General terms and conditions

The following terms and conditions govern all online offers, sales and purchases of products and/or services through the website(s) currently located at www.orca.com (together with any successor site(s), the "Site"). These terms hereby incorporate the terms and conditions of the Privacy Policy applicable to the Site.

1. Definitions
   1. The following terms and expressions shall have the following meanings:
      1. 'consumer' means any natural person who is acting wholly or mainly for purposes which are outside his trade, business, craft or profession;
      2. 'day' means a calendar day;
      3. 'durable medium' means any instrument which enables you or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
      4. 'digital content’ means data which are produced and supplied in digital form;
      5. ‘product(s)’ means the hardware and software product(s) listed and described on the Site which Trader agrees to provide to you in accordance with these General Terms and Conditions;
      6. ‘service(s)’ means the services, listed and described on the Site available for provision to you in accordance with these General Terms and Conditions.
2. Identity
   1. Products and services sold through the Site are sold to you by ModusLink B.V. ("Trader" or "us").

      Trader's contact information is as follows:

      ModusLink B.V.
      Wapenrustlaan 11-31
      7321 DL
      Apeldoorn
      The Netherlands
      VAT: NL800610040B01
      Chamber of Commerce: 08055138 in Apeldoorn, Netherlands.

      For Complaints please contact:

      ModusLink B.V.
      Wapenrustlaan 11-31
      7321 DL
      Apeldoorn
      The Netherlands

3. Applicability
   1. These General Terms and Conditions apply to every offer of Trader and every contract concluded between Trader and you.
4. Ordering and contracting
   1. When you visit the Site, place an order, or send e-mails to us, you are communicating with us electronically. For contractual purposes, you consent to receive communications electronically from us. This condition does not affect your statutory rights related to electronic communications.
   2. You will be asked before the order confirmation to expressly accept these General Terms and Conditions and you represent and warrant that you are eighteen (18) years of age or older and have the legal right to use the payment means selected by you. Verification of information provided by you may be required prior to the confirmation or acceptance of an order or completion of any purchase. You will have an opportunity to review your order, and to correct any input errors, prior to submitting your order to us.
   3. After receipt of your order confirmation, we will send to you, without undue delay, an acknowledgement of receipt and the confirmation by email that we have shipped the product and/or the third party service provider has started to provide service to you. Note that we will only deliver products or services to your address. We will inform you by email if, due to circumstances not within the Trader’s reasonable control, a product and/or a service you ordered is unavailable or if we will be unable to ship a product and/or provide the service within the estimated delivery dates.
   4. All relevant sales information shall form an integral part of the contract and shall not be altered unless we have expressly agreed otherwise.
5. Withdrawal
   1. If you are a consumer, save where you do not have a right of withdrawal as per clause 5.7, you have a period of 14 days to withdraw from the contract, without giving any reason, and without incurring any costs other than those provided for in this clause 5. The withdrawal period will expire after 14 days from:
      1. in case of service contracts, the day of the conclusion of the contract;
      2. in case of sales contracts for products, the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the products, or:
         1. in the case of multiple products ordered by you in one order and delivered separately: the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the last product;
         2. in the case of a contract relating to delivery of a product consisting of multiple lots or pieces: the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the last lot or piece;
         3. in the case of a contract for regular delivery of products during a defined period of time: on the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the first product.
   2. To exercise the right of withdrawal, you must inform us of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or using contact details provided to you as per clause 2.1). You may use the attached model withdrawal form, but it is not obligatory. You may also electronically submit the model withdrawal form or any other unequivocal statement on our website using our Contact Page in which case we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium without delay. For most efficient processing of your withdrawal we suggest that you first contact our call centre at info@orca.com for further detailed instructions. You shall have exercised your right of withdrawal within the withdrawal period if the communication concerning the exercise of the right of withdrawal is sent by you before that period has expired. The exercise of the right of withdrawal shall terminate the obligations of the parties to perform the contract. If you exercise your right of withdrawal, any ancillary contracts shall be automatically terminated.
   3. If you withdraw from the contract, we shall reimburse to you all payments received from you, including, if applicable, the costs of delivery (with the exception of the supplementary costs if you have expressly opted for a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed of your decision to withdraw from this contract in accordance with clause 5.2. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise and provided you do not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the products back or until you have supplied evidence of having sent back the products, whichever is the earliest. You shall send back the products to Goitondo Kalea, 2, 48269 Mallabia, Vizcay (Spain) or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you have communicated your decision to withdraw from the contract to us in accordance with clause 5.2. The deadline is met if you send back the products before the period of 14 days has expired. In consideration of risk of loss or damage of products as implied under clause 6.6, we recommend that you use a carrier that allows tracking and monitoring of delivery status for your returns. For most efficient processing of your return we suggest that you contact us at the telephone number indicated to obtain a return merchandize authorization (RMA) number prior to returning your product.
   4. You shall only bear the direct cost of returning the products. You are only liable for any diminished value of the products resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the products.
   5. if you want the performance of services to begin during the withdrawal period provided for in clause [5.1(a)] we require that you make an express request. You acknowledge that you will lose your right of withdrawal once the service has been fully performed. If you exercise the right of withdrawal after having made such request, but before the service has been fully performed, you shall be liable to pay us reasonable costs, consisting of an amount which is in proportion to what has been provided until the time you have informed us of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by you to us shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided.
   6. In the following situations you do not have a right of withdrawal:
      1. service contracts after the service has been fully performed if the performance has begun with your prior express consent, and with the acknowledgement that you will lose your right of withdrawal once the contract has been fully performed by us;
      2. the supply of products or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by us and which may occur within the withdrawal period;
      3. the supply of products made to your specifications or clearly personalized;
      4. the supply of products which are liable to deteriorate or expire rapidly;
      5. the supply of sealed products which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
      6. the supply of products which are, after delivery, according to their nature, inseparably mixed with other items; and
      7. the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery.
   7. The burden of proof of exercising the right of withdrawal in accordance with this clause shall be on you. Except as provided for in this clause 5, you shall not incur any liability as a consequence of the exercise of the right of withdrawal.
6. Delivery and execution
   1. Unless we have agreed otherwise on the time of delivery, we shall deliver the products by transferring the physical possession or control of the products and/or commence provision of services to you without undue delay, but not later than 30 days from the conclusion of the contract.
   2. Where we have failed to fulfil our obligation to deliver the products and/or commence the provision of services at the time agreed upon with you or within the time limit set out in clause 6.1, you shall call upon us to make the delivery and/or commencement within an additional period of time appropriate to the circumstances. If we fail to deliver the products and/or commence provision of services within that additional period of time, you shall be entitled to terminate the contract. The above shall not be applicable to sales contracts and/or services contracts where delivery or commencement within the agreed delivery period is essential taking into account all the circumstances attending the conclusion of the contract or where you inform us, prior to the conclusion of the contract, that delivery by or on a specified date is essential. In those cases, if we fail to deliver the products and/or services at the time agreed upon with you or within the time limit set out in clause 6.1, you shall be entitled to terminate the contract immediately.
   3. Upon termination of the contract in accordance with clause 6.2, we shall, without undue delay and at the latest within 14 days from the order cancellation, reimburse all sums paid under the contract.
   4. In addition to the termination of the contract in accordance with clause 6.2, you may have recourse to other remedies provided for by national law.
   5. Orders are shipped on weekdays (Monday through Friday), except for applicable national holidays in Spain. If any products in your shopping cart indicate “Pre-Order“ as the status, your entire order will be delayed until all of the items in your order are in stock. You will receive a shipment confirmation e-mail with carrier tracking information on the day that your order ships from our warehouse. When an order is placed, it will be shipped to the shipping address designated by you as long as that shipping address is complete and compliant with the shipping restrictions contained on the Site. All shipments are made by an independent third party carrier indicated on the Site. Shipping dates on the Site are estimates and are not binding. We will inform you by email upon shipment of a product. In case of conflict between this clause 6.5 and another part of clause 6, that other part shall prevail.
   6. Subject to clause 6.8, the title, risk of loss of or damage to the products shall pass to you when you or a third party indicated by you and other than the carrier has acquired the physical possession of the products.
   7. Charges for expedited delivery, if applicable, are in addition to the standard shipping charge. Standard and expedited shipping charges will be displayed on the Site before you place your order.
   8. Title to all products shall only pass to you when we have received final payment in full.
7. Price and payment
   1. The prices displayed on the Site are the total prices quoted in the applicable currency based on the location you have selected, inclusive of taxes, or where the nature of the products and/or services is such that the price cannot reasonably be calculated in advance, the Site shall display the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
   2. In the event of a material pricing error on an item and/or service that you have ordered such that its price is derisory, we will notify you and await your approval of the corrected price before continuing to process your order. Your credit card or other payment instrument will be billed by Trader and the charge may appear on your statement as “Orca via ModusLink”. If you do not wish to proceed, we will promptly refund any amounts previously billed.
8. Warranty
   1. The below warranty gives you specific legal rights. If you are a consumer, these rights do not affect your legal rights under applicable national legislation governing the sale of consumer products and services.

      THE STATUTORY WARRANTY provided by ORCA runs for two years as from the date on which the product is purchased.

      COVERAGE

      ORCA provides a warranty on all products that it manufactures and/or distributes against any nonconformity issues for the first two years after their purchase. This warranty applies only to the original purchaser of the product when the purchase is made through an authorized dealer. It therefore excludes purchases made through non-authorized dealers and on eBay or similar sale and/or auction platforms. The buyer is entitled to the repair and/or replacement of the defective product completely free of charge for the affected user in the event of any nonconformity. The specific legal rights of the original purchaser of the product under this warranty may vary from country to country. If this warranty is found not to be consistent with local legislation, it will be considered as amended so that it is consistent with that legislation.

      TERMS & CONDITIONS

      When filing a claim under this warranty, the user must provide a copy of the product purchase document (sales invoice) for the bicycle to ORCA or the dealer. This warranty does not cover normal wear and tear of the product in any case. In no case will this warranty apply to breakages or defects resulting from negligent use. Negligent use is considered to include, but is not limited to, the following:

      For neoprene items:
      1. Pinches and nail tears.
      2. Damage or fading resulting from exposure to excessive heat and sunlight or storage in unsuitable conditions.

      For all products:

      1. Deterioration resulting from exposure to external ambient agents (e.g. salt water, excessive heat, sunlight, etc.) or chemicals (pool products, chlorine, etc.).
      2. Deterioration or loss of features of the garment due to improper use of washing machines/ dryers/ irons, fabric conditioners or detergents.
      3. Tears or abrasions on surfaces or seams due to normal wear and tear.
      4. Improper modifications or repairs carried out by unauthorized persons.

      You, the user, must keep the product acquired in good condition, in line with the instructions and recommendations of the manufacturer.

      PROCESSING

      To process any claim in relation to this warranty, the user must proceed to the point of sale where he/she purchased the product, so that the dealer can process the statutory warranty. If it is not possible to visit that dealer or if visiting same would result overly burdensome for you, the user, you may go to another official ORCA dealer to process the claim or contact ORCA directly via the linbk below to receive instructions on how to process the warranty claim. When filing a claim under this warranty, the user must provide the product purchase document (sales invoice) to ORCA or the dealer.This warranty is subject to the decision reached by our technicians with regard to the nature of the product non-conformity once they have studied the product in question. If repair is not possible and ORCA opts to replace the product, ORCA will replace the non-conforming product with another similar product, and if this is not possible for reasons of stockage, you, the user, will receive another product of equal quality and features. ORCA may replace personalized products by similar products in the current colour range if the original personalization cannot be reproduced.

   2. If you are not a consumer: our sole obligation under the warranty at [clause 8.1] will be at our option to repair or replace the product.

      ALL IMPLIED WARRANTIES OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE WARRANTY AT CLAUSE [8.1]. MODUSLINK B.V. DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL MODUSLINK B.V. BE LIABLE FOR ANY LOSS OF DATA, REVENUE OR PROFIT, OR FOR ANY INDIRECT DAMAGES, LOSS OF BUSINESS AND REPUTATION, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, EVEN IF MODUSLINK B.V. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MODUSLINK B.V.’S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT OR SERVICE. IN NO EVENT WILL MODUSLINK B.V. BE LIABLE FOR ANY LOSSES OR DAMAGE INCURRED BY ANY BUSINESS, TRADE, CRAFT OR PROFESSION CARRIED ON BY YOU OR ANY OTHER PERSON USING PRODUCTS AND/OR SERVICES PURCHASED UNDER THESE TERMS.

   3. Warranty returns are limited to each product's individual warranty as defined in the present clause. If you experience a problem with your product or service, we suggest you first contact our support team for assistance vía email info@orca.com or by contacting our technical call centre +34 900 67 00 18
9. Liability
   1. If you are a consumer, we are only liable for losses that are a direct consequence of our breach of these General Terms and Conditions and in no event we are liable for any loss of data, or for any indirect damages. If you use the products for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity. The foregoing does not affect your non-excludable statutory rights and only applies to the extent permitted by the applicable law.
   2. If you are not a consumer: Subject to clause 8.2 and unless provided otherwise in these General Terms and Conditions, we are not liable for damages or otherwise in connection with these General Terms and Conditions and any orders, products, services or purchases except (a) to the extent damages arise from our or our representatives’ or agents’ intentional or grossly negligent conduct, (b) for death or personal injury or damage to property caused by our defective products and/or services, (c) for death or personal injury caused by our or our representatives’ or agents’ negligence, or (d) to the extent our liability cannot validly be excluded under applicable law.
10. PERSONAL INFORMATION AND YOUR PRIVACY and export control
    1. We comply with all data protection laws and will use data which could be used to directly or indirectly identify you personally (“Personal data”) only as instructed by Orca on whose behalf we sell product(s) and service(s) to you. We therefore act as so-called data processor on behalf of Orca which acts as so-called data controller. Further information of our processing of personal data is set out in the Privacy Statement.
    2. Please note that products, which may include technology and software, are subject to E.U. export laws as well as the laws of the country where they are delivered or used. You agree to abide by these laws. Under these laws, product(s) may not be sold, leased, or transferred to restricted countries, restricted end-users, or for restricted end-uses.
11. ASSIGNMENT
    1. The Contract formed under these General Terms and Conditions is personal to you and you are not permitted to assign or transfer it to any other person without the Trader’s prior written consent. The Trader has the right to assign the contract in full or in part to any company or entity for business reasons provided this would not serve to reduce the guarantees for the consumer.
12. Applicable law, MEDIATION and exclusive jurisdiction
    1. If you are a consumer: these General Terms and Conditions and your purchases are governed by the laws of Czech Republic without regard to conflict of laws principles. You submit to the exclusive jurisdiction of the courts of Czech Republic. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The European Commission provides a platform for online dispute settlement. This platform provides you with the opportunity to resolve disputes in connection with your online order without first engaging a court. The platform can be found at https://ec.europa.eu/consumers/odr/.
    2. The rights you have under these General Terms and Conditions are in addition to and do not affect the statutory rights and remedies you have under applicable consumer protection law. In the event of conflict between these General Terms and Conditions and applicable consumer protection law, your statutory rights under applicable consumer protection law shall prevail.
    3. If you are not a consumer: these General Terms and Conditions and your purchases are governed by Dutch laws, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any dispute arising from or in connection with the Terms of Use, these General Terms and Conditions and your purchases shall be submitted to the exclusive jurisdiction of the competent court in the Netherlands.
13. Other
    1. A complaint can be sent to: info@orca.comCOVERAGE