MBUY Terms and Conditions of Sale
These Terms and Conditions of sale define the terms for sales made through the MBuy Service between you and the Merchant.
In these Terms and Conditions, terms beginning with a capital letter have the meaning defined at the end of these Terms and Conditions.
Agreement of the Sales Contract
The agreement of a Sales Contract proceeds according to following main steps:
Mobile Offer : you receive or view a Mobile Offer published by a Merchant by means of the MBuy Service;
Order : at the end of the MBuy Service order process you place your Order by sending a request to your mobile operator (for example an SMS charged at a rate corresponding to the cost of the Order); and
Order Confirmation : based on your Order, we send an invoice request to your Mobile Operator; in the event of a positive response by the latter you will receive a confirmation of your Order via your mobile phone.
In detail, the order process is as follows:
Mobile Offer and Order preparation
You can place an Order using the offer reference for the products and/or services shown in the Mobile Offer.
Each of the products and/or services featured in the Mobile Offer have a "product" and/or "service" information sheet which shows the main characteristics of the products and/or services offered, the Merchant does not guarantee the completeness of this information.
Any Order placed by you constitutes full acceptance of the prices and the description of the products and/or services shown in the Mobile Offer.
Using the information available on the Merchant's Page, you select the products and/or services which you wish to buy.
Completing the Order
When you have chosen the products and/or services which you wish to buy, you can finalise your Order by clicking on the "Order Now" button.
Summary and sending the Order
To finish and confirm the order, after checking the Order summary and having read and accepted these Terms and Conditions you must click on the "Confirm Order" button.
The Order is only considered final and binding for the parties from the moment you click on the "Confirm Order" button.
Based on your Order, we will send an invoice request to your Mobile Operator.
In the event of a positive response from the Mobile Operator
In the event of positive response from your Mobile Operator, a confirmation message (the Order Confirmation) is sent to you via the MBuy Service. The Order Confirmation summarises all information relating to the Order, this information forms the basis of the Sales Contract.
In the event of negative response from the Mobile Operator
In the event of negative response from your Mobile Operator, your Order will be considered cancelled, unless otherwise agreed by the Merchant and yourself.
The Sales Contract is governed by the following documents:
The Mobile Offer;
The Order Confirmation;
These Terms and Conditions.
In the event of contradiction between these documents, the Mobile Offer and the Order Confirmation will take priority over these Terms and Conditions.
Parties to the Sales Contract - Power of IDM
The Sales Contract will be agreed between yourself, as party of the first part, and the Merchant, as party of the second part.
Except when we ACT expressly as "Merchant" in the Mobile Offer, we will not be party to the Sales Contract AND WE DO NOT ASSUME ANY OBLIGATIONS AS A SELLER (E.G. OBLIGATION TO DELIVER THE PRODUCT).
As part of the MBuy Service, we are however required to intervene as a direct representative of the Merchant: we will perform certain acts and make certain communications in the name of and on behalf of the Merchant, such as: sending the Order Confirmation, declining your offer, acting as gateway or intermediary between you and the Merchant's customer service, etc.
Advertised prices are in Swiss Francs and include all taxes.
The prices advertised in the Mobile Offer normally include fees for Order processing (packing and shipping) and Order delivery costs.
The Merchant reserves the right to modify their prices at any time, without notice. Any new tax or contribution which may be created or modified, representing an increase or decrease, may also be passed on by the Merchant via the selling price of the products.
Nevertheless the invoiced price, which will be payable by you, will be the current price on the day that the order is sent.
No modification can be made to the price payable after the Order has been sent.
The total amount (including processing and delivery charges) of the payment due is shown during the order process and on the Order Confirmation.
The total amount will be paid by means of the MBuy Service, that is to say by means of a premium rate SMS that you will be billed for by your Mobile Operator and which will be transferred to the Merchant, after deduction of certain fees and commissions.
For the purposes of the Sales Contract, you will be deemed to have paid this amount when you have made a payment for the corresponding invoice to your Mobile Operator.
Litigation/Refusal to pay the mobile operator bill
If you do not pay your Mobile Operator bill the merchant will be duly informed. It may be that the mobile operator does not transfer us the invoiced amount following your Order. Where necessary, the Merchant reserves the right suspend the execution of their obligations at any time and require that you pay them the cost for your Order.
Moreover, the Merchant reserves the right to refuse or cancel any Order when there is litigation relating to the payment or return of previous Orders, or to bring legal proceedings.
Right of withdrawal
Customers have no right to return goods or services that has been provided or delivered in accordance with the Contract.
The Merchant undertakes to honour Orders within the limits of available stock.
In the event that all or part of a product is unavailable you will be informed by the Merchant via email as soon as possible.
In the event that a product is unavailable, the Merchant may cancel the Sales Contract, in which case they must refund you amount which you have paid under the terms of the aforesaid Sales Contract.
Ordered products are delivered to the address provided by you during the order process and referred to in the Order Confirmation.
Unless otherwise agreed by the Merchant, only the Orders with delivery addresses in Switzerland and Lichtenstein are permitted.
Delivery times and delays in delivery
The delivery times mentioned in the order process, unless otherwise specified, are given as an indication and are non-binding.
However if, without fault on your part, a product has a delay of more than 20 working days in relation to the indicated delivery time, you have the right to cancel the Sales Contract and the Merchant will provide a refund of the amount which you have paid.
Missing products or products delivered in error
Despite the care taken by the Merchant in the preparation and delivery of the parcels, it is possible that there could be missing products or products delivered that do not correspond to your Order.
Where applicable the following rules apply:
Complaint : you must address your complaint to the Merchant by indicating the subject of the complaint (missing product, product delivered in error) within 5 working days of delivery. Failure to make a complaint within this period will be considered confirmation that you have received the number and type of products ordered;
Returns : If requested by the Merchant, you must return defective products or products sent in error, to the address indicated by the Merchant and in accordance with their instructions. Returned products must be in their original packaging and be accompanied by all their labels, accessories, documentation and user guides, along with the original purchase invoice so that the Merchant can identify you. The return and reshipping costs will be the responsibility of the Merchant;
The Merchant's rights and obligations In the event of a valid complaint, the Merchant may, at their discretion (i) either send you new products in accordance with your Order subject to stock availability, (ii) or if it is not possible to deliver these products, to propose products of equivalent quality and price to the products initially ordered, (iii) or to cancel the Sales Contract and refund you the amount which you paid in accordance with the Sales Contract.
Unless otherwise indicated during the ordering process, the Merchant shall provide you with a guarantee covering defects in any product delivered through the MBuy Service according to the following conditions and, moreover, the legal provisions (art. 197 and following of the Swiss Code of Obligations)
Duration: one year from the date of purchase;
Verification and Notifications of defects : you must check products on delivery. If you notice a defect you must send notice of the defect to the Merchant within 5 working days of delivery, or in the event of hidden defect, within 5 days of the discovery of the defect. If you do not respect this time limit you will lose your right to the guarantee.
The Merchant's rights and obligations: In the event of a defect covered by the guarantee, the Merchant may, at their discretion (i) either repair the product, (ii) or replace the product with a new identical product, (iii) or cancel the Sales Contract and refund you the amount which you paid in accordance with the Sales Contract;
Guarantee disclaimer: the guarantee does not apply: (a) to consumable parts, such as batteries, unless failure has occurred due to a defect in materials or workmanship; (b) to any cosmetic damage, including scratches, dents and broken plastic on ports; (c) to any damage caused by use with another product; (d) to any damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; (e) to any damage caused by operating the product outside published guidelines (technical documentation, user guides and other information provided on delivery); (f) to any damage caused by servicing (including upgrades and expansions) performed by anyone who is not a representative of the Merchant or a service provider authorised by the Merchant; (g) to a product that has been modified in a manner which alters functionality or capability without the written permission of the Merchant; (h) to defects caused by normal wear and tear or otherwise due to the normal ageing of the product, or (i) if any serial numbers have been removed or defaced from the product.
Notification to the Merchant
Any request, notification or complaint relating to the Sales Contract must be made by letter or email and be sent to the Merchant's customer service department at the address indicated in the Order Confirmation.
However, you will also be able to address any request, notification or complaint concerning the Sales Contract to our customer service team by sending an email to us at the following address: firstname.lastname@example.org. Where necessary we will redirect your request, notification or complaint to the appropriate authority.
These Terms and Conditions are written in French, German, Italian and English. If there is any discrepancy, the French version prevails.
In the event that any of the provisions of these Terms and Conditions are declared invalid or unenforceable for any reason, they should be, as far as possible, adapted rather than cancelled in order to respect the intention of all parties. In all cases, all other provisions of these Terms and Conditions will remain valid and enforceable insofar as they are compatible.
Non enforcement by us of any of the stipulations of these Terms and Conditions shall not constitute a waiver of your obligations at any time and does not affect the validity of all or part of these Terms and Conditions.
We reserve the right to modify or amend these Terms and Conditions at any time, without notice, in particular in order to comply with legal and regulatory provisions. We therefore invite you to consult these Terms and Conditions regularly and before placing any Orders. However, the Terms and Conditions applicable to each order will be those in force on the day that your Order is finally confirmed.
These Terms and Conditions and the Sales Contracts are governed by Swiss law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods signed in Vienna on April 11, 1980.
All litigation arising out of these Terms and Conditions and/or of any Sales Contract will be subject to (i) the exclusive competence of the ordinary courts at the domicile or legal residence of one of the parties, when the proceedings are brought by the Customer and (ii) the exclusive competence of the ordinary courts of the seat or the residence of the defendant, when the proceedings are brought by us or the Merchant. The right is reserved to appeal to the Swiss Federal Court.
The terms defined below will have the meanings given each time they are used in these Terms and Conditions:
"Customer": any person (physical or moral) using the MBuy Service as a buyer. The terms "you" and " your" means the Customer.
"Order" : the SMS which you send via the MBuy Service by which you make an offer to purchase a product or service from the Merchant.
"Terms and Conditions" : these terms and conditions of sale.
"Order Confirmation" : the confirmation sent by the Merchant (or by our intermediary, on behalf of the Merchant) to notify you that your Order offer has been accepted.
"Sales Contract" : the sales contract concluded between you and the Merchant resulting from the Mobile Offer, your Order and Order Confirmation.
"IDM": ID Mobile SA limited company of Swiss law, with headquarters located at chemin Pré-au Blanc, Z.I. Rio Gredon, CH – 1806 St-Légier, Switzerland. The terms "we", "our" and "us" means IDM.
"Mobile Offer" : the SMS or any other communication which you receive or which you access via the MBuy Service and which includes information regarding the products or the services and the deal offered to you by the Merchant.
"Mobile Operator" : any mobile phone operator who is authorised by the Swiss Federal Office of Communications (OFCOM) for the management and attribution of short codes for SMS and MMS services, in particular Swisscom, Sunrise and Orange.
"Merchant's Page" : the area reserved for a Merchant in the MBuy Service where the Mobile Offers of the aforesaid Merchant are published.
"MBuy Service" : the mobile phone sales platform operated by IDM allowing you, among other things, to consult advertisements relating to products or services on your mobile phone (Mobile Offers), to order such products or services by means of your mobile phone (your Order) and to pay the sales price relating to it by means of an invoice issued by your Mobile Operator and the www.mbuy.ch website.