Article 1. General
1. These Terms and Conditions and the Privacy Statement govern the use of BAGTAG Apps and Products. By using the App (which includes its downloading and installation) and/or a Product, the Consumer accepts BAGTAG’s Terms and Conditions and Privacy Statement.
3. Deviations from these Terms and Conditions will only be valid when approved in writing by BAGTAG.
4. If any provision in these Terms and Conditions is null or nullified, the other provisions of these Terms and Conditions will remain in full force. In that case, BAGTAG and the Consumer will hold consultations for the purpose of agreeing on new provisions to replace the null or nullified provisions, taking into account the objective and purport of the null or nullified provisions wherever possible.
5. BAGTAG may modify these Terms and Conditions at all times. The Consumer will accept new versions of the Terms and Conditions when the Consumer continues to use the App after having been notified that the Terms and Conditions have been changed. BAGTAG will send the Consumer a copy of the most recent version of the Terms and Conditions upon the latter’s request. The most recent version of these Terms and Conditions and the Privacy Statement can also be consulted and saved at, and printed and downloaded from, BAGTAG’s website: www.bagtag.com. The Consumer is responsible for regularly reviewing the status of the Terms and Conditions.
6. BAGTAG never gives the Consumer any guarantees, unless stated otherwise in these Terms and Conditions or agreed in writing between the Parties or if BAGTAG is obligated to do so by law.
Article 2. Definitions
1. The terms used in these Terms and Conditions are defined as follows:
– App: the App(s) developed and offered by BAGTAG for mobile devices such as telephones and tablets with which BAGTAG Products can be used;
– Airline Application: the app(s) developed and offered by an Airline for mobile devices such as telephones and tablets to which BAGTAG Products are connected;
– Data: all data entered in the App by the Consumer and/or Airline, all data that are processed by them using the App and that are processed and have been saved on equipment of the Consumer or BAGTAG because of the use of the Product and the App;
– Platform: the platform developed by BAGTAG that is linked to the App;
– Consumer: the natural person who bought the Product and uses it to operate the App;
– Terms and Conditions: the most recent version of this set of terms and conditions of use;
– Privacy Statement: the most recent version of the BAGTAG Privacy Statement that is applicable to processing of the Data by BAGTAG and can be consulted and saved via the website: www.bagtag.com;
– Parties: BAGTAG and the Consumer jointly;
– Products: the physical products related to electronic baggage tags that BAGTAG sells in its web shop and through its resellers;
– BAGTAG: DS TAGS Group B.V., located at the address Randstadweg 21 39 A, 1314 BG Almere, with Chamber of Commerce number: 58980792;
– Airline: the provider of air transport that has enabled a link between the App and the Platform.
Article 3. Licence to App
1. BAGTAG grants the Consumer a non-exclusive, non-sublicensable and non-transferable licence to the use of the App.
2. The Consumer will never and under no circumstances become holder of the intellectual property rights to the App, the Products or other works produced by BAGTAG.
3. The Consumer will be able to use the App within the limits of the functionality provided and in the form in which BAGTAG provides the App to the Consumer, in accordance with these Terms and Conditions and exclusively on its own responsibility.
4. BAGTAG will make every reasonable effort to ensure that the App’s functionality meets the functional specifications of the App as stated by BAGTAG. BAGTAG will not be liable if functionality is not available due to a cause attributable to the Customer, a BAGTAG supplier or a third party.
5. BAGTAG will at all times be entitled to modify the App and edit or remove Data processed by BAGTAG.
6. BAGTAG will at all times be entitled to deny the Consumer use of the App by terminating the licence, limiting the use of the App or refusing access to the App in whole or in part, temporarily or permanently.
Article 4. Guarantees related to the App
1. The App has been developed with utmost care. However, BAGTAG does not give any guarantees on the App, it being an immaterial software item. The use of the App is at the Consumer’s own risk.
2. BAGTAG will do everything in its power to optimally facilitate use of the App by the Consumer. As such, the App and related services will be provided on the basis of an obligation to perform, unless and in so far as BAGTAG has expressly contracted in writing to deliver a result and that result has been described with a sufficient degree of determinability.
3. BAGTAG cannot guarantee that the App will be available or function at all times without interruption, errors or defects.
4. The Consumer may terminate the use of the App at any time by removing or uninstalling the App from its mobile device.
Article 5. Guarantees related to the Product and liability
1. BAGTAG products can only be used in combination with an App installed on a mobile device. The Consumer is responsible for checking whether an App is available for, and compatible with, its mobile device.
2. The Consumer is entitled to the statutory guarantee. BAGTAG provides a one-year guarantee on its Products in case of normal use by the Consumer. The guarantee period starts the moment the Consumer receives the Product.
3. The Consumer is not entitled to a guarantee when the Product has been damaged as a result of: a. an intentional act or omission on the part of the Consumer;
b. improper use or negligent maintenance;
c. normal wear and tear;
d. non-compliance or incorrect compliance with the instructions for use or these Terms and Conditions;
e. repair of the Products by a party other than BAGTAG;
f. extreme conditions for which the Product is not intended, such as thunderstorm, flood, fire, incorrect use or negligence;
g. opening or dismantling the Product.
4. Within the limits of the law, BAGTAG’s liability of whatever nature per event that causes damage is limited to no more than the price charged, or to be charged, to the Consumer for purchasing the Product or Products. Moreover, liability in all events is limited to the amount per loss event paid out by BAGTAG’s liability insurer.
5. BAGTAG is only liable for direct damage incurred. Direct damage does not include: loss of income, loss of profits, damage due to the impossibility to place orders, loss of data, diminished goodwill or missed savings.
6. Unless explicitly stated otherwise in these Terms and Conditions, all guarantees and promises are excluded. BAGTAG does not accept liability for damage resulting from defective materials, insufficient workmanship or other causes, even if they were the result of acts or omissions on the part of BAGTAG employees or representatives, unless applicable law prohibits such a limitation of liability. This limitation of liability does not apply in case of gross negligence or intention on the part of BAGTAG.
7. No provision in these Terms and Conditions will exclude or limit BAGTAG’s liability when it is not allowed under mandatory regulations of applicable law to exclude or limit liability in that way.
8. If a defect of the Product is covered by the guarantee, BAGTAG may, at its own discretion, either repair this defect using new or properly functioning used parts or provide a replacement Product to the Consumer. The repaired or replaced Products will be covered by a guarantee for the remaining part of the original guarantee period or thirty days, whichever is the longest, or for an additional period that may apply within the Consumer’s jurisdiction.
Article 6. Data
1. The Data will be processed on mobile equipment of the Consumer on which the App runs and on BAGTAG’s systems. Processing of the Data using BAGTAG systems is governed by BAGTAG’s Privacy Statement.
2. If a Consumer enters personal data related to itself or a third party into the App and processes these using the App, the Consumer guarantees that this processing meets the requirements of privacy legislation, such as the Dutch Personal Data Protection Act.
3. Given the state of the art and the costs to be incurred, BAGTAG will make an effort to take, or have a third party take, appropriate technical and organisational security measures to protect the Data against loss, damage or theft. The Privacy Statement mentions the level of security offered in relation to the Data.
4. BAGTAG will not be liable for damage incurred as a result of or during Data processing. if Data are damaged or lost. BAGTAG will not be liable for incorrectly or illegally processed Data.
5. As the party responsible for the Data entered, the Consumer indemnifies BAGTAG against all claims from third parties to, or in relation to, the DATA, including claims based on privacy legislation.
6. BAGTAG will be entitled to deny the Consumer access to the App, remove its Data or supply its Data, including name and address, to a third party if:
a. BAGTAG is obligated to do so based on a court ruling or warrant;
b. BAGTAG is asked to do so because of a wrongful act, indisputable or otherwise, by the Consumer in respect of a third party;
c. This is reasonably necessary to perform BAGTAG’s rights in respect of persons or organisations, including enforcement of compliance with the Terms and Conditions.
7. The Consumer indemnifies BAGTAG against any claim from a third party to BAGTAG due to the use of the App.
8. BAGTAG may use all data for analysis with a view to improving the App, the Products, and BAGTAG services. In addition, the Data may be used for commercial purposes, such as special offers for products or services by BAGTAG or third parties. In so far as necessary, the Consumer hereby grants its approval by means of use of the App.
Article 7. Service related to the App
1. BAGTAG will make every reasonable effort to ensure that the App functions properly in connection with the Product and the Airline’s Application.
2. The correct functioning of the App is not guaranteed or does not have to meet a minimum level, unless Parties agree otherwise in writing.
3. BAGTAG will perform maintenance of the App entirely at its own discretion. If BAGTAG deems this necessary, the Consumer will be informed of the maintenance.
4. The Consumer can report any errors in the App to BAGTAG by email, at the address firstname.lastname@example.org.
5. Any duration of repair indicated by BAGTAG to the Consumer will always be indicative and not binding.
6. The Consumer can never claim any service levels not explicitly mentioned in these Terms and Conditions or not explicitly agreed in writing.
7. Irrespective of the above, the Consumer will be obliged to have the required hardware, software and infrastructure for use of the App at its disposal and to ensure that they meet BAGTAG’s reasonable expectations in this respect
Article 8. Duration, cancellation and termination of the Agreement
1. If BAGTAG has determined within reason that the Consumer has acted contrary to the Terms and Conditions or is acting wrongfully when using the App, BAGTAG may terminate the licence granted to the Consumer under Article 3 of these Terms and Conditions with immediate effect.
2. After termination of the licence, the Consumer will no longer be entitled to access the App and the Consumer must uninstall the App.
Article 9. Other Terms and Conditions
1. BAGTAG will be entitled to engage a third party for compliance with its obligations entered into in the agreements with the Consumer.
2. Where these Terms and Conditions use the words “written” or “in writing”, this also means “electronically” or “digitally”.
3. Commitments and arrangements agreed orally have no effect unless confirmed in writing by Parties.
4. Failure by any party to exert any right or any legal remedy does entail waiver of that right or legal remedy.
5. The Consumer will not be allowed to transfer the rights and authorities granted to it by BAGTAG to a third party without BAGTAG’s prior written consent.
6. BAGTAG will be entitled to transfer its rights and obligations under the Agreement entered into with the Consumer to a third party without the Consumer’s prior consent, after which this third party will be responsible for compliance with the Agreement.
7. The end of an Agreement concluded between the Parties will not affect the Parties’ rights and obligations that have a longer duration given their nature or wording.
8. The applicability of the UN Convention on Contracts for the International Sale of Goods (Vienna Sales Convention 1980) is expressly ruled out.
Article 10. Applicable law and disputes
1. The Agreement concluded between the Parties and the entire legal relationship between the Parties are governed by Dutch law.
2. In case of a dispute between the Parties, the Court in Lelystad, the Netherlands, will be the competent authority.