Terms and Conditions Commodore Gaming B.V. TERRITORIES: UK & Ireland These Terms and Conditions are valid from 01/04/2007 until further notice.
1. This Document explained:
1.1 This document (the "Terms and Conditions") forms part of an agreement between Commodore Gaming BV (“Commodore”) and you, the Customer.
1.2 The Terms and Conditions together with the (A) Descriptions of Services and/ or (B) Descriptions of Products and (C) Pricing applicable to the Products & Services together complete the Commodore "Agreement" with you, the Customer. This Agreement is a legally binding document, which should be read carefully and fully understood by the Customer.
1.3 Commodore requires a written record of all transactions and therefore any and all changes to this Agreement must be done in writing to have effect.
1.4 This Agreement does not affect the Customer’s statutory rights.
2. Definitions
Conditions: the terms and conditions relating to this document;
Customer: an individual person who buys or agrees to buy Products and/ or Services from Commodore for private use;
Commodore: the Commodore Gaming B.V. company as identified in your Order Confirmation and/ or invoice;
Description: a document, part of the Agreement which describes a Product and/ or Service that Customers may buy (purchase) from Commodore;
Indemnify: promise to be responsible for another's loss, damage, liability or penalty including promise to compensate for any loss, damage, liability or penalty which occurs;
IP: (Intellectual Property), patents, trade marks, registered designs, & applications for same, copyright, design rights, know-how, trade & business names & any other similar protected rights in any country and/ or region;
Order: request by Customer to purchase Product(s) and/ or Service(s) from Commodore;
Order Confirmation: a written acceptance by Commodore of Customer's Order;
Price: the total charge for Products and/or Services to be paid by Customer to Commodore;
Products: an individual item (good), software included, described in any current document published by Commodore physically and/ or on its internet site, or in any Order Confirmation and which Customer buys or agrees to buy from Commodore.
Services: service and support, carried out by or for Commodore in accordance with the Service Offering;
Service Offering(s): the Service options offered by Commodore, described in any current document published by Commodore physically and/ or on its internet site, or in any Order Confirmation;
Software: OS (computer operating systems), middleware, firmware, applications or other software that is owned by, manufactured by or licensed to Commodore;
Third Party Products: products sold by Commodore that have not been developed, produced or created by Commodore.
Third Party Software: OS (computer operating systems), middleware, firmware, applications or other software from a third party licensor.
3. Product and Service Quotations, Orders and Changes
3.1 Quotations from Commodore are only valid if in writing and for 14 days after the quotation date, unless otherwise stated in the quotation.
3.2 All Orders for Products and/ or Services shall be regarded as an offer by Customer to purchase Products and/or Services under the terms of this Agreement.
3.3 Commodore accepts Customer's offer to purchase under this Agreement and makes a binding Agreement by issuing an Order Confirmation. An Order Confirmation is binding except where there is a discrepancy between Order Confirmation and what Customer ordered and where such discrepancy is unacceptable to the Customer. It is recommended that Customer review the Order Confirmation and notify Commodore within a reasonable period of time of any discrepancies that are noticed.
3.4 Commodore reserves the right to make changes to ordered specifications but will identify any such changes in the Order Confirmation. Commodore guarantees that any such changed Products will offer at least equivalent performance and functionality. Commodore will not make any significant variations to Products and/ or Services without Customer's prior agreement and except as provided for above, will manufacture & deliver Product in accordance with the Order Confirmation.
4. Price and Payment
4.1 The Price that Customers have to pay will be published on Commodore's Order Confirmation and invoices.
4.2 Payment to Commodore shall be made before supply of Product and/ or Service. Commodore may suspend delivery of Product and/ or Service until full payment is received. If Commodore has delivered Product and/ or Services and the Product and/ or Services remain neither paid for nor made available for collection when reasonably demanded then Commodore may recover the outstanding payment and/ or Product and the recovery costs are to be paid by the Customer.
5. Delivery
5.1 The delivery date, published in the Order Confirmation is an estimate.
5.2 The place of delivery is as stated in the Order Confirmation.
5.3 Products and/ or Services may be delivered by instalments for practical reasons. If delivery in instalments is necessary, this fact shall be communicated to Customer.
5.4 Delivery of Products and/ or Services will take place within 45 days after the date of Order unless specifically otherwise written agreed at the time of making the Order.
5.5 In the case that the estimated delivery date cannot be met and the new delivery date exceeds 45 days from the original date of order then Customer will be contacted and advised to propose a new date for delivery. If Customer refuses the revised delivery date and delivery is not made within 45 days from the original date of order or prior to the specifically written agreed delivery date if applicable, then Customer may cancel the order without charge and obtain a full refund.
5.6 Where Product and/ or Services is/ are delivered in instalments, then, unless expressly otherwise agreed at the time of placing the Order, these instalments will be delivered within 45 days of placing the Order.
6. Passing of Ownership & Risk
6.1 The ownership of Products passes to Customer on the later of receipt by Commodore of full payment or delivery to Customer of Product. Commodore may recover any Products supplied at any time prior to ownership passing if Customer is in breach of these Conditions.
6.2 Risk explained: A: within the period of time as specified in clause 7.3, a duty to take reasonable care of Product received and B: after the period specified in Clause 7.3 responsibility for damage caused by use, to handling or storage of the Product, passes to Customer on delivery of Products to Customer or to their representative.
7. Cancellation, rights of return, Cooling Off period and Acceptance of Products on Delivery
7.1 The Customer should notify Commodore immediately if there is:
any Product missing, incorrectly delivered, incorrectly specified (subject to Clauses 3.3 & 3.4), containing visible damages, non-visible damages and or defects.
7.2 If Product can be returned to Commodore by Customer under the terms of this Agreement, the Product should be made available for collection at a time which is mutually convenient so far as possible. Customers need to act reasonably in complying with a request by Commodore to collect Product at a particular date and time.
7.3 Customer may cancel their Order for any reason until, but no later than:
7.3.1 the end of the 7th business day (days excluding weekend days & public holidays) after the day of receipt of the Product or of the Order Confirmation (as applicable); or
7.3.2 the end of the 7th business day after the date when all such material required by law is supplied.
7.4 Customers' right to cancel Software that is supplied on CD, DVD or other similar storage devices is not applicable if the Software is unwrapped.
7.5 In the case of cancellation of Products, the Customer shall return the Products to Commodore in their original condition, undamaged and at the cost of Customer. Customer must take reasonable precautions to ensure that the Products are not damaged during transportation back to Commodore which shall be arranged by Customer. Whilst in possession of the goods, Customer has a duty to take reasonable care of the Products and Commodore reserves the right take action against Customer for Products returned which have been made unfit for resale and/ or damaged whilst in the possession of Customer, which includes during the transportation arranged by Customer.
7.6 The provisions of Clauses 7.3, 7.4 & 7.5 do not apply to Product or Software that was damaged or defective prior to receipt of the Product by Customer so long as Customer notified Commodore about these damages and/ or defects as per clause 7.1 above.
7.7 On cancellation of the Order Commodore will refund the price paid, less any direct cost of recovering the Products (if applicable), within a period of 30 days from date of cancellation.
8. Support, Warranty and Repair
8.1 Commodore will fulfil its legal obligations to repair and/ or replace Products. These obligations are dependent upon proper use of Products and do not cover any parts of Products which have been modified or repaired without Commodore's prior written approval.
8.2 Commodore's obligations do not apply to:
The consumable components of consumable items (like toner for printer cartridges) or if a defect is caused by an external cause such as fair wear & tear, hardware or software loaded onto or connected to Product by Customer where this hardware or software has not been supplied by Commodore, hazard, an accident, humidity control, electrical stress and/ or other environmental conditions not commonly found in a safe home environment.
8.4 Product parts that are not critical to the function of the Product, including but not limited to frames, doors, hinges, cosmetic features are not serviced and/ or repaired.
8.5 Commodore's obligations under its Service Offerings are as stated in the Descriptions for those Service Offerings. Commodore will use all reasonable efforts to meet response times estimated in the Service Offerings but actual timings may vary depending, among other factors, on weather conditions, availability of components, the accessibility or remoteness of Customer's location..Notwithstanding the above, the following are excluded from Service unless stated otherwise in the Service Offering: transfer of data, transfer of Software, transfer of viruses, repairs to Products that are functioning within industry standards (including without limitations defective pixels on monitors), removal of non-Commodore supplied hardware or software and preventative maintenance. Customer is responsible for removal of all non-Commodore supplied products.
8.6 Commodore does not provide Commodore Service Offerings for Third Party manufactured Software or Products. If Commodore is permitted to do so, Commodore will pass Service Offerings (the benefit of any warranty or guarantee given by the manufacturer or supplier of Third Party Products) to Customer.
8.7 Services may be provided via telephone or Internet where appropriate. Customer must provide Commodore with all reasonable courtesy, information and co-operation to enable Commodore to deliver the Services and shall be responsible for all telephone & postal charges in contacting Commodore.
8.8 Commodore shall make repairs as required by law and where applicable under Service Offerings by using components which are new or equivalent to new in accordance with industry standards and practice. Products will be repaired using parts which will work for the balance of the statutory entitlement period and/ or the Service Offering period relating to the Product into which they are installed. If the part is installed into a Product for which this statutory entitlement period and/ or the Service Offering Period (as applicable) has less than 90 days to run at the date of installation then the part itself will continue to work for at least 90 days after the date upon which it was installed.
8.9 Commodore owns any Products or part(s) that are removed during repair. Commodore may require Customer to return removed parts or Products to Commodore for reconditioning, analysis or for environmental reasons.
8.10 If Customer does not return removed Products or parts Commodore then may charge a fee of which Customer will be informed prior to charge. The fee will reflect the cost incurred by Commodore in retrieving the Product or part(s), and/ or the cost of procuring another component to recondition and/ or the cost arising from failure to comply with environmental obligations as a result of the Customer's failure to return the Product or part.
8.11 The charge referred to in 8.9 and 8.10 above will not apply to Customers returning defective parts which have been replaced in accordance with statutory rights.
8.12 Products, Software and Services sold will correspond to their Description (except as stated in clause 3.4).
8.13 Products sold will be suitable for general use in a non research, non commercial, domestic environment in a manner which is consistent with the specification, functionality and service standards described in the Product's Description. Fitness for use in any other manner or environment must be explicitly and clearly agreed (in writing) with Commodore prior to purchase.
8.14 Commodore will repair, or in the event that repair does not occur, replace Product which is defective within a reasonable period and with reasonable care and skill. This may only be varied to the extent reasonably agreed with Customer.
9. Force Majeure
9.1 Neither party is responsible for non-performance in case of circumstances beyond its reasonable control (called Force Majeure) including without limitation: strikes by non Commodore employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply Commodore.
9.2 If a Force Majeure event occurs & Commodore cannot deliver within the period set out in the Order Confirmation, Commodore will and Customer may act in accordance with the terms of clause 5.5.
9.3 If the Force Majeure event lasts longer than 60 days then Commodore shall have the right to terminate the Agreement by providing notice in writing to Customer and returning all sums paid by Customer under the Agreement. No compensation to Customer will be due in these circumstances.
10. Liability
10.1 Commodore accepts liability for any loss or damage to private property, death or personal injury caused by the Products & Services supplied, the negligence or deliberate misconduct of Commodore, or any employees, agents or subcontractors acting on Commodore's behalf, provided, however, that in all cases, except for death or personal injury (where there shall be no limit on liability), Commodore's liability for losses suffered by Customer will be assessed in accordance with the applicable terms of this Clause 10.
10.2 Commodore shall accept liability for reasonably foreseeable losses arising as a direct consequence of breach by Commodore of its statutory duty. However Commodore shall not be liable in certain circumstances for example where the causes or potential causes of the loss:
10.2.1 were not reasonably foreseeable by both parties;
10.2.2 were known by Customer to the exclusion of Commodore at the time that the Agreement was entered into;
10.2.3 arose from the use of the Product and/ or Services for purposes other than those described in Clause 8.13;
10.2.4 were reasonably foreseeable and preventable by Customer such as those arising from, but not limited to:
10.2.4.1 data or information loss caused by failing to keep back up copies of important data on separate media; or
10.2.4.2 virus damage; or
10.2.4.3 user inflicted problems such as those caused by failure to read and/ or follow user instructions provided in writing or orally in the Product manuals and documention or by a Commodore technician.
10.3 In claiming against Commodore for any such losses Customer is expected to have acted reasonably, for example, with regard to:
10.3.1 how the losses were accrued (including steps taken to mitigate or to avoid losses occurring); and
10.3.2 taking reasonable precautions to avoid loss (such as contacting Commodore promptly upon becoming aware of an issue).
11. Software and Intellectual Property
11.1 Commodore Indemnifies Customer from all costs and liabilities arising from any claim that use of Product or Software infringes any third party IP. Commodore may recall and exchange or modify Product or Software or refund Customer (minus depreciation in this event) or require Customer to install replacement or altered Software from a CD, DVD or an internet download.
11.2 Commodore retains all Commodore-owned IP in Product. Customer must notify Commodore immediately of any infringement or unauthorised use of Product or IP .
11.3 Commodore does and will not Indemnify Customer for:
11.3.1 Third Party Software or Third Party Hardware;
11.3.2 unauthorised modification or unauthorised use of the Products or Software;
11.3.3 any claim caused by the use of Products or Software in conjunction with anything not supplied by Commodore. Customer must comply with the license conditions for any Software supplied.
11.4 Customer Indemnifies Commodore for any claim which arises due to Customer's own actions of which Commodore had no knowledge or could not reasonably be expected to have had knowledge.
11.5 Commodore is allowed to litigate, negotiate & settle claims & Customer must provide reasonable assistance if requested to assist Commodore if litigation is directly related to Products supplied to Customer.
12. Export Control
12.1 Customer is advised that Product (which may include technology and software) is subject to EU export control laws and laws of the country where it is delivered or used. Under these laws, Product may not be sold, leased or transferred to restricted end-users or countries or for restricted end-uses. Customer agrees to abide by these laws.
13. Data Protection
13.1 Personal data of Customer, obtained by Commodore shall be held and processed in accordance with all applicable laws and consistently with Commodore's Privacy Policy. Commodore may share such personal data with subcontractors performing services for Commodore, agents or other Commodore entities. Commodore may also transfer personal data to affiliated companies or agents or subcontractors which may be outside the European Union (EU), in which case Commodore will ensure adequate protection to safeguard personal data. To receive or view Commodore's Privacy Policy, please visit Commodore's website (commodoregaming.com) or send an email to info@commodoregaming.com. Customer consents to the use of Customer's personal data in accordance with the above.
14. Confidentiality
14.1 Both Customer and Commodore must treat all information received from the other which appears to be confidential as it would treat its own confidential information generally, but at least, with no less than a reasonable degree of care.
15. Termination
15.1 Either party may terminate this Agreement if the other:
15.1.1 commits a material or persistent breach of these Conditions; and
15.1.2 fails to remedy such breach within 30 days of written notice being given to it by the other part requiring a remedy.
15.2 Commodore may terminate this Agreement with immediate written notice if Customer:
15.2.1 fails to pay on time; or
15.2.2 breaches or Commodore reasonably suspects Customer has breached export control laws.
15.3 Either party may terminate if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due. This provision shall not relieve Commodore of an obligation to complete the delivery of any Product that has been ordered and fully paid for by a Customer prior to that Customer becoming insolvent or bankrupt.
15.4 The following clauses of these Conditions shall survive any termination or expiration of these Conditions and shall continue to bind the parties and their permitted successors and assigns: clauses 4.2, 6, 7, 8.9, 8.10, 10, 11, 12, 13, 14 and 16.
16. Law & Jurisdiction
16.1 This Agreement shall be governed by the laws of the Netherlands.
16.2 Any disputes arising from this Agreement, shall be settled in the District Court of Amsterdam and shall be conducted in the English language.
16.3 If any part of these Conditions are found to be unenforceable by a court, the rest are unaffected. All notices must be in writing & sent to a legal officer of each party, at the address provided on the invoice.
17. Subcontracting and Assignment
17.1 Commodore may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part and provided that the assignment, subcontract or transfer occurs without negatively affecting:
17.1.1 the provision of the Products and/ or Services and
17.1.2 rights or remedies of the Customer under the Agreement.
17.2 Commodore requires Customer to inform it in advance of any assignment, subcontract or transfer on the Customer's part.
18. Miscellaneous
18.1 Customer can find all Commodore policies, Product and Service Offering details and notices at commodoregaming.com.