smappee to the Buyer. All other terms and conditions, including those of the Buyer, are not applicable and have no legal bearing on Smappee, even should they stipulate that they have priority and/or would be attached to an order form.
2.2. Any deviation to the provisions in the current General Terms and Conditions are not possible except for after express, prior, and written acceptance thereof by Smappee. The other provisions of the current General Terms and Conditions shall remain fully in force.
2.3. Smappee retains the right to unilaterally modify and/or supplement these General Terms and Conditions at any time – insofar the modifications and/or supplementations can be objectively justified. Smappee shall reasonably inform the Buyer of any such modifications. The changes shall be an integral part of the Agreement between the Parties, unless the Buyer objects to them within six (6) weeks after receiving the notification of the change and that by written or electronic communication.
2.4. Smappee retains the right to modify and/or supplement these General Terms and Conditions at any time for future orders. A future change in application of this article 2.4. will obviously not affect existing orders and the agreements deriving thereof.
2.5. Without prejudice to the explicit and written acceptance of these General Terms and Conditions, the Buyer is deemed to have read the General Terms and Conditions, to have accept these and to have waived any of its own (general) terms and conditions, irrespective of when and in what form they would have been communicated, also for repeat orders, by (without limitation) placing an order, signing an agreement, using and/or storing the Products, commissioning Smappee’s services and/or accepting an invoice.
2.6. The General Terms and Conditions are always available on Smappee’s website (smappee.com). Furthermore, the General Terms and Conditions are provided to the Buyer before the conclusion of an agreement and a copy of the General Terms and Conditions is provided to the Buyer together with an order confirmation, or at the latest upon delivery.
3. Orders and offers.
3.1. After the Buyer has indicated which Products he wishes to purchase from Smappee, Smappee shall provide the Buyer with an offer. Unless the offer stipulates otherwise, the offer shall be valid for a period of fourteen (14) days from the date of the offer. Changes to the offer shall only apply if they have been accepted by Smappee in writing.
3.2. An Agreement is only established when Smappee receives an undersigned offer from the Buyer within the period of validity, or at the time that both Parties have a signed purchase order or Agreement in their possession.
3.3. Irrespective of that provided for in article 3.1, special offers can be valid for less than fourteen (14) days considering they are only valid while stocks last.
4.1. The prices included in the offer are expressed in euros (and if applicable in other international currencies such as GBP and USD). Unless otherwise explicitly agreed in writing, handling and transportation costs are not included in the prices.
With regard to Buyers who are Companies, the prices included in the offer are expressed exclusive of VAT.
Insofar the Buyer is a Consumer the prices included in the offer are expressed inclusive of VAT and other taxes.
4.2. Any increase in VAT rates or other taxes in the period between placing the order and the delivery are borne by the Buyer. The orders are invoiced at the prices and under the terms and conditions in force at the time of accepting the order.
4.3. If the Buyer is granted discounts these apply exclusively to the individual orders for which they were granted. Under no circumstances do they entail, not even with repeated extension thereof, any right on the part of the Buyer to comparable discounts on future orders.
4.4. If the prices of one or more components of the Products increase prior to the delivery of the Products, and this independently of the will of Smappee, Smappee shall be entitled to increase the price reflected in the order confirmation to the same extend as the prices of these components increased, in respect of the proportion which they represent in the agreed price, up to a maximum of 80 % of the agreed price (at least 20% of the agreed price shall remain unchanged). The following shall (without limitation) be considered as such components:
- the price of (one or more parts of) the Products; price increases by the manufacturer and/or supplier;
- transport and storage costs, packaging costs;
- wages and social security charges;
- taxes, duties, levies, import or export duties;
- currency fluctuations;
- insurance premiums.
If the agreed price is increased in the aforementioned way, Smappee shall inform the Buyer thereof.
5. Transport – transfer of risk – costs.
5.1. With regard to Buyers who are Consumers:
5.1.1. The delivery shall take place at the place specified in the Agreement.
5.1.2. The Buyer-Consumer shall bear the risk of loss of or damage to the Product as soon as the Buyer-Consumer or a person designated by the Buyer-Consumer, who is not a carrier, takes physical possession of the Product at the place of delivery specified in the Agreement, except in the case of article 5.1.3.
5.1.3. If the Agreement stipulates that the Product shall be dispatched to the Buyer-Consumer, the risk of loss of or damage to the Product shall, in application of article VI. 44 of the Code of Economic law, be transferred to the Buyer-Consumer at the time of delivery to the carrier charged by the Buyer-Consumer with dispatch, insofar as the choice of this carrier was not imposed by Smappee.
5.2. With regard to Buyers who are Companies:
5.2.1. The Products are delivered FCA Kortrijk, Belgium (Incoterms 2010) to the Buyer.
5.2.2. The applicable price is excluding transport costs, insurance fees, connection and installation costs, VAT, import duties, export duties, customs charges, and other taxes. The product risk is transferred to the Buyer at the time that the Products leave the Smappee branch. The Buyer has exclusive responsibility for any import or export documentation. Insofar as required, Smappee shall cooperate with completing the formalities, with the understanding that it bears no liability in that regard.
5.2.3. As it is not possible to provide the ‘EUR.1 certificate’ customs form for purchases completed through the Smappee Webshop, the Buyer cannot claim any potential reduction of customs duties. We recommend placing orders exceeding EUR 6,000 via firstname.lastname@example.org.
6.1. With regard to Buyers who are Consumers:
6.1.1. The delivery term shall be specified in the offer and/or order confirmation. If the delivery is delayed, or if the order cannot be carried out, or can only be carried out in part, the Buyer-Consumer shall be informed thereof before the expiry of the delivery term.
6.2. With regard to Buyers who are Companies:
6.2.1. The provided delivery times are indicative and approximate. Nevertheless, Smappee shall make reasonable efforts to deliver on the dates specified.
6.2.2. Exceeding this indicative delivery term does not give the Buyer the right to cancel the order, or claim for damages.
6.3. General provisions.
6.3.1. If a delivery cannot take place at the agreed time due to reasons attributable to the Buyer, then the Products shall be stored at the cost and risk to the Buyer and this for a period of four (4) weeks within which the Buyer is obliged to remove the Products on payment of the storage costs.
7. Title retention.
7.1. The delivered Products remain the property of Smappee until full payment of the main sum, the costs and interest have been received, even if these Products have been incorporated or changed.
The Buyer is prohibited from selling on, pledging, or in any way encumbering the Products that fall under the retention of rights.
If third parties levy an attachment to delivered Products falling under the retention of title, or want to establish or claim rights thereon, then the Buyer is obliged to inform Smappee of the fact immediately and no later than within forty-eight (48) hours.
Finally, for the Products falling under the retention of title the Buyer commits to insure and to maintain insurance against fire, explosion, and water damage as well as against theft and at the first request of the contractor to provide for inspection the insurance policy.
7.2. Irrespective of that provided in article 7.1, the risk is transferred to the Buyer as detailed in article 5.
8. Checks and warranty.
8.1. The Buyer is obliged to immediately take into receipt the Products and to check that the delivered amount and quality of the Products correspond to that which has been contractually agreed. Smappee must be immediately informed of any complaints with regard to a non-compliant delivery or visible defects and they should be confirmed by a reasoned written statement sent by registered mail within seven (7) days after delivery, upon penalty of forfeiture, without prejudice to article 8.4.
8.2. Smappee can under no circumstances be held liable for problems that arise as a result of improper use of the Product, problems as a result of force majeure (see article 10), and as a result of acts or intentional errors by any other person including the Buyer, or his staff.
8.3. Smappee can under no circumstances be held liable for damage resulting from incorrect installation of the Product.
8.4. Hidden faults can only give rise to compensation, upon penalty of forfeiture, if they were identified with appropriate haste and submitted to Smappee within eight (8) days after the identification thereof, and in any event within eight (8) calendar days of when the hidden faults should have been discovered, by registered mail and the Products have not already been processed.
8.5. In the event of a late objection according to the period stated in this article, the Buyer is considered to have approved and accepted the Products and price charged.
8.6. If the Buyer formulates a complaint and this complaint is deemed founded by Smappee, after investigation, the Buyer shall have the choice either to return the Products and have the price reimbursed, or to keep the Products and have part of the price reimbursed, or to repair or replace the Product free of charge.
9.1. With regard to Buyers who are Consumers:
9.1.1. Without prejudice to that provided for in article 8, the 2-year legal guarantee as provided for in article 1649 bis et seq. of the Civil Code shall apply to Buyer-Consumers with regard to the sale of consumer goods, being movable tangible goods, on condition that the Buyer-Consumer notifies Smappee of the defect, which exists at the time of delivery, and which arises within two (2) years of said delivery, within two (2) months after the Buyer- onsumer has discovered the defect.
9.2. With regard to Buyers who are Companies:
9.2.1. Without prejudice to that provided for in article 8, the Products are covered by guarantee for hidden faults for a period of twelve (12) months, unless local legislation provides for a longer period. The Products are covered by this guarantee up to a maximum of twenty-four (24) months, if (cumulatively):
- The fault seriously impairs the adequate use of the products for which they are normally intended or the special use that was expressly agreed in writing when entering the agreement;
- The goods have been installed professionally;
- The goods were used in a normal manner, or at least in the special circumstances that were expressly agreed in writing when entering the Agreement;
- The fault was communicated to us within the reasonable period as stated in article 8.4 and no later than the period provided for in this article.
9.2.2. In any case, our guarantee is limited to repair at no charge, be it through replacement, of the faulty good. This cannot lead to the dissolution of the Agreement, or to us being liable to pay damages for any reason. The transport costs, insurance fee, packaging costs, placement and installation charges, VAT import duties, export duties, customs charges and other taxes shall always be borne by the Buyer-Company.
9.2.3. The guarantee we offer shall lapse if the Buyer-Company offers for repair the goods to a third party without prior written permission of Smappee.
9.2.4. Where the guarantee concerns a product made by a third party, it is limited to the guarantee provided to us by our suppliers in respect of the product concerned.
9.3. General provisions.
The warranty shall never apply to damage or defects caused by wear and tear, careless use or acts of third parties. The warranty does not cover defects caused by transport damage outside Smappee’s responsibility, improper installation or assembly by the Buyer, incorrect use, poor maintenance or failure to observe the instructions for use or assembly by the Buyer. The right to warranty expires when the defect and/or the damage is caused by repairs or interventions by third parties, or when the Products are provided with non-original accessories or parts which caused the defect and/or the damage.
10. Force majeure.
10.1. In case of force majeure or unforeseen circumstances, Smappee is entitled to, either suspend its obligations for the duration of the period this situation exists, or to definitively dissolve the agreement, without this resulting in any right to damages for the Buyer. Under force majeure is understood to be any circumstances or event beyond the will and control of Smappee which prevents compliance with its obligations wholly or in part.
10.2. Included as force majeure and/or unforeseen circumstances under the meaning of article 10.1: a strike, a lockout, a riot, an epidemic, unfavourable weather conditions, a shortage of raw materials or transport resources, a fire, flood, mechanical defect, non-delivery by the supplier etc.
11.1. Upon receipt of an order from Buyer, Smappee will issue the corresponding invoice. Products will be shipped upon receipt of the payment of the invoice. Other Payment terms may be granted after review of the financial statements of the Buyer.
11.2. In the event of non- or late payment, the price shall be increased automatically and without notice of default being required by a fixed amount of 15% of the unpaid invoice at a minimum of EUR 150 irrespective of the right of Smappee to demand higher compensation insofar as they can prove actual damage.
In addition, interest is due automatically and without notice of default being required, at the rate of 8% per annum on the outstanding amount.
If Smappee is in default with regard to a payment obligation towards a Buyer-Consumer, the Buyer-Cnsumer may claim similar liquidated damages and default interest from Smappee.
11.3. Any default in payment of an invoice on the due date, or any non-payment shall render claimable all invoices, even those not yet due, that have been drawn up or sent to the Buyer at that time, and any future payment facilities or discounts shall lapse.
11.4. Without prejudice to that provided in article 8.1, in the event of a dispute, the invoice shall, subject to forfeiture, be refuted in a reasoned manner within fourteen (14) days after receipt thereof by registered mail.
12. Suspension and cancellation.
12.1. With non-payment on the due date, or any default for any reason or with failure to meet even one of the contractual obligations, Smappee retains the right to:
unilaterally suspend the execution of all current orders, and this if no or no useful effect has been given within seven (7) days after the notice of default and without this being reason for the Buyer to claim damages, and this without prejudice to the right of Smappee to claim damages;
to unilaterally dissolve the Agreement, without prior judicial authorisation, after no or no useful effect has been given within the seven (7) days after the notice of default, without prejudice to the right of Smappee to claim damages; and
Smappee shall, irrespective of which measure it takes, always retain the right to deactivate the central services (cloud services) for the non-paid Products.
12.2. Smappee is entitled to dissolve the Agreement with immediate effect and without prior judicial intervention at the expense of the Buyer if the Buyer is declared bankrupt, has filed for bankruptcy, requested legal reorganisation, has been declared insolvent, or has applied to be placed in liquidation, without this resulting in any right to damages on the part of the Buyer.
12.3. Without prejudice to article 19, if the Buyer, after the conclusion of the Agreement, in any way waives the order and thereby unilaterally terminates the Agreement, the Buyer shall, due to the breach of contract, pay Smappee fixed damages equal to 30% of the total price excluding VAT, irrespective of the right of Smappee to claim higher damages, insofar as these are proven.
With regard to Buyers-Consumers, if Smappee, after the conclusion of the Agreement, in any way waives the order and thereby unilaterally terminates the agreement, without any fault on the part of the Buyer-Consumer, Smappee shall also, due to the breach of contract, be liable to pay the Buyer-Consumer fixed damages equal to 30% of the total price excluding VAT, irrespective of the right of the Buyer-Consumer to claim higher damages, insofar as these are proven.
13. Intellectual property rights.
13.1. All intellectual property rights and derived rights are the property of Smappee. The considered intellectual property rights are: patents, copyrights, trademark rights (European trademark “Smappee” with number: 011856358), design and model rights and/or other (intellectual property) rights, including technical and/or commercial know how, methods and concepts, whether or not patentable.
13.2. The Buyer is prohibited from using and/or making changes to the intellectual property rights as described in this article, unless it only concerns the private use of the product itself.
14. Installation and use.
14.1. The Buyer acknowledges to have received all technical installation, maintenance and operating manuals and instructions with regard to the Products, to know the contents thereof and, if applicable, commits to inform the end users thereof.
14.2. In particular, but not exclusively, it is noted that the Products may never be used in safety-critical applications. It is noted, non-exhaustively, that the actuators of the Smappee systems (Comfort Plugs and Smappee Switch) may not be used for devices and in situations that may cause a fire risk, electronic hazard, or other damage in the event of an electrical failure if the Products or the Smappee systems do not function as expected, or in the event of a malfunction.
14.3. The Buyer is prohibited from obtaining or attempting to obtain unauthorised access to the Products. The Buyer shall take all measures required to prevent access by unauthorised third parties to the devices. In particular – but non-exhaustively – the devices may only be used in secured local networks. The Buyer is also prohibited from modifying or adapting software, communication or protocols related to the devices.
Smappee shall always be entitled to permanently deactivate the services remotely, and to stop the central services (cloud services) in the event of suspected fraud, or if unauthorised access to the systems has been carried out from the apparatus or with the access data of the Buyer or, if applicable, the end users.
14.4. If applicable, the Buyer commits to inform the end users expressly and in writing of this article.
15. User terms and conditions for Central Services (cloud services).
15.1. Corresponding licences must be purchased to use the Smappee central services (cloud services). Without licences or after the licences have expired, the Smappee central services (cloud services) and the Smappee Products cannot be used, or the use will be restricted.
15.2. No explicit or implicit licence acquired through purchasing a Smappee Product can have a validity of more than five (5) years after the date of purchase, unless a longer time period has been precisely specified and agreed in writing.
15.3. After a licence has expired, Smappee is not obliged to continue retaining the corresponding data (such as historic measurements) and it may permanently delete it.
16. Licencing terms and conditions.
16.1. The customer states to agree to the licencing agreement (or agreements) that apply to the delivered software. Insofar as it is not arranged in the applicable licencing terms and conditions of the software concerned, the following provisions apply.
16.2. All intellectual property rights related to the products and/or services, as well as the designs, programming software, documentation and all other materials that are developed and/or used for the preparation or execution of the Agreement, or that result from the Agreement, are held exclusively by Smappee. The delivery of the products and/or services does not extend to any transfer of the property rights of the intellectual property.
16.3. The Buyer is granted solely a non-transferrable and non-exclusive right to use the software for the products and results of the services for the agreed purposes.
16.4. This right of use gives the Buyer the right to use the provided software solely on the indicated or specified devices for said Buyer’s needs, therefore internal use.
16.5. This software can be updated by Smappee at any time and Smappee has the right to decommission any devices containing old versions of software.
16.6. The Buyer is not permitted to make public any part of the software, to replicate it (copy), to sell, rent, encumber or to transfer it as a security or use it otherwise than for its own use and business, as provided for in the Agreement. Furthermore, the Buyer is prohibited from undertaking any attempts of reverse engineering and to make modifications to the software, and the Buyer is obliged to protect the device from any unauthorised access by third parties.
16.7. If the Buyer, without prior written permission from Smappee, breaches the aforementioned provisions, the Buyer shall be due to pay fixed damages that will be calculated as follows: the price according to the contracts or rates that are requested by Smappee from other Buyers at the time of the breach for comparable licences and/or services, increased by 30%. With a suspected breach, Smappee is authorised to stop the Central Services (cloud services) and to remove the software from the device remotely.
16.8. The above applies irrespective of any damages or amounts the Buyer should pay on the basis of breaches of licencing agreements of property rights of third parties.
17. Security and privacy.
17.2. Each Party themselves shall (and not together with the other Party) determine the purposes and methods of processing personal data, when they process such data from or in relation to this agreement. Each Party shall therefore act as an independent data controller.
17.3 By purchasing Smappee Products the Buyer can expressly derive NO rights to obtain the data of the end user. Smappee shall only grant the Buyer access to this data if that has been agreed in writing between Smappee and the Buyer.
17.4 Without prejudice to that provided in article 17.3, Smappee shall make the end users’ data available to the Buyer only if the end user gives Smappee express permission to make the data accessible to the Buyer, and for so long as the end user does not withdraw this permission.
17.5 The Buyer is prohibited from asking end users for access data, such as passwords, or to obtain this data in any other manner. Access data that fall under article 17.6 are expressly excluded from this prohibition.
17.6 If the Buyer – in any way – receives access data, such as passwords, or other details of the end user for the purposes of installation, configuration and support, the Buyer commits to delete all copies of this access data and other data once the purpose no longer applies, and at the latest ninety (90) days after the initial installation. The Buyer commits to limit the data processing to that strictly required for the stated purposes.
17.7 When processing personal data or in relation to the Agreement, each Party shall consider their obligations under the applicable data protection legislation.
17.8 The Buyer guarantees that:
he shall not undertake or neglect to undertake anything that could entail Smappee committing breach of the applicable data protection legislation when processing personal data;
the people whose personal data is processed are informed and if required they have granted permission for the processing of their personal data by Smappee.
17.9. The Buyer shall release and indemnify Smappee or any other entity of the Smappee group for any complaint, debt claim, claim, damages, loss, costs, compensation, judgments etc. insofar as these were caused by a breach by the Buyer of article 17 of these General Terms and Conditions.
17.10. Each Party shall, with respect to data processing, provide reasonable cooperation, support, and information to the other Party, including but not limited to:
Any claim and exercising of rights by a party involved and any investigation or measures taken by a supervisory authority related to or linked with the processing of data by the other Party;
Any current, potential or attempt to a breach with regard to personal data.
17.11. If the Buyer commissions a third party to install the Products or sells the Products to a third party, then the Buyer shall impose all provisions of article 17 on that third party.
18.1. Smappee can never be held liable if the Products it provides are used in another manner than for which they were developed or intended, nor if its Products provided to the Buyer, the end user, or third parties have been changed or supplemented in any way.
18.2. Subject to article 18.6. and to the extent permitted by applicable law, Smappee can only be held liable for direct damage and never for indirect damage suffered by the Buyer and insofar as this damage and the error by Smappee or the fault in the Product has been proven. The damages are furthermore limited to the value of the Agreement with a maximum of EUR 10,000.
18.3. Smappee cannot be held liable for decisions taken or actions that are or are not carried out by people or automated systems based on the information, events, changes, or signals provided – or unexpectedly not provided – by a Smappee Product or the Smappee system.
18.4. Smappee cannot be held liable for damage in the event that the central services (cloud services), a Product or other part of the Smappee systems is unavailable or does not function as expected.
18.5. The Buyer commits to refute any liability obligations of Smappee to its customers and the end users.
18.6. Notwithstanding any provisions to the contrary in these General Terms and Conditions, nothing in these General Terms and Conditions shall limit or exclude Smappee’s liability (if any) (i) for death or personal injury caused by Smappee’s negligence, (ii) for damages caused by Smappee’s fraud or fraudulent misrepresentations or that of Smappee’s agents, (iii) for damages caused by Smappee’s gross negligence or that of Smappee’s agents, or (iv) for liability that cannot be excluded or limited by applicable law.
19. The Right of withdrawal for Buyers who are Consumers.
The Buyer-Consumer has the right to withdraw from his Agreement with Smappee, without giving any reason, up to fourteen (14) calendar days after the Buyer-Consumer or a third party designated by the Buyer-Consumer, and other than the carrier, takes physical possession of the Product. In case of partial deliveries, the withdrawal period shall start from the day of the last delivery.
During the withdrawal period of fourteen (14) calendar days, the Buyer-Consumer must handle the Product and its packaging with due care. If the Buyer-Consumer wishes to exercise his right of withdrawal as described above, the Buyer-Consumer may only unpack and use the order to the extent necessary to determine and assess the nature, characteristics and operation of the order, as in a shop, whether the Buyer-Consumer wishes to keep the order. The Buyer-Consumer will be liable for any diminution in the value of the order that results from a manner of handling the order that goes beyond what is permitted in this paragraph.
If the Buyer-Consumer wishes to withdraw from the Agreement with Smappee, the Buyer-Consumer must inform Smappee of his decision to withdraw in writing before the expiry of the withdrawal period by means of the model withdrawal form attached as annex 1 to these General Terms and Conditions, by e-mail (email@example.com) or by any other unambiguous statement in which the Buyer-Consumer declares that he wishes to withdraw from the Agreement. This notification must be made within fourteen (14) calendar days after receipt of the Product. In case of a notification of withdrawal by the Buyer-Consumer in an electronic manner, Smappee will send an acknowledgement of receipt of such notification without delay.
After consultation between the Buyer-Consumer and Smappee, the Buyer-Consumer must return the Product at his own expense to the agreed return address, or hand it over to Smappee or to a person authorised by Smappee to receive the Products, within fourteen (14) calendar days from the Buyer-Consumer’s notification of return. The Buyer-Consumer also bears the risk of shipment. The Buyer-Consumer will return the Product with all delivered accessories, instructions for use, invoice and/or proof of purchase, if reasonably possible in the original condition and packaging, and taking Smappee’s reasonable and clear instructions into account. The Byer-Consumer will bear the direct costs of returning the Product, unless Smappee has expressly indicated that it will bear the costs itself.
Smappee has the right to charge the Buyer-Consumer for the costs if the Buyer-Consumer has shipped the Product without Smappee’s permission or has sent it without postage.
The right of withdrawal cannot be exercised for Custom-made Products. These are Products made to the Buyer-Consumers specifications, or which are clearly intended for the Buyer-Consumer specifically. Thus, Products that are custom-made cannot be returned.
If the Buyer-Consumer has already made any payment at the time he withdraws from the Agreement with Smappee, Smappee will refund such payment within fourteen (14) calendar days after it receives the returned Product or the Buyer-Consumer provides evidence of its return, whichever is the earliest.
If the returned Product is in any way diminished in value or incomplete (see Article 19, paragraph 2 and 4), Smappee reserves the right to hold the Buyer-Consumer liable and to claim damages. Smappee will notify the Buyer-Consumer of this in writing by e-mail. Smappee has the right to deduct the decrease in value of the Product due to this damage from the amount to be refunded to the Buyer-Consumer. Smappee may therefore decide to credit only part of the amount to be refunded to the Buyer-Consumer.
If the Buyer-Consumer is returning an entire order, Smappee will refund the purchase price and, if applicable, the shipping costs. If the Buyer-Consumer has chosen a more expensive method of delivery than the cheapest standard delivery method, such as express delivery or same-day delivery, Smappee must refund the purchase price and only the cheapest standard delivery method. Smappee does not have to refund the additional costs for the more expensive delivery methods.
If the Buyer-Consumer does not return the entire order, then Smappee will only refund the purchase price.
These refunds will be made using the same method of payment the Buyer-Consumer used to make the original transaction. Unless otherwise agreed between the Parties. The refund is free of charge for the Buyer-Consumer. This will be done as soon as possible within fourteen (14) calendar days after receipt of the return notification. Smappee may wait to refund the Buyer-Consumer until Smappee has received the Product or until the Buyer-Consumer has demonstrated that he has returned the Product, whichever comes first.
20. Severability Clause.
20.1. In the event that any provision of these Terms and Conditions is found to be unenforceable this does not affect the applicability of other provisions or the Agreement as a whole. The unenforceable provisions shall be changed and mitigated by the courts so that they are in accordance with statutory provisions.
21. Competent court and settlement of disputes.
21.1. Belgian law shall be of exclusive application to these General Terms and Conditions and the Agreement, with exception of the Vienna Sales Convention, but without prejudice to the right of Buyers-Consumers domiciled outside Belgium to invoke mandatory provisions of their national law. In the event a dispute arises regarding the interpretation or execution of these General Terms and Conditions and/or the Agreement, it shall be exclusively settled by the competent territorial courts in the location where Smappee’s registered office is established, without prejudice to the right of the Buyers-Consumers to rely on either article 624 of the Judicial Code or the EU Regulation on jurisdiction and the recognition and enforcement of judgement in civil and commercial matters.
22. Amendments to the General Terms and Conditions.
22.1. Smappee has the right to unilaterally change these General Terms and Conditions – insofar the modifications and/or supplementations can be objectively justified. Smappee shall inform the Buyer of such changes. The changes shall be an integral part of the Agreement unless the Buyer objects in writing or electronic communication within six (6) weeks after receipt of the notification.
23. Fair and reasonable.
Parties acknowledge and agree that each clause of these General Terms and Conditions is actually intended by them and does not create any (manifest) imbalance between the rights and obligations of the Parties.
Annex 1 – Model withdrawal form
Please complete and return this form only if you wish to withdraw from the contract.
To Smappee NV
BE0849.366.642 (RPR/RPM Ghent, division Kortrijk).
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods
Ordered on (*)/Received on (*) ———————————————————————-
Name/Names customer(s) —————————————————————————
Address customer(s) ——————————————————————————–
Signature of customer(s)
(only if this form is submitted on paper)
(*) Delete where not applicable.