General Conditions
Purchase of a Product (Articles 13 to 21)
Purchase of a Spare Part (Articles 22 and 23)
Main: Articles 1 to 12
Article 1 Definitions
1.1 In these general conditions (the “General Conditions”):
a. “Longfish Leisure” means Longfish Leisure B.V., a private company with limited liability under the laws of the Netherlands, having its corporate seat in Amstelveen and its address at Laan vanKronenburg 14, 1183 AS Amstelveen, the Netherlands, registered with the Dutch Trade Register
(Kamer van Koophandel) under number 51833794;
b. “Client” means the legal entity that enters or may enter into an Agreement with Longfish Leisure, not being a consumer;
c. “Party” means Longfish Leisure or the Client;
d. “Parties” means both Longfish Leisure and the Client;
e. “Product” means a product of Longfish Leisure, such as the Miniboat, GOGO boat, or the Adventurer off-road car, including possible accessories;
f. “Spare Part” means a spare or replacement part for a Product, including a manual;
g. “Agreement” means any contract or agreement between Longfish Leisure and the Client, including concerning the purchase of one or more Products or Spare Parts and concerning the Client’s rental or revenue share of one or more Products;
h. “Operating Manual” means the manual provided with the Product detailing the manner in which the Product should be operated and maintained and its operating limits, restrictions and risks;
i. “written” and “ in writing” mean by means of a document or a letter, fax message or email message from an authorized representative of a Party to the other Party;
j. “explicit” and “explicitly” mean in a clear and detailed manner
Article 2 Offer and Agreement
2.1 Offers from Longfish Leisure are valid for 30 days from the offer date and are subject to a signed Agreement.
2.2 If the Client’s acceptance of an offer differs from the offer, the acceptance cannot lead to a Agreement unless Longfish Leisure explicitly confirms acceptance of the differing offer in writing.
2.3 Any prior or later agreements and/or statements between the Parties, which depart from the Agreement or the General Conditions, shall only bind the Parties if explicitly confirmed by both Parties in writing.
2.4 By entering into the Agreement, the Client accepts that Longfish Leisure is permitted to instruct a third party to carry out work in relation to the Agreement, and the Client authorizes Longfish Leisure to accept a
limitation of liability stipulated by that party on behalf of the Client.
2.5 The Client guarantees the correctness and completeness of the information and resources it provides to Longfish Leisure in relation to the Agreement, and is obliged to inform Longfish Leisure without delay of
changes to the provided information and resources that could reasonably be considered important for the execution of the Agreement.
Article 3 Prices, VAT and Tariffs
3.1 Prices provided by Longfish Leisure are in European Euro (“EUR”). Any foreign exchange transaction costs shall be borne by the Client.
3.2 Prices provided by Longfish Leisure exclude VAT which, where applicable, is charged at the Dutch rate.
3.3 Prices provided by Longfish Leisure exclude any tariffs that may be levied on the import/export or trade of goods outside the European Union.
3.4 Longfish Leisure is not held to uphold a price clearly based on a printing or writing error.
3.5 The Client shall keep confidential the pricing of Products and other work or services of Longfish Leisure.
Article 4 Payment
4.1 Payments must be made within 14 days of the date of the invoice by transferring the payable amount to the bank account of Longfish Leisure stated in the invoice. The Client is not permitted to suspend or offset any
payments.
4.2 If the Client fails to secure payment within the 14-day period stated in Article 4.1, Longfish Leisure is entitled to charge:
a. administrative costs of EUR 100;
b. a monthly interest of 8% above the EURIBOR base rate over the outstanding invoice amount, including VAT, for late payment. If the late payment only covers part of a month, Longfish Leisure may charge the interest due over the whole month; and
c. all judicial and extrajudicial costs reasonably incurred.
4.3 If the Client is liquidated, declared bankrupt or granted suspension of payment or files for its own bankruptcy or suspension of payment, all outstanding payments of that Client to Longfish Leisure shall immediately
become payable (onmiddelijk opeisbaar).
Article 5 Safety
5.1 All Products are designed to operate safely and reliably when used in accordance with the Operating Manual supplied with the Product. The Operating Manual must be read and understood before using a Product, by all individuals involved with the running and supervision of the Product. The Client acknowledges that ignoring these instructions can cause property damage or personal injury.
5.2 All Products are certified safe under the applicable European Union CE certification standards (toys/electric toys). Although the European CE certification of the Products could be recognised outside the European
Union, Longfish Leisure cannot guarantee, and is not responsible for, the Products’ compliance with any local standards outside the European Union. The Client acknowledges and accepts its sole responsibility for the Products’ compliance with any possible local safety requirements outside the European Union.
Article 6 Liability
6.1 Claims against Longfish Leisure for compensation for damage shall expire if the Client fails to inform Longfish Leisure in writing of the damage within three months after the date on which the Client became aware or
should have become aware of the damage and Longfish Leisure’s liability.
6.2 If Longfish Leisure is liable for any form of damage to persons or property, its liability is limited to the lowest of the following amounts:
a. twice the amount charged by Longfish Leisure to the Client in relation to the cause of the damage suffered; or
b. the amount paid out in that specific case under the applicable liability insurance policy of Longfish Leisure plus the applicable deductible (eigen risico) or, if for any reason this insurance policy does not entitle Longfish Leisure to any payment, EUR 10,000.
6.3 Longfish Leisure accepts no liability for:
a. damage, death or injury caused by actions that contradict the procedures contained in the Operating Manual;
b. damage caused by any use of incorrect and/or incomplete information, resources and facilities provided by the Client; or
c. damage caused by an error or omission (fout) of a third party instructed by Longfish Leisure to carry
out (part of) the work in connection with the Agreement;
d. indirect damage, including consequential losses, loss of income, missed savings or losses caused by business stagnation.
6.4 The Client indemnifies Longfish Leisure against claims from third parties regarding damage in connection to a Product owned, rented to or used by the Client, insofar as Longfish Leisure is not liable to the Client in that respect.
6.5 The Client shall allow Longfish Leisure to attempt to rectify and/or mitigate damage incurred by the Client and shall cooperate fully.
6.6 Nothing in this Article 6 shall limit or exclude liability of Longfish Leisure for damage caused by its wilful misconduct or gross negligence.
Article 7 Force Majeure
7.1 If Longfish Leisure becomes unable to fulfil any of its obligations as a result of a Force Majeure Event as defined in this Article 7, the performance of the Agreement is suspended for the duration of the Force Majeure Event, without Longfish Leisure incurring any liability for damage related to that suspension.
7.2 If the duration of a Force Majeure Event has exceeded three months, each Party is entitled to (partially) dissolve the Agreement without incurring any liability for damage related to that dissolution.
7.3 “Force Majeure Event” means any act, event, or lack thereof beyond Longfish Leisure’s reasonable control, foreseeable or not, that occurs during the execution of the Agreement, which may include, without
limitation:
a. strikes, lock-outs or other industrial action at a supplier of Longfish Leisure;
b. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (declared or undeclared) or threat or preparation for war;
c. fire, explosion, storm, flood, earthquake, subsidence, epidemic and other natural disaster;
d. impossibility or severe limitation of the use of railways, shipping, aircraft, motor transport, other means of public or private transport or public or private telecommunications networks;
e. the acts, decrees, legislation, regulations or restrictions of any government.
Article 8 Default
8.1 If the Client fails to comply with its obligations in accordance with the Agreement, including obligations following the General Conditions, the Client shall immediately be in default without notice to the Client required.
8.2 In case of the Client’s default Longfish Leisure shall be entitled, without limitation, to:
a. suspend all its obligations to the Client, until the Client has sufficiently fulfilled its obligations under the Agreement; or
b. partially or fully dissolve the Agreement and any agreements relating to it, without being liable for any damage suffered by the Client.
Article 9 Intellectual Property
9.1 Longfish Leisure does not transfer or assign any intellectual property rights to the Client with regard to a Product, a Spare Part or their related materials. The Client shall not obtain any intellectual property rights to
any such Product, Spare Part or material, regardless of any contribution of the Client in their costs.
9.2 All reports, recommendations, contracts, designs, sketches, drawings and/or software provided by Longfish Leisure to the Client are exclusively issued for the Client’s use of the Product and the Client may not use,
publish or disclose them for any other purpose, except with the prior written explicit consent of Longfish Leisure.
9.3 The Client indemnifies Longfish Leisure regarding intellectual property rights in materials or information obtained by Longfish Leisure from the Client.
Article 10 No Assignment
10.1 The Client cannot assign, transfer or encumber any of its rights or obligations pursuant to the Agreement or General Conditions. Any attempt in this respect shall be void, except with the prior written explicit consent of Longfish Leisure.
Article 11 Applicability
11.1 The General Conditions are applicable to all offers, quotations, Agreements and any other legal relationship between Longfish Leisure and the Client. The general conditions of the Client or a third party, if any, do not
apply and are rejected.
11.2 The General Conditions may be relied on by Longfish Leisure and by any current or former employee, board member, subsidiary or shareholder of Longfish Leisure.
11.3 Longfish Leisure is entitled to amend the General Conditions unilaterally. Any amendment to this effect shall become effective 14 days after written notification of the amendment to the Client.
11.4 If any provision of the General Conditions or the Agreement becomes invalid or is set aside, the other provisions shall remain applicable and the Parties shall use their best efforts to agree on replacing the provision concerned with a new one, as similar as possible to the original provision.
Article 12 Governing Law
12.1 Dutch law governs the Agreement and the General Conditions, without applicability of the United Nations’ Vienna Convention on Agreements for the International Sale of Goods.
12.2 Any civil law dispute or claim in relation to the Agreement or the General Conditions, tort included, shall be exclusively resolved in first instance by the District Court of Amsterdam, the Netherlands.
Article 13 Invoicing
13.1 Invoicing of an ordered Product occurs in two separate invoices, with the first 50% of the price invoiced upon confirmation of the purchase order and the remaining 50% invoiced prior to release for delivery, unless explicitly agreed otherwise.
Article 14 Pricing of Products
14.1 The purchase price of a Product is the price applying on the day of Longfish Leisure’s written confirmation of the order.
14.2 In case of changes in factors on which the pricing of a Product is based, Longfish Leisure is entitled to adapt the prices of the Product accordingly, notwithstanding the price stated in a prior offer, quotation or Agreement. Factors on which the pricing of a Product is based include the costs of raw materials, consumables, energy, transport and personnel, as well as currency rates, taxes, insurance and other financial aspects. If Longfish Leisure’s adaption of a Product price in accordance with this Article 14.2 results in a price increase exceeding 10%, the Client is entitled to cancel the order of the Product.
Article 15 Delivery within the European Union
15.1 If the Parties have agreed that the Product shall be delivered at an address within the European Union:
a. Longfish Leisure shall arrange transport to the specified address;
b. Longfish Leisure shall charge transport costs and any related administration costs to the Client, in addition to the order price;
c. liability transfers to the Client on delivery at the specified address, when the Product is delivered to the Client itself or to a third party nominated by the Client to transport or store the Product; and
d. ownership transfers along with liability, unless provided otherwise by Article 18.1.
15.2 The Client or its nominated third party shall take the delivery of the Products at the specified address. If the Client or its nominated third party fails to take delivery of the Product at the specified address, Longfish
Leisure is entitled to charge the Client with any additional costs for Longfish Leisure related to the transport and/or storage of the undelivered Product.
Article 16 Delivery at Factory
16.1 If the Parties have not agreed on delivery of the Product within the European Union:
a. the Product shall be delivered at the Longfish Leisure factory pick-up location at Kekkeneind 12c, 5513 AA, Wintelre, the Netherlands;
b. Longfish Leisure shall not arrange any transport or any export/import documents;
c. liability transfers to the Client on pick-up of the Product, when the Product is delivered to the Client itself or to a third party nominated by the Client to transport or store the Product; and
d. ownership transfers along with liability, unless provided otherwise by Article 18.1.
Article 17 Delivery Time
17.1 Delivery times are intended times for indicative purposes only. Any failure to meet a time of delivery cannotconstitute a breach of contract or otherwise cause liability of Longfish Leisure.
Article 18 Retention of Ownership
18.1 Longfish Leisure retains the ownership of the Product until the Client has met all of its payment obligations following from the Agreement under which the Product has been purchased. The Client cannot transfer or
encumber a Product in retained ownership of Longfish Leisure.
18.2 In case of a seizure of the Client’s goods announced or made by a party, the Client shall as soon as reasonably possible:
a. notify the seizing party of Longfish Leisure’s retained ownership described in Article 18.1; and
b. notify Longfish Leisure of the (possible) seizure.
18.3 Longfish Leisure is entitled to repossess a Product in retained ownership if the Client fails to fulfil any of its obligations under the Agreement or if Longfish Leisure infers from the Client’s behaviour or communication that it is probable the Client will fail to fulfil any of those obligations
Article 19 Conformity
19.1 The Client shall inspect the Product upon delivery. Longfish Leisure shall use its best efforts to rectify any non-conformities as soon as possible, provided they are notified in accordance with this Article 19.
19.2 If the Product in any way does not conform to the Agreement, the Client shall notify Longfish Leisure hereof in writing as soon as possible and ultimately within 14 days after liability of the Product has transferred to the Client. If the 14-day term has expired without Longfish Leisure having received a written notification from the Client, the Product is considered to conform to the Agreement.
19.3 A Product containing a minor deficiency, in particular one that does not, or only very slightly, affect its intended use, is considered to conform to the Agreement.
Article 20 Warranty
20.1 “Warranty” means the warranty of Longfish Leisure that, on delivery and for a term of 12 months thereafter, the Product shall be fit for its intended use as described in its Intended Purpose document and technical
manual, and shall be free from any material defects in design, material and manufacturing.
20.2 The Client may invoke the Warranty by written notice with a description of the defect to Longfish Leisure at service@longfishleisure.com, within 14 days after having become aware of the defect. The Client shall provide Longfish Leisure reasonable opportunity to examine the Product after notice of its defect.
20.3 If the Client invokes the Warranty Longfish Leisure shall, at its discretion:
a. free of charge, replace or repair the Product;
b. free of charge, refund the purchase price of the Product; or
c. free of charge, provide telephone support and/or Spare Parts, to enable on-site repair of the Product by the Client or a third party, without Longfish Leisure compensating the costs of such repair.
20.4 The Warranty does not apply if Longfish Leisure, at its discretion, determines that:
a. the defect concerns the batteries of the Product;
b. the Product has been altered or repaired in any way without Longfish Leisure’s prior written consent;
c. the defect arose as a result of normal wear and tear, poor track design, environmental factors, or careless or negligent use or maintenance;
d. the defect arose as a result of Longfish Leisure following any drawing, design or instruction of the Client, or as a result of changes to the Product’s specification made for it to comply with local requirements;
e. the Client fails to follow oral or written instructions of Longfish Leisure concerning the Product;
f. the Client makes any use of the Product after notice to Longfish Leisure of its defect.
g. non-genuine parts supplied by companies other than Longfish Leisure have been used in the Product
20.5 A defective Product shall not release the Client of its obligations in accordance with the Agreement or any other agreement with Longfish Leisure.
20.6 The Warranty does not apply to a used Product sold by Longfish Leisure, unless explicitly agreed otherwise.
Article 21 Support, Repairs and Returns
21.1 Regardless of Warranty, Longfish Leisure always offers:
a. free technical advice about the Product by telephone, on a best-effort basis; and
b. paid on-site repairs or maintenance, charged at the prevailing hourly rate, increased with the prevailing kilometre charge for distance travelled from Longfish Leisure’s offices in Eindhoven, the Netherlands or Sheffield, United Kingdom.
21.2 All repairs performed by Longfish Leisure, including repairs under Warranty, are carried out on weekdays between the hours of 09.00 and 17.00 local time. If Longfish Leisure is required by the Client to perform
repairs outside these hours, Longfish Leisure is entitled to charge additional overtime costs.
21.3 When returning a Product to Longfish Leisure, the Client shall follow Longfish Leisure’s prior written instruction and authorization. Longfish Leisure is not held to accept a Product returned in violation of its instruction and authorization.
21.4 If a Product is returned due to a claimed defect and Longfish Leisure determines that the Product does not contain a defect or the defect is not covered by Warranty, Longfish Leisure is entitled to charge the Client a
returns fee of EUR 50, along with costs concerning the transport of the Product.
Purchase of a Spare Part
Articles 22 and 23
Article 22 Purchase of Spare Parts
22.1 Article 13 to Article 21 concerning the purchase of a Product apply mutatis mutandis to the purchase of a Spare Part, with the exception of Article 20.
22.2 Longfish Leisure is entitled to change its list of available Spare Parts at any time, without notification to the Client.
Article 23 Spare Part Warranty
23.1 “Spare Part Warranty” means the warranty of Longfish Leisure that, on delivery and for a term of 12 months thereafter, the Spare Part shall perform all material respects following from its description and specification, and shall be free from any material defects in design, material and manufacturing.
23.2 The Client may invoke the Spare Part Warranty by written notice with a description of the defect to Longfish Leisure at parts@longfishleisure.com, within 14 days after having become aware of the defect. The Client
shall provide Longfish Leisure reasonable opportunity to examine the Spare Part after notice of its defect.
23.3 If the Client invokes the Spare Part Warranty Longfish Leisure shall, at its discretion:
a. free of charge, replace or repair the Spare Part; or
b. free of charge, refund the purchase price of the Spare Part.
23.4 The Spare Part Warranty does not apply if Longfish Leisure, at its discretion, determines that:
a. the Client fails to follow the oral or written instructions of Longfish Leisure or any third party provided with the Spare Part, where applicable;
b. the Spare Part has been altered or repaired in any way without Longfish Leisure’s prior written consent;
c. the defect arose as a result of normal wear and tear, poor track design, environmental factors, or careless or negligent use or maintenance;
d. the defect arose as a result of Longfish Leisure following any drawing, design or instruction of the Client, or as a result of changes to the Spare Part’s specification made for it to comply with local requirements;
e. the Client makes any use of the Spare Part after notice to Longfish Leisure of its defect.
23.5 A defective Spare Part shall not release the Client of its obligations in accordance with the Agreement or any other agreement with Longfish Leisure.
23.6 The Warranty does not apply to a used Spare Part sold by Longfish Leisure, unless explicitly agreed otherwise.