Terms and Conditions
Article 1. Definitions
In these general terms and conditions, the following terms shall have the following meanings:
- Contractor: Swiss BD GmbH, acting on behalf of GiftCardEver, with registered office and place of business in Stodolastrasse 03, 8053 Zürich, Schweiz, registered with the Chamber of Commerce in Zürich under number CHE-292.533.156.
- Client: the party that enters into an agreement with the contractor, places an order with the contractor or to whom the contractor has submitted an offer to which these general terms and conditions apply. The client may be a consumer (a natural person not acting in the course of a profession or business) or a business customer (business2business client: ”b2b”).
- Products and Activities: all activities or products for which an order has been given or which are performed or delivered by the contractor on another account with regard to the agreement or quotation.
- Documents: all items made available to the contractor by the client, including: documents, information, materials or data carriers, as well as all items, including documents, produced by the contractor in the context of the execution of the order.
- General terms and conditions: the terms and conditions which all agreements between customer and contractor are based on.
- Agreement or order: any agreement between the client and the contractor, in accordance with the provisions of the agreement and/or order confirmation.
- Parties: GiftCardEver and customer together.
Article 2. Applicability
- These terms and conditions will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of GiftCardEver.
- Deviations from these general terms and conditions are only valid if both parties expressly agreed upon it in writing. Any general terms and conditions or other terms and conditions of the client are not valid. The applicability thereof is expressly rejected by the contractor.
- If any provision of these general terms and conditions is null and void or annulled, the other provisions of these general terms and conditions shall remain in full force and the contractor and the client shall consult with each other with a view to agreeing on new provisions to replace the provisions that are null and void or annulled, whereby the purpose and purport of the provision that is null and void or annulled, as the case may be, shall be respected as much as possible. If the interpretation or content of one or more provisions of these general terms and conditions is unclear, they must be interpreted ‘in the spirit’ of these general terms and conditions. Situations that are not regulated in these general terms and conditions must be assessed ‘in the spirit’ of these general terms and conditions.
- If the contractor does not always require strict compliance with these general terms and conditions, this does not mean that the provisions of these general terms and conditions do not apply, or that the contractor would lose the right to demand strict compliance with the provisions of these general terms and conditions in other cases to any degree.
- The contractor is entitled to amend or supplement these general terms and conditions. Minor changes may be made at any time. Major substantive changes shall be discussed (upfront) with the client.
- The agreement is valid as soon as the client’s acceptance of the offer has reached the contractor. By accepting the offer, the client declares that he agrees with the applicable statement of these general terms and conditions and, if necessary, waives an applicable statement of his own general terms and conditions. Acceptance shall be effected after payment for the product(s) in question.
- If the acceptance is subject to reservations or changes with respect to the offer or quotation, contrary to the provisions of the previous paragraph, the agreement will only be concluded if the contractor has notified the client that it agrees to these deviations from the quotation.
Article 3. Activities
- The contractor sells digital products via the Internet: such as, but not limited to, codes to top up credit in, for example, Google Play, Spotify or iTunes. After payment, the customer immediately receives a code that can be redeemed at the service in question.
Article 4. Discounts and offers
- The contractor may make use of discounts and offers, in which case the period of validity shall always be stated. This may include so-called ‘discount codes’ (paid or unpaid). These discount codes are specifically valid for a period of one year; if they are not used within the specified period, the redeemability and validity of the code lapses.
Article 5. Agreement
- The agreement becomes effective after payment by the client.
- The agreement is entered into per payment.
- If a term has been agreed or specified for the execution of certain work or for the delivery of certain products, this is never a strict deadline. If a term is exceeded, the client must give the contractor written notice of default. The contractor must be given a reasonable period in which to still execute the agreement.
Article 6. Confirmation and acceptance of the order
- The agreement is concluded as soon as the customer has paid the contractor (in advance from private individuals), or as soon as the customer has ordered products via the webshop, whereby payment can be made in arrears (b2b customers).
- The contractor reserves the right, without giving reasons, to reject an agreement.
- Any notice given under or pursuant to the agreed agreement will be made available in writing by email to the other party at the address stated on the order.
- The contractor is not bound to verbal agreements if these have not been confirmed by the contractor in writing.
Article 7. Modification of the order
- If, during the execution of the agreement, it appears that it is necessary to amend or supplement the agreement, the parties will proceed to amend the agreement in good time and in mutual consultation.
- Without being in default, the contractor may refuse a request for amendment, supplementation or withdrawal of the agreement, if this could have consequences in qualitative and/or quantitative terms, for example for the products to be delivered in that context.
Article 8. Reflection period and right of withdrawal
- An already placed order cannot be cancelled. The reflection period and revocation period of 14 days is not applicable in view of the digital nature of the products to be delivered. Thus, there is no reflection period and revocation period. The client therefore agrees to a direct delivery of the product after payment (both before and after) and explicitly renounces the reflection period and the right of revocation.
- The reason for deviating from the right of withdrawal is that a product cannot be returned because it cannot be ascertained whether the product has already been used. After all, it concerns digital products of which the seal is broken immediately after delivery. The nature of digital products makes any reflection period and the right of withdrawal impossible, except in case of delayed payment. In that case, the code has not yet been sent by the client nor received by the contractor and the product could still be revoked. For this, it is the customer who bears the burden of proof.
Article 9. Delivery of orders
Under no circumstances will the contractor be liable for any delay in the delivery of products, except in the event of intent or gross negligence. Contractor guarantees to deliver a working product code, in the absence of which a new code will be delivered (free of charge). Evidence for the malfunctioning of the code lies with the customer.
Article 10. Suspension and dissolution
- The contractor has the right to declare every agreement with the customer dissolved without judicial intervention, if:- the customer is declared bankrupt;- the customer applies for a provisional suspension of payments; – a request by the customer, a natural person, to declare the statutory debt rescheduling applicable is granted by the court;- if the customer loses the right to dispose of his assets or parts of them by attachment, placement under guardianship or in any other way; – or if the customer is manifestly unable to fulfil his financial obligations.
- As a result of the dissolution, the mutual claims become immediately due and payable. The customer is liable for the damage suffered by the contractor.
- If the contractor has reason to doubt the payment capacity of the customer, the contractor is entitled to postpone the delivery of products until the customer has provided security for the payment. The customer is liable for the direct and indirect damage to be suffered by the contractor for this delayed delivery.
Article 11. Payment and collection costs
- Unless explicitly agreed otherwise, payment can be made by any of the payment methods offered on GiftCardEver.
- Every financial transaction can be detained if there is a suspicion of a financial risk. If no claim is made by the buyer within 30 days, this transaction will be considered to be overdue. A claim on the transaction can be made from the buyer via [email protected].
- Also, if explicitly agreed (b2b), an invoice can be paid (in arrears) with a payment term of 7 days.
- If payment is not made within the set term of payment, or if the collection is cancelled without valid reason and not paid within 7 days, the customer will be in default by operation of law and will owe statutory interest on the outstanding invoice, without any reminder or notice of default being required, without prejudice to the right of the contractor to demand immediate payment of the amount due together with interest and the costs of extrajudicial or judicial collection. The costs of extrajudicial collection shall be determined between the parties by means of the Decree on compensation for extrajudicial collection costs, which took effect on 1 July 2012.
Article 12. Complaints procedure
- Complaints about the work performed must be made known to the contractor, stating the reasons, within 7 days after the complaint arose, or within 7 days after delivery of the products, via the email address [email protected], whereby an attempt will be made to give a response within 48 hours (on working days). After expiry of the aforementioned periods, the customer will be deemed to have accepted the work performed.
- If a complaint is well-founded, the contractor has the option of repairing the defect in the work. If this is not possible, the contractor must change the amount paid in proportion to the complaint.
Article 13. Confidentiality
- The contractor is obliged to keep any information concerning the client confidential.
Article 14. Force majeure
- The contractor is not obliged to fulfil any obligation towards the client if he is hindered to do so as a result of a circumstance that cannot be attributed to any fault, and for which he is not responsible by virtue of the law, a legal act or generally accepted practice.
- In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this respect by law and jurisprudence, all external causes, foreseen or unforeseen, over which the contractor has no influence, but as a result of which the contractor is unable to fulfil his obligations (e.g. internet failures, interruptions in the payment service, etc.).
- In the event of force majeure, the customer shall immediately notify the contractor in writing, stating the cause of the force majeure.
- The contractor has the right to invoke force majeure if the circumstances that prevent (further) performance of the agreement occur after the contractor should have performed his obligation.
- The contractor has the right to suspend his obligations under the agreement during the period that the force majeure lasts.
- Following notification of force majeure on the part of the contractor, the customer has the right to cancel the order in writing.
Article 15. Liability
- The contractor’s liability shall be limited to the damage that can be regarded as an immediate and obvious consequence of the fulfilment or faulty fulfilment, all this limited to the amount covered by the contractor’s insurance policy. If in any case the insurance company does not pay out or the damage is not covered by the insurance company, the liability will be limited to the amount relating to the invoice amount or the period of the invoice amount to which the damage relates.
- Contractor is never liable for indirect damage. Indirect damage is understood to mean: consequential damage; loss of profit; missed savings; damage due to business or other types of stagnation.
- Contractor shall never be liable for damage as a result of failure to perform work carried out by third parties or goods delivered by third parties.
- The limitations of liability contained in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of the contractor and/or its subordinates.
- The contractor is never liable if the client’s website goes offline for any reason whatsoever or if something happens to the website that causes damage to the client.
Article 16. Applicable law and choice of court
- These general terms and conditions are governed by Dutch law. Disputes arising from the agreement will be submitted to the competent court in Amsterdam, unless mandatory rules of law dictate otherwise.