My Foot® Terms and Conditions of Sale
Of the company with limited liability Foot-Facts Lda. located in São João da Madeira, Portugal, deposited at the chamber of commerce in Santa Maria Feira, under number PT509996787, as per 2011.
Article 1 Applicability
- These terms and conditions are applicable to all of Foot-Facts Lda. offers for sale, orders, agreements, including all obligations coming forward out of the agreement, unless otherwise is agreed in writing.
- Foot-Facts Lda. is only bound to varying provisions if these have been approved by them in writing, and only for the agreement this approval refers to.
- The buyer or the person to whom an offer has been made by Foot-Facts Lda. is deemed to have accepted these terms and conditions, even if he should have availed himself of – whether or not – filed terms and conditions upon the conclusion of the purchase agreement. The latter terms and conditions shall not apply to offers made by Foot-Facts Lda. and/or agreements concluded by or in the name of Foot-Facts Lda., and are herewith explicitly declined.
Article 2 Offers
- Unless otherwise stated all our offers with their contained prices and specifications in any form or whatsoever a non-committal agreement.
- Offers that have been made on behalf of us by our representatives or intermediaries only bind us if and as far as they have been confirmed in writing by an authorised person, namely an authorised representative of Foot-Facts lda. prescribed by the articles of association, or the authorized representative that has the power to do so, within a period of fourteen days after the date of the offer.
Article 3 Agreement
- The obligations of Foot-Facts Lda. arising from any contract or agreement are limited to what is described in the order confirmation and to what is described in the original written order from our buyer.
- The agreement with Foot-Facts Lda. happens by accepting the offer by our buyer, or by sending an order confirmation from our side and our buyer doesn’t object to this confirmation in writing within the period of 5 days. The agreement is expected to be confirmed on the day that the order confirmation is dated.
- Any additional agreements or changes in the agreement are only valid when confirmed by Foot-Facts Lda. in writing.
- Unless explicitly otherwise agreed can in the specific case our buyer be qualified as a juridical person, the management/the manager that represents our buyer while committing to the agreement, personally responsible for the obligations of the specific agreement, also responsible for the damage that might come forward out of accountable deficiencies from the side of our buyer, also for damage caused by illegal treatment of our buyer against Foot-Facts Lda..
Article 4 Prices
- Goods will be delivered by Foot-Facts Lda. for the price stated in our confirmation, except for prices that are evidently wrong in accordance with the requirements of reasonableness and fairness.
- Each price factor increase that affects the cost price and has occurred or has its effect after the date of offer (including increases in wages and/or social securities, taxes, import duties, prices of raw materials, currency changes, etc.) gives Foot-Facts Lda. the right to increase the agreed price of the goods to be supplied accordingly, until the date of supply, all this with due observance of any relevant provisions by law that are applicable.
- In the event of price increases the new prices will be announced to our buyer, who will in that case be entitled to cancel the purchase agreement by means of a registered letter within 14 days following the notification of the price increases, without being liable to pay any damages. If our buyer has not cancelled the agreement within this period, he is deemed to have agreed to the increased prices.
Article 5 Delivery
- The delivery time takes effect from the date that is stated in the written order confirmation signed by or in the name of Foot-Facts Lda., taking into account the spreading period of delivery as indicated on the order form.
- Any delivery dates given by Foot-Facts Lda. are at all times without obligation, Foot-Facts Lda. will, however, within reason try to observe these as much as possible. If no delivery date has been agreed, the delivery date will be set on 7 weeks after the date of the order confirmation. If the specified date or dates of delivery cannot be maintained by us, Foot-Facts Lda. will inform the buyer of this with adequate urgency, indicating the then expected date or dates of delivery.
- Exceeding the delivery date – for whatever reason – does not entitle our buyer to claim damages, to refuse to accept the goods, to dissolve the agreement fully or partially, or to demand action for performance of this agreement. By acceptance of these General Terms and Conditions our buyer also declares that he indemnifies Foot-Facts Lda. against any claims that third parties may exercise as a result of the late delivery. After exceeding the given date of delivery, the buyer does have the right to stipulate a reasonable later date of delivery from Foot-Facts Lda. by means of a registered letter.
- Unless explicitly agreed in writing, Foot-Facts Lda. will not be held liable for any compensation due to exceeding delivery times and will hold Foot-Facts Lda. free of any obligations caused by a third party.
- Unless otherwise agreed, our deliveries take place from our warehouse. When the goods after expiring of the delivery term are still not taken away by the customer are these goods available and will be stored for the customers risk and costs. Goods that are supplied before the agreed or preferred delivery time have to be stored by our buyer for its own cost and risk.
Article 6 Circumstances beyond ones control
- Foot-Facts Lda. will not be liable for default under the contract caused by: war, danger of war, all or partly immobilisation, (trade) blockades, im- and export embargos, depreciation of the currency of payment, all or partly confiscation of our goods, fire- and storm damage, flooding, labour strikes, boycotts of our suppliers, illness epidemics, lack of raw materials, factory interruptions caused by whatsoever, lack of production capacity, transportation facilities and interruption of the supply of raw materials and other circumstances of any nature that in fairness can’t oblige Foot-Facts Lda. to complete the agreement.
- Foot-Facts Lda. has the explicit right to suspend completion of the agreement to a later date in the case of any of the events stated in article 6.1, or change the agreement as a whole or partly to enable us to complete the agreement fully or partly without the ability to claim any damage from us.
- In the case that the postponement of the agreement from side of Foot-Facts Lda. takes longer than 3 months, is Foot-Facts Lda. entitled to cancel the agreement or the not yet completed part, without any ability to claim damage from Foot-Facts Lda. In the case of a part completion our buyer has the obligation to complete the financial part of the agreement that has been partly completed.
Article 7 Payments
- Unless otherwise agreed in writing, payment for invoiced goods must be in conformity with the agreement or general conditions set for payment. Unless otherwise agreed in the agreements all invoices of Foot-Facts Lda. are to be paid within 15 days after the date of invoice without any discounts or postponements. Foot-Facts Lda. is entitled to request (partial) advance payment or security for payment of the selling price.
- In the case that the indebted amount is not paid within the set payment term there will be an increase of the amount due of 1,5% per month and every part of a month in respect of interest, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. This interest is due from the time that the payment should have taken place up to the time that the actual payment has taken place. If payment has still not been made after a demand for payment has been sent, we will be entitled to increase the amount due increased by the current interest rate and court and extrajudicial costs. These costs are set at a minimum of 15% of the principal sum, at a minimum of € 250,-.
- In the case that payments are not settled within the set term and that our buyer has received a reminders Foot-Facts Lda. is allowed to postpone or cancel all other obligations towards the specific our buyer without any liability for any damage to our buyer due to the fact that our buyer doesn’t get any product delivered. All financial obligations to pay for goods and accrued costs remain even if Foot-Facts Lda. withhold further deliveries due to non-payment.
- In the event that a signed order which we have confirmed is cancelled by our buyer, our buyer is declared to be in bankruptcy, requests for suspension of payment, or becomes a ward of the court or when goods and payments have been confiscated, or when our buyer is in liquidation or is being decomposed, Foot-Facts Lda. is allowed to claim full compensation which includes damage for the production, storage of undelivered goods, cost of stock. The damage will be calculated as 45% of the goods value. The damaged will be calculated on all unpaid invoices. If our buyer cancels the goods indicated in Article 3.2 after 8 calendar days following the date of the order confirmation, or refuses to accept the goods ordered upon delivery, or if the goods cannot be delivered because payment inadequacy has become manifest, 45% damage of the agreed purchase price will also be applicable. Furthermore, damage also includes invoice amounts of all outstanding invoices.
- Unless explicitly otherwise agreed, all the payments by our buyer will be deducted from the oldest outstanding first invoice irrespective of the explanation of our buyer that the payment settles another invoice.
- In the case that we decide that Foot-Facts Lda. continues the execution of one or more agreements are we allowed to claim a convenient security of our buyer.
Article 8 Securities
- As long as all goods delivered by Foot-Facts Lda. remain payable by the buyer, including packaging and possible interests and costs, Foot-Facts Lda. retains title to all goods (including those that have been paid for) delivered by Foot-Facts Lda. as security for payment. Therefore, Foot-Facts Lda. is entitled to take back or to have taken back these goods from the buyer, of which the value is set at a maximum of 55% of the original selling price. If our buyer, being a company or sole trader or partnership as the case may be, shall become insolvent or do anything or fail to do anything which would be entitle any person as against the customer and/or its assets to:
- commence proceedings for recovery of debt or damages
- issue execution (in all its forms) or distress
- cause a statutory demand or bankruptcy petition or winding-up to be served
- present a petition for the appointment of an administrator
- allow the appointment of a receiver
- present a petition for the appointment of an administrator of a liquidator
- Our buyer grants the companies an irrevocable licence to enter upon premises where the goods are stored or where they may reasonably be thought to be stored for the purposes of:
- inspecting the same at any time
- upon termination of the right to possess the goods repossessing the same
- Our buyer however carries the risk of direct and indirect damage to the goods and packaging from the moment of delivery.
- Our buyer is prohibited until all the obligations coming forward out of the agreement, including possible interest and costs, have been satisfied from selling or supplying the goods to a third party.
- If the goods of Foot-Facts Lda. are not paid for and are sold or supplied to a third party the remainder of the goods under the contract shall be subject to collection. In that case Foot-Facts Lda. also has the right to collect at the same moment without any authorization of our buyer all goods and packaging from the place where the goods and packaging are. Our buyer is obliged on our first request to indicate where the specific goods are and has to enable Foot-Facts Lda. to collect the goods. Foot-Facts Lda. is not liable to any damage for the client that comes forward out of this collection right. Our buyer frees us from all responsibility to insurance claims that third parties might try to force against Foot-Facts Lda. The value of the goods to be taken back is set at a maximum of 45% of the original selling price.
Article 9 Differences and tolerances
- Considering that it is Foot-Facts Lda.’s policy to focus on continuous improvement of its products, Foot-Facts Lda. reserves the right to change its products to a small extent as regards the design, construction, colour and composition, when it considers this justified, or if this is essential to comply with relevant statutory provisions.
- When Foot-Facts Lda. expects that production technical issues cause larger deflections Foot-Facts Lda. will notify our buyer in time.
- Our buyer accepts all minor and/or usual differences in colour and design of the supplied goods and/or services, which means that this could never be an occasion for an appeal. Colour differences of materials that are allowed in the industry will never give the right for replacement or refunding. In the judgement of possible differences will be related to an average example of the specific difference and not to one specific example.
- When our buyer doesn’t give Foot-Facts Lda. any directions on the way of transportation, shipment, packaging and so on, Foot-Facts Lda. will determine this ourselves by best judgement. Unless otherwise agreed, our buyer accepts all risks related to this including guilt or negligence by the transportation company.
- Any specific wishes by our buyer in case of the transportation and packaging is only executed, after our buyer has confirmed in writing and has paid the additional costs.
Article 10 Warrantee
- Foot-Facts Lda. will guarantee for a maximum period of six months starting on the date of delivery to the user, that the products they have delivered will comply with the requirements that may be set for them within reason considering the nature of the product and the use that is generally made of it, with due observance of the provision set out in Article 9 of these General Terms and Conditions. This guarantee implies that Foot-Facts Lda. will look after the repair of the products or replace them, or that they will fully or partially credit the agreed selling price (depending on the economic life of the product) as paid for by our buyer, without charges. Patent, print and crackle leather as well as soles of thermoplastic rubber (TR) are not covered by the guarantee.
- Claims for guarantee need to be send in writing by our buyer with the notice of all circumstances that base the guarantee claim together with the specific articles. In all cases is Foot-Facts Lda. judging if she accepts the guarantee claim. The claim will be rejected if the articles that are claimed, has been adjusted, have been repaired before by our buyer or a third party, or the article has been used for something else then meant for, in our opinion the maintenance of the shoe has not been executed properly. A guarantee claim is also rejected if the product has been exposed to external forces that can’t be expected during normal use. Two years or more after delivery all warranty is expired and no claims will be accepted anymore.
- When a buyer while selling to a third party uses different guarantee conditions for our articles, is this for our buyers own costs and risks and is no occasion for us to expand our guarantee conditions. The conditions stay at any time the same as stated in these general conditions, limited to the costs of repair or replacement, or crediting of the purchasing price to our buyer.
- On the suitability of our products for specific use by one user, isn’t any guarantee applicable. Our models are based on general user norms and not to specific ones. Any guarantee of promise from our buyer to a third party is for our buyers own costs and risks.
Article 11 Liability
- Obligations of Foot-Facts Lda. and liability are limited to our guarantee obligations. Our liability is at any time limited to replacement of faulty products. That is why Foot-Facts Lda. never is liable for any indirect damage coming out of whatsoever, this includes in any case the damage of missed income, that comes forward out of an error in goods or services supplied by Foot-Facts Lda.
- Foot-Facts Lda. is in any case never liable for any direct or indirect damage by our buyer, what is caused by delivered goods to or from Foot-Facts Lda., caused to any goods or persons whatsoever.
- For all damage and costs as mentioned above is our buyer liable and this frees us from any claims that third parties file against us.
- In the case that our buyer gives promises in relation to the guarantee conditions in this article or other promises conflicting with the conditions and made an agreement is this always on his own risk.
- In the case of faulty products of any kind is our liability at any time limited to the amount that our liability insurer grants for product liability.
Article 12 Appeal
- Possible appeal with regard to the by Foot-Facts Lda. delivered, or disposed goods, have to be filed with Foot-Facts Lda. within 14 days after delivery with a detailed description of the facts that are claimed. After this period is any right for appeal expired.
- Appeals with regard to the delivered goods will only be treated when our buyer has returned the goods Franco to Foot-Facts Lda. When Foot-Facts Lda. has the opinion that the complaint of these goods is right, the only action undertaken by Foot-Facts Lda. is replacing the returned goods.
- Appeals with regard to invoices have to be filed in writing as well and this within 8 days after the sending date of the invoices.
- In the case of an appeal is our buyer still obliged to follow the agreement. Only in the case of our explicit written permission is our buyer allowed to postpone the settlement of the invoice.
Article 13 Default
- When the principal cannot full fill its obligations, after Foot-Facts Lda. has sent a written reminder with a term of 8 days allowed for cancellation of the agreement without intervention of jurisdiction, we can however request our buyer to settle all unsettled obligations and we are allowed to account all costs and missed profit and collection charges to our buyer. Such to a minimum amount of 45% of the agreed selling price.
Article 14 Contract party outside the European Union
- In the case of an international purchasing agreement with our buyers outside the European Union is the law from December 15th 1971 till execution of the on July 1st 1964 settled convention, containing a single shaped law dealing with the internationally purchasing of liquid assets (Trb. 1964 117 and 1968, 13) not applicable, except when the purchasing agreement with our buyer or when a dispute coming forward out of such an agreement is not dealt with by a Portuguese lawyer, one or another as far as in the purchasing agreement is not deviated from this, and as far as there is no individual agreement with the buyer or is not applicable.
Article 15 Copyright
- Foot-Facts Lda. owns all intellectual property rights with regard to all by Foot-Facts Lda., or on our instructions, produced designs, models, production techniques etc. All products and materials meant for production as well as moulds and lasts stay at all time property of Foot-Facts Lda. unless otherwise agreed in writing.
- It is for our buyer or possible a third party explicitly forbidden to copy our designs, models, last models, moulds etc without our notice, and to use this for yourself or a third party with the risk of a direct punishment without intervention of jurisdiction of € 100.000,- per offence and € 500,- per day that the offence continues, the right to claim full compensation including missed profit and costs made for protection property of Foot-Facts Lda. rights remains.
- Our buyer is obliged on our written request to return all articles that are part of the agreement, including designs, models, lasts and moulds. This return duty contains also copies made by our buyer, with or without the permission of Foot-Facts Lda., or supplied this to other third parties. When the returning doesn’t take place within the set term, will our buyer forfeit a right for the penalties and also be liable for damages as stated in article 15.2
Article 16 Sales conditions
- The buyer will see to it that the general terms and conditions will be applicable mutatis mutandis our current General Terms and Conditions upon sale to the customer. If the buyer applies other provisions, these have to be submitted to us for approval if these contain varying provisions. We disclaim any liability for any direct or indirect damage for whatever reason or of whatever nature, as a result of the mentioned terms and conditions of sale not being applicable. The buyer is liable for all damage and costs envisaged here, and he indemnifies Foot-Facts Lda. against claims that third parties may enforce upon it.
Article 17 Closure determinations
- Portuguese law applies to all agreements that have been concluded under these terms and conditions. All disputes arising from or connected with offers, orders, agreements, or engagements to which these General Terms and Conditions are applicable, or regarding these General Terms and Conditions themselves, including the interpretation and execution of them, shall (in principle) be brought forward to the competent court in the district of the domicile of Foot-Facts Lda.
- All conflicts, raised between our buyer and Foot-Facts Lda. , including disputes about these general conditions document and the collection of unsettled invoices, will be dealt with at the first moment by the appointed judge in the settlement of Foot-Facts Lda.
- Where requested in these General Terms and Conditions our buyer includes those that have requested Foot-Facts Lda. for an offer or a quotation. In case of textual obscurities the general terms stated in the English language are the only correct basis.