All intellectual property rights, including copyrights, trademark rights, database rights, design rights and rights in the (embedded) software, the printed circuit board (PCB layout), the casing and the operation of the Product, rest exclusively with Wishly.
The Customer and the recipient of the Product are expressly prohibited from decompiling, disassembling, reverse engineering, copying, or in any way rebuilding or modifying the (embedded) software or hardware.
It is not permitted to open or modify the casing of the Product, with the exception of the battery cover intended for the regular replacement of the AAA battery.
Article 3. Right of Withdrawal, Inspection and Diminished Value
The Customer has the right to dissolve the Agreement relating to the purchase of the Product without giving reasons during a cooling-off period of 14 days.
During the cooling-off period the Customer shall handle the Product and the packaging with care. The starting point is that the Customer may only handle and inspect the Product as he would be allowed to do in a physical shop.
The Product is designed to display a pre-programmed cycle of messages. Activating the Product and (fully) running through or consuming the programmed message sequence or interactive steps falls outside the scope of a regular inspection and is deemed "taken into use".
Upon receipt of a return, Wishly logs and checks the usage status via hardware read-out (including the number of button presses and messages displayed). If these logs show that the Product has been used more intensively than necessary to establish its nature and operation, the Customer is liable for the diminished value. This diminished value can amount to 100% of the purchase price, since after full use the Product cannot be offered again as new.
Article 4. Statutory Warranty & Exclusions
Wishly warrants that the Products conform to the Agreement and to the specifications as may reasonably be expected (statutory conformity).
The warranty lapses in any event if there is:
Damage caused by dropping, impact, pressure, or exposure to moisture, water or extreme temperatures;
Damage caused by leaking, defective or incorrectly inserted AAA batteries;
Damage caused by opening the casing (other than the battery cover), attempts at repair, modification or soldering by the Customer or third parties;
Normal wear and tear of parts (such as mechanical buttons or degradation of the screen with prolonged intensive use).
Article 5. Liability & Consequential Damage
The total liability of Wishly for an attributable failure in the performance of the Agreement or on any other ground is limited to compensation of direct damage up to a maximum of the price stipulated for that Agreement (including VAT).
Wishly is never liable for indirect damage, including consequential damage, lost profits, missed savings or damage due to business interruption.
Notwithstanding the provisions of the previous paragraphs of this article, Wishly's liability for damage resulting from product liability (as referred to in article 6:185 et seq. of the Dutch Civil Code) is not limited or excluded, insofar as the law mandatorily prohibits this.
Article 6. Acceptable Use Policy (Content Rules)
The Service enables the Customer to program and send text messages to the Product themselves. The Customer is at all times fully responsible for the content of these messages.
The Customer is expressly prohibited from using the Service to process, store or send texts that: a. Violate Dutch or European laws and regulations; b. Are defamatory, slanderous, insulting, racist, discriminatory, hateful, threatening or obscene in nature; c. Infringe intellectual property rights (such as copyrights) of third parties, including copying protected poems, song lyrics or literary texts without permission.
Wishly does not check the entered texts in advance (no proactive moderation), since messages are stored offline on the Product. However, if Wishly is notified by a third party of unlawful content on its servers, Wishly is entitled to delete this data immediately.
The Customer indemnifies Wishly against all claims by third parties based on the assertion that the texts generated or sent by the Customer are unlawful or infringe the rights of third parties.
Article 7. Privacy, Third-Party Data & Retention Periods
When using the Service, the Customer may enter personal data of a third party (the intended recipient of the Product), such as their name, address details and personal messages.
The Customer warrants that he has the required consent of the third party concerned (the recipient) to provide this personal data to Wishly for the performance of the Agreement.
Wishly processes the personal data of the Customer and the recipient exclusively in accordance with the General Data Protection Regulation (GDPR) and its Privacy Statement.
Personal messages and linked data are kept by Wishly on its servers for as long as the Customer's user account is active, or until the Customer submits an explicit request for permanent deletion of this data via the contact form provided for that purpose or the account environment. After such a request, the messages are permanently erased within the statutory periods.
Article 8. Delivery & Transfer of Risk
Wishly will exercise the greatest possible care in receiving and fulfilling orders for Products.
The place of delivery is the address that the Customer has made known to Wishly.
The risk of damage and/or loss of Products rests with Wishly until the moment of delivery to the Customer or a representative designated in advance and made known to Wishly (such as the recipient of the gift), unless expressly agreed otherwise. From the moment of delivery the risk passes entirely to the Customer.
Article 9. Applicable Law and Disputes
All legal relationships to which Wishly is a party are governed exclusively by Dutch law, even if an obligation is performed wholly or partly abroad or if the party involved in the legal relationship is domiciled there.
Disputes between Wishly and the Customer will in the first instance be submitted to the competent court in the Midden-Nederland district, location Utrecht.