General terms and conditions B2C
Hi!
Welcome to KADONATION!
Through our website, we want to offer you an easy way to buy gift cards or to collect funds for a group gift. This is how Kadonation aims to allow its users to give the perfect gift.
Through these terms and conditions, we would like to inform users about how we operate at Kadonation. The purpose of this document is to ensure transparency and also to proactively answer any questions you may have about payment, withdrawal rights, etc. Kadonation therefore kindly asks their users to read these terms and conditions carefully and keep them in mind every time the website or webshop is used.
1. Definitions
1.1. GTC: the following general terms and conditions for the webshop;
1.2. Participant: any natural or legal person who contributes to an online group gift.
1.3. User: this refers to both the Organiser, Participant and Beneficiary;
1.4. Kadonation: The limited liability company (NV) “Kadonation”, with registered office
at Gordunakaai 61, 9000 Ghent, VAT BE-0666.820.362, RPR Ghent, Ghent division;
1.5. Beneficiary: both (i) the person directly purchasing a gift card and (ii) the beneficiary
of an online group gift;
1.6. Organiser: the person who creates an online group gift and then calls on others to
contribute in order to raise money together.
1.7. Partner(s): the company or companies where the money collected from an online
group gift or the credit from a gift card can ultimately be redeemed for a good,
product and/or service offered by the Partner.
1.8. Webshop: the collective term for the website and webshop found at https://
kadonation.com/.
2. Kadonation offering
2.1. Kadonation focuses on two activities:
- Gift card: Kadonation sells gift cards which the Beneficiary can then (partially)
exchange/activate (by entering the code on the gift card in the Webshop) via the
Webshop for one or more gift cards from the Partners.
- Online group gift: via the Webshop, the Organiser and Participants can easily and
securely team up (e.g. for a birthday, birth, retirement, etc.) with colleagues, friends
and/or family for a Kadonation gift card or a gift card from one of the Partners;
3. Scope of the GTC
3.1. All commercial relationships between Kadonation and the User are subject to (in
hierarchically descending order): (i) the agreements made specifically between
Kadonation and the User (e.g. via the Webshop), (ii) these GTC and (iii) Belgian law.
3.2. The GTC will always be available on the Webshop. By creating an account,
purchasing a gift card or creating a group gift, the User acknowledges to have read
the GTC and to accept them.
3.3. As soon as the User purchases a gift card from a Partner or spends the gift card (in
full or in part) with a Partner, the general terms and conditions and/or other
documents of this Partner apply (e.g. with regard to shipping, shipping costs and
return conditions).
4. Promotions
4.1. Promotional offers by Kadonation, in any form (such as but not limited to price
reductions, discount vouchers, free shipping, etc.) should always be used according
to the guidelines as expressly stated on the Webshop. In any case, these can only
relate to one purchase, cannot be cumulative and are personal in nature.
5. Webshop Account
5.1. In case the User chooses to create an account, the following applies:
- An account is personal and non-transferable. A login consists of an account name and a personal password. The User must treat their account name and password with care and keep them secret.
- The User is responsible for the use/abuse of their account, regardless of whether such use is made with or without permission. Kadonation asks Users to report any misuse of accounts immediately. Kadonation cannot be responsible for the use/abuse of and through the User’s account by anyone other than the account holder themselves. The User shall indemnify and hold Kadonation fully harmless from any third-party claims in this regard (with the exception of the case where the misuse is alleged to be the result of Kadonation’s fault).
6. Execution of the agreement
6.1. When necessary, the User should provide Kadonation with all data, specifications,
instructions and documents necessary to personalise the gift card (e.g. by
completing a personal message on the gift card, choosing a layout, etc.). The User
will take into account any delays if this would not happen in time.
6.2. The User must be of age and have legal capacity. Kadonation trusts that the data
provided by the User is correct and will not check its accuracy and/or completeness.
In case certain data appears strange, inaccurate or incorrect, Kadonation may notify
the User with a view to possible correction.
6.3. To ensure that purchases via the Webshop are processed correctly and/or to ensure that payment has been properly received, Kadonation will send a confirmation e‑mail to the User. Kadonation therefore asks Users to regularly check their emails,
including the “spam” inbox, and contact us should they not have received a
confirmation email.
7. Online group gift
7.1. Under the responsibility of an Organiser – who may manage a maximum of five
group gifts at the same time – an online group gift can be paid for together at
Kadonation (see Article 2.1).
7.2. Funds raised may be spent at different times and/or with different Partners until the
group portfolio is exhausted. The final gift card given to the Beneficiary may take
different forms:
- A gift certificate from Kadonation;
- A gift card from a well-defined Partner;
- Multiple gift cards from different Partners
7.3. In case a Kadonation gift card was purchased with the online group gift, it can be
spent by:
(i) Converting it – in whole or in part – into a Partner’s gift card; or
(ii) Directly paying to the Partner (also possible in case of purchase through the
Partner’s webshop).
7.4. By paying a contribution, Participants grant the Organiser an irrevocable power of
attorney to spend all or part of the group portfolio in accordance with Article 7.2. In
addition, Users expressly acknowledge that:
- There is no right of withdrawal for an individual contribution and funds deposited thus
cannot be refunded to an individual Participant;
- Funds spent by the Organiser, not by Kadonation can be reversed into the group
portfolio;
- Upon cancellation of the group purchase, the group portfolio will be refunded to the
Organiser (and therefore not to each individual Participant separately); and
- Spending the group portfolio is the sole responsibility of the Organiser (and Kadonation
cannot be held liable for this).
8. Gift card
8.1. Via the Webshop, the User can order from Kadonation a digital or physical gift card
for an amount of their choice. If the User opts for a physical gift card, it will be
delivered to the address chosen by the User upon payment of an additional delivery
charge (the delivery charge due will always be indicated on the Webshop).
8.2. The indicated delivery period is always indicative and an approximation. In case of
delays, Kadonation will always communicate this transparently. Except in cases of
intent and/or gross misconduct, exceeding the scheduled deadlines cannot give rise
to cancellation or any penalty or compensation.
8.3. Each gift card is provided with a unique code. The User must always keep the gift
card (including the code) carefully in order to avoid theft or loss.
8.4. The gift card has no expiry date and can be redeemed or activated by the User at any time. Please note that in case a gift card is purchased from a Partner, it may
potentially have an expiry date.
8.5. The gift card can never be used directly with a Partner. The gift card must be
activated via the Webshop, where the User chooses at which Partners they wish to
redeem the gift card at.
8.6. When redeeming the gift card at a Partner, the general terms and conditions of the
Partner always apply (including shipping and return conditions). After the
redemption, the Partner is responsible for the further processing of the trade
transaction and will thus ensure the correct handling of the purchase.
8.7. In case the User is left with a certain residual amount, it will remain linked to the
User’s account. The User can choose to either (i) spend the remaining amount by
purchasing a new/other gift card, or (ii) donate it to one of the charities of the
Kadonation Partners. Under no circumstances will Kadonation refund any residual
amount (e.g. via bank transfer or cash).
8.8. The Beneficiary acknowledges that it is not permitted to use gift cards in any way for purposes other than those for which they are intended (i.e. spending it at a Partner).
Consequently, the Beneficiary expressly undertakes not to resell the gift card.
9. Price and payment
9.1. Prices as they are include VAT. Any costs for delivery will always be stated separately.
9.2. During the payment process, the Participant has the option to indicate that they
should be qualified as a company.
9.3. If a gift voucher is ordered (see Article 8), the User must pay for it in full in advance by means of one of the payment options offered on the Webshop. As soon as payment has effectively been received, Kadonation will confirm this to the User by e-
mail.
9.4. In case of online group gifts (see Article 7), the User can make a contribution as
desired by means of one of the payment options as offered on the Webshop.
9.5. For processing online payments, Kadonation relies on an external professional and
specialised partners who operate a payment platform. The User’s financial data
entered in the context of an online payment are exchanged only between the
external partner and the financial institutions involved. Kadonation does not have
access to the User’s confidential financial data.
10. Electronic invoicing
10.1. By placing an order (by a professional User), the User expressly agrees to the use of electronic invoicing by Kadonation, unless otherwise agreed in writing between the
parties.
11. Right of withdrawal
11.1. General:
- The User-consumer has a right of withdrawal with regard to purchases via the
Webshop. Pursuant to Book VI Market Practices & Consumer Protection of the
Economic Law Code, the User has the right to withdraw the order within a period of 14
calendar days without giving reasons. The withdrawal period of 14 calendar days starts
from (i) receipt of the gift card by e‑mail or (ii) delivery.
- The User does not have a right of withdrawal and the present provisions regarding the
right of withdrawal do not apply when: (i) the User is not a consumer and/or (ii) the
order involves customised goods (e.g. physical gift card with specific printing) and/or
(iii) the gift card has already been redeemed or activated.
11.2. Exercising the right of withdrawal:
11.2.1. To exercise the right of withdrawal, the User must send Kadonation an
unambiguous declaration by e‑mail (contact@kadonation.com) or by using the
withdrawal form (see document below) to notify Kadonation of its decision to
withdraw the order. To comply with the withdrawal period, it is sufficient for the
User to send his communication concerning the exercise of the right of
withdrawal before the withdrawal period has expired.
11.2.2. During the reflection period, the User will handle the gift card with care. The right
of withdrawal does not apply in case the gift card has been used or registered.
The User is liable for the depreciation of the gift card resulting from its use.
11.3. Consequences of exercising the right of withdrawal:
11.3.1. If the User revokes their order in time, Kadonation will send the User a
confirmation e‑mail. Kadonation will then refund the value of the gift card to the
User within 14 calendar days of the withdrawal
11.3.2. Kadonation will refund the User with the same payment method used by the User
to make the payment in the first place, unless the User has explicitly agreed to a
different method.
11.3.3. In any case, the User will not be charged for the refund. Kadonation may wait to
proceed with the refund until it has received the gift card back or the User has
proved that they have returned the gift card, whichever comes first.
11.3.4. Should the User have ordered a physical gift card, it must be returned to
Kadonation without delay, but in any case no later than 14 calendar days from the
day on which they communicated to Kadonation their decision to withdraw the
order. The User is on time if he returns the gift card before the period of 14
calendar days has expired. The costs of returning the gift card, as well as any other
related costs (such as but not limited to customs fees, taxes, VAT and storage
costs) shall be borne by the User, unless otherwise agreed.
12. Kadonation’s liability
12.1. Kadonation’s liability is always limited to (i) the price of the gift card(s) delivered by Kadonation and (ii) in any event to the liability which is imposed by Belgian law.
12.2. Kadonation does not accept any liability for:
- Loss and/or theft of a gift card;
- Indirect and/or consequential damages;
- Damage caused by incorrect, unreliable, incomplete or late instructions from the User;
- Defects caused directly or indirectly by an act of the User or a third party, whether
caused by fault or negligence;
- Damage resulting from defects, viruses or other imperfections in equipment and/or
software in connection with access to or use of the Webshop caused by the User;
- Damage caused by the operation or unavailability of the Webshop;
- Damage arising from misuse of the Webshop, loss of data or downloading/using
software made available via the Webshop; and
- Damages caused by force majeure or hardship see Article 14.
12.3. Kadonation does not monitor and is therefore not responsible for the content of the information posted by the User or Organiser on the Webshop.
12.4. Kadonation can only be held liable by its direct Users and not by third parties.
13. Force majeure/hardship
13.1. Kadonation shall not be liable for any failure to fulfil its obligations caused by force
majeure or hardship. Force majeure or hardship means: all circumstances that were
reasonably unforeseeable and unavoidable at the time the Agreement was entered
into, and which, on Kadonation’s part, create the impossibility of performing the
Agreement or which would make performance of the Agreement financially or
otherwise more onerous or difficult than normally foreseen (such as, but not limited
to war, natural circumstances, fire, confiscation, delays by or bankruptcy of third
parties used by Kadonation, staff shortages, strikes, business organisational
circumstances, threats and/or acts of terror, and epidemics or pandemics).
13.2. The aforementioned situations entitle Kadonation to request the review and/or
suspension of the agreement by simple written notice to the User, without
Kadonation being in any way liable for any compensation. If the situation of force
majeure and/or hardship continues for more than 2 months, both parties have the
right to terminate the agreement.
14. Intellectual rights
14.1. Kadonation guarantees to have the necessary intellectual rights/licences/etc. for
offering its products.
14.2. Users will not change, remove or manipulate the marks or other identifiers on gift
cards.
15. Personal details
15.1. Kadonation’s processing of personal data relating to a User or potential User will
take place in accordance with Kadonation’s privacy statement, which can be
consulted on the Webshop. In this context, Kadonation acts as data controller. This
privacy statement contains, among other things, information about the personal
data collected by Kadonation, and about the way in which Kadonation uses and
processes these personal data.
15.2. By placing an order through the Webshop or contributing to an online group gift the User acknowledges having read this privacy statement and accepting it.
16. Final provisions
16.1. The (repeated) non-application by Kadonation of any right may only be regarded as tolerating a certain state of affairs and does not deprive Kadonation of the right to
invoke it later.
16.2. The possible nullity of one or more clauses of these GTC or part thereof shall not
affect the validity and applicability of the other clauses and/or the rest of the
provision in question. In such a case, Kadonation and the User will negotiate to
replace the void provision with an equivalent provision that complies with the spirit
of these GTC. Should Kadonation and the User fail to reach an agreement, the
competent court may moderate the void provision to what is (legally) permissible.
16.3. Kadonation may amend or modify its GTC at any time upon prior notice to the User. The latest version of the GTC will always be published on the Webshop, with the
date always indicated at the top.
16.4. These GTC do not affect the legal rights imperatively granted to the User under
Belgian consumer protection legislation.
17. Disputes and complaints
17.1. Kadonation makes every effort to ensure that the User is satisfied. Should a User
nevertheless have a complaint, they can contact Kadonation at any time by e‑mail at
contact@kadonation.com. In doing so, the User must clearly specify the complaint.
Kadonation aims to reply within 2 working days (i.e. Monday to Friday) of receiving
the complaint.
17.2. Should the User not be satisfied with the solution proposed by Kadonation, they can always:
- Call on the Consumer Ombudsman Service of the FPS Economy, which is authorised to receive any request for out-of-court settlement of consumer disputes. It will either handle the request internally or forward it to another qualified entity. The User can reach the Consumer Ombudsman Service on this link.
- In the event of a dispute of a cross-border nature, an appeal can be made to the
European Union’s Online Dispute Resolution platform via this link.
17.3. Belgian law applies. Disputes are within the jurisdiction of the courts designated by Article 624 Judicial Code
18. Language
18.1.Unless expressly agreed otherwise, the User acknowledges that the language of
these GTC shall also be the language of communication in all commercial
transactions with Kadonation.
18.2.The original language of this GTC is Dutch. Translations or documents drafted in
another language are always merely a courtesy towards the User.
General terms and conditions B2B
1.Definitions
1.1.Agreement: the collective term for all arrangements related to the Products, Services and/or the Platform between the Customer and Kadonation. The Agreement consists of (i) the Framework Agreement (if relevant); (ii) the Purchase Orders confirmed by Kadonation; and, (iii) these Terms;
1.2.Business Day: Any day – other than Saturday, Sunday or legal holidays in Belgium;
1.3.Customer: every professional entity accessing the Platform, purchasing Products and/or relying on Services of Kadonation;
1.4.End-User: any individual authorized by the Customer to access and use the Platform on behalf of the Customer;
1.5.Framework Agreement: an agreement containing additional terms agreed upon between the Customer and Kadonation related to the purchase of the Products, the Services and/or the Platform for a defined period.
1.6.Purchase Order: A request from the Customer for Products and/or Services documented in the Platform. The request can either be sent (i) directly via the Platform or (ii) to Kadonation, that logs it in the Platform on behalf of the Customer;
1.7.Platform: the Kadonation webshop or the Kadonation Select platform, through which the Customer can (i) purchase Products and/or Services, (ii) create and manage end-users and their roles, (iii) access informational documentation related to the Products and/or Services, and (iv) access the helpdesk;
1.8.Services: All services performed by Kadonation for the Customer related to the Products and/or the Platform, such as but not limited to designing (semi) custom cards/sleeves/boxes and (semi) custom landing pages.
1.9.Kadonation: The public company (NV) “KADONATION”, incorporated under the laws of Belgium, having its registered office at Gordunakaai 61, 9000 Ghent, Belgium, registered under VAT BE-0666.820.362;
1.10.Products: All products offered by Kadonation and purchased by the Customer via a Purchase Order;
1.11.Terms: these Terms and Conditions, the Acceptable Use Policy and the Data Processing Policy;
1.12.Website: https://www.kadonation.com;
2.Applicability of the Terms
2.1.Unless explicitly agreed otherwise in writing (e.g. in the Framework Agreement), the offering, sale and delivery of all Products and/or Services by Kadonation shall be governed by the present Terms. The Terms shall always take precedence over any terms and conditions of the Customer, which shall not be enforceable against Kadonation, even if the Customer (later) declares them the only valid terms. In the
event that explicit preference is given in writing to the terms and conditions of the Customer, the following Terms shall remain valid in a supplementary way. The Terms apply to the entire (contractual) relationship between the Parties, including individual orders or contracts for specific Products and/or Services.
2.2.All transactions between Kadonation and the Customer are governed by (in descending hierarchical order, with the next applying in the absence or non-application of the previous): (i) the Framework Agreement; (ii) the Purchase Orders, (iii) the Terms, and; (iv) Belgian law.
3.Purchase Order
3.1.All proposals and quotations of Kadonation, either verbal or in writing: (i) are non-binding, (ii) merely provide an indication of the Platform, the Products, the Services and the fees, and (iii) shall be subject to further negotiations between Kadonation and the Customer. During these negotiations, the proposal or quotation shall continuously evolve. Any changes to a proposal or quotation renders the previous version null and void.
3.2.The weights, measurements, capacities and other details that are included in the Platform or on the Website are only meant to be approximations. These details only bind Kadonation insofar as this is explicitly stated.
3.3.The Customer shall be responsible for the accuracy of any Purchase Order it submits. An Agreement is only concluded after written or electronic confirmation of the Purchase Order by Kadonation, or after Kadonation starts carrying out the Purchase Order. After confirmation of the Purchase Order, it is therefore not possible for the Customer to change it, unless Kadonation explicitly agrees to this in writing.
If possible and insofar as this can reasonably be expected, Kadonation will, regarding gift vouchers, allow deviations in the number of Products/and or Services up to a maximum of 10%. The Customer shall also be responsible for providing Kadonation with all necessary information regarding the Products and/or Services and within a reasonable time frame to enable Kadonation to carry out all individual contracts in
accordance with its Terms (e.g. requested type of custom design).
3.4.Kadonation will engage subcontractors for the proper execution of the Purchase Order as it sees fit.
4.Cancellation
4.1.After the conclusion of the agreement, the Customer cannot cancel the Purchase Order (in whole or in part), unless the Purchase Order is regarding the order of gift vouchers. When a Purchase Order regarding gift vouchers is cancelled by the Customer (without this being the result of any shortcoming on the part of
Kadonation), Kadonation reserves the right to claim a fixed compensation amounting to a certain percentage of the total amount of the costs (excluding VAT and the voucher value) of the cancelled Agreement, with a minimum of EUR 100.00 and this without prejudice to Kadonation’s right to compensation for higher proven damage. When the purchase order is cancelled:
- Before the start of the production of the Products or the performance of the Services, the cancellation
fee is 20%; and
- After the start of the production of the Products or the performance of the Services (e.g. the design of
the custom cards, sleeves or landing pages), the cancellation fee is 80%.
4.2. The same applies when Kadonation cancels the Purchase Order because of shortcomings of the Customer.
5.Purchase of Product
5.1.Delivery
1.Kadonation delivers the Products to the Customer as agreed upon in the Agreement. The expected time of delivery of the Products is provided on the Platform but is approximate and not binding. Exceeding the scheduled delivery time can thus not give rise to fines, damages, substitution or termination of the Agreement at the expense of Kadonation.
2.All Products to be supplied by Kadonation under the Agreement shall be sold and delivered ‘Delivery At Place (DAP) at Customer’s or other appointed location (Incoterms 2020 rules or equivalent under future rules). The foregoing applies even if delivery is handled by Kadonation in which case Kadonation will act as a mandatory of the Customer.
3.If the Customer refuses the order upon delivery or is negligent in providing assistance to facilitate the delivery at the indicated delivery address, Kadonation is entitled – at the expense and risk of the Customer – to take all reasonable measures in this respect.
4.Every immaterial Product (e.g. electronic gift voucher) is considered delivered as soon as it is made available to the Customer through the Platform or another agreed upon electronic medium.
5.The customer shall be responsible for providing the correct delivery address and for ensuring that it is possible to deliver the Products to this address. If the delivery address is incorrect, the Customer shall be responsible for any costs and damages. Orders with a limited shelf life (such as cut flowers) cannot be revoked under any circumstances. The shipping costs to return the product are at your own expense.
5.2.Retention of title
1. Kadonation retains the entire ownership of all Products delivered to the Customer for as long as the Customer has not fully paid the price, costs, interests and all other accessories related to purchase of the Products.
5.3.Non-conformity and visible defect:
1.The Customer must verify the conformity of the Products upon delivery. If the Product presents a visible/material defect, the Customer must immediately (and no later than two (2) Business Days after the delivery) notify the non-conformity and/or visible defect – at the risk of forfeiture – by e‑mail, to the address: zakelijk@kadonation.com. The Customer shall keep the Products with visible defects available for inspection by Kadonation.
2.If the Product is based on a custom design (cfr. Article 6.2.), the Customer acknowledges minor variations (e.g. in color) between the Product and the sample/proof of concept are not to be considered a defect or a non-conformity.
5.4.Hidden defects
1.The Customer must inform Kadonation of any hidden defect by e‑mail to the address
zakelijk@kadonation.com no later than two (2) Business Days after it has/should have been detected, and in any case within twelve (12) months upon delivery, at the risk of forfeiture.
2.Under penalty of disallowance of the complaint, the Customer:
- Must be able to prove that it has ceased the use of the Products immediately after detection of the hidden defect;
- Must be able to prove that the defect was not a result of attempted money laundering and/or credit card fraud with the Products;
- Must be able to prove it has used the Products in accordance with the documentation available on the Platform, the Website and/or the Products; and;
- Shall assist Kadonation as much as possible with its investigation of the complaint.
3.Kadonation shall check and examine the Products and investigate the complaint within ten (10) Business Days of receiving (a sample of) the defective Product. The cost of such examinations shall be payable by Kadonation only to the extent the claim of the defect is found to be legitimate. If the claim is illegitimate, the Customer will reimburse all costs of examination.
4.Kadonation cannot be held liable for, nor does it warrant defects caused by:
- Normal wear and tear, incorrect/improper treatment or maintenance, external influences, force majeure and/or hardship;
- An act of the Customer or a third party, regardless of whether these were caused by a fault or negligence.
5.Physical return of the defective Products requires prior written approval by Kadonation. In absence of its approval, all returned shipments will be refused and the costs arising thereof shall be passed on to the Customer.
6.Performance of Services
6.1.The Services
1. All obligations of Kadonation regarding its Services are to be considered best-effort obligations. Hence, Kadonation shall always provide the Services with due diligence, with appropriate care and in good faith, and shall carry out the Services to the best of its understanding, skill, insight and ability, as reasonably expected of a professional experienced in services of comparable scope, complexity and size. However, Kadonation does not guarantee a certain result.
2. The Platform of Kadonation is provided to the Customer “AS-IS”. All obligations of Kadonation regarding the Platform are to be considered bare minimum best efforts obligations, as these Services are provided to the Customer at no additional cost.
3. Any complaints concerning Kadonation’s Services shall only be admissible if submitted to Kadonation in writing within a period of two (2) Business Days following the discovery of the problem by the Customer and at the latest within a period of one (1) month following the performance of the Services. Complaints shall always be submitted to Kadonation by e‑mail to the address zakelijk@kadonation.com, providing identification of the Services and a detailed justification of the complaint. In the absence of a detailed and/or timely complaint, the Customer shall be deemed to have irrevocably accepted the Services.
4. After the Customer has observed any deficiency or problem, the Customer is obliged to immediately cease the use of the Services and make every reasonable effort – or have every reasonably effort made – to prevent any (further) damage.
5. The Customer shall pay any costs incurred as a result of unjustified complaints.
2. Custom design
2.1. Kadonation will provide a sample/proof of concept of the custom design (e.g. cards, sleeves, boxes or webpages) to the Customer, if agreed upon in the Agreement. The Customer must send Kadonation written confirmation with the sample/proof of concept at the latest fifteen (15) Business Days before the requested delivery date. Change requests or refusals must be properly substantiated in writing.
2.2. The Customer must provide Kadonation with all information/documentation (such as but not limited to logo’s, prior designs, color schemes and messages) and support (deemed necessary by Kadonation) needed to provide the Services or produce the Products. Kadonation is not obligated to verify the accuracy of the information/documentation provided by the Customer.
2.3. If the Customer request Services related to custom design, Kadonation shall not commence the
production of the Products before it received all information, support and/or approvals of the Customer.
7.Platform
7.1.Kadonation grants the Customer a free, personal, limited, non-exclusive, non-assignable and non-transferable access and use right to the Platform, unless otherwise agreed.
7.2.The Customer is entitled to access and use the Platform in accordance with the Terms, and shall use its best endeavors to prevent or terminate any unauthorized access to or use of the Platform. If the Customer discovers such unauthorized access and/or use, it shall notify Kadonation immediately, which is entitled to take all necessary or useful measures to remedy such access and/or use.
7.3.In the event of problems with the availability of the Platform, Kadonation undertakes its best effort to solve such issue as soon as reasonably possible without giving any guarantee. In any case and where appropriate, Kadonation shall be free to determine what is to be considered an adequate solution for its Customers in this respect.
7.4.Kadonation performs maintenance activities and implements updates of the Platform on a regular basis. Kadonation strives to minimize the impact on the availability of the Platform by performing the maintenance activities and the updates outside of the business hours (09:00 – 17:00 CET +1) but does not exclude any downtime in this respect.
7.5.All documentation provided in the Platform regarding the legislation, regulations, etc. regarding the use of the Products and/or Services is purely informational.
8.Prices
8.1.The price of the Products and/or the Services is as stated on the Platform, to the extent applicable. Price calculations or offers are indicative and non-binding until formally accepted by Kadonation. In no event shall prices confirmed by Kadonation for one order be binding for subsequent orders.
8.2.The prices exclude transport costs, loading or unloading costs, insurance costs, packaging costs, VAT, levies, import and export duties, etc. (if applicable), unless explicitly stated otherwise in writing.
8.3.Kadonation is at all times entitled to update the price of the Products on the Platform.
8.4.If the delivery term, the place of delivery, or the circumstances of the delivery change at the request of the Customer, or if the Customer has provided incorrect information to this end, Kadonation is entitled to payment of the additional costs incurred.
8.5.If, in the period following the conclusion of the Agreement and before the delivery of the Products, the prices (that are based on the then current level of wage costs, social security and government charges, transport and insurance costs, raw material prices, costs of materials and components, exchange rates and/or other costs) increase or decrease in one or more of these price factors, Kadonation reserves the
right to change its prices accordingly and this in accordance with the legally permitted standards.
9.Payment
9.1.Kadonation’s invoices are payable to Kadonation’s designated bank account at the latest on the due date indicated on the relevant invoices. The invoice has been settled when the complete amount stated on the invoice has been received on Kadonation’s designated bank account as indicated on the invoice. All fees – unless specifically stated otherwise in the Agreement – do not include VAT or any other levies or taxes.
9.2.All invoices from Kadonation are to be paid in the indicated currency. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Customer.
9.3.By ordering the Products and/or Services, the Customer agrees to electronic invoicing by Kadonation.
9.4.If the Customer fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to Kadonation under any Agreement between parties and/or these Terms by the due date for payment, then:
- the Customer shall pay interest on the overdue amount at the rate of 10% per year (except if the legal rate of interest is higher, it shall be applied). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount; and
- the Customer shall pay Kadonation 10% of the outstanding balance, with a minimum amount of 250,00 EUR for costs associated with a.o. the collection of the amounts due and with the adverse consequence on Kadonation’s cash flow, as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of Kadonation’s loss. This paragraph is without prejudice to Kadonation’s right to prove and claim any higher damages.
9.5.Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable. Liquidated damages may in addition be due in accordance with Article 8.4 (second paragraph). Partial payments will firstly be deducted from interest due, liquidated damages payments and possible costs and only then from unpaid invoices.
9.6.Kadonation is entitled to suspend or postpone its obligations in connection with the Framework
Agreement or other current Purchase Orders to the extent that the Customer has not complied with a payment condition or other obligation.
9.7.Invoices that are not disputed by registered letter within eight days after their issuing will be considered to have been fully accepted.
9.8.Promotional gifts by Kadonation, in any form whatsoever (including, but not limited to fee reductions and discounts), shall only be applicable in accordance with the guidelines and conditions expressly stated in this regard. The Customer acknowledges that such promotional gifts are (i) not cumulative; (ii) personal by nature; and, (iii) can never entail an implied right thereto.
10.Liability
10.1.Kadonation’s liability shall always be assessed in the light of the best efforts obligation to which Kadonation has committed. The liability of Kadonation is in any case limited to the mandatory liability imposed by law.
10.2.Kadonation’s liability for the Products is limited to the invoice value of the Products delivered by Kadonation to the Customer, and shall lead to Kadonation’s decision (at its sole discretion) to (i) replace the Product; or (ii) credit the invoice amount of the Product.
10.3.In the case of inadequate Services, Kadonation’s liability is limited – at the option and discretion of Kadonation – to the (renewed) performance of the missing or inadequate Services. If the (renewed) provision of the Services is not (or no longer) possible or reasonable, the Customer is entitled to compensation in light of the damage suffered.
10.4.Kadonation cannot accept any claim from the Customer for indemnification for:
- Defects that are caused directly or indirectly by an act of the Customer or a third party, regardless of whether they were caused by a fault, negligence or carelessness;
- Damage caused by all incorrect or inadequate use of the Product and/or Services;
- Damage caused by use of the Products and/or Services incompatible with the legislation and/oR regulations applicable to the specific use of the Products and/or Services;
- Damage caused by decisions of the Customer based on the use of the documentation available on the Platform;
- Damage caused by the further use or application by the Customer after a problem has been found;
- Damage caused by force majeure or hardship in accordance with the provisions of Article 10; and,
- Indirect and consequential damage, such as, but not limited to, loss of profit, loss of savings, loss of revenue, loss caused by business interruption, damage to third parties.
10.5.The Customer assumes the responsibility for the use made of the Products and/or the Services by its end-users, including but not limited to the proper and legal use of the Platform.
10.6.The Customer will hold Kadonation harmless against all claims from third parties arising from the incorrect or unlawful use of the Products and/or Services by the Customer or its end-users. It will cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that Kadonation has informed the Customer immediately of any claim arising from that matter.
11.Force majeure & Hardship
11.1.The following are conventionally considered as cases of force majeure or hardship: all circumstances which were reasonably unforeseeable at the time the Agreement was concluded, are unavoidable, and create (i) the inability on the part of Kadonation to carry out the Agreement, or (ii) make the implementation of the Agreement harder or more difficult than normally anticipated (financially or otherwise). For example (but not limited to): natural disasters, war, (threats of) terrorism, strikes, lock-
out, diseases, pandemics, shortage of personnel, organizational conditions, confiscation, fire, breakage of machinery and/or tools, scarcity of (raw) materials, bankruptcy or delays on the part of suppliers or subcontractors.
11.2.Cases of force majeure or hardship give Kadonation the right, at Kadonation’s option, to either (i) temporarily suspend the performance of its obligations; (ii) review the contractual terms (including those with regard to timeframes, completion deadlines and fees), or; (iii) terminate the Agreement by simple written notification to the Customer, without Kadonation being liable for any damages.
11.3.A situation of force majeure that continues beyond three (3) months shall entitle the Customer to terminate the Agreement with immediate effect by simple written notification to Kadonation, without judicial intervention and without any liability on the part of Kadonation.
11.4.The Customer shall always be required to pay all fees for Services and Products that have already been performed resp. provided on the date of suspension, revision or termination, and any costs incurred or still to be incurred by Kadonation as a consequence of the suspension, revision or termination.
12. Confidentiality
12.1.All information marked as confidential or reasonably to be considered confidential, disclosed by Kadonation to the Customer prior to entering into an Agreement as well as during the Agreement shall be treated by the Customer with the utmost secrecy.
12.2.The Customer shall:
- Not use, reproduce, or allocate the confidential information in any manner or for any other purpose than the cooperation between Kadonation and the Customer;
- Not engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of any of the confidential information;
- Not derive any commercial benefit from the confidential information;
12.3.This confidentiality obligation applies during the course of the cooperation between Kadonation and the Customer and will continue to exist for a period of five (5) years starting from the termination of the cooperation for any reason whatsoever.
12.4.Kadonation shall remain at any moment the sole owner of its confidential information. Except as expressly set forth herein, nothing in these Terms or the relationship between parties shall grant to the Customer any rights to or interest in the confidential information, and no implied licenses are granted by these Terms.
12.5.This confidentiality obligation shall, however, in no event imply that Kadonation shall not be entitled to use and/or commercialize any ideas, input, feedback received from the Customer, which may serve to improve and/or expand the Products and/or Services.
13.Intellectual property rights
13.1.All registrations of the trade names/trademark Kadonation, or any other trade name/trademark that includes the name Kadonation, or under which the Products and/or Services are sold, shall be made in the name of Kadonation. The Customer shall not use Kadonation’s company name, Kadonation’s Products and/or Services names or Kadonation’s Products and/or Services trademarks as part of Customer’s name or in any manner capable of misrepresenting the relationship between Customer and Kadonation. The Customer shall not alter, remove or tamper with the brands, trademarks, or other means of identification on the Products and/or Services.
13.2.The Customer grants Kadonation a license on all intellectual property needed to perform the Agreement (such as but not limited to the information/documentation needed to develop custom designs for the Customer).
13.3.The Customer acknowledges the information/documentation provided to Kadonation regarding custom designs (cfr. Article 6.2.) does not infringe any third party its intellectual property rights, and indemnifies Kadonation for all claims in this regard.
13.4.The Customer explicitly acknowledges that Kadonation shall own and retain all (intellectual) property rights with respect to the Products, Services and the Platform (including all custom designs, copies, modifications, extensions and derivative works thereof).
13.5.The Customer explicitly authorizes Kadonation to use the Customer’s name and/or project as a reference for publicity purposes, such as by publication on the Website. In this regard, the Customer also authorizes Kadonation to use the Customer’s name, trademark, logo, etc. Kadonation will inform the Customer thereof at the start of the Agreement and refrain from any publication if the Customer opposes to this in writing.
14.Privacy
14.1.Kadonation as controller
1.The collection by Kadonation of personal data of the (potential) Customer and/or its personnel/staff shall take place in accordance with the provisions of Kadonation’s privacy statement. In such event, Kadonation acts as controller. This privacy statement includes information about the personal data collected by Kadonation, as well as the manner in which Kadonation uses and processes this personal data. Kadonation’s privacy declaration can be consulted via this link.
2.By ordering the Products, Services and/or entering into an Agreement with Kadonation, the Customer acknowledges to have read and accepted the privacy declaration.
14.2.Kadonation as processor
1.The Customer acknowledges that – with regard to the processing of all data of the Customer and/or End-User entered and uploaded into the Platform – it shall act as controller and Kadonation as processor. All arrangements made between parties in this respect shall be solely governed by the Data Processing Policy.
2.The Customer acknowledges explicitly that by using the Platform, ordering the Products and/or entering into an Agreement with Kadonation to have read and accepted the Data Processing Policy in its entirety.
15.Changes to the Terms
15.1.Kadonation reserves the right to amend these Terms and the offer and composition of its Services and/or Products at any time. New or amended Terms shall apply from the thirtieth (30th) day after they were made known to the Customer (e.g. through a notification on the Website and/or the Platform).
16.Netting
16.1.In accordance with the stipulations of the Law on Financial Collateral dated 15 December 2004, Kadonation and the Customer will automatically and legally compensate and offset each other for all current and future debts.
17.Miscellaneous
17.1.No waiver
1.Any failure or delay by Kadonation in exercising any right under an Agreement and/or these Terms with the Customer, any single or partial exercise of any right under such Agreement and/or these Terms or any partial reaction or absence of reaction by Kadonation in the event of violation by the Customer of one or more provisions of such an Agreement and/or these Terms, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of Kadonation’s rights under such Agreement, these Terms or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by Kadonation, this waiver cannot be invoked by the Customer in favor of a new failure, similar to the prior one, or in favor of any other kind of failure.
2.If Kadonation agrees to a transfer of debt from the Customer to a third party, this will under no circumstances lead to a waiver for the Customer. In this case, the Customer and the third party are always jointly and severally bound to the Agreement. The Customer explicitly acknowledges that the drawing up of a credit note to the Customer or a new invoice to that third party will never be considered as permission to grant the Customer a waiver.
17.2.Notices
1.Any notice to be given under these Terms shall be deemed duly given when sent by e‑mail and postage prepaid or courier and addressed to the other party’s address. It shall be deemed received three (3) working days after the date of dispatch in the case of e‑mails and in the case of postage prepaid or courier on the date of receipt by the other party.
17.3.Divisibility
1.If any part or any clause of these Terms is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Terms.
2.Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes closest to the intention of Parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.
17.4.Non-transfer
1.This Agreement and the rights and obligations ensuing from it for the Customer may not be transferred either directly or indirectly without the written consent of Kadonation.
2.Kadonation shall have the right to transfer this Agreement and the rights and obligations ensuing from it to a third party. In that case a new agreement between the Customer and the third party shall be concluded with terms and conditions (rights and obligations) identical to those in this Agreement for the remaining term.
18.Jurisdiction and applicable law
18.1. The present Terms as well as any Agreement between parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of (i) all conflict of laws rules, (ii) the UN Convention on the International Sale of Goods (1980), and (iii) the NY Convention on the Limitation Period in the International Sale of Goods (1974).
18.2.Without prejudice to any other provision of these Terms, any claims by the Customer arising out of or in connection with an Agreement between parties will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant Products and/or Services.