If these conditions form part of offers and agreements for the provision of deliveries and/or services by the contractor, all provisions of these conditions apply between the parties, insofar as they have not been deviated from by an express written agreement between the parties. A reference by the client to its own purchasing or other conditions is expressly rejected by the contractor.
In these conditions the following definitions apply:
product: goods as well as services, such as maintenance, advice and inspection;
in writing: by means of a document signed by both parties or by letter, fax or e-mail message or any other technical means agreed upon by the parties;
the contractor: the person who refers to these conditions in his offer and/or order confirmation;
the client: the person to whom the offer and/or order confirmation is addressed; In these conditions the following terms also apply:
service: the contracting of work.
Art. II Offer
Every offer made by the contractor is without obligation.
Each offer is based on execution of the agreement by the contractor under normal circumstances and during normal working hours.
Art. III Agreement
If the agreement is entered into in writing, it will be concluded on the day the contract is signed by the contractor or on the day the written order confirmation is sent by the contractor.
Additional work is considered to be anything that is delivered and/or installed by the contractor in consultation, whether or not recorded in writing, with the client during the execution of the agreement in excess of the quantities expressly stated in the contract or the order confirmation or in excess of the quantities stated in the contract. work expressly laid down in the contract or in the order confirmation is performed.
Verbal commitments by and agreements with employees of the contractor only bind the contractor to the extent that they have been confirmed by him in writing.
Art. IV Prize
The prices quoted by the contractor are exclusive of sales tax and other government charges applicable to sales and delivery and are based on delivery ex-factory in accordance with Incoterms applicable on the date of offer, except as otherwise provided in these conditions. “Factory” means the contractor's business premises.
If one or more of the cost price factors increase after the date of conclusion of the agreement - even if this occurs as a result of foreseeable circumstances - the contractor is entitled to increase the agreed price accordingly. If a delivery date or week has been agreed, the delivery time is the period between the date of conclusion of the agreement and the delivery date or the end of the delivery week.
The agreement includes the contractor's authority to separately charge additional work performed by him, as soon as the amount to be charged for this is known to him. The rules set out in paragraphs 1 and 2 of this article apply mutatis mutandis to the calculation of additional work.
Unless otherwise agreed, cost estimates and plans will not be charged separately. If the contractor has to make new drawings, calculations, descriptions, models or tools, etc. for any repeat orders, costs will be charged for this.
Packaging is not included in the price and will be charged separately. Packaging will not be taken back.
Costs of loading and unloading and transport of raw materials, semi-finished products, models, tools and other items made available by the client are not included in the price and will be charged separately. Costs paid by the contractor for this purpose are regarded as advance payments payable by the client.
If the contractor has agreed to assemble/install the product, the price is calculated including assembly/installation and operational delivery of the product at the location stated in the offer and including all costs, with the exception of costs that are not included in the price according to the previous paragraphs. understood whether those in art. VII are mentioned. Costs incurred due to unworkable weather will be charged.
Art. V Drawings, calculations, descriptions, models, tools, etc.; Intellectual Property
Information stated in catalogues, images, drawings, size and weight statements, etc. is only binding if and insofar as it is expressly included in a contract signed by the parties or an order confirmation signed by the contractor.
The offer made by the contractor, as well as the drawings, calculations, software, descriptions, models, tools, etc. produced or provided by him remain his property, even if costs have been charged for them. The intellectual property rights to the information contained in or underlying the manufacturing and construction methods, products, etc., remains exclusively reserved to the contractor, even if costs have been charged for this. The client guarantees that, except for the execution of the agreement, the information referred to will not be copied, shown to third parties, made known or used other than with the written permission of the contractor.
Art. VI Delivery time
The delivery time starts at the latest of the following times: a. the day of conclusion of the agreement; b. the day of receipt by the contractor of the documents, data, permits, etc. necessary for the execution of the assignment; c. the day on which the formalities necessary for commencing the work are completed; d. the day of receipt by the contractor of the amount that must be paid in advance according to the agreement before the start of the work. If a delivery date or week has been agreed, the delivery time is the period between the date of conclusion of the agreement and the delivery date or the end of the delivery week.
The delivery time is based on the working conditions applicable at the time of conclusion of the agreement and on timely delivery of the materials ordered by the contractor for the execution of the work. If a delay occurs through no fault of the contractor due to a change in the intended working conditions or because materials ordered in time for the execution of the work are not delivered on time, the delivery time will be extended as necessary.
With regard to the delivery time, the product is deemed to have been delivered when, if inspection has been agreed in the contractor's company, it is ready for inspection and in other cases when it is ready for shipment, after the client has been notified in writing and without prejudice to the contractor's obligation to comply with any assembly/installation obligations.
Without prejudice to the provisions elsewhere in these conditions for extension of the delivery time, the delivery time will be extended by the duration of the delay that arises on the part of the contractor due to the client's failure to comply with any obligation arising from the agreement or to cooperate required of him. with regard to the execution of the agreement.
Exceeding the delivery time does not entitle the client to full or partial dissolution of the agreement, unless this exceeding is more than 16 weeks or will be more than 16 weeks according to the contractor's notification. In the event of the latter exceeding or notification, the client can terminate the agreement by written notice to the contractor and is then, where applicable, entitled to a refund of the part of the price already paid for the product and to compensation for the damage suffered by him. , up to a maximum of 15 percent of the price agreed for the delivered product. Unless the client exercises his above-mentioned right to terminate, exceeding the delivery time - for whatever reason - does not entitle the client to carry out or have work carried out in execution of the agreement without judicial authorization.
Art. VII Assembly/installation
If the parties have agreed that the contractor will take care of the assembly/installation of the product to be delivered, the client is responsible towards the contractor for the correct and timely implementation of all devices, facilities and/or conditions that are necessary for the preparation of the product to be assembled/installed and/or the correct operation of the product in the assembled/installed state. This does not apply if and insofar as the execution is carried out by or on behalf of the contractor in accordance with drawings and/or data produced or provided by or on behalf of the latter.
Without prejudice to the provisions of paragraph 1, if the parties have agreed that the contractor will take care of the assembly/installation of the product to be delivered, the client will in any case ensure at his own expense and risk that: a. the contractor's employees, as soon as they have arrived at the site of assembly/installation, can commence and continue to perform their work during normal working hours and, moreover, if the contractor deems this necessary, outside normal working hours, provided he does this in a timely manner has communicated to the client; b. suitable housing and all facilities required by government regulations, the agreement and use are available for the contractor's employees; c. the access roads to the installation location are suitable for the required transport; d. the designated installation location is suitable for storage and assembly/installation; e. the necessary lockable storage areas for materials, tools and other items are available; f. the necessary and usual auxiliary persons, auxiliary tools, auxiliary materials and company materials (including fuels, oils and greases, cleaning and other small materials, gas, water, electricity, steam, compressed air, heating, lighting, etc.) and the normal costs for the client's company measuring and testing equipment is available to the contractor in the right place on time and free of charge; g. all necessary safety and precautions have been taken and are being maintained and that all measures have been taken and are being maintained to comply with applicable government regulations in the context of assembly/installation; h. the products sent are present in the right place at the start of and during assembly/installation.
Damage and costs that arise because the conditions set in this article are not met or not met in a timely manner will be borne by the client.
With regard to the assembly/installation time, Article VI applies mutatis mutandis.
Art. VIII Inspection and takeover tests
The client will inspect the product within 14 days after delivery as referred to in Article VI paragraph 3 or - if assembly/installation has been agreed - within 14 days after assembly/installation. If this period has expired without written and specified notification of justified complaints, the product is deemed to have been accepted.
If takeover tests have been agreed, the client will, after delivery as referred to in Article VI paragraph 3 or, if assembly/installation has been agreed, after assembly/installation, give the contractor the opportunity to carry out the necessary preparatory tests and make improvements and changes. that the contractor deems necessary. The takeover tests will be carried out in the presence of the client immediately after the contractor's request. If the takeover tests have been carried out without a specified and well-founded complaint, as well as if the client does not meet his aforementioned obligations, the product is deemed to have been accepted.
The client provides the necessary facilities for the takeover tests and related tests, including those referred to in art. VII paragraph 2 sub f., and representative samples of any materials to be treated or processed are made available to the contractor in sufficient quantities, in a timely manner and free of charge, in the right place, so that the conditions of use for the product envisaged by the parties can be imitated as much as possible . If the client does not comply with this, the last sentence of paragraph 2 applies.
In the event of minor shortcomings, in particular those that do not or hardly affect the intended use of the product, the product will be deemed to have been accepted regardless of these shortcomings. The contractor will remedy the shortcomings as soon as possible.
Without prejudice to the contractor's warranty obligations, acceptance in accordance with the previous paragraphs will exclude any claim by the client regarding a shortcoming in the contractor's performance.
Art. IX Transfer of risk and ownership
Immediately after the product is deemed to have been delivered within the meaning of art. VI paragraph 3, the client bears the risk for all direct and indirect damage that may arise to or as a result of this product, except insofar as the damage is due to intent or deliberate recklessness on the part of the contractor's management employees. If the client remains in default with the purchase of the product after notice of default, the contractor is entitled to charge the resulting costs to the client.
Without prejudice to the previous paragraph and art. VI paragraph 3, ownership of the product is only transferred to the client when everything owed by the client to the contractor for deliveries or work, including interest and costs, has been paid in full to the contractor.
Where appropriate, the contractor will be entitled to unhindered access to the product. The client will provide the contractor with all cooperation in order to enable the contractor to exercise the retention of title included in paragraph 2 by taking back the product, including any disassembly required for this purpose.
Art. X Payment
Unless otherwise agreed, payment of the agreed price will be made in 2 installments:
1/3 (one third) at the latest within 7 days after the conclusion of the agreement; 2/3 (two thirds) at the latest within 14 days after delivery in accordance with art. VI paragraph 3
Payment for additional work will be made as soon as this has been charged to the client.
All payments must be made without any deduction or settlement in the manner to be determined by the contractor.
If the client does not pay within the agreed terms, he is deemed to be in default by operation of law and the contractor has the right, without any notice of default, to charge him interest from the due date at a percentage of 3 points above the statutory interest rate applicable in the Netherlands. , as in art. 6:119a and art. 6:120 paragraph 2 of the Dutch Civil Code, and also all judicial and extrajudicial costs associated with the collection of his claim.
Art. XI Warranty
Without prejudice to the limitations stated below, the contractor guarantees both the soundness of the product supplied by him (not being a service) and the quality of the material used and/or supplied for this purpose, insofar as this concerns unobservable items during inspection or takeover tests. defects in the delivered product, of which the client proves that they occurred within 6 months after delivery in accordance with Article VI, paragraph 3, exclusively or predominantly as a direct result of an inaccuracy in the construction used by the contractor or as a result of defective workmanship or use of poor material.
Paragraph 1 applies mutatis mutandis to defects not observable during an inspection or takeover tests that are caused exclusively or predominantly by improper assembly/installation by the contractor. If the product is assembled/installed by the contractor, the 6-month warranty period referred to in paragraph 1 commences on the day that the assembly/installation is completed by the contractor, on the understanding that in that case the warranty period will in any case end if 12 months after delivery in accordance with Article VI paragraph 3 have expired.
Defects covered by the warranty referred to in paragraphs 1 and 2 will be remedied by the contractor by repairing or replacing the defective part, whether or not in the contractor's company, or by sending a part for replacement, all this always being the case. at the contractor's discretion. All costs that exceed the sole obligation as described in the previous sentence, such as but not limited to transport costs and travel and accommodation costs, as well as costs of assembly and assembly/installation, are borne by the client. A new warranty period of 6 months applies to repaired or replacement parts, on the understanding that any warranty expires as soon as 12 months have passed after delivery of the product in accordance with Article VI, paragraph 3, or, if paragraph 2 applies, as soon as 18 months after the latter delivery. have expired.
For repair, overhaul and maintenance work and similar services carried out by the contractor outside the warranty, unless otherwise agreed, a guarantee is only given on the soundness of the execution of the assigned work, for a period of 6 months. This guarantee includes the sole obligation of the contractor to perform the relevant work again, insofar as it is defective. The second sentence of paragraph 3 applies mutatis mutandis. In that case, a new warranty period of 6 months applies, on the understanding that each warranty expires as soon as 12 months have passed after the original work.
No guarantee is given for inspections, advice and similar services carried out by the contractor.
In any case, the warranty does not cover defects that occur in or are wholly or partially the result of: a. non-observance of operating and maintenance instructions or other than the intended normal use; b. normal wear and tear; c. assembly/installation or repair by the client or by third parties; d. the application of any government regulation regarding the nature or quality of the materials used; e. materials or items used in consultation with the client; f. materials or items provided by the client to the contractor for processing; g. materials, items, methods and constructions, insofar as applied on the express instruction of the client, as well as materials and items supplied by or on behalf of the client; h. parts purchased by the contractor from third parties, insofar as the third party has not provided a warranty to the contractor or the warranty provided by the third party has expired.
If the client does not fulfill any obligation arising from the agreement concluded with the contractor or from a related agreement, or does not do so properly or in a timely manner, the contractor is not entitled to any guarantee - however named - with regard to any of these agreements. - held. If the client proceeds or causes disassembly, repair or other work relating to the product to be carried out without the contractor's prior written approval, any claim under the warranty will lapse.
Complaints regarding defects must be made in writing as soon as possible after their discovery, but no later than 14 days after the expiry of the warranty period. If these periods are exceeded, any claim against the contractor for those defects will lapse. Legal actions must be brought within 1 year after the timely complaint, under penalty of forfeiture.
If the contractor replaces parts/products to fulfill his warranty obligations, the replaced parts/products become the property of the contractor.
The alleged failure by the contractor to fulfill its warranty obligations does not release the client from the obligations arising from any agreement concluded with the contractor.
Article XII Liability
The liability of the contractor is limited to compliance with the warranty obligations described in Article XI has been fulfilled, the client may set a final, appropriate period in a written notification for the contractor's fulfillment of these obligations. If the contractor does not fulfill its obligations within this final period, the client may, at the expense and risk of the contractor, carry out the necessary repair work itself or have it carried out by a third party. If repair work is thus successfully carried out by the client or by a third party, the contractor is released from all liability for the relevant defect by reimbursement of the reasonable costs incurred by the client, on the understanding that these costs do not exceed 15 percent of the the delivered product will amount to the agreed price.
If the repair work according to paragraph 1 is not carried out successfully, a) the client is entitled to a discount on the price agreed for the delivered product in proportion to the reduction in value of the product, on the understanding that this discount may amount to a maximum of 15 percent of the price agreed for the delivered product, or b) if the defect is so serious that it significantly deprives the client of the benefit of the contract, the client may terminate the agreement by written notice to the contractor. The client is then entitled to a refund of the price paid for the delivered product and to compensation for the damage suffered by him, up to a maximum of 15 percent of the agreed price for the delivered product.
Unless there is intent or deliberate recklessness on the part of the contractor's management employees and subject to the provisions of art. VI paragraph 5 and in paragraph 1 and paragraph 2 of this article all liability of the contractor for defects in the delivered product and in connection with the delivery, such as for damage due to exceeding the delivery time and due to non-delivery, for damage resulting from Liability towards third parties for business damage, consequential damage and indirect damage and for damage resulting from any unlawful act or omission of (employees of the) contractor is excluded.
The contractor is therefore not liable for: - infringement of patents, licenses or other rights of third parties; - damage or loss, for whatever reason, of raw materials, semi-finished products, models, tools and other items made available by the client.
If the contractor, without having commissioned the assembly/installation, provides help and assistance - of whatever nature - during the assembly/installation, this is at the risk of the client.
The client is obliged to indemnify or hold harmless the contractor against all claims from third parties for compensation for damage.
Art. XIII Force majeure
In these general terms and conditions, “force majeure” means any circumstance beyond the control of the contractor - even if it could already have been foreseen at the time the agreement was concluded - that permanently or temporarily prevents fulfillment of the agreement, as well as , insofar as not already included, war, danger of war, terrorism, civil war, riot, strike, worker exclusion, transport difficulties, fire and other serious disruptions in the company of the contractor or its suppliers.
Art. XIV Suspension and dissolution
In the event that the execution of the agreement is prevented by force majeure, the contractor is entitled, without judicial intervention, to either suspend the execution of the agreement for a maximum of 6 months or to dissolve the agreement in whole or in part, without being liable for any compensation. are. During the suspension, the contractor is authorized and at the end of it he is obliged to opt for execution, if possible, or for full or partial dissolution of the agreement.
Both in the event of suspension and dissolution pursuant to paragraph 1, the contractor is entitled to demand immediate payment for the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement, for the value that must reasonably be attributed to it. In the event of dissolution pursuant to paragraph 1, the client is obliged to take possession of the goods included therein after payment of the amount due under the previous sentence, failing which the contractor is entitled to have these goods stored at the expense and risk of the client. or sell or destroy it on his behalf.
If there is good reason to fear that the client is or will not be able or willing to fulfill his contractual obligations towards the contractor, as well as in the event of bankruptcy, suspension of payments, closure, liquidation or full or partial transfer of the company from the client, the contractor is entitled to require appropriate security with regard to all contractual obligations (whether due or not) of the client and to suspend the execution of the agreement pending such security. If security is not provided within a reasonable period set by the contractor, the contractor is entitled to terminate the agreement in whole or in part. The contractor has these powers in addition to his other rights under the law, the agreement and these conditions.
If the client does not fulfill any obligation arising from the agreement concluded with the contractor or from a related agreement, or does not do so on time or properly, the contractor is also entitled to suspend the execution of the agreement and/or to terminate the agreement.
In the event of suspension on the basis of paragraph 3 or paragraph 4, the contractor is authorized to use the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement at the expense and risk of the client. do save. In the event of dissolution on the basis of paragraph 3 or 4, the previous sentence applies mutatis mutandis, on the understanding that instead of storage the contractor can also opt for pre-sale or destruction at the expense of the client. In the event of suspension or dissolution on the basis of paragraph 3 or 4, the contractor is entitled to full compensation, but is not obliged to pay any compensation.
Art. XV Disputes
All disputes that may arise as a result of an agreement to which these conditions apply in whole or in part or as a result of further agreements arising from it, will be settled by the competent Dutch court. If the law does not provide for jurisdiction of a Dutch court, the court of the district of the contractor will have jurisdiction.
Art. XVI Applicable law
All agreements to which these conditions apply in whole or in part are governed by Dutch law, applicable to the Kingdom of Europe. The applicability of the Vienna Sales Convention is excluded.
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Producer of electrical lighting and lighting products.
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