In these Terms and Conditions, the following definitions will be used. For the purpose of this Terms and Conditions, the following terms and expressions shall have the meaning set out herein. Unless the context indicates otherwise, the singular shall include the plural and vice versa.

 

Business Days means all days except for Saturdays, Sundays and national holidays in the Netherlands.

 

Price means the charges of the Product and/or other possible services, including, but not limited to, purchase costs and delivery charges.

 

Customer means an entity that purchases Product from Fairphone.

 

Delivery Date means a date confirmed by Fairphone upon which the order is to be delivered to Customer.

 

End User means any person or entity who receives Product from the Customer and who ultimately uses Product.

 

Force Majeure means an event which is beyond the reasonable control of the affected Party and which such Party could not anticipate or mitigate.

 

Intellectual Property means all right, title and interest in and to all industrial and intellectual results, objects or property either in whole or in part, tangible or intangible, including all patents, binaries, codes, source and object codes, software, trademarks, copyrights, design, information and know-how, and all other similar results, objects and property.

 

Product means the Fairphone product(s), including the Fairphone smartphones, its associated parts and accessories, transceivers, modules or equipment which are distributed by Fairphone under this Terms and Conditions

 

Software means software product and any other software components incorporated in Product.

 

Website means the website of Fairphone [www.fairphone.com].

2.1 These Terms and Conditions apply in full to all relationships between Fairphone and the Customer and exclude all other terms and conditions, whether provided by the Customer or any third party, unless previously agreed upon in writing by Fairphone or unless they are governed by a written and signed sales agreement between Fairphone and the Customer. For Fairphone webshop purchases, the respective Fairphone webshop terms and conditions will be applicable instead.

 

2.2 For the purpose of the Terms and Conditions, the Customer is not authorized to distribute or to set up sales system to distribute the Products to any entity. The Customer can however supply the Products to End Users. In the event that the Customer wishes to obtain distribution rights from Fairphone to supply to other entities, the Customer shall notify Fairphone and both Parties shall enter into an agreement governing the rights of distribution of Products.

 

2.3 These Terms and Conditions are subject to Fairphone’s selective sales criteria.

3.1 The Product will be charged in Euro (€).

 

3.2 Except when legally due, the Price shall exclude the VAT. Other levies, fees and charges shall be established separately. At the moment of order, Fairphone will issue an invoice. All payments shall be paid in full within fourteen (14) days after receipt of the invoice.

 

3.3 Fairphone reserves the right to change the Price unilaterally and in case of changes, the Price when the Product was ordered is applicable.

 

3.4 Shipping and other charges, such as import taxes will be based on the value of the Customer order and the country to which the Products are being shipped. These and any custom duties or tariffs that may be imposed on the deliveries shall be borne by the Customer.

 

3.5 The Customer order becomes final when the full payment is received by Fairphone. Following the receipt of payment, Fairphone will dispatch the order to the Customer. Accepted purchase orders cannot be revoked.

 

3.6 Any late payments by the customer when payment is exceptionally due after the delivery of the order are subject to statutory interest applicable in the Netherlands for late payment, until payment is received in full.

4.1 Any delivery under these Terms and Conditions shall be performed under “DAP – Delivered At Place” as defined in the ICC Incoterms April 1st 2015. Unless agreed otherwise, any physical delivery shall be delivered to the location designated in the accepted purchase order.

 

4.2 Ownership of the Product shall pass from Fairphone to the Customer upon receipt of the Product by the Customer , subject to the receipt of the full price of the Product by Fairphone.

5.1 Fairphone shall, at its option and cost, either repair, replace or refund the price paid by the Customer in respect of the following Products:

• a Product that is not in conformity with the warranty provided by Fairphone;
• Dead on Arrival Products, which are products not performing according to the technical specifications that cannot be solved with the general troubleshooting within fourteen (14) days after the delivery to the End Users (“DOA”).

 

This article shall apply provided that:

• the Customer allows Fairphone to inspect and test the Product to determine the presence and cause of the defect;
• the Products were handled according to the instructions of use;
• The Product has not been modified, customized, repaired or altered unless authorised in writing by Fairphone.

The Customer may be charged for logistics costs associated with Products that were not found to be in breach of the warranty under clause 6.1 or DOAs.

5.2 All Products shall be returned to Fairphone following the applicable Fairphone return processes.

5.3 The Customer acknowledges that Fairphone shall solve any product claims and warranty requests for the same defect or problem only once.

5.4 Upon returning Products to Fairphone, the Sales Partner is obliged to ensure that Products are well-packaged either in its original packaging or packaging providing an equal degree of protection which ensures adequate protection during shipment. The Sales Partner will be liable of product damages occurring due to improper packaging.

5.5 All Customers will be responsible for returns of Products from their End Users and shall ensure appropriate customer support.

6.1 Fairphone warrants to the Sales Partner that the Products supplied under this Agreement are free of defects in workmanship and material and are supplied in accordance with their technical specifications. The warranty is valid for the period of two (2) years after delivery to the End User, except the battery which has one (1) year warranty.

 

6.2 The Sales Partner hereby declares it understands and agrees with the terms of the Fairphone warranty, end user licensing agreement or other applicable licenses concerning Software as well as their amendments, available from time to time on the Fairphone website (jointly the “Fairphone End User Warranty”). The Sales Partner bears the ultimate responsibility of ensuring that End Users purchasing Products supplied under this Agreement are informed and consent to the Fairphone End User Warranty’ s content.

 

6.3 The Sales Partner shall make no representations or warranties concerning quality, performance or other characteristics of Products other than those which are consistent with the rights received under this Agreement and/or which do not expand the scope of the Fairphone End User Warranty. The Sales Partner shall compensate Fairphone for any claims brought to Fairphone resulting from a breach of this undertaking.

 

6.4 This Agreement shall not release or discharge the Sales Partner from obligations and warranties provided under applicable national laws and contracts to its own Customers or End Users.

6.5 The Fairphone warranty is valid only for purchases within the European continent, and warranty related assistance can only be granted if requested from one of the following European continental countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Holy See (Vatican City State), Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, UK.

These Terms and Conditions do not allow the Customer to make use of the Fairphone trademarks in any way, including for promoting, advertising, display in stores, use in search engine or website domain name or website, or product launch before obtaining Fairphone’s consent in that regard.

Fairphone shall retain all of its Intellectual Property Rights regarding the Products and the Software.

The Software in the Products will only be used as an integrated part of the Products in selling, marketing and distributing the Products. The Customer is not entitled to distribute, reverse engineer or otherwise use the Software as a standalone product, except as allowed by Fairphone.

Fairphone reserves the right, at its sole discretion, to change, modify, add, amend and remove any part of these Terms and Conditions from time to time. The Customer will be notified of these changes through Fairphone communication platforms. Notwithstanding the abovementioned, the responsibility for checking any update or changes to this Terms and Conditions remains to the Customer.

10.1 No Party shall be liable to the other for loss of any kind caused to or incurred by the other Party by reason of any failure or delay in the performance of its obligations hereunder, which is due to Force Majeure. Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations hereunder for the duration of such Force Majeure event.

 

10.2 Either Party shall be entitled to terminate this Terms and Conditions by notice in writing to the other Party if a Force Majeure event occurs in relation to the other Party for a period of sixty (60) days or more.

11.1 These Terms and Conditions shall be governed by Dutch law.

 

11.2 Any dispute concerning these Terms and Conditions shall be examined under the jurisdiction of these laws and will be resolved by the competent court in Amsterdam, the Netherlands.