2023 TERMS AND CONDITIONS BDS Sweden AB, BDS Sweden AB/Filial Norway, BDS Benelux BV
Article 1 Definitions
In these terms and conditions, the following terms shall have the following meanings, unless expressly stated otherwise or the context indicates otherwise.
- BDS: Any company within the BDS group, including BDS Sweden AB, BDS Sweden AB/Filial Norway, and BDS Benelux BV.
- Breakdown Service: The mediation service aimed at finding a solution between a customer experiencing unexpected downtime with its vehicle(s) due to technical malfunctions or accidents on one side, and subcontractors possessing the capacity, capability, resources, and equipment to provide the services requested by the customer.
- Breakdown: An unexpected situation that results in downtime for a vehicle, caused by any technical malfunction and/or accident, as well as any imposed fine by a governmental organization that prohibits the vehicle from being used in (commercial) traffic.
- Client: The natural or legal person who has entered into an Agreement with BDS. The client may be either a customer and/or a Guarantor.
- Customer: The natural person or legal entity that suffers from a Breakdown and needs assistance
- Guarantor: The natural person or legal entity who has entered into an Agreement with BDS and has agreed to pay for services to assist the Customer.
- Sub-contractor: A third-party individual or organization contracted by BDS to provide specific services or resources as part of the Breakdown Service
- Agreement: An Agreement between BDS and a customer or guarantor regarding one or more services to be provided and/or facilitated by BDS at a price to be paid
- Guarantee of Payment: A budget provided by the Client, which authorizes the Breakdown Service to procure and pay for services from subcontractors up to the specified budget limit. The Guarantee of Payment ensures that funds are available to cover the cost of services required to address the Customer's breakdown situation.
- Cancellation: The written notification by the Client to BDS that one or more agreed-upon services will not be used in whole or in part, or the written notification by BDS to the Client that one or more agreed-upon services will not be provided in whole or in part.
- Website: the website www.breakdownservice.eu operated by BDS.
- Incident Form: A digital or physical document made available on the BDS website that allows Customers to report a breakdown incident, provide detailed information about the issue, and confirm the Guarantee of Payment. The Incident Form serves as the initial communication tool for Customers to request assistance and initiate the breakdown resolution process.
- Deposit: A prepayment made by the Client, equivalent to the total Budget specified in the "Guarantee of Payment." The Deposit is required as a financial commitment to secure the provision of services in response to a breakdown incident. It serves as an initial payment that covers the anticipated costs of services provided, and any remaining unused amount is eligible for refund to the Client's designated card or account after the service is completed.
- Operator: A staff member employed by BDS (Breakdown Service) responsible for managing and coordinating breakdown incidents reported by Customers. Operators play a crucial role in facilitating communication between Clients, subcontractors, and other relevant parties, ensuring efficient and effective resolution of breakdown situations.
- Materials: all materials developed and/or made available by BDS.
Article 2 General
- These general terms and conditions apply to any Agreement between BDS and its Client.
- Any deviations from these general terms and conditions are valid only if they have been expressly agreed upon in writing, and BDS has unambiguously accepted the deviation from the provisions of these general terms and conditions. Agreed deviations are applicable solely to the specific Agreement and/or offer in question.
- The applicability of additional or diverging clauses or terms and conditions, whether proposed by the Client or customary in the industry, are explicitly rejected by BDS at the same time BDS declares these general terms and conditions as applicable.
- These general terms and conditions also extend to all natural and legal persons whom BDS employs or has employed when entering and/or executing an Agreement or when operating on behalf of BDS.
- Rights and obligations under an Agreement between BDS and the Client cannot be transferred to third parties by the Client, unless explicitly stated otherwise in the Agreement or within these general terms and conditions.
- The applicability of the Client's general (purchasing) terms and conditions is expressly rejected.
- If one or more provisions within these general terms and conditions are deemed null and void or are annulled, the remaining provisions of these general terms and conditions continue to apply in full force. Null and void or annulled provisions will be replaced by BDS, considering the original purpose and intent of the original provision(s) to the extent possible
- If BDS does not insist on strict compliance with these terms and conditions on certain occasions, it does not imply that the provisions cease to apply, nor does it diminish BDS's right to require strict compliance with the provisions of these general terms and conditions in other instances.
- Once these general terms and conditions have been legally declared applicable to an Agreement, the latest applicable version of these general terms and conditions will be considered applicable to all subsequent Agreements between the same parties, unless otherwise mutually agreed upon in writing.
- In the event of any inconsistency between translations of the text of these general terms and conditions, the interpretation of the text drafted in the Dutch language shall take precedence.
In cases of conflict between the provisions of these general terms and conditions and the written Agreement between BDS and the Client, the provisions of the specific written Agreement shall prevail.
Article 3 Offer and quotations
- All offers and quotations made by BDS in any form and/or location are non-binding in nature, and no rights can be derived from them. BDS is entitled to withdraw any offer and/or quotation immediately, even during the duration of the offer/quotation.
- Prices mentioned in an offer or quotation do not automatically apply to future Agreements.
- Obvious errors or mistakes in offers made via email or on the Website are not binding on BDS. BDS reserves the right to rectify such errors and adjust the offer as necessary.
- No rights can be derived from verbal promises and/or agreements made by or on behalf of BDS unless they have been expressly confirmed in writing by BDS.
- All prices stated for the Client, whether a company or individual, are exclusive of VAT.
- Currency: Unless stated otherwise, all prices and fees stated in BDS offers, quotations, and Agreements are in Euro (EUR)
Article 4 Indexation
All rates are subject to annual adjustments through indexation. For indexation, BDS uses indexes published by governmental statistics agencies in the countries where BDS and its subsidiaries have offices. Indexes are calculated from October to September (Q4-Q3), and prices are adjusted on January 1st each year.
Article 5 Conclusion of the Agreement
- An Agreement is concluded under the suspensive condition that BDS has confirmed the order or assignment in writing (including electronically) or has commenced the execution of the order or assignment. The content of the Agreement is determined by the offer, the quotation, and/or order confirmation of BDS, to which these general terms and conditions have been declared applicable.
- If the Client accepts an offer from BDS by digital means of communication (including but not limited to email, WhatsApp, or SMS), BDS is not obliged to confirm receipt thereof to the Client. By accepting the Client, an agreement has been reached between the parties.
- Assignments to BDS and acceptance of offers/quotations from BDS by the Client are irrevocable.
- In the event of a breakdown, BDS will act as a mediator on behalf of its client based on a mediation agreement.
- A mediation agreement is concluded by the acceptance by BDS of an offer containing the notification of a breakdown. This notification must be made by a person authorized to represent the client on behalf of the client. An authorized person is understood to mean a director/owner of a company, a fleet manager, a planner, or another person designated in writing by the client in advance. This person must be able to identify himself as such.
- The Client is obliged to provide BDS with all information that is reasonably necessary to establish its identity (know your customer), to determine the origin of the funds, the purpose of the assignment or Agreement with BDS, and the (final) destination of the goods to be delivered by BDS, etc., so that BDS can comply with the laws and regulations applicable to it.
- Acceptance by the Client of the offer referred to in Article 4.5 may be made orally or in writing but must be made unambiguously. The administration of this in the BDS systems is leading regarding the proof of this.
- BDS is not obliged to verify the accuracy of statements made by the Client. Any shortcomings cannot be attributed to BDS if they result from incorrect and/or incomplete communication from the Client. The Client is liable to BDS for the damage suffered by BDS because of incorrect and/or incomplete information.
- After a mediation agreement has been concluded, BDS will endeavor to facilitate the resolution of the stranding on behalf of the Client. To achieve this, BDS may enter one or more (repair) agreements with third parties, including any salvage and towing costs. In all cases, BDS will qualify as a creditor of these (repair) agreements, specifically meaning that the Client is obliged to pay the amounts due to BDS pursuant to such Agreement(s). Otherwise, BDS is not a party to those Agreement(s). The Client is obliged to provide BDS with all information that is (possibly) relevant to BDS for the order or assignment. If it turns out that the Client has not shared information that was known to it or should reasonably have been known to BDS, BDS has the right to dissolve the Agreement and/or claim compensation from the Client.
- Cancellation with Costs: As soon as the case is registered, the Customer owes BDS a handling fee. If the Customer cancels the case before any subcontractor is dispatched, only the case handling fee is charged to the Customer. If a subcontractor has already been dispatched, the case will not be canceled but closed with the costs from the subcontractor.
- BDS processes personal data of the Client which are necessary to comply with the applicable laws and regulations and which are required to draw up and execute the Agreement, all with due observance of the General Data Protection Regulation (GDPR). This data will not be kept longer than necessary. BDS does not provide personal data to third parties unless it is legally obliged to do so. The Client may request written access to its personal data as processed by BDS, as well as changes or deletion thereof. BDS has taken technical and organizational measures to prevent personal data breaches.
- BDS reserves the right to reject any order or assignment, without the obligation to provide reasons and without the obligation to pay compensation to the Client, at its sole discretion.
- Agreements through Intermediaries: In cases where agreements are made on behalf of a client by intermediaries, whether in the name of their relation(s), it is understood that such agreements are partially at the expense and risk of these intermediaries. BDS shall not be liable to pay any commission or fees, under any name, to intermediaries, unless expressly agreed otherwise in a written agreement. The full or partial payment of the amount due by the guest shall release the intermediary to the same extent, alleviating them of financial responsibility in proportion to the payment received.
- If the Agreement is not initiated or is only partially concluded using the Website or the incident form, BDS will ensure that these general terms and conditions are accessible to the Client before or at the time of concluding the Agreement. This accessibility may be facilitated through various means, including but not limited to email communication. It is imperative that the Client has access to and acknowledges these terms and conditions, irrespective of the method used for Agreement initiation, to ensure transparency and adherence to the agreed-upon terms.
- After the Agreement has been concluded, BDS will send the Client a confirmation email regarding the assignment. If the Client has not received a confirmation email within 15 minutes, the Client must contact BDS via phone or email. As long as the Client has not received a confirmation email within this period, the Client may cancel the Agreement free of charge.
Article 6 Execution of Agreements with Sub-contractors
- BDS acts as an intermediary between its Clients and Sub-contractors to resolve vehicle breakdowns experienced by the Client. BDS never acts on its own behalf, even when it acts autonomously; it acts solely on behalf of and at the risk of its clients. The Sub-contractor is the party requested by BDS to address a breakdown, as defined in Article 1.
- The provisions of Article 5a also apply if BDS settles an invoice addressed to it by the Sub-contractor.
- An Agreement between BDS's Client and the Sub-contractor is established when BDS accepts an offer made by the Sub-contractor. This occurs, for example, when the Sub-contractor agrees to assist BDS through a repair order to be received or when BDS agrees to a (price/repair) proposal by the Sub-contractor.
- BDS is always authorized to provide instructions to the Sub-contractor during the execution of (repair) work.
- Any general terms and conditions used by the Sub-contractor will never apply to the relationship or to the Agreement(s) between BDS or its Client and the Sub-contractor.
- Quotations provided by the Sub-contractor are never binding and are considered offers that BDS may accept at any time.
- Prices quoted by the Sub-contractor are fixed and cannot be unilaterally increased by the Sub-contractor.
- Additional work or extra costs are not eligible for reimbursement unless they have been pre-approved in writing by BDS through a payment guarantee.
- The Sub-contractor guarantees that the materials/parts it supplies are original, new, and properly circulated, unless explicitly stated otherwise in writing. Furthermore, the Sub-contractor guarantees that the services it provides are carried out competently.
- Unless otherwise agreed, a general warranty of six months applies to work performed and parts supplied by the Sub-contractor, in addition to any manufacturer's warranty. This applies unless the nature of the work precludes such a warranty period, as in the case of emergency or provisional repairs, unless expressly agreed otherwise.
- Once the Agreement with the Sub-contractor has been established, it cannot be unilaterally terminated by either party. BDS and/or its client may only terminate the Agreement if the Sub-contractor fails to remedy the termination within a reasonable period. If, despite the provisions of this article, the Sub-contractor terminates the Agreement, the Sub-contractor must compensate all resulting damages.
- The Sub-contractor commits to maintaining confidentiality regarding the execution of the Agreement with BDS or BDS's Client. This confidentiality primarily applies to the identity of BDS (and its clients) and the rates charged. The Sub-contractor is not permitted to use BDS trademarks or other BDS intellectual property without BDS's prior consent.
Article 7 Termination of an assignment
- BDS reserves the right to terminate the Agreement, in whole or in part, with immediate effect and without the need for judicial intervention, or to suspend performance, without prejudice to its other rights (such as the right to demand performance and/or damages), under the following circumstances:
- The Client violates any provision of the Agreement, including these general terms and conditions.
- The Client applies for a moratorium or initiates bankruptcy proceedings.
- Bankruptcy proceedings are initiated against the Client, resulting in a declaration of bankruptcy.
- The Client's business operations cease or undergo liquidation.
- Attachments are made against the Client at the Client's expense.
- The Client offers a private settlement.
- In the aforementioned situations, any outstanding claims by BDS against the Client become immediately due and payable, and BDS is not obligated to provide compensation or guarantees.
- Termination of the Agreement shall not impose any liability on BDS.
- In the event of the premature termination of the assignment, the Client shall remain liable for the fixed fee owed to BDS, as well as any actual costs incurred by third parties in accordance with the (repair) agreements.
Article 8 Payments, Default, and Penalties
- All amounts due to BDS are, unless otherwise stated, in euros and are exclusive of VAT.
- The Client is responsible for paying all amounts owed to BDS, including but not limited to service fees, repair costs, recovery and towing fees, and any other charges arising from BDS's services. BDS may communicate these amounts to the Client in advance, although they are subject to change.
- Payments must be made within the agreed-upon timeframe. In the absence of specific terms, invoices from BDS must be settled within 30 (thirty) days. BDS will not accept payment terms different from this unless explicitly agreed upon in writing.
- The Client is expressly prohibited from offsetting counterclaims against BDS (whether fixed or not) against invoices to be paid by the Client. The Client is also not allowed to suspend payments. Any offsetting or suspension by the Client in violation of this provision will result in the Client incurring an immediately due and payable penalty equal to fifty percent (50%) of the offset or suspended amount.
- In the event of late payment, the Client will automatically be in default. BDS may charge interest on the outstanding amount at a rate of 8% per month (or part of a month) from the due date until the day of full payment. This rate is in addition to any statutory commercial interest owed by the Client.
- BDS retains the right to demand that the Client pays any amounts due, including intermediary fees, prior to the provision of further services. Additionally, BDS may suspend other deliveries and services until the Client fulfills all payment obligations.
- All extrajudicial and judicial costs incurred by BDS in the context of a dispute with the Client, both claimant and defendant, shall be borne by the Client. Extrajudicial collection costs are set at 15% of the amount due, with a minimum of EUR 250 per case, and judicial collection costs are based on the actual expenses incurred by BDS.
- Incoming payments will be allocated first to cover costs, then to interest, and finally to the oldest outstanding invoice, regardless of the Client's instructions.
Article 9 Liability and warranty
- BDS shall not be liable for damages resulting from any failure to fulfill its obligation(s) to the Client.
- In cases of mediation, BDS is not a party to any (repair) agreements made by BDS with third parties on behalf of the Client. Consequently, BDS shall not be liable for any shortcomings in the execution of such Agreements. BDS explicitly excludes any liability for damages resulting from failures to fulfill (repair) agreements made with third parties.
- If there is a warranty on work carried out by BDS, the Client must address any claims directly with those third parties.
- Should the Client be dissatisfied with the work performed by third parties engaged by BDS for any reason, the Client must promptly inform BDS, no later than 12 hours after the completion of the work. BDS will then make efforts to mediate a resolution between the Client and the third party. BDS cannot be held responsible for any unwillingness on the part of third parties. Situations described in this article shall not result in suspension, discount, or set-off against amounts owed to BDS.
- In cases where emergency or provisional repairs are carried out by third parties engaged by BDS, the Client is considered to have a responsibility to arrange for permanent repairs in their own preferred workshop as soon as possible. Using the vehicle during emergency or provisional repairs will not make BDS liable.
- BDS is not liable for intentional or (deliberate) reckless actions by its subordinates or other individuals engaged by BDS in the context of performing the Agreement, for whom BDS may be legally responsible.
- BDS assumes no liability for advice and/or work performed by BDS directly or on behalf of BDS.
- The Client agrees to indemnify and hold BDS harmless against all claims and/or rights of third parties related to the delivery of goods or the provision of services, insofar as these claims differ from or exceed those owed by the Client to BDS. The Client also agrees to indemnify and hold BDS harmless against any claims related to the injury or death of the Client's staff or third-party personnel, as well as damage to the Client's or third-party goods, occurring within the scope of BDS's services, except in cases of BDS's intentional misconduct or deliberate recklessness.
- BDS's liability is limited to 10 times the amount of the paid case handling fee.
- BDS guarantees that work performed is carried out with due care and to the best of its abilities, in line with industry standards and prevailing expertise at the time (best efforts obligation).
- If the Client invokes a guarantee provided by BDS in the respective Agreement ("complaint"), BDS will evaluate the guarantee or complaint and, if necessary, address it in accordance with the Agreement and these general terms and conditions. Warranty claims are non-transferable to third parties.
- The Client must inspect the work for visible defects upon delivery and report any complaints immediately, under penalty of forfeiture of the right to complain or claim a guarantee. Such complaints must be recorded in writing between BDS and the Client before delivery.
- Complaints concerning invoice amounts must be submitted in writing to BDS within 3 days of receipt or delivery, respectively, with a detailed description of the issues.
- For all other complaints, a 5-day period applies after defects have been or should have been reasonably discovered.
- Failing a timely complaint as specified in this article, the right to guarantees/complaints shall be forfeited. In such cases, the Client will not have the right to (partially) terminate the Agreement or seek compensation.
- BDS shall not be liable for any consequential, special, indirect, or incidental damages, including but not limited to loss of profits, loss of business, or any other similar economic loss, arising from or related to the performance of the Agreement, even if BDS has been advised of the possibility of such damage.
- Cargo Damage Liability: BDS expressly disclaims any liability for damages, loss, or deterioration of cargo, goods, or property belonging to the client or third parties, whether in transit, storage, or any other circumstance. BDS shall not be responsible for any claims, expenses, or losses arising from cargo damage, including but not limited to breakage, theft, or spoilage. The client is solely responsible for ensuring the proper handling, packing, and insurance of their cargo or property during the course of any services provided by BDS. This disclaimer of liability extends to all cargo-related matters, and BDS shall not be held accountable for any such claims or damages.
Article 11 Force majeure
- Force majeure, as defined in these general terms and conditions, refers to any circumstance beyond the control and will of BDS, whether foreseeable at the time of entering into the Agreement or not. These circumstances prevent BDS from reasonably fulfilling its obligations and include, but are not limited to, import and export restrictions, government measures, raw material shortages, factory or transportation disruptions of any kind, strikes, lockouts, or a shortage of personnel, quarantine, trade bans, war and/or the threat of war, terrorist actions, and/or imminent attacks, epidemics, loss of frost, deficiencies in suppliers, or third parties engaged by BDS for the execution of the Agreement, etc.
- BDS is not obligated to fulfill any obligations if it is prevented from doing so due to force majeure.
- In such cases of force majeure, BDS has the right to either perform the Agreement within a reasonable period of time or, at its discretion, dissolve the Agreement in whole or in part without being obligated to pay compensation.
- If BDS encounters force majeure, the Client is only entitled to dissolve the Agreement after granting BDS a reasonable period for performance. A reasonable period should be no less than 15 working days.
Article 12 Conversion
If one or more provisions of these general terms and conditions or the Agreement with the Client are not legally valid, or are not fully valid, the other provisions will remain in full force and effect. The parties will then consult with each other to replace the invalid provision with a replacement provision that covers the content and meaning of the invalid provision as much as possible.
Article 13 Choice of law and forum
- All agreements for the delivery of products and/or provision of services, as well as all price quotations related thereto, for cases handled by and invoiced from BDS SWEDEN AB shall be governed by Swedish law.
- All agreements for the delivery of products and/or provision of services, as well as all price quotations related thereto, for cases handled by and invoiced from BDS SWEDEN AB / Fil Norway shall be governed by Norwegian law.
- All agreements for the delivery of products and/or provision of services, as well as all price quotations related thereto, for cases handled by and invoiced from BDS BENELUX BV shall be governed by Dutch law.
- Any dispute concerning the conclusion, interpretation, or performance of the Agreement or of further agreements that may arise from it, as well as any other dispute concerning or related to the Agreement, whether legal or factual, will be submitted to the competent court in Gothenburg (13.a), Oslo (13.b), or Amsterdam (13.c).