1. Purpose and application

These general terms and conditions of sale and service apply to relations between FOBILUX SARL and its customers.

Specific additional or deviating conditions may be agreed in other contractual documents.

These General Terms and Conditions apply to all offers and contracts for the sale and provision of services by the Company from the time of first contact between the Company and the Customer, and remain applicable for the entire duration of the contractual relationship between the Company and the Customer. These General Terms and Conditions form an integral part of the agreement between the Company and the Customer.

In the event of any conflict or contradiction between the General Terms and Conditions and the terms of the offer, contract or other more specific contractual documents agreed between the Company and the Customer, the latter shall prevail over the General Terms and Conditions.

Unless expressly waived in writing, these General Terms and Conditions apply to the exclusion of any other general terms and conditions communicated by the Customer, even if such terms and conditions stipulate that the Customer is contracting solely on the basis of its own terms and conditions. Unless expressly waived in writing, the Company shall never be bound by the Customer’s general terms and conditions, even if it has not expressly contested them.

2. Terms and conditions

All offers made by the Company are subject to change without notice.

Quotations are not binding on the Company until they have been expressly accepted by the Customer, either by signing an order confirmation, purchase order or contract, or by payment of a deposit, or by the Company commencing services.

Any order confirmation, purchase order or contract sent by the Customer to the Company, as well as the payment of a deposit, formally bind the Customer, as does the commencement of services by the Company as soon as the Customer is aware of them and does not contest them within 2 hours of their commencement.

In the event of cancellation or revocation of the order or contract by the Customer, or if the Customer fails to comply with any of its obligations, the Company’s loss will be assessed at an amount that may not be less than 30% of the total amount due according to the offer, without prejudice to the Company’s right to prove greater loss or to claim performance of the contract.

3. Pricing - invoicing and payment

Prices quoted in offers, order confirmations and other contractual documents issued by the Company are exclusive of VAT and other Luxembourg or foreign duties, except where expressly stated.

Unless expressly stipulated otherwise in the offer, order confirmation or other contractual documents issued by the Company, the prices stated therein are carriage and packaging paid. The costs of inspection and acceptance by an approved body, as well as any other ancillary costs, are excluded, except where they are expressly stipulated as being borne by the Company.

Prices quoted in the Company’s offer are based on the cost of the goods sold or services to be performed at the date of issue of the offer. The offer transmitted by the Company to the Customer remains valid for a maximum period of thirty (30) days from the date of its communication by the Company to the Customer, unless otherwise stipulated in the offer. The Company reserves the right to charge an administration fee for orders under 100.00EUR.

The Customer must accept the offer within the aforementioned period either by returning an order confirmation attached by the Company to its offer, or by sending a purchase order, or by signing a contract with the Company, or by paying a deposit, failing which the offer will lapse. Acceptance by the Customer of the commencement of services by the Company without objection shall also constitute acceptance of the offer.

Unless expressly stipulated otherwise, the delivery times for goods and services provided by the Company are given for information only and are not binding on the Company, so that late delivery shall not entitle the Company to cancel an order or to claim damages.

Invoices are expressed in euros and are payable within thirty (30) days of the invoice date. Incomplete delivery of an order does not justify refusal to pay for the goods delivered.

Any delay in payment shall automatically and without prior notice entail the payment of interest on arrears at the legal interest rate in force, calculated on the overdue amounts in accordance with the law of April 18, 2004 relating to payment deadlines and interest on arrears transposing Directive 2000/35/EC of June 29, 2000 (article 3 for transactions between merchants and article 12 for transactions with a consumer), on a daily basis from the due date (between merchants, 30 days after the date of receipt by the Customer of the invoice; with a consumer, from the expiry of the third month following receipt of the goods, completion of the work or provision of the services) until actual receipt of payment.

In the event of non-payment of the invoice on the due date, the Company reserves the right to claim, by way of lump-sum compensation, an additional amount equal to 10% of the outstanding balance with a minimum of 40.00 -EUR, without prejudice to the interest on arrears provided for above.

Any collection costs incurred by the Company shall be borne by the Customer.

Any refusal of payment for any reason whatsoever must be notified to the Company in writing within eight (8) days of receipt of the invoice. Invoices which are not contested within this period are deemed to be definitively accepted.

In the event of non-payment of an invoice on its due date, the Company shall also be entitled, without prior warning, to suspend all deliveries and services and the maintenance of all guarantees until the outstanding invoices have been settled by the Customer.

All payments will be applied first to interest, lump-sum compensation and any legal costs, and then to the oldest invoices.

The Company may, at any time, require payment guarantees from the Customer. The provision of sufficient guarantees to the Company’s satisfaction will be considered as a condition precedent to the conclusion of the agreement, respectively to the entry into a relationship.

4. Customer's obligations

The Customer shall provide the Company with all necessary assistance to enable the effective supply of goods, the installation of equipment and the effective performance of services by the Company. This assistance will include, but is not limited to, obtaining all necessary licenses and authorizations from the Customer, providing contact details for electronic communications operators and service providers as well as electrical power operators and service providers, designating a member of its staff as the sole contact person for all communications with the Company and for the transmission of all necessary information, the provision of appropriate workspace or offices and access to facilities, equipment and systems, the assignment of qualified, competent and appropriate personnel to functions which will enable the Company to perform the services, set up the equipment and deliver the goods, the timely making of internal Customer decisions, the timely provision of all applicable safety procedures or other policies with which the Customer is required to comply, and the preparation of the necessary environment. Preparation includes, but is not limited to, providing adequate electrical power and suitable environmental conditions.

5. Change control procedure - replacements/modifications/repairs - extensions

Each Party may propose any reasonable modification or improvement to the services. The Party requesting a modification must inform the other Party in writing, specifying the proposed modification, the objective or purpose of the modification, the requirements and specifications, and the timetable required for the modification. As soon as possible, the Company will inform the Customer in writing whether the proposed change is acceptable and, if so, any impact the proposed change may have on the cost and schedule of providing the services and will communicate a description of the changes in goods and resources required. The Parties will enter into a written agreement concerning the agreed modification prior to the start of its implementation. This written agreement shall constitute an amendment to the contract concluded between the Parties, respectively to the offer and/or order confirmation.

The customer is strictly forbidden to replace, modify or repair any part of the contracted installation himself or through a third party. Any intervention by the Company made necessary by such an initiative on the part of the Customer shall be at the Customer’s expense.

The cost of any conversions, additions, transfers, extensions, relocations, replacements of equipment or supplies of accessory equipment requested by the Customer from the Company shall be borne by the Customer, as shall the cost of any modifications to installations required by the Institut Luxembourgeois de Régulation (ILR), the Institut Luxembourgeois de la Normalisation, de l’Accréditation et de la Sécurité (ILNAS) and by operators and suppliers of electrical energy or electronic communications services. Where such work is to be carried out by the Company, it must be the subject of a separate, prior written agreement with the Customer.

6. Delivery - Apparent defects

Delivery must be made to an easily accessible point on the customer’s premises, requiring no special handling. Delivery must be possible at any time during working hours, without the need for any specific prior procedure.

All goods and services must be inspected immediately by the customer on delivery or on completion of the service. Any remarks or apparent defects must be noted on the delivery note, respectively on the work/service acceptance report, failing which the Company may consider any complaint to be late and the goods, respectively the services, to have been accepted by the Customer.

If the Customer fails to take delivery in good time of any goods ordered, or makes delivery impossible by his absence, by giving a false address or for any other reason attributable to him, the Company shall be entitled to invoice the Customer immediately for the price of the goods and any other costs incurred by the Customer’s failure to take delivery.

7. Warranties and liability

The Company’s warranty for goods and equipment delivered, including hardware and software, is limited to that granted by the manufacturer of such goods. The Customer acknowledges that it shall have no recourse except by virtue of these warranties.

In the event of a defect in the goods or equipment, the Customer shall contact the Company and provide the manufacturer’s serial number, part and model number and a description of the defect as well as any other appropriate information. All defective goods or equipment will be returned to the Company’s premises at the Customer’s expense. The Company will have the choice of replacing or repairing the defective merchandise or equipment.
If, after analysis by the Company, any goods or equipment are found to be non-defective or if it is found that the defect is due to improper or inappropriate use by the Customer, the Company shall have no obligation and may invoice the Customer for the time spent analyzing the goods or equipment.

With regard to software designed, developed and distributed by the Company, the warranty for delivered software is that indicated in the license agreement accompanying the software, to the exclusion of any other warranty. The Company will have the choice between replacement of the software or its repair/modification or reimbursement of its purchase price.

In the event of minor defects, the customer will only be entitled to a price reduction. In all circumstances, the customer must do everything possible to minimize the damage and may not claim compensation of any kind, whatever the pretext invoked.

The Company provides no guarantee as to the suitability of the goods delivered or the equipment installed in relation to the Customer’s needs and the particular use the Customer wishes to make of them. Furthermore, the Company cannot accept any liability whatsoever should it become apparent that the Customer does not have the skills required to use or operate the goods delivered or the equipment installed correctly.

In no event shall the Company be liable to the Customer for any direct or indirect collateral damages (such as, but not limited to, those resulting from loss of data, loss of programs, loss of profits, lost earnings, business interruptions, loss of sales or profits, competitive advantages, goodwill, claims by third parties or any other economic damage).

Likewise, the Company cannot be held responsible for disturbances or damage caused by climatic conditions (such as humidity, water, floods, fire, temperature, lightning, etc.), by breakages, short-circuits or the deterioration or poor condition inherent in the premises, as well as by damage caused by the Customer’s own activity or by defects in equipment, lines or material that the Company does not maintain.

The Company assumes no liability whatsoever in the event of a defect resulting from a design or specification supplied by the Customer, or from an act or omission on the part of the Customer or a third party, or if the goods or equipment have been repaired or modified by the Customer or a third party not previously approved by the Company, when the defect is proven to have resulted from abnormal operation or use, or from electrical stress or use that does not comply with the specifications and operating instructions provided by the Company and/or the manufacturer, or from the use or inability to use the documentation attached to the goods or equipment.

The aforementioned guarantees are provided by the Company without prejudice to any legal guarantees to which the Customer may be entitled.

Any claim by the Customer must be sent by registered letter with acknowledgement of receipt to the Company’s head office within eight (8) days of the occurrence of the damage and must be received by the Company before the expiry of the warranty periods.

8. Limitation of liability

The Company’s liability for any breach of its contractual obligations, once definitively established, shall in any event be limited as follows:

With regard to goods, the Company’s liability will always be limited to the price of the goods as set out in the contractual documents;
With regard to the services provided, the Company’s liability may only be incurred for direct damage (cf. article 7 above) and may never, unless expressly agreed between the parties, exceed the limits of the operating liability policy taken out by the Company, which amounts to 2,500,000,-EUR for personal injury and 2,500,000,-EUR for property damage.

9. Termination - force majeure

The Company shall be entitled to cancel an order or a contract, or to terminate a contractual relationship, if the Customer fails to fulfil its obligations arising from the contractual relationship with the Company. In this case, the Company shall not be liable for the total or partial non-fulfilment of its obligations, nor for any inconvenience, reinstatement costs or other costs associated with such termination, which shall in no case entitle the Customer to any compensation whatsoever. Such termination shall be effected by registered letter with acknowledgement of receipt addressed to the Customer at the address indicated on the order form or contract.

Such termination by the Company shall be without prejudice to the rights already acquired by the Company. In particular, the Company will be entitled to demand full payment for goods delivered and services rendered, as well as for any goods ordered and whose order can no longer be cancelled, for costs and other related expenses, and for any loss suffered as a result of the premature termination of the contractual relationship with the Customer.

The Company shall not be liable for the total or partial non-performance of its obligations, if such non-performance results from a case of force majeure or a foreign cause or any other cause beyond the Company’s control or rendering the performance of its obligations impracticable. In such a case, the Company shall be entitled to delay its services without the Customer being entitled to claim any compensation whatsoever.

When an event of force majeure occurs, the Party affected shall inform the other Party within two (2) days of its occurrence. The Parties will agree together on the procedure to be followed and the modalities for continuing the contractual relationship in view of these exceptional circumstances. The affected Party will also inform the other Party within two (2) days of the cessation of the event.

Should performance of the contract, or of the contractual relationship, prove definitively impossible, the Company shall be entitled to terminate the contract, ipso jure and with immediate effect, by informing the Customer by registered letter with acknowledgement of receipt, without incurring any liability in this respect and without being liable to the Customer for damages in this respect, and without prejudice to the Company’s right to obtain payment of any amounts due for goods delivered and/or services already performed, within eight (8) days of the date of occurrence of the circumstance constituting force majeure or extraneous cause.

10. Reservation of title

The goods delivered and the equipment installed remain the property of the Company until the Customer has fully fulfilled his obligations arising from the order confirmation, the contract and the General Terms and Conditions respectively, and in particular until full payment of the price, taxes and accessories. Should the Customer come into possession of the goods/equipment prior to payment in full of the corresponding price, the Customer shall hold such goods/equipment in the name and on behalf of the Company in such a way that they are readily identifiable as the property of the Company. The customer is prohibited from transferring or dispossessing the goods and equipment until full payment has been received.

11. Intellectual property

All intellectual property rights belonging to the Company and/or to a manufacturer of the goods or equipment existing at the time of execution of the present agreement or created in the course of execution of the present agreement, are and shall remain the sole and exclusive property of the Company and/or of the manufacturer, respectively of the licensor of the corresponding licenses.

All software is supplied under license from the Company and/or the manufacturer or licensor. The Customer undertakes, where applicable, to promptly sign and return any license agreement to the Company and/or the manufacturer or licensor of any software in accordance with the terms of the software license agreement.

No clause in these General Terms and Conditions or in any other contractual document concluded with the Customer shall be deemed to imply the transfer or assignment of any intellectual property right of the Company and/or any manufacturer or licensor to the Customer. Consequently, no title or prerogative of ownership to any goods, equipment or related materials (including, but not limited to, reports, diagrams, data sheets, books, machines, models, improvements thereto) used, developed or made available by the Company during the provision of the Services, shall pass to the Customer.

The Company grants the Customer a personal, non-transferable and non-exclusive right to use the Company’s intellectual property rights solely for the specific purposes set out in the contractual relationship.

12. Privacy

One Party may have access to the other Party’s confidential information. Any contractual document (offer, order confirmation, contract, etc.) or information presented as such by one of the Parties to the other (“Confidential Information”) will be treated as confidential. Each Party will take all reasonable steps to keep Confidential Information strictly confidential, and will not disclose it to any third party without the prior written consent of the other Party.

Each Party agrees that all Confidential Information received from the other Party shall only be disclosed to those employees or subcontractors for whom knowledge of such Confidential Information is necessary for the Parties to perform their contractual obligations. These persons will be informed of the confidential nature of the information and of their obligation to treat it as such.

Confidential Information does not include (i) information lawfully in the possession of or known to the Receiving Party prior to receipt of such information from the Disclosing Party and which had been transmitted to the Receiving Party without an obligation of confidentiality; (ii) information that has been regularly disclosed to the Receiving Party by another person; (iii) information that is in the public domain or enters it without inappropriate action or inaction on the part of the receiving Party; and (iv) information developed independently by the receiving Party.

Certain information that the Company collects concerning the Customer for legal reasons may be communicated to third parties when the Company is obliged to do so by law or has a legitimate interest in doing so, in particular for the purposes of public security, prevention, research, recording and prosecution of criminal offences. Indeed, the obligation of confidentiality arising from the present article shall not prevent the Company from disclosing any information if such information is required or permitted under applicable legal or professional rules, in particular in the context of disciplinary, civil, commercial or criminal proceedings or under legislation relating to the fight against money laundering and the financing of terrorism.

13. Data protection - "Financial Sector Professional" status

The Customer accepts that the various services offered by the Company and, more generally, the contractual relationship between the Company and the Customer entail the processing of personal data provided by the Customer. Data will only be stored and processed by the Company for the purpose of fulfilling its contractual commitments to the Customer and complying with its legal obligations, in particular in its capacity as a “Financial Sector Professional” (“FSP”), more specifically as an operator of secondary computer systems and communication networks in the financial sector in accordance with article 29-4 of the law of April 5, 1993 relating to the financial sector as amended.

The Company will only ever enter into a contractual relationship with the Customer if it is able to obtain the information requested. Depending on the information obtained from the Customer, the Company will always be entitled not to pursue a contractual relationship or to terminate it without fault on its part and without the Customer being entitled to claim damages. The Company may also report any irregularities to the competent authorities in accordance with its legal obligations.

14. Processing of personal data - pursuant to the General Data Protection Regulation (GDPR)

The Company undertakes to process the data provided by the Customer in accordance with the applicable legal and regulatory provisions and in particular with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter the RGPD).

The Company processes the customer’s personal data, such as contact data, identification data and financial data, for the purpose of fulfilling the contract. This data is collected for the following purposes: (i) to enable the performance of service and/or equipment supply contracts; (ii) manage the relationship with the Customer; (iii) monitor the services provided; (iv) enable billing ; (v) develop commercial relations (marketing) ; (vi) guarantee the collection of unpaid bills; (vii) manage any disputes.

Data is kept for the time necessary to fulfil the above-mentioned purposes or for the time necessary to enable the Company to meet its legal obligations.

The Company takes all necessary and reasonable technical and organizational measures to guarantee a high level of security for the data processed and to ensure the protection of such data against accidental or unlawful destruction, accidental loss, alteration, unauthorized distribution or access and any other form of unlawful processing.

Access to personal data is strictly limited to Company employees authorized to process such data by virtue of their position, and subject to a strict obligation of confidentiality.

The data collected may be communicated to the Company’s subcontractors when this is necessary to carry out the services requested by the Customer. The Company ensures that its subcontractors use the Customer’s personal data in accordance with the applicable legislation on the protection of personal data. In addition, the Company may be required to disclose the customer’s personal data in order to comply with a legal obligation or to settle disputes.

The Customer has a right to information, access, rectification and deletion of personal data concerning him, in accordance with the terms of the RGPD. He or she may also, for legitimate reasons, object to the processing carried out or ask for it to be restricted. The Customer may exercise his rights at any time by submitting a written request to the Company/to the Company’s Data Protection Officer by e-mail (info@fbluxshop.com) or by post 95 rue de l’égalité L-1456 – LUXEMBOURG.

By entering into a contract with the Company, the customer acknowledges and accepts the collection and processing of his/her personal data as described above.

15. Place of jurisdiction - Applicable law

Any dispute relating to the validity, interpretation or performance of these General Terms and Conditions and any other contractual documents concluded between the Customer and the Company will be settled amicably.

In the event of a continuing dispute, the courts of Luxembourg City shall have exclusive jurisdiction to resolve any dispute arising from the contractual relationship between the Company and the Customer and from all contractual documents concluded between the Company and the Customer, including these General Terms and Conditions.

The contractual relationship between the Company and the Customer and all contractual documents between the Company and the Customer, including these General Terms and Conditions, are governed by Luxembourg law.

16. Miscellaneous

The Company reserves the right to modify the provisions of its General Terms and Conditions at any time and without prior notice.

Should any provision of these General Terms and Conditions or of the other contractual documents become, in whole or in part, invalid, inapplicable or illegal, this will have no effect on the validity of the other provisions of these General Terms and Conditions or of the other contractual documents.

Nothing in these General Terms and Conditions or the other contractual documents shall be deemed to create a joint venture, partnership or other business association outside the terms of the contractual documents. Company personnel providing services to the Customer shall not be considered employees of the Customer for any purpose. Each Party will remain an independent contractor. Neither Party shall be entitled to or obligated to bind the other in any manner whatsoever.

The Company is entitled to subcontract all or part of its services to a third party. It may also assign, sublicense, transfer or otherwise dispose of any of its rights or obligations arising from the contractual relationship to a third party without the consent of the other Party.

During the term of the contractual relationship and for a period of six (6) months thereafter, the Customer shall not directly or indirectly solicit or engage any personnel (as employees, consultants or in any other capacity) of the Company, without the prior written consent of the Company.

The Customer may not assign, sublicense or otherwise transfer any of its rights under the contractual relationship without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed.