GENERAL TERMS AND CONDITIONS SIMRACING CENTRE
Article 1. Definitions
1.1. Simracing Centre: the sole proprietorship business Simracing Centre operated by Mr JJ. van Geffen, registered with the Chamber of Commerce under number 85269239, doing business and holding office at (1602 XW) Enkhuizen at Violenstraat no. 44.
1.2. General Terms and Conditions: the present General Terms and Conditions, applicable to the (legal) relationship of the Parties.
1.3. Customer: the other party, being a Consumer-customer and/or a Business-customer, who enters into an Agreement with Simracing Centre or negotiates an Agreement with Simracing Centre as well as the other party who requests a quotation from Simracing Centre and is sent a quotation by Simracing Centre.
1.3.1. Consumer-customer: the natural person who does not act within the framework of a profession or company and enters into an Agreement with Simracing Centre.
1.3.2. Business-customer: the (legal) person acting within the framework of profession or company who enters into an Agreement with Simracing Centre.
1.4. Service(s): the provision of unique data with which players of video games can benefit, as well as the provision of coaching or guidance when playing video games, so that players can benefit and improve their performance.
1.5. Product(s): the (merchandise) products offered for sale by Simracing Centre, including but not limited to clothing and gaming accessories.
1.6. Party(ies): Simracing Centre, Customer or both Parties.
1.7. Written or In Writing: the term 'Written' or ‘’In Writing’’ includes by email or other electronic medium.
1.8. Model Form: the Model Form that Simracing Centre makes available to a Customer.
1.9. Agreement: the binding Agreement between Simracing Centre and the Customer, in whatever form, as well as the amendment(s) and addition(s) thereto and any (further) order placed under the Agreement.
1.10. Website: the websites operated by Simracing Centre, being one or more webshops for the sale by Simracing Centre of Products and/or Services, as well as the accessories associated therewith.
Article 2. Applicability
2.1. The General Terms and Conditions apply to all Agreements and resulting Agreements between Simracing Centre and the Customer. The General Terms and Conditions also apply to the visit and use by the Customer of the Website and all Products and/or Services accessible on the Website.
2.2. Deviations from the General Terms and Conditions must be explicitly agreed upon in Writing. Deviations will then only apply to the relevant offers and Agreements to which they apply.
2.3. The conclusion of an Agreement implies acceptance of the General Terms and Conditions. Moreover, by the mere use (in whatever manner) of the Website, the Customer accepts to be bound by the General Terms and Conditions. The Customer guarantees that when a third party uses the Website on the Customer & computer, this third party will also comply with the General Terms and Conditions.
2.4. By agreeing to the General Terms and Conditions the Customer declares to be authorised to enter into an Agreement with Simracing Centre.
2.5. If Simracing Centre does not always demand strict compliance with the General Terms and Conditions, this does not imply that the General Terms and Conditions do not apply and/or that Simracing Centre loses the right to demand strict compliance with the General Terms and Conditions in future, whether or not similar cases.
2.6. The articles of the General Terms and Conditions, or parts thereof, that are unexpectedly unreasonably onerous for a Consumer-customer because they appear on the list as referred to in article 6:236 and/or 6:237 of the Dutch Civil Code or are contrary to the provisions of mandatory consumer law, shall remain inapplicable. The other provisions shall remain fully applicable in such case.
2.7. If one or more provisions in the General Terms and Conditions are at any time wholly or partially void or annulled, the Agreement and the General Terms and Conditions shall for the rest remain in force and the provision concerned shall be replaced forthwith in mutual consultation by a provision that approximates the purport of the original as closely as possible.
2.8. Furthermore, if and insofar as any part or any provision of the General Terms and Conditions is in conflict with any mandatory provision of national or international law, those mandatory provisions shall prevail over the provisions of the General Terms and Conditions that are in conflict with them. The other provisions of the General Terms and Conditions shall remain in full force and effect.
Article 3. Offers and quotations
3.1. All offers and quotations of Simracing Centre are always without obligation, unless expressly stated otherwise In Writing, or if they contain a term for acceptance.
3.2. If an offer or quotation contains an offer without engagement and is accepted by the Customer, Simracing Centre has the right to revoke the offer within three (3) days after receipt of the acceptance. Offers and quotations of Simracing Centre can only be accepted by the Customer without deviations.
3.3. Verbal offers and quotations cannot be binding, unless subsequently confirmed by Simracing Centre In Writing, whether or not by invoicing.
3.4. All information, images, announcements and specifications (written, oral, telephonic or otherwise) provided by Simracing Centre are made with the utmost care, but Simracing Centre does not guarantee that no deviations can or will occur. Should these unexpectedly occur then they do not bind Simracing Centre in any way.
Article 4. Agreements
An Agreement shall only come into existence through confirmation and acceptance by Simracing Centre or if Simracing Centre has explicitly started to execute the Agreement.
4.2. Parties explicitly agree that also by using electronic communication forms a valid Agreement can be established. The absence of a signature does not affect the binding force of the offer and its acceptance.
4.3. If the Customer refers to several (legal) persons, they are all jointly and severally liable for the performance of the Agreement. If the Agreement is concluded by a third party on behalf of the Customer, such third party guarantees that the Customer has accepted the General Terms and Conditions, failing which the third party shall be bound by the General Terms and Conditions as if it were the Customer itself.
4.4. Simracing Centre has the right to engage third parties for the execution of the Agreement.
4.5. Except for the explicit written consent of Simracing Centre, the Customer is not allowed to transfer rights or obligations under the Agreement to third parties.
4.6. Simracing Centre is authorised to refuse a request to enter into an Agreement in whole or in part for reasons of its own, or to suspend the execution of already running Agreements. This power may be invoked inter alia because of the content, nature, purport or form of such request, as well as because of technical objections, refusal of (advance) payment or conflict of the request with the interests of Simracing Centre or third parties including other Customers.
4.7. If the Customer fails to fulfil its obligations under the Agreement towards Simracing Centre, Simracing Centre shall have the right to suspend and stop the performance of the Agreement forthwith or to fully or partly annul, cancel or change the Agreement. As a result of such suspension, dissolution, cancellation or modification Simracing Centre can never be held to any compensation of damages to the Customer. The Customer however shall be obliged to compensate all damages resulting from the delay caused by the suspension, also towards third parties and he shall indemnify Simracing Centre in this respect.
4.8. The Customer cannot rely on an Agreement, if before or during the execution of the Agreement it appears that the information, notifications and declarations provided by the Customer (whether in writing, orally, by telephone or otherwise) are incorrect or incomplete. In such case Simracing Centre reserves the right to not or not further execute an Agreement. In such case Simracing Centre can never be held liable for any compensation of damage suffered by the Customer, without prejudice to the right and the possibility of Simracing Centre to claim compensation of damage towards the Customer or to execute the Agreement for a higher price than agreed, which payment the Customer shall be obliged to pay.
Article 5. Content and amendment of the Agreement
5.1. The Customer bears the risk of misunderstandings with regard to the contents and execution of the Agreement if these are caused by documents, data and information not, not correctly, not timely or incompletely received by Simracing Centre orally or by a person appointed by the Customer for this purpose or transmitted by any technical means such as telephone, email and similar transmission media.
5.2. The Customer cannot derive any rights from advice and information received from Simracing Centre if they do not directly relate to the Agreement.
5.3. Whole or partial amendment of the Agreement by the Customer is only possible if Simracing Centre agrees to this in Writing. If a full or partial change of the Agreement results in additional costs, Simracing Centre has the right to charge the Customer with a compensation, to the extent that all additional costs will be charged to the Customer. The Customer shall furthermore be fully liable towards third parties for the consequences of the change in the Agreement and indemnifies Simracing Centre in this respect.
5.4. Subject to the explicit Written consent of Simracing Centre, the Customer shall not be entitled to cancel the Agreement.
5.5. In case of a (certain) time-bound Service it is the responsibility of the Customer to be present at the agreed time. If the Customer appears later than at the agreed time, the Customer shall lose the time scheduled and paid for for that purpose.
5.6. In case Simracing Centre or a third party engaged by it is late, Simracing Centre will ensure a full one session with full time. In case of technical problems, the time will be paused to ensure that the Customer still gets the full time.
5.7. If during the execution of the Agreement it appears in the opinion of Simracing Centre that for the purpose of a proper execution it is necessary to change and/or supplement the performances to be performed, Simracing Centre shall notify the Customer of this, after which the Agreement shall be changed, wholly or partly, as the case may be. Simracing Centre can never be obliged to compensate the Customer for any damage as a result of such modification.
Article 6. Prices and price changes
6.1. All prices quoted by Simracing Centre are in euros (€) and are exclusive of sales tax and other government levies and increases, unless explicitly stated otherwise.
6.2. Special offers are only valid for the period of validity as stated with the offer.
6.3. Simracing Centre shall be entitled to increase the agreed prices and rates inter alia in case of interim increases and/or allowances on prices of goods, costs of materials, semi-manufactured products or services required for the execution of the Agreement, shipping costs, wages or social security charges, depreciation of the agreed currency and all other government measures which increase the cost price. As the occasion arises, the Customer will be notified thereof In Writing as soon as possible.
6.4. Simracing Centre reserves the right to change or stop the sale of (certain) Products and/or Services (or part or content thereof) at any time without prior notice. Simracing Centre shall not be liable to the Customer or to third parties for any change, price change, suspension or discontinuation of the Products and/or Services.
6.5. Obvious (writing and/or manipulation) errors in the quotation, such as obvious inaccuracies, can be corrected by Simracing Centre even after the Agreement has been concluded.
6.6. Unless explicitly stated otherwise, delivery costs for the delivery of Products are not included in the price. Special rates apply for delivery outside the Netherlands. Simracing Centre shall specify the costs of delivery, which shall be for account of the Customer, to the Customer at the conclusion of the Agreement.
6.7. With regard to certain payment methods further conditions may apply with regard to the delivery method and related costs. This will be communicated to the Customer.
6.8. If after the conclusion of the Agreement the prices for the realisation of the Agreement undergo an increase before Simracing Centre has fully performed its obligations under the Agreement, Simracing Centre shall be entitled to adjust and change its prices accordingly, if and insofar as three (3) months have passed after the conclusion of the Agreement.
Article 7. Payments
7.1. Simracing Centre is committed to ensuring that the Customer can pay safely and reliably. This especially plays a role if the Customer pays via the internet. To this end Simracing Centre has taken a number of steps to ensure that the Customer can pay safely. However, Simracing Centre bears and accepts no responsibility or liability whatsoever in this respect.
7.2. Simracing Centre offers the Customer - depending on the Product and Service concerned - a number of payment options, including but not limited to payment by credit card and/or payment through PayPal. The payment options will be communicated to the Customer on the Website or otherwise.
7.3. A number of payment methods can only be used if the conditions of such methods, including a check of the Customer's creditworthiness and authentication, as well as authorisation, are met.
7.4. In case a payment method is chosen by credit card, the conditions of the relevant card issuer shall apply. Simracing Centre is not a party in the relationship between Customer and the card issuer.
7.5. All orders by means of distance selling shall be paid in advance by the Customer. Before the stipulated advance payment has taken place, the Customer cannot claim any right to the execution of the order concerned. Simracing Centre uses the payment date as order date.
7.6. If after the conclusion of the Agreement it appears that the payment made by the Customer has been withdrawn by him or by third parties, this shall result in an immediately due and payable claim of Simracing Centre against the Customer.
7.7. A Business-customer cannot invoke any right of discount, suspension or deduction. Compensation by Business-customer is only allowed if Simracing Centre has acknowledged Business-customer & claim In Writing.
7.8. A Business-customer shall at all times and irrespective of the agreed payment terms, be obliged to provide security for the payment of the amounts to be paid to Simracing Centre under the Agreement at Simracing Centre & first request. The security offered shall be such, that the claim with the possible interest and costs thereon is adequately covered and that Simracing Centre will be able to recover the claim without difficulty.
7.9. Any later insufficient security shall be supplemented to an adequate security at the first request of Simracing Centre.
7.10. In case a Business-customer fails to pay on time, the Business-customer shall be in default by operation of law and shall owe a contractual interest of 2% per month (cumulative) over the amount due, whereby each month shall count as a full month, without prejudice to any other rights Simracing Centre may have towards the Business-customer due to non or late payment.
7.11. In case a Consumer-customer exceeds the fatal term of payment, the Consumer-customer shall be in default by operation of law and shall thereafter be liable to pay the statutory interest on the amount due, whereby each month lapsed shall count as a full month, without prejudice to the other rights Simracing Centre may enforce against the Consumer-customer due to non or late payment.
7.12. In case Simracing Centre is forced to surrender its claim, it shall apply to a Business-customer that, apart from his further claims for damages, all costs related thereto shall be for the account of the Business-customer, both judicial and extrajudicial, which latter shall be fixed at 15% of the amount to be claimed, with a minimum of € 750,-- (seven hundred and fifty euro). The amount to be claimed in this case means the total of the outstanding invoice amounts plus the (contractual) interest due. For a Consumer-customer applies that if Simracing Centre is forced to outsource its claim, the costs involved will be at the expense of the Consumer-customer, both judicial and extrajudicial, which latter extrajudicial collection costs will be charged according to “the Compensation for Extrajudicial Collection Costs Decree.” The amount to be claimed in this casemeans the total of the outstanding amounts plus the statutory interest due and the collection costs.
Article 8. Delivery, delivery times and retention of title
8.1. The delivery times given by Simracing Centre are only indicative and never to be considered as deadlines. Simracing Centre may give further information on the delivery times on the Website or by other means in writing or orally upon request. Such information is only indicative.
8.2. The mere expiry of a delivery time does not constitute default on the part of Simracing Centre, not even in case of a fatal term of delivery agreed in Writing. Exceeding of any delivery period does not entitle the Customer to compensation nor does it entitle the Customer to cancel the order or dissolve the Agreement, unless the exceeding of the delivery period is such that the Customer can reasonably no longer be required to maintain the Agreement.
8.3. The Customer expressly agrees that the delivery of (certain) Services takes place by Simracing Centre providing the Customer access to a (suitable) online environment, in which (certain) Services are made available to the Customer, or the Customer is enabled to download (certain) Services. As an extension thereof the Customer explicitly agrees that the delivery of (certain) Services takes place because Simracing Centre has started the performance of (certain) Services or the Agreement and therefore it is no longer possible to revoke (certain) Services, in accordance with article 12 (2).
8.4. The Customer shall furthermore be obliged during the execution of the Agreement by Simracing Centre to do all that is reasonably necessary or desirable to make a timely delivery by Simracing Centre possible.
8.5. Simracing Centre is not obliged to deliver Products in parts, however Simracing Centre has the right to deliver the Agreement in parts. In case of partial deliveries each delivery shall be considered a separate transaction.
8.6. If a Product that is temporarily out of stock is ordered by the Customer, it will be indicated when the Product will be available again. Delays will be notified to the Customer In Writing or by telephone.
8.7. As soon as the Products to be delivered have been delivered to the Customer at their destination, the risk in respect of the Products shall pass to the Customer. If the Products to be delivered are unsuccessfully presented at the delivery address specified by the Purchaser and/or delivered to the post office or to the Purchaser’s neighbours (if the Purchaser has explicitly indicated this in advance), the risk will pass at the moment when the Products have been unsuccessfully presented and/or delivered to the post office or to the Purchaser’s neighbours.
8.8. Different conditions may apply to deliveries of Products outside the Netherlands.
8.9. The method of packaging, shipping and choice of packaging material shall be determined by Simracing Centre. Empty packaging, unless otherwise agreed in Writing, shall not be taken back by Simracing Centre.
8.10. The ownership of the Products, notwithstanding the actual delivery, will only be transferred to the Customer after the Customer has paid in full all he owes in respect of the Agreement with Simracing Centre, including payment of interest and costs, also of earlier or later deliveries and any possible activities carried out or to be carried out in respect of the Products.
8.11. The Customer is obliged and obliged to immediately notify Simracing Centre In Writing if third parties wish to enforce rights on Products subject to retention of title under this article.
Article 9. Right of withdrawal Consumer-customer
9.1. In case of a distance purchase of a Product, a Consumer-customer may dissolve the Agreement without giving reasons during a period of fourteen (14) days (cooling-off period). Simracing Centre may ask the Customer about the reasons for withdrawal, but shall not oblige the Customer to give its reasons.
9.2. The cooling-off period referred to in paragraph 1 of this article starts the day after the Customer, or a third party designated in advance by the Customer, who is not the carrier, has received the Product, or:
a. if the Customer has ordered several Products in the same order: the day on which the Customer, or a third party designated by him, has received the last Product. Simracing Centre may, provided it has clearly informed the Customer about this prior to the ordering process, refuse an order of several Products with different delivery times;
b. if the delivery of a Product consists of several shipments or parts: the day on which the Customer, or a third party designated by it, has received the last consignment or the last consignment or part;
c. in the event of Agreements for regular delivery of Products during a certain period: the day on which the Customer, or a third party designated by it, has received the first Product.
9.3. During the cooling-off period, the Customer shall handle the Product and its packaging with care. He shall only unpack or use the Product to the extent necessary to establish the nature, characteristics and operation of the Product. The starting point here is that the Customer may only handle and inspect the Product as he would be allowed to do in a shop.
9.4. The Customer is liable for depreciation of the Product resulting from a manner of handling the Product beyond that permitted in the previous paragraph.
Article 10. Exercise of the right of withdrawal by Consumer-customer and its costs
10.1. If Consumer-customer wishes to exercise his right of withdrawal, he shall make this known to Simracing Centre within the cooling-off period. Consumer-customer must make this known by sending a completed Model Form to info@simracing-centre.com, which form is attached at the end of the General Terms and Conditions, or by making the right of withdrawal known to Simracing Centre in another unambiguous way.
10.2. As soon as possible, but in any case within seven (7) days from the day following the notification referred to in paragraph 1 of this article, Consumer-customer shall return the Product, or hand it over to (an authorised representative of) Simracing Centre. The Customer has in any case complied with the return period if he returns the Product before the cooling-off period has expired.
10.3. Consumer-customer shall return the Product with all delivered accessories, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by Simracing Centre.
10.4. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lies with Consumer-customer.
10.5. If Consumer-customer has not made known within the withdrawal period that he wants to exercise his right of withdrawal, respectively has not returned the Product to Simracing Centre within the return period, the purchase is final and the right of withdrawal lapses.
10.6. The costs for returning the Product shall be borne by Consumer-customer, unless explicitly agreed otherwise In Writing.
Article 11. Obligations of Simracing Centre in case of withdrawal
11.1. If Simracing Centre enables the notification of withdrawal by Consumer-customer by electronic means, it shall send a confirmation of receipt as soon as possible after receipt of this notification.
11.2. Simracing Centre shall reimburse all payments made by Consumer-customer, excluding delivery costs charged by Simracing Centre for the returned Product, without delay but within fourteen (14) days following the day on which Consumer-customer notifies its withdrawal. Simracing Centre may withhold reimbursement until it has received the Product or until Consumer-customer proves that he has returned the Product, whichever is earlier.
11.3. Simracing Centre shall use the same means of payment that Consumer-customer used for reimbursement, unless Consumer-customer agrees to another method. The refund is free of charge for Consumer-customer.
11.4. If Simracing Centre, contrary to what is stipulated in paragraph 2 of this article, proceeds to reimburse any delivery costs, this should be seen as entirely voluntary and Consumer-customer cannot claim this. If Consumer-customer has chosen a more expensive method of delivery than the cheapest standard delivery, Simracing Centre shall not refund the additional costs for the more expensive method of delivery.
Article 12. Exceptions to the right of withdrawal
12.1. Exceptions to the right of withdrawal are distance selling:
a. of products of which the price is bound to fluctuations on the financial market, on which Simracing Centre has no influence, and/or
b. of products which: (i) have been made in accordance with the specifications of the Customer; (ii) are clearly personal in nature; (iii) cannot be returned due to their nature; (iv) can spoil or age quickly; (v) of newspapers or magazines, and/or
c. of audio and video recordings, computer equipment, software or other similar products, if Consumer-customer has broken the seal, and/or
d. of travel.
12.2. Prior and upon entering into the Agreement, the Customer is expressly informed that he waives his right to revoke the Agreement regarding a Service, within the statutory cooling-off period of fourteen (14) days. By extension, a Customer has expressly agreed that he waives his statutory cooling-off period so that he can use a Service immediately.
Article 13. Warranties and claims
13.1. Simracing Centre shall endeavour that the Products and/or Services delivered by it comply with the indicated specifications, with the reasonable requirements of reliability and/or usability and do not conflict with existing government regulations.
13.2. Without prejudice to the provisions of this article, there can be no question of a guarantee if wear and tear to the Product can be considered normal and further in the following cases:
a. if changes have been made in or to the Product, including repairs not carried out with the consent of Simracing Centre or the manufacturer;
b. if defects to the Product are the result of improper or injudicious use;
c. if damage to the Product is caused by intent, gross negligence or negligent maintenance on the part of the Customer.
13.3. In case there is a defect that the Customer should have discovered after delivery and the Customer does not notify Simracing Centre of this defect without delay, but no later than within eight (8) days, the Customer shall be deemed to agree with the condition in which the concerned Products and/or Services have been delivered and his claims towards Simracing Centre in this respect shall lapse.
13.4. The Customer shall be obliged to accurately specify the faults and defects found by it and to submit relevant evidence, including sound photographic material. The right to (partial) refund of the price, repair or replacement of the Product and/or Service shall lapse if defects are not reported within the term(s) set out in this article, unless a longer term follows from all relevant circumstances of the case.
13.5. Simracing Centre shall immediately be enabled to check the errors and defects found by the Customer. If the errors and defects found by the Customer are justified, Simracing Centre shall have the choice either to pay the invoice value with regard to the Product and/or Service or in consultation with the Customer to take care of an adequate solution such as repairing the errors and defects free of charge or replacing the Product and/or Service concerned.
13.6. The Products and/or Services delivered by Simracing Centre shall in any case be considered sound, if the Customer has put into use, processed or treated the delivered Products and/or Services, or has had them put into use, or has had them processed, unless the Customer has observed the provisions of this article.
13.7. With regard to (certain) Services there is an obligation of best efforts. Simracing Centre can therefore not give any guarantee with regard to achieving the result desired by the Customer.
Article 14. Liability and damages
14.1. Simracing Centre shall not be liable for damages suffered by the Customer, unless these are the direct result of an attributable shortcoming or a wrongful act of Simracing Centre. In such case Simracing Centre shall only be liable to the extent this liability is covered by the insurance of Simracing Centre up to the amount of the payment made by the insurer.
14.2. If for whatever reason the insurer of Simracing Centre does not pay out or the damage is not covered by the insurance, the liability shall be limited to a maximum of the invoice amount of the Agreement, with a maximum amount of € 5.000,-- (in words: five thousand euro).
14.3. The limitation of liability of Simracing Centre shall not apply if there is intent or wilful recklessness on the part of Simracing Centre.
14.4. Further to what is stipulated in this article, Simracing Centre shall not be liable due to the mere fact that the result desired by the Customer is not achieved or is revoked, annulled or otherwise called into question by third parties (such as government bodies and/or a judge). Simracing Centre therefore does not accept any liability in this respect.
14.5. If the Agreement is carried out for the benefit of several (legal) persons, the limitation of liability with regard to the Agreement shall apply to all (legal) persons involved jointly and they themselves shall mutually arrange for division of the maximum damages to be paid.
14.6. The Customer indemnifies Simracing Centre against claims of any other party that may arise due to the Customer not or not correctly fulfilling an obligation under the Agreement and/or the General Terms and Conditions. This does not apply if (i) the Customer can prove that the damage does not relate to a culpable act or omission attributable to him or (ii) this damage has been caused by intent or deliberate recklessness of Simracing Centre. This indemnification also applies towards third parties engaged by Simracing Centre and employees of Simracing Centre, as well as towards companies affiliated with Simracing Centre.
14.7. Any rights of action and recourse shall only be exercised by the Customer and/or its affiliates against Simracing Centre. Any action, claim, claim for damages or otherwise in connection with the Agreement and/or General Terms and Conditions, shall not be brought by the Customer against the (current or former) employees, directors and (directors of) shareholders of Simracing Centre. They may rely on this provision and if necessary the aforementioned shall apply as an irrevocable third party clause for no consideration.
14.8. Simracing Centre shall not be liable for consequential damage, indirect damage, loss of profits, immaterial damage and/or punitive damage. Simracing Centre shall furthermore not be liable in case of force majeure, as described in article 15 of the General Terms and Conditions.
14.9. Simracing Centre shall not be liable for damage concerning mistakes made because the Customer or a third party has provided incorrect or incomplete information.
14.10. If Simracing Centre makes use of a third party for the execution of the Agreement, this shall take place under the sole responsibility of Simracing Centre. The Customer and/or its affiliates shall not hold a third party involved in the execution of the Agreement, its (current or former) employees, directors thereof and (directors of) shareholders thereof liable in connection with the execution of the Agreement. They may invoke this provision and, if necessary, the aforementioned shall apply as an irrevocable third party clause for no consideration. In case of breach of this provision Simracing Centre shall be entitled to compensation of damages and costs resulting therefrom.
14.11. The Customer shall report any damage for which Simracing Centre can be held liable to Simracing Centre as soon as possible but in any case within ten (10) days after the damage has arisen, under penalty of forfeiting any right to compensation of the damage.
14.12. Notwithstanding the statutory limitation periods, the Customer's rights of action resulting from the Agreement and other powers vis-à-vis Simracing Centre shall lapse after the expiry of one (1) year after the damage for which the Customer holds Simracing Centre liable has manifested itself for the first time and shall in any case lapse after the lapse of three (3) years after the damage-causing event has occurred.
Article 15. Force majeure
15.1. Circumstances beyond the will and control of Simracing Centre, whether or not foreseeable at the time of concluding the Agreement, which are of such nature that compliance with the Agreement can no longer reasonably be required from Simracing Centre, shall be considered force majeure, regardless permanent or temporary, and shall release Simracing Centre from its obligations to perform.
15.2. Force majeure shall in any case mean: war, terrorism, pandemics, riots, natural disasters, storm damage, fire, earthquakes, floods, abnormal weather conditions, snow, snowfall, frost, ice conditions, strikes, exclusion of or lack of personnel, deficiencies in auxiliary and transport means, problems at sea, traffic obstructions, theft of goods, disruptions in electricity supplies, internet connections and cable, telephone or other communication networks such as e-mail, default of third parties engaged by Simracing Centre, as well as all obstructions caused by government measures. Force majeure on the part of suppliers and Customers (overseas) of Simracing Centre as well as delivery problems in case of so called difficult to deliver addresses also fall under this force majeure provision.
15.3. In case of force majeure Simracing Centre has the right to terminate the Agreement in whole or in part without judicial intervention, without the Customer being able to claim damages.
Article 16. Intellectual property rights
16.1. The Customer explicitly acknowledges that all intellectual property rights with regard to the Products, Services and/or with regard to the Website belong to Simracing Centre, its suppliers or other claimants.
16.2. Intellectual property rights mean patent, copyright, trademark, trade name, design and model rights and/or other (intellectual) property rights, also including sui generis rights to databases and topography of semiconductor products, or other products, as well as, whether patentable or not, technical and/or commercial know-how, methods, concepts and trade secrets.
16.3. With regard to Products and/or Services of the mind that Simracing Centre uses or has used, or develops or has developed in relation to the Agreement and in respect of which Simracing Centre holds the copyrights or other rights of intellectual property or can enforce them, it reserves all rights of intellectual property.
16.4. Without explicit Written consent of Simracing Centre, following paragraph 3 of this article, the Customer is not allowed to disclose, duplicate and/or exploit Products and/or Services, whether or not with the involvement of third parties. These Products include advice, reports, working methods, (model) contracts, trademarks and logos and other intellectual products of Simracing Centre, all this in the broadest sense of the word. The Customer is only allowed to multiply the written documents for its own use, if this is appropriate within the purpose of the Agreement.
16.5. Simracing Centre declares to the best of its knowledge that Products and/or Services delivered by it do not infringe any intellectual property rights of third parties applicable in the Netherlands. If an action for infringement of such rights has been instituted or if the possibility thereof exists, Simracing Centre may, at its option, inter alia replace or modify the relevant trademark or product, or acquire the right to continue the use of such trademark or product, or terminate the Agreement in whole or in part with refund to the Customer of the price paid by the Customer for the Product and/or Service in question, if necessary withholding a reasonable amount of depreciation.
16.6. The Customer shall notify Simracing Centre in Writing as soon as possible of any liability claim or legal action brought against it, based on the proposition that the goods sold by Simracing Centre infringe valid intellectual property rights. 16.7. Simracing Centre shall not accept any liability on account of any infringement as referred to in paragraphs 6 and/or 7 of this article, if the infringement is related to the fact that the Customer has adapted or modified a Product and/or Service without Simracing Centre’s express Written consent.
16.8. The Website and all parts thereof, with the exception of certain hyperlinks, are the property of Simracing Centre. You may not disclose, copy or store the Website or any part thereof without the express Written consent of Simracing Centre. This permission is not required for personal, non- commercial use.
16.9. In case of breach of one or more provisions of this clause by the Customer, the Customer shall owe Simracing Centre an immediately payable fine of € 5,000.-- plus a fine of € 500.-- for each day the breach continues. Simracing Centre shall be entitled to claim additional damages if the damage exceeds the fine amount.
Article 17. Trade secrets
17.1. The Customer expressly acknowledges that all information which becomes known to it within the framework of (the execution of) Services are trade secrets within the meaning of the Dutch Trade Secrets Protection Act (Wet Bescherming Bedrijfsgeheimen) and therefore of a strictly confidential nature.
17.2. The Customer shall observe all (reasonable) measures for the security and confidentiality of all information which becomes known to him in the context of (the performance of) Services.
17.3. The Customer is not allowed, without prior explicit Written consent of Simracing Centre, to use the information obtained from Simracing Centre within the framework of (the performance of) Services for purposes other than private use, to provide it to third parties, to exploit it, to make it public, to share it (whether or not for a fee or free of charge), to multiply and/or reproduce it directly or indirectly.
17.4. In case of breach of one or more provisions of this clause by the Customer, the Customer shall owe Simracing Centre an immediately payable fine of € 25,000.-- plus a fine of € 5,000.-- for each day the breach continues. Simracing Centre shall be entitled to claim additional damages if the damage exceeds the fine amount.
Article 18. Prohibitions
18.1. The Customer may not encumber, sell, resell, alienate or otherwise encumber the Products and/or Services.
18.2. Furthermore, the Customer is not allowed to offer similar Products and/or Services as Simracing Centre without prior explicit Written consent of Simracing Centre, let alone to use the information obtained from Simracing Centre within the framework of (the execution of) Services to compete directly or indirectly with Simracing Centre.
18.3. In case of breach of one or more provisions of this clause by the Customer, the Customer shall owe Simracing Centre an immediately due and payable penalty of € 5,000.--, increased by a penalty of € 500.-- for each day the breach continues. Simracing Centre shall be entitled to claim additional damages if the damage exceeds the fine amount.
Article 19. User comments, feedback and other submissions
19.1. If the Customer sends certain specific submissions (e.g. contest submissions) or creative ideas, suggestions, proposals, plans or other materials, whether online, by email, by post or otherwise, the Customer agrees that Simracing Centre may at any time - without limitation - edit, copy, publish, distribute, translate and otherwise use submissions sent by the Customer to Simracing Centre in any medium.
19.2. Simracing Centre may - but shall have no obligation to - monitor, edit or remove any content of Submissions which, in Simracing Centre’s opinion, is unlawful, offensive, threatening, defamatory, pornographic, obscene or otherwise objectionable or infringes any party's intellectual property or the General Terms and Conditions.
19.3. Customer agrees that Submissions do not violate any third party rights, including copyright, trademark, privacy, personality or other personal or proprietary rights. Customer further agrees that Submissions will not contain any defamatory or otherwise unlawful, offensive or obscene material, or any computer virus or other malware that could in any way affect the operation of the Products and/or Services or the Website. By extension, Customer may not use a false email address, impersonate anyone other than or otherwise mislead Simracing Centre or third parties as to the origin of submissions.
19.4. The Customer shall be solely responsible for all comments or submissions and their accuracy and shall indemnify Simracing Centre in respect of claims by any other party.
Article 20. Privacy and personal data
20.1. Simracing Centre shall only process Customer data in accordance with its privacy policy which can be found on the Website. Simracing Centre will observe the applicable privacy regulations.
20.2. Simracing Centre is committed to treat the data provided by the Customer carefully and confidentially. When the Customer visits the Website and/or places an order various data are collected in order to offer the Customer an optimal service. The data of Customer are registered by Simracing Centre in a database.
20.3. The data processed by Simracing Centre are on the one hand the data the Customer has entered on the appropriate screen of the Website. The data provided by the Customer concerns name, address, email address et cetera. On the other hand, these are the so-called 'traffic data' of the Customer when visiting the Website. For instance, the IP address of the Customer's computer is registered. Also, the surfing behaviour of the Customer on the website will be looked at. Finally, Simracing Centre may ask for the name, address and place of residence of the Customer, in case the Customer for example responds to a promotion or a contest.
20.4. The Website may contain advertisements of third parties or links to other websites. Simracing Centre has no influence on and is not responsible for the privacy policy of these third parties or their websites.
20.5. Simracing Centre maintains a security level with regard to the Customer's data that is appropriate to the nature of the data to be protected. This is done among other things by using a firewall that ensures that unauthorised persons cannot access the Customer's data and certificates that encrypt data traffic between the Customer’s computer and Simracing Centre, so that third parties cannot read that information. Simracing Centre bears and accepts no responsibility or liability whatsoever. Only those persons appointed by Simracing Centre within the framework of their assigned tasks have access to the registrations.
20.6. Unless the Customer has explicitly given his consent, Simracing Centre will not use the data for promotional activities nor make the data available to third parties, except in so far it is forced to do so by law and/or in case the Customer has opted for payment on credit. In the latter case, a credit check will be carried out by a third party.
20.7. The Customer is always free to ask Simracing Centre which data about him have been processed. The Customer has the right to inspect and correct his data. If the Customer wishes to have his data removed from the database, he can indicate this in writing by e-mail. Changes shall be entered and processed as soon as technically feasible.
20.8. If the Customer indicates to Simracing Centre that he does not wish to receive direct commercial communication by post, telephone, e-mail, and the like, Simracing Centre will respect this, as far as it is in its power to do so.
Article 21. Applicable law and competent court
21.1. Dutch law shall exclusively apply to Agreements to which the General Terms and Conditions apply and further agreements resulting therefrom.
21.2. If a Consumer-customer is a resident of the European Economic Area (hereinafter: “EEA”), all disputes arising from or relating to the Agreement and all resulting Agreements to which the General Terms and Conditions apply shall be settled between the parties by the competent court under the law. In case a Business-customer is located within the EEA, all disputes arising from or related to the Agreement and all resulting agreements to which the General Terms and Conditions apply between the parties shall be settled exclusively by the District Court of Noord-Holland, location Alkmaar (the Netherlands).
21.3. If a Consumer-customer is not a resident of the EEA or a Business-customer is not established within the EEA, all disputes arising from or related to this Agreement and all resulting agreements to which the General Terms and Conditions apply between the parties shall be settled exclusively in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The arbitral tribunal will consist of one arbitrator, who will be appointed in accordance with the list procedure. The place of arbitration will be Amsterdam. The proceedings will be conducted in English and the arbitral tribunal will decide according to the rules of Dutch law.
Article 22. Amendment and interpretation of the General Terms and Conditions
22.1. The General Terms and Conditions may be amended and modified. Any future amendments and modifications shall also apply in respect of Agreements concluded before the date of amendment and modification, unless expressly agreed otherwise in writing.
22.2. Amendments and adjustments shall enter into force twenty-one (21) days after publication, unless otherwise stated upon publication.