T&Cs
General conditions 2023
Digital Inflatables
Definitions and applicable conditions 1.1.
The following definitions apply to these Terms and Conditions:
Foundation
Digital Inflatables funded in 2006 by Philippe Elmiger, leads a small team of 8 based in Switzerland (Zürich and Lausanne)
Team
The manufacturing is done by our team in Switzerland and our partners in Asia and Poland.
We all come from different backgrounds (industrial designers, production engineers, microtechnology/robotics engineers, computer-aided design specialists and of course the best seamstresses.
1. General conditions:
Digital Inflatables
The private limited liability company Elmiger Business development LLC, with registered office and principal place of business at route de l’isle 7C 1142 Pampigny Switzerland, registered in the Commercial Register of the Chamber of Commerce of Lausanne under number CHE-397.077.491
Purchaser
the natural or legal person with whom or on whose behalf one or more Contracts is/are entered into with Digital Inflatables.
Agreement:
The contract under which – unless otherwise agreed in writing – Digital Inflatables
as seller, commits to the buyer, as purchaser, to transfer the ownership and supply of the articles and by virtue of which the buyer commits to Digital Inflatables to provide a counter-performance, consisting of a payment of the agreed purchase price;
Parts
Digital Inflatables and Buyer; and
Item:
Item: ‘inflatables’, including (but not limited to) inflatable items, product blow-ups and (theatre) decors to be sold by Digital Inflatables to the Buyer.
A. These terms and conditions are applicable to all contracts between Digital Inflatables and its buyer(s). Unless the parties explicitly agree otherwise in writing, the applicability of all general terms and conditions of purchase, supply and/or other conditions used by the buyer are explicitly excluded. If agreements are made between Digital Inflatables and its Buyer(s) that deviate from these Terms and Conditions such agreements shall have to be recorded in writing.
B. Unless otherwise agreed in writing, these terms and conditions are also applicable, in the same way as described in article 1.2, to all additional and/or follow-up orders.
C. These Terms and Conditions are also applicable to Contracts between Digital Inflatables and its Buyer(s) for the performance of which Digital Inflatables must engage third parties. To the extent that elements of the Contracts entered into between Digital Inflatables and Buyer partially represent a rental relationship, then such element(s) of the Contract shall be subject to Digital Inflatables’ General Rental Terms and Conditions.
D. If one or more provisions of these terms and conditions are at any time invalid or may be declared invalid in whole or in part, the remaining provisions of these terms and conditions shall remain in full force and effect. In that case the statutory regulations shall be applicable to the subjects regulated by the null and void and/or set aside provisions.
E. In the event of any ambiguity as to the interpretation of any provision(s) of these terms and conditions, such provision(s) shall be interpreted “in the spirit” of the provision(s), taking into account the context of the parties’ intent.
Article 2 - Quotations, offers and contract formation
2.1 For the purpose of forming Agreements between Digital Inflatables and its Buyer, Digital Inflatables issues quotes. The Contract between Digital Inflatables and its Buyer is formed by the Buyer’s acceptance of the offer or offers made in the quotation. Acceptance is made by written confirmation to Digital Inflatables, by return of the quote, signed to indicate acceptance,
2.2. All quotes and offers from Digital Inflatables are without obligation and are not binding on Digital Inflatables until the contract has been formed. A quotation or offer will be cancelled if the item(s) to which the offer relates are no longer available in the meantime.
2.3. Digital Inflatables shall not be bound by its quotations or offers if it can reasonably be understood by the purchaser that the quotations or offers, or one or more elements thereof, contain an obvious error or mistake.
2.4. Unless otherwise stated, the prices quoted in the quotation or offer exclude VAT and other governmental taxes and costs that may be incurred in connection with the contract, including travel and accommodation expenses and shipping and administration costs.
2.5. Digital Inflatables has the right to charge the purchaser or to compensate the purchaser for price changes that occur after the quotation has been issued, including after the contract has been formed as a result of acceptance. If unavoidable deviations from the quotation occur during the execution of the contract, Digital Inflatables will inform the buyer as soon as possible. Overruns of up to 10% are considered acceptable to the Parties as a budgetary risk, and are accepted after Buyer has been informed by Digital Inflatables.
2.6. If the acceptance deviates from the proposal contained in the quotation or offer, Digital Inflatables shall not be bound by it. The contract will not be formed in violation of 6:225 sub 2 DCC if the acceptance deviates on minor points.
2.7. The price of the components does not oblige Digital Inflatables to execute only part of the order at a corresponding element of the quoted price. Offers or quotes are not automatically applicable to future orders.
Article 3 - Reservation of ownership
3.1. The goods supplied remain the exclusive property of Digital Inflatables as long as the buyer has not fulfilled his payment obligations in full.
3.2. Prior to transfer of ownership, Buyer is not permitted to sell, deliver or otherwise dispose of, pledge and/or encumber the item, except with the written permission of Digital Inflatables and in accordance with other terms and conditions to be specified, and in a manner which is not in accordance with Buyer’s normal operations and normal use of the goods. 3.3. Prior to the transfer of ownership, the buyer is responsible to Digital Inflatables to act as good steward (property) for the items and other additional goods supplied, and must therefore keep the goods in the same good and unaltered condition in which they were supplied and keep them in accordance with the description on the contract until the time of valid transfer of ownership.
3.4. For items supplied under reservation of title, Buyer agrees to insure and maintain such insurance against fire, explosion and water damage and against theft, and the policy of such insurance shall be furnished to Digital Inflatables for inspection upon first request. In the event of an insurance claim, Digital Inflatables will be entitled to these payments. Insofar as necessary, Buyer undertakes to Digital Inflatables to provide assistance with anything that is (or may appear to be) required or desirable in this context.
3.5. Buyer shall always do everything reasonably expected of it to safeguard Digital Inflatables’ proprietary rights. If third parties place an attachment order on the item(s) delivered under retention of title or if they wish to attach a right or enforce rights on these goods, the Buyer is obliged to inform Digital Inflatables immediately.
3.6. At any time prior to the transfer of ownership, Digital Inflatables will have access to the property it owns, wherever it is located.
3.7. As soon as a purchaser defaults on one or more of its obligations to Digital Inflatables or if Digital Inflatables assumes from notice and/or conduct of the purchaser that the purchaser will default on an obligation, all claims against the purchaser shall become immediately and fully due and payable and Digital Inflatables shall be entitled, without further notice of default or legal intervention, to assert its rights under its (retention of) title, including immediate reclamation on first demand of all that has been purchased. If, in such case, the purchaser retains the goods sold, whether or not this is illegal, Digital Inflatables may claim compensation for the time during which it does not have possession of the goods to be returned, such compensation being equal to the reasonable rental costs, without prejudice, if its damage amounts to more than this compensation, to its right to this additional amount. In any case, Digital Inflatables has at all times the power to set off the amount owed by the buyer against the (potential) amounts to be reimbursed, irrespective of what is stipulated in article 6:217 DCC until 6:141 DCC.
3.8. In the event Digital Inflatables wishes to exercise its proprietary rights specified in this section, Buyer hereby gives its unconditional and irrevocable permission to Digital Inflatables and Digital Inflatables’ designated third parties to enter any and all locations where Digital Inflatables’ item(s) are located and to remove said property.
Article 4 - Inspection and Complaints
4.1. Buyer shall be deemed to have received the Item and other goods in good and undamaged condition, unless Buyer provides evidence to the contrary.
4.2. Immediately after delivery / upon receipt, the buyer must inspect the item and other goods. Complaints about visible defects and/or missing goods must be reported to Digital Inflatables immediately after the inspection. Defects that cannot reasonably be detected immediately after inspection must be notified to Digital Inflatables in writing immediately upon detection, but no later than 12 hours after delivery/receipt. In the event of a valid and timely complaint, Digital Inflatables is not obliged to do more than replace or repair the item concerned at its own expense, or – insofar as the defect cannot be repaired and the item cannot be replaced – to terminate the contract immediately without having to observe a period of notice and in this case to issue a credit note for the invoices sent and to reimburse the buyer for the amounts already paid.
4.3. Any deviation of minor points of the article from the images, drawings, specifications and other documents on the website shall not constitute grounds for complaint. If a complaint concerns only a part of the contract, this cannot lead to the cancellation/termination of the whole contract, unless the contract is to be considered improper as a whole.
Article 5 - Delivery times
5.1 The stated delivery times are applicable as a guide and in such cases only as an approximation. Digital Inflatables will endeavour to deliver the item within the agreed delivery period, but Digital Inflatables does not give any guarantee regarding the agreed delivery periods, unless specifically agreed otherwise in writing. A late delivery does not give the buyer (i) no right to compensation, (ii) no right to dissolve the Agreement or (iii) right to fail to meet any obligation towards Digital Inflatables. 5.2 The delivery times stated by Digital Inflatables are only applicable to deliveries from stock and are approximate delivery times. The delivery period is based on the working conditions applicable at the time the contract is concluded and on the timely delivery of the products to the Buyer. If delays occur as a result of a change in the aforementioned working conditions or because products ordered on time from third parties are not delivered on time, the delivery period shall be extended by the duration of the delay to the extent that is reasonable.
Article 6 - Transfer of risks and responsibility of the buyer
6.1. The risk of loss of or damage to the delivered Items shall pass to Buyer at the time they have been legally and/or actually delivered to Buyer and have thus passed into the control of Buyer or third parties designated by Buyer.
6.2. Buyer shall be liable for all damages to the items and other property resulting from Buyer’s failure to comply with one or more of its obligations under the contract, in any event until ownership has been formally transferred to Buyer as provided in Section 3 of these terms and conditions. All damage is assumed to have arisen as a result of that.
Article 7 - Force majeure
7.1. Digital Inflatables shall not be liable for the fulfilment of its obligations if it is prevented from doing so due to a circumstance for which it is not responsible and for which Digital Inflatables is not liable according to the law, a legal act or generally accepted beliefs (force majeure). If there is a non-attributable failure, Digital Inflatables will immediately notify Buyer in writing and provide the required proof.
7.2. In addition to article 6:75 DCC in these general terms and conditions, force majeure also means all external, foreseen and unforeseen causes, over which Digital Inflatables cannot exert any influence, but because of which Digital Inflatables cannot fulfil the obligations. In any event, (damages resulting from) force majeure include – but are not limited to – damages as a result of fire, strikes, business interruptions and network failures, and the use of the Items in the open air, either at Digital Inflatables or at its suppliers.
7.3. If Digital Inflatables invokes force majeure, this shall not deprive Buyer of the right to terminate the Contract if the force majeure causes a delay in delivery of more than 30 days.
7.4. During the period of force majeure, the parties can suspend the obligations under the Agreement without the parties being held mutually liable for any form of compensation in relation to the Agreement. If this period lasts longer than two months
either party shall have the right to terminate the Agreement without judicial intervention, with immediate effect, by registered letter and without obligation to pay compensation to the Buyer.
7.5. Insofar as Digital Inflatables has partially fulfilled or will be able to partially fulfill its obligations under the Contract at the time the force majeure takes effect, and the item that has been observed or can be observed has an independent value, Digital Inflatables is entitled to charge the A
6.2. Buyer shall be liable for all damages to the items and other property resulting from Buyer’s failure to comply with one or more of its obligations under the contract, in any event until ownership has been formally transferred to Buyer as provided in Section 3 of these terms and conditions. All damage is assumed to have arisen as a result of that.
Article 8 - Responsibility of Digital Inflatables
8.1. Digital Inflatables is not liable for damages of any kind that result from a breach of one or more obligations by the purchaser under the contract, or because Digital Inflatables has assumed information issued by or on behalf of the purchaser that is incorrect and/or incomplete.
8.2. Insofar as Digital Inflatables can be held liable for any type of damage, the liability of Digital Inflatables is limited to a maximum of 1 x the invoice value of the instruction and/or order, in any case to the element of the instruction/order to which the liability relates. The liability of Digital Inflatables is, in any case, always limited to the amount paid by its insurer in the case in question, irrespective of whether the invoice value for the instruction/order exceeds this amount.
8.3. Digital Inflatables is only liable for direct damages, which means only the reasonable costs of establishing the cause and extent of the damage, to the extent that such determination relates to damage within the meaning of these Terms and Conditions, all reasonable costs incurred in responding to any failure to perform on the part of Digital Inflatables – only to the extent that such potential failure to perform is attributable by virtue of a culpability, legal action or generally accepted principles – as well as reasonable costs to prevent or mitigate the damage, to the extent that Buyer is able to demonstrate that such costs are related to the mitigation of direct damage as set forth herein.
8.4. Digital Inflatables excludes all liability for consequential damages, including but not limited to consequential loss, lost profits, lost savings and business interruption losses.
Article 9 - Intellectual Property
9.1. By instructing to publish or duplicate objects protected by copyright law or any other statutory regulations relating to intellectual property which are made available directly by or on behalf of the Buyer, the Buyer declares that there is no violation of statutory regulations or infringement of the protected rights of third parties and the Buyer indemnifies Digital Inflatables against claims relating thereto from third parties and/or the direct and indirect consequences thereof, both financial and otherwise arising from the publication or duplication.
9.2. After payment of everything that Buyer owes Digital Inflatables, including the purchase of development costs and intellectual property rights, the intellectual property rights arising from the works shall, to the extent that they are owned by Digital Inflatables and are transferable, be transferred to Buyer at the time the relevant relationship between Buyer and Digital Inflatables ends. Considering in part the costs associated therewith, to the extent that the intellectual property rights of third parties are involved, Digital Inflatables shall, prior to engaging such third parties and upon Buyer’s request, consult with such third parties as to whether a full transfer is required or possible.
Article 10 - Advance payments and payment conditions
10.1. The agreed purchase price must be credited in full to Digital Inflatables’ bank account at least one day before the delivery date, unless otherwise agreed in writing between Digital Inflatables and the buyer. The payment term of an invoice (sent later) is 7 days, unless otherwise stated on the invoice. This period is a strict deadline.
10.2. Buyer shall not have the right to set off payment of the purchase price due against any counterclaim, and shall not have the right to suspend payment of the purchase price.
10.3. If the buyer does not fulfill his payment obligations on time, he is in default – without the need for a notice of default – and must pay interest of 5% per month, a part of a month being considered a full month.
10.4. In case of non-payment, the buyer will also be liable for extrajudicial costs of 15% of the principal sum, with a minimum of 250 USD, without prejudice to the right of Digital Inflatables to claim the actual costs.
Article 11 - Termination
11.1. Digital Inflatables is entitled to terminate the Agreement without notice of default and without legal intervention in, amongst others, the following cases:
attributable failure on the part of the Buyer to meet its obligations;
death of the Buyer or judicial liquidation of the Buyer;
application for suspension of payment, bankruptcy or approval under the Dutch Debt Rescheduling Act (Natural Persons) by Buyer. 11.2. Digital Inflatables shall be entitled to damages upon termination as set forth in paragraph 1 subparagraph a of this Article.
Article 12 - Delivery address
12.1. If Digital Inflatables undertakes the assembly of the purchased item, the purchaser must, in principle, determine the location where the item is to be assembled. The purchaser is responsible for the proper marking of the location where the item is to be mounted. In addition, the buyer must be present at the start of the work to indicate the marking. If the purchaser is not present at the start of the work, the installation shall be deemed to have been carried out in accordance with the order and proof to the contrary shall not be admissible.
12.2. Buyer warrants that the purchased Item can be mounted on the site safely and without risk of damaging the property of others and/or infringing the rights of others. L’acheteur garantit que l’objet acheté peut être monté sur le site en toute sécurité et sans risque d’endommager la propriété d’autrui et/ou de porter atteinte aux droits d’autrui.
12.3. The site on which the purchased object is to be erected must be easily accessible and capable of being driven. Digital Inflatables may require Buyer to assign an alternate location if Buyer’s designated location is deemed unsuitable and/or unsafe and/or is not without risk of damage. The buyer cannot appeal to the seller if Digital Inflatables does not invoke this authority.
12.4. Buyer warrants that on the date agreed upon for delivery and/or assembly of the item purchased by Digital Inflatables, all power points, wiring, suspension points, lattice scaffolding and pods, etc. will be ready. Any facilities that may be required for this purpose shall be provided by the purchaser and shall be entirely at the purchaser’s expense.
12.5. Damage to the site and/or buildings, lines, pipes or other objects on or in the ground caused by the assembly and holding in place of the purchased item is/remains the responsibility of the buyer.
12.6. Buyer is responsible for power supply and energy consumption (costs). The Digital Inflatables prices are based on the fact that the purchased goods can be delivered to easily accessible locations at ground level. Any resulting work stoppage costs shall be borne by the Buyer. Digital Inflatables is entitled to charge Buyer for additional costs incurred in connection with delivery and collection. If, in Seller’s opinion, there are unsafe and unworkable conditions, including weather conditions or weather forecasts, Seller shall have the right to suspend or stop the assembly/disassembly work, without Buyer being entitled to claim any compensation in this regard.
Article 13 - Other
13.1. In the event that one or more provisions of this Agreement are null and void the other provisions shall remain in full force.
13.2. Unless Buyer has notified changes of address in writing, Buyer shall be deemed to be domiciled at the address notified by Buyer upon conclusion of the Contract.
13.3. In the event of translation of these General Terms and Conditions the( Swiss-French) text of these Terms and Conditions shall prevail.
13.4. Any claims of the purchaser shall become statute-barred one year after the end of the contract.
Article 14 - Applicable law and competent court
14.1. The relationship between Digital Inflatables and its other parties shall be governed exclusively by SWISS law, even if an obligation is incurred abroad in part or in full or if the party involved in the legal relationship is domiciled abroad. The applicability of the Vienna Sales Convention is excluded.
14.2. All disputes arising from or relating to concluded Agreements shall be decided exclusively by the competent court in the district in which Digital Inflatables is established. Digital Inflatables, however, has the right to bring the dispute before the competent court specified in law.
