Interpretation and Explanation
1.1 In these general terms and conditions, “we”, “our” and similar personal pronouns Build4Performance B.V. (full details are set out above) and “you” and similar pronouns mean you, the purchaser of goods and/or services of Build4Performance B.V.
1.2 Words and expressions displayed in capital letters in these terms and conditions have a specific meaning and are defined in the body text or in the table below.
1.3 These Terms and Conditions, together with any order confirmation issued by us, constitute the entire agreement for the purchase of Goods or Services (defined below) to the exclusion of any other terms offered by you. When you order Goods or Services, you make an offer to purchase those Goods or Services, which we can accept by sending an order confirmation. The expression “order confirmation” means our written confirmation of your order by letter, or e-mail.
1.4 We provide Goods and Services to both business customers and Consumers. If you purchase Goods or Services as a Consumer (defined below), certain provisions of these GTC may change or may not apply to you. See Article 6 for more details.
1.5 The contract for the purchase of goods or services is only formed when we provide the order confirmation to you and nothing on the website or in any literature or promotional material we issue constitutes a contractual offer by us. You can request Goods or Services by telephone, e-mail, in person in our showroom or online via the website. Our published prices do not constitute an offer to provide Goods or Services at those prices.
1.6 We have the right to insist on a written signature from an authorized signatory confirming the acceptance of these Terms and Conditions as a condition of shipment of Goods or booking services; but the absence of a written signature does not affect the inclusion of these GTC in the contract for the provision of Goods and/or Services.
1.7 We reserve the right to change these GTC from time to time and any changes can be viewed on the website. All orders placed by you are from time to time subject to the latest version of the GTC.
1.8 Where Goods of a particular description are no longer available, we may replace similar Goods, provided that they are, in our reasonable opinion, as suitable for your purpose as the Goods specified in your order.
1.9 The Website is made available for publicrebuttal on the basis that, to the extent permitted by law, we exclude all liability for any loss or damage arising from the use of the Website or reliance on the content of the Website.
1.10 Where in these GTC the word inclusive or the expression for example (or a similar expression) is followed by a list of examples, this is deemed to be followed by the words “but without limitation”.
1.11 References to legal or delegated legislation include legislation as amended, consolidated, updated or amended from time to time.
1.12 The expressions in the left column of the table below have the meaning shown in the right column.
| Expression | Meaning |
|---|---|
| Custom made | The delivery of goods manufactured according to the specifications of the other party, which are not prefabricated and which are manufactured on the basis of an individual choice or decision of the other party, or which are clearly intended for a specific person. |
| Carrier | A third party contracted by us to transport the Goods you have purchased from us to yours. |
| Customer | This means any natural or legal person who has concluded an agreement with B uild4Performance with a view to using the facilities of Build4Performance. |
| Commercial use | Means making the Goods available for use by your customers for rental or reward from a single location (but excluding resale). |
| Consumer | Any natural person who, acting for purposes that fall outside his business or professional activity, has concluded an Agreement (at a distance) with the User. |
| Contents | All text, images, images, audio, video, software, data compilations and any other form of information that may be stored on a computer that appears on or is part of a System |
| Contract agreement | The agreement formed by our confirmation of your request for the delivery of Goods or Services in which these Terms and Conditions are incorporated and subject to |
| Defect | A malfunction of a part of a system that means that you cannot use that system, or that it interferes with the performance of that system to the extent that, for all practical purposes, it is objectively unusable and the expression Defect has a corresponding meaning |
| User | The private company with limited liability Build4Performance B.V., established in (7903 AH) Hoogeveen, at Industrieweg 25F, registered with the Trade Register under the number: 80780245. |
| Goods | A system or replacement or spare parts that are the subject of an order from you “Facilities” means: all services and products that Build4Performance offers such as, but not limited to; racing in simulators, wearing virtual reality glasses, team building activities, training. |
| Facilities |
“Facilities” means: all services and products that Build4Performance offers such as, but not limited to; racing in simulators, wearing virtual reality glasses, team building activities, training.
|
| Insolvent | (I) you convene a meeting of creditors or become the subject of a report or proposal to creditors, an application, petition, arrangement or order under Nederlands law (except with a view to a solvent restructuring, merger or merger); (II) a trustee is appointed over your property; (III) the holder of any consideration or other security about your property undertakes to enforce that security; or (IV) your property becomes the subject of emergency, process, performance or a tax order |
| Reservation | Reservation (agreement) is understood to mean: the agreement, whether or not written and oral, between the provider and the customer about the services to be delivered. |
| Price | The total price for Goods including delivery, installation and/or training costs and any one-time software license fees |
| Services | Building and configuring a system to meet the requirements set out in your order and/or providing installation, training, support services or customised services |
| Supported services | The features we provide to resolve problems, including under the terms of an applicable warranty |
| Partner(s) | The distributeur who has the contractual or written right to promote reservation (agreements) of the provider or to sell or distribute. |
| System | A Build4Performance simulator (including all hardware and software provided by Build4Performance and/or its licensors) |
| Warranty | Provided that the Goods are always (I) kept in their original condition and are not altered by you; (II) be used at a fixed indoor location (III) only be exposed to normal use and fair wear and tear than: for the applicable period described in clauses REF 2.5 or REF 2.6 (the warranty period(s)) we will resolve or repair any defects |
| Website | The website www.build4performance.com |
Warranty, support and limitations of liability
2.1 You are responsible for ensuring that the Goods are suitable for your requirements and any advice or guidance we may give on the selection of Goods (I) is subject in part to information from our suppliers or other third parties (II) is provided free of charge in good faith and (III) does not constitute any statement as to the suitability of the Goods for your particular purposes.
2.2 We offer different systems; some are suitable for home use, while other models are better suited for professional and commercial applications. The Warranty Periods and detailed terms of the Warranty apply differently to the different models. We also offer a more comprehensive extended Service Level Agreement/ warranty service for both private and commercial users, which provides premium support in exchange for an annual fee. The full details can be found on the Website.
2.3 If we agree to provide bespoke goods or services, we may issue a specific agreement with any special terms and conditions applicable to such agreement which (except to the extent expressed to amend or replace these terms and conditions) will apply in addition to these terms and conditions.
2.4 If you purchase as a consumer, the warranty will be void if you use the goods for commercial purposes, including public use, rental or resale. The applicable Warranty Periods for Consumers are:
2.4.1 The metal chassis structure and associated metal parts attached to it (but excluding electronic components); 3 years from the date of delivery;
2.4.2 For all other parts delivered; 1 year from the date of delivery.
2.4.3 Your rights to claim the Guarantee are in addition to your statutory rights (see clause 5).
2.5 If you purchase for commercial use, the applicable warranty period is 1 year from the date of delivery.
2.6 If the warranty is breached, we will first carry out a remote troubleshooting via telephone or email. We may need your help to determine if the problem A) can be resolved remotely B) part needs to be returned for repair C) or a replacement part needs to be shipped. We may ask you to partially disassemble parts of the System to access a Defective Part. If you are not willing or able to help in this way, you can purchase an on-site service visit, the details of which are described in clause 9 below. If a part needs to be replaced, after you have returned the defective part to us, we will send you a replacement part that you can exchange. If you do not wish to change the part yourself, you can return that part or the combination of system parts containing the defective part to us for replacement and return. If you would like us to carry out maintenance or installation of replacement parts on your behalf, you may request that one of our authorised representatives visit you to carry out this work. In that case, we will charge our standard support rates (and payment may be required prior to booking the visit).
2.7 The warranty becomes invalid (and we are not liable for it) if after delivery:
2.7.1 You modify the Goods or attach or install third party components or products on or to the System that have not been approved by us, or have been submitted and approved in advance.
2.7.2 Goods are damaged, accidentally or due to your misuse or negligence.
2.7.4 You are using a third party not approved by us to carry out any installation or maintenance. Install upgrades or replacement components only under the guidance of us or one of our authorized representatives.
2.7.5 You cannot provide a valid serial number (found on the main chassis frame of the system) when making a claim under warranty.
2.7.6 Sealed audio, video recordings and computer software, the seal of which has been broken after delivery
2.7.8 Custimization
2.8 All terms, conditions and warranties implied by Dutch law are hereby excluded, provided that nothing in this clause will work to exclude rights in favour of consumers under all applicable laws.
2.9 Unless expressly provided otherwise in these GTC , in no event shall we be liable for any financial loss, loss of profit, loss of business, loss of contract, loss of enjoyment, losses resulting from third party claims, consequential damages, or for any special or punitive damages, in each case foreseeable or not.
2.10 Our entire liability to you, in contract, tort (including negligence) or otherwise is limited to a maximum of the Prize. You must report any claim under the Contract to us within 6 calendar months from the date on which we delivered the Goods or Services on which the claim is based. All claims submitted after this date are time-barred.
2.11 Our pricing is based on the limitations of liability in these terms and conditions and you acknowledge that: (I) this limitation represents an acceptable compromise between costs and risks; and (II) you had the opportunity to purchase (but did not) our Service Level Agreement (which provides a higher level of warranty and peace of mind).
2.12 Nothing in these terms and conditions applies to limit or exclude our liability to you for loss resulting from (I) death or personal injury resulting from our negligence or under applicable product safety laws (II) breach of statutory terms relating to title or (III) fraud.
2.13 In all situations, whether or not described in these general terms and conditions, Build4Performance has the final verdict.
4. Prices and payment
3.1 In the event that prices change in the period between the date you place an order for goods and the date we issue our order confirmation, we will contact you before your order is shipped with details of the revised price.
3.2 Prices on the Website are in euros and are exclusive of VAT or import duties. Prices on our website or provided to you in an invoice do not include import tax or import duties that may be due when imported into a country outside the Netherlands. Delays and possible subsequent storage costs and penalties caused by non-payment of import fees that may be due shall be borne by the customer. It is the customer’s responsibility to ensure that correct and up-to-date contact details have been provided to Build4Performance so that the shipping company or customs can contact you to request any payments due.
3.3 Notwithstanding the fact that we have issued an order confirmation, we may cancel all or part of an order or transaction at any time prior to shipment.
3.4 Payment of the full Price is due when you place an order, unless we specifically agree otherwise and must be made by credit or debit card, PayPal or direct bank transfer to the account we nominate. Please note that, according to Dutch export rules, if more than 3 months pass between the date of your payment and the date of shipment of the goods to you, we may be required to create an additional invoice for VAT at the applicable rate in addition to the price, which must be paid in full before we ship the goods to the carrier.
3.5 If we have agreed to ship goods prior to payment, payment will be due on the date stated on the invoice we send you and in such case:
3.5.1 Ownership of the Goods shall not pass to you until the full Price has been received by us and credited to our account
3.5.2 If payments are overdue or you become insolvent, your right to possession of the goods will automatically lapse and we may, without notice to you , (I) suspend the delivery of goods due under other contracts we have with you until payment is received and (II) enter a premises where the goods are stored, separate the goods from everything to which they are attached (without liability for any damage resulting, unless the damage is the result of our negligence) and take back possession of all or part of the goods.
3.6 We may enforce a promotion for the prize provided that the due date for payment has passed, regardless of delivery.
3.7.1 We may charge a fee for late payments at the rates and amounts prescribed from time to time and are also entitled to all reasonable costs incurred to recover unpaid amounts.
3.7.2 The extrajudicial costs amount to 15% of the invoice amount, or the actual collection costs (with a minimum of € 450.00).
3.7.3 Any judicial and enforcement costs incurred will also be recovered from the other Party.
3.8 Where parts of an order are not available, we may invoice those parts separately.
3.9.1 All offers made by Build4Performance to the Other Party are without obligation, even if a term is mentioned therein, unless explicitly stated otherwise.
3.9.2 With regard to price lists, brochures, information on websites and other data provided, Build4Performance expressly reserves price changes and (printing) errors.
Shipping & delivery
4.1 Shipping and handling costs are added to the costs of the goods, unless otherwise
indicated on our order confirmation.
4.2 We will notify you by email or telephone when your goods are ready for shipment to the carrier (or alternatively if the original estimate of the 30-day shipment may be exceeded). All delivery dates that we communicate to you are estimates only and the time is not (and cannot be made by you) of the essence of the contract for the delivery of goods or services by us to you.
4.3 We will not be liable for any losses, costs, damages orexpensesthat you may incur, directly or indirectly, as a result of failure to meet an estimated delivery date.
4.4 You must make every effort to be available to receive and sign Goods on the date that we or the Carrier notify you that they will be delivered to you. If the Carrier attempts to deliver goods but is unable to do so, the Carrier will make two more attempts. If, despite making a second and third attempt, the Carrier is still unable to deliver the Goods, the Carrier will leave a card with a reference telephone number that you can call to arrange delivery at a time that suits you. If you are unable to receive a successful delivery within 14 days of the first delivery attempt, the goods will be returned to us and you will be charged the shipping costs. Once the item is returned to us, you will have to pay additional shipping costs before we ship the item to you again.
4.5 You must inspect the Goods for obvious damage that occurred during transport at the time of delivery and record any visible damage on the Carrier’s delivery form or mobile device. You should also make sure that you turn on the goods and check that they are working as soon as possible after delivery and in any case within 48 hours. We are not liable for damage caused during transport, but we will make reasonable efforts to claim the cost of the goods and all associated costs of the carrier. Failure to report damages within the above 48-hour period may jeopardize our ability to recover such costs from carrier’s insurer.
5 Returns by commercial and international customers
5.1 If you receive goods that do not match the goods you have ordered or that are defective, you must contact us within 5 days of the date of delivery by the carrier via the website or by email; support@build4performance.com to arrange collection and return at our expense. You will be given the opportunity to have the Goods replaced by the Goods ordered (if available) or to be refunded via the payment method you used when purchasing the Goods. Refunds and replacements will be made upon receipt of the returned Goods.
5.2 If you have selected Goods incorrectly, we may, in our sole discretion, offer to replace such Goods with the Goods you intended to order, but we may charge an administration and restocking fee and you will have to pay the additional transport costs (together with all relevant taxes and charges).
5.3 Returned Goods must be received by us in the same condition as they were delivered in, together with all associated packaging and documentation.
5.4 You have the right to return third party goods within seven days of delivery by the carrier, provided that (I) they are not an integral part of any system; (II) you pay all return shipping costs (together with all applicable import duties and taxes) and (III) the Goods are unopened and in saleable condition.
5.5 We are under no obligation to accept returns or exchanges of bespoke goods.
5.6 Your rights to return Goods under this clause are subject to our reasonable discretion and we may refuse to accept a return or make a refund where Goods: (I) have been exposed to abnormal environmental factors, including power failures or failures, electromagnetic interference, extreme humidity or temperature, excessive vibration or electrostatic damage; (II) have been damaged by chemical corrosion or water; or (III) have been sold at a discount. In such circumstances, we may ask you to pay for our examinations and any repairs required as a condition of the return.
6 Acting as a consumer
6.1 If you purchase as a consumer, you have certain legal rights that give you (among other things) the right to change your mind and have goods replaced or repaired free of charge for a limited period of time. Nothing in these terms and conditions is intended to adversely affect your statutory rights. If there is a conflict between your statutory rights and the conditionsn in these GTC, the terms in these GTC shall be deemed to apply only to persons acting as a business and not as a consumer. Below is a non- exhaustive list of the most important rights.
6.2 If you have ordered goods via the website, email or by telephone without first physically inspecting them, you have the right to change your mind and cancel the contract up to 5 days after the date of delivery by the carrier. In such case, you may still be liable for: (I) the cost of Services provided to you up to the date of cancellation; and (II) the cost of collection and return by a carrier. Your right to cancel may not apply to custom-made goods or services. If you decide to cancel your order, you must inform us by e-mail via the contact form on the Website.
6.3 You have the right to return Defective Goods free of charge for up to 30 days from the date of delivery by the Carrier.
6.4 You have the right to require us to repair the Goods free of charge for a maximum of 1 month from the date of delivery by the carrier.
7 Commercial use
7.1 We only allow commercial use of systems that we supply under our special “Commercial” line identified as such by us or put together in consultation with Build4performance. You may not modify or reconfigure systems without our express permission.
7.2 You may not remove any trademarks or branding applied to the Goods. If you wish to change the livery applied to a system on a “White label” basis, you must first seek our express written consent.
7.3 When you purchase a Commercial Use System, you must also purchase the appropriate commercial software licenses.
8. Software
8.1 Each System contains software and/or Content, which may be owned by us or provided by third party licensors. Some of our third-party licensors require you to sign an end user license agreement directly with them, while others give us the rights to license their software to you. You must comply with the terms of such software licenses in addition to these GTC.
8.2 You may not modify, copy, redistribute or attempt to reverse engineer any software provided as part of a System (or which you download separately), except to the extent permitted by law to back up the software or maintain the software in circumstances where licensor does not offer maintenance.
8.3 Some software licenses are issued periodically or for a limited period of time and you are responsible for renewing such licenses (either with us or directly with the third party provider) when renewals are due.
8.4 Please note that while some software programs provide a configuration option that allows the addition of Third Party Content, this does not always automatically include the rights to use such Content and it is your responsibility to ensure that you (I) have obtained permission to use such Content and (II) have paid any applicable fees to the creator or licensor of such Content.
9 Installation, training and on-site support
9.1 Unless you are an experienced customer with previous installation experience, we only supply a system on condition that it is installed by our team of specialists. Our standard installation prices are listed on the Website or can be requested if necessary. Our standard installation prices apply provided that the System is installed on a ground floor accessible through a door at least 950 mm wide. In all other circumstances (for example, if the installation location is only accessible by stairs), additional costs may be charged. If you reject our offer to provide our on-site installation and training service, you are responsible and assume liability for any resulting system failure, including all costs associated with repairing any resulting Defects.
9.2 It is your responsibility to provide us with sufficient information about the place of installation so that we can properly estimate the required manpower and the associated costs. You will be liable for any additional costs we may incur if you do not fully disclose such information (including administration, delay and additional manpower and associated travel and accommodation expenses).
9.3 Each training takes place on the day of installation and therefore you must ensure that someone is available to follow the training, otherwise you will have to pay for special training, which is given at our on-site support rates that apply at that time. Depending on the availability of transport and accommodation, it is possible to give a training another day after the installation date, but additional costs will apply.
9.4 You can ask one of our technicians to visit you to resolve any problems with the system. Our minimum call-out fees in the United States represent up to 4 hours of our technician’s time at our applicable rates from time to time plus travel time and expenses (if applicable). The technician will try to solve your problem on site, but if this is not possible and a part needs to be replaced, the technician will remove the part and return it to us for repair or replacement. If the part is still under warranty, the replacement or repair is free of charge, otherwise we will inform you of any cost of such repair or replacement.
9.5 During a call, once the technician has completed the task for which the call was booked, you can ask the technician for advice and help you with everything else related to your system, provided that it is completed within the 4-hour time frame.
9.6 For calls in the Netherlands for which our technician has to travel more than 2 hours from our premises and for calls outside the Netherlands , additional costs will be charged.
10 Intellectual property
10.1 The User reserves all rights and powers that belong to it on the basis of the laws relating to intellectual property.
10.2 The User is entitled to use the increased knowledge on its side for the execution of agreements other than the Agreement with the Other Party. The User takes into account any confidential information whereby this information is not shared with Third Parties or in the execution of other agreements.
10.3 The User is entitled to request its works and other documents that are subject to intellectual property rights from the Other Party at any time. The Other Party shall cooperate to this end at all times and as soon as possible.
10.4 The User is entitled, without prior permission from the Other Party, to publish works if they are the intellectual property of the User.
10.5 The Other Party is not authorized to publish works without the prior permission of the User if these works are subject to intellectual property rights of the User.
11. Transfer of risk
11.1 The risk of loss, damage or depreciation passes to the Other Party at the moment when goods are brought into the control of the Other Party.
12. General
12.1 We may delay the performance of the Contract as long as we are unable to retrieve
dates agreed with you due to a cause beyond our reasonable control.
12.2 We may terminate the Contract immediately (I) without notice if you become Insolvent (II) upon notice if the Contract becomes impossible to perform due to a cause beyond our reasonable control or (III) notice in respect of any part of the Goods if only information provided by our suppliers on whom we relied proves to be inaccurate to the extent that it becomes unprofitable for us to Deliver goods to you.
12.3 The provisions of clauses 2.8 to 2.12, 3.5 to 3.7, this clause 10.3, clauses 10.5 to 10.9 and our rights to recover any unpaid part of the Prize shall survive termination of this contract, regardless of the reason for termination.
12.4 If any of the terms of the Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term or provision shall be severed to that extent from the remaining terms, conditions and provisions which shall remain valid to the fullest extent permitted by law.
12.5 The Contract and any document expressly referred to herein represents the entire agreement between the parties and supersedes any prior agreement, understanding or arrangement, whether oral or written.
12.6 Neither party has relied on any representation, undertaking or promise of the other or implied from anything said or written in negotiations prior to entering into the Contract, except as expressly stated in the Contract or any document expressly referred to.
12.7 Neither party shall have any remedy with respect to any untrue statement by the other party, whether oral or written, prior to the date of the Contract (unless such untrue statement has been made fraudulently) and is either party’s sole remedy for breach of contract.
12.8 No term of the Agreement is enforceable by any person who is not a party to the Agreement, but this does not affect any third party right or remedy that exists or is available outside of that law.
12.9 The Contract and all disputes or claims arising out of or relating to its subject matter shall be governed by and interpreted in accordance with the laws of the Netherlands.
12.10 These Terms and Conditions have been filed at the offices of the Chamber of Commerce under number 80780245. The most recently filed version or the version as it applied at the time of the conclusion of the Agreement always applies.
13. Events and rental – Cancellation
13.1 If a consumer does not pay in accordance with what has been agreed, Build4Performance reserves the right to cancel any reservation and to charge the actual costs of the cancellation.
13.2 If a customer acting in the exercise of a profession or business or commercial use does not pay in accordance with what has been agreed, Build4Performance reserves the right to cancel any reservation and to claim a percentage of the turnover expected as a result of the reservation in question, including operating fee and VAT, depending on the time of cancellation and rising to a maximum of 100% of the expect turnover including operating fee and VAT.
The cancellation costs are:
- 13.2.1 Cancellation 28 days or earlier before the event starts: 20% of the expected turnover including operating fee and VAT.
- 13.2.2 Cancellation 14 – 27 days before the event starts: 50% of the expected turnover including operating fee and VAT.
- 13.2.3 Cancellation 3 – 13 days before the event starts: 80% of the expected turnover including operating fee and VAT.
- 13.2.4 Cancellation 0-2 days before the event starts: 100% of the expected turnover including operating fee and VAT.
13.3 If a customer independently decides to terminate the use of any facility prematurely, no refund will be granted.
13.4 Build4Performance reserves the right to refuse customers who do not meet the requirements to experience an experience in a safe way and without damage. Any requirements are, but are not limited to the following examples: customers must have a maximum body weight of 120 kilograms, have a minimum body length of 1,4 0 meters, show appropriate behaviour, wear suitable footwear and must be able to sit in the racing seat without any problems.
14. Liability Build4Performance
14.1 Any liability to Build4Performance for damage (also as a result of theft) that customers and or visitors suffer is excluded, unless this is regulated by law.
14.2 The foregoing applies to everyone and regardless of whether the damage is caused by, (but not limited to):
14.2.1 entering the simulators or the experience location;
14.2.2 an accident with a simulator, while racing, experiencing a VR experience, or any accident with other customer(s)
14.2.3 Violation of safety regulations by any customer or visitor
14.2.4 circumstances attributable to the customer or visitor.
14.3 Build4Performance is in no way liable for epileptic seizures, damage to health, motion sickness, or any other form of disadvantage for customers.
14.4 In the event that Build4Performance nevertheless proves to be liable, that liability is limited to a maximum of the amount that is paid out under the liability insurance in the relevant case. 14.5 Build4Performance is not liable to reimburse costs of the customer, without written agreement, as compensation or as compensation for software, hardware or other organizational problems.