General Terms and Conditions of ADJ Supply Europe B.V.
Version: February 1st, 2016
In these general terms and conditions, the following expressions have the following meanings:
A) ADJ: the private company with limited liability ADJ Supply Europe B.V. registered in the commercial register of the Chamber of Commerce in Limburg under number 14070646;
B) Buyer: the opposite contract party as referred to in article 6:231, subsection c, of the Dutch Civil Code, being the party to whom an offer is made by ADJ, or with whom an agreement is concluded by ADJ, or to whom goods or products are supplied.
Article 1: Applicability
1.1. All offers, including electronic offers through AD)'s website, will be made subject to these general terms and conditions being declared applicable, both to the offers and acceptance
thereof, as well as to the agreement thus formed.
1.2. The agreement will be formed once acceptance of the offer has been received by ADJ. By accepting the offer, the Buyer thereby states that it agrees to the applicability of these general terms and conditions and that it waives the stated applicability of any general terms and conditions used by it.
1.3. If provisos or changes are made in the acceptance with respect to the offer, the agreement will only be formed if ADJ has informed the Buyer that it consents to these deviations from the
Article 2: Price
2.1. Unless otherwise indicated, the prices stated in the offer will be exclusive of turnover tax.
2.2. After the payment period has lapsed, the Buyer will be in default without a notice of default being necessary and will owe due and payable interest of 1.25% per month as from that time, until the date of payment in full. If the Buyer is liquidated, declared insolvent or granted a suspension of payments, the Buyer's obligations will be immediately due and payable.
Article 3: Delivery
3.1. Unless a different arrangement is apparent from the invoice, the items purchased will be delivered ex works. Risk of loss of or damage to any consignment of the goods shall pass to the
Buyer from the time the delivery leaves ADJ's or any engaged third party's premises, including if the goods are delivered "carriage paid".
3.2. Unless expressly agreed otherwise, the agreed delivery date will be indicative and not be a fixed and final deadline. ADJ will be entitled to perform the agreement in instalments. If ADJ
is unable to provide delivery within the agreed delivery period, it will inform the Buyer as soon as possible, and the delivery period will be extended by at most four months. In this situation,
however, ADJ will also be entitled not to state a new period, but to rescind the agreement through an extrajudicial declaration. In the latter case, it will only be obliged to pay compensation if the failure to perform the agreement results from intentional acts/omissions or gross negligence by ADJ.
3.3. The agreement cannot be dissolved by the Buyer because of an overdue deadline.
Article 4: Quality and description
4.1. Unless the parties agree otherwise, ADJ will not warrant that the goods are suitable for the purpose for which the Buyer wishes to use them, not even if this purpose has been indicated to
Article 5: Storage
5.1. If, for whatever reason, the Buyer is unable to take possession of the goods at the agreed time and they are ready for shipment, ADJ shall have the right to store and secure the goods for the expense and risk of the Buyer and take all reasonable measures to prevent them from deteriorating in quality until they are delivered to the Buyer. The payment obligations of the
Buyer will remain in force unimpaired. and will be increased by the extra costs that ADJ has had to incur.
5.2. The Buyer is obliged to pay ADJ for the storage costs in accordance with ADJ's usual rates and, in the absence thereof, the normal rates in the industry, from the time that the goods are
ready for transport until the actual pick up date.
Article 6: Transfer of ownership and risk
6.1. Subject to the provisions in paragraphs 2 and 4 of this article, ownership of and the risk for the goods will be transferred to the Buyer upon delivery.
6.2. As long as the Buyer has not paid the full amount of the purchase price and any additional costs or furnished adequate security for this, ADJ will retain the title to the goods. In that case, ownership (both legal and equitable) of the goods shall remain with ADJ and will be transferred once the Buyer has fulfilled all its obligations vis-a-vis ADJ.
6.3. If ADJ has good reason to doubt the Buyer's capacity to pay, ADJ will be entitled to postpone delivery of the goods until the Buyer has furnished security for payment. The Buyer will be liable for the damage suffered by ADJ because of this delay in delivery.
6.4. The Buyer will ensure that items to which ADJ retains title are not pledged and that no other right is created in respect of them. If and insofar as the Buyer does not or does not fully perform its obligations or there is a reasonable fear that it will not do this, ADJ will be entitled to repossess the goods delivered to which the retention of title applies from the Buyer or third parties (or to have these items removed from them). The Buyer must fully cooperate in this regard, subject to a penalty of 10% per day on the amount owed by it to ADJ. This penalty will be forthwith due and payable.
6.5. The Buyer undertakes that, at ADJ's request, it will:
a. insure the items delivered subject to retention of title and keep these items insured against fire, explosion and water damage, as well as against theft, and make the policy and proof of
payment of the premiums for this insurance available for inspection by ADJ;
b. pledge to ADJ pursuant to Section 3:239, Dutch Civil Code [BW), all claims by the Buyer against insurers regarding the items delivered subject to retention of title;
c. pledge to ADJ pursuant to Section 3:239, Dutch Civil Code, the claims which the Buyer acquires against its customers upon resale of the items delivered by ADJ subject to retention of title;
d. regard and label as ADJ's property the items delivered subject to retention of title;
e. cooperate in other ways in all reasonable measures which ADJ wishes to take to protect its ownership rights regarding the items.
6.6. If third parties want to establish or enforce rights on the goods or products supplied under retention of title, then the Buyer must notify ADJ of such immediately.
Article 7: Limited Warranties
7.1. ADJ states to the Buyer that ADJ goods and spare parts, under normal use, are free from defects in material and manufacturing for the periods stated below, calculated from the invoice date:
- 24 months for lighting fixtures that can be controlled via a lighting console, video displays, DMX-512 /Art-Net/ Kling-Net/ Wifly controllers and audio products;
- 12 months for non-DMX lighting fixtures, e.g. non-programmable controllers; cases such as flight cases;
- 12 months for non-ADJ branded products;
- 6 months for laser diodes, batteries, CD mechanisms and products sold as "B-Stock" or "Used Products";
- 3 months for spare parts.
The limited warranty covers exclusively manufacturing defects and defects in material. Any consequential damage is excluded. At no lime will installation or re-installation of products labor or liability costs be assumed by ADJ.
7.2. None of the warranties are valid if the total purchase price of the defective goods or spare parts has not been paid by the due date.
7.3. ADJ warrants to be able to deliver spare parts for the goods only for the duration of the warranty period stated in this clause 7.
7.4. The warranties are not valid for any goods or spare parts for which serial numbers have been removed or which have been damaged or rendered defective:
- as a result of normal wear and tear, willful or accidental damage, negligence, misuse or abuse;
- due to water or moisture, lightning. windstorm, abnormal voltage, harmonic distortion, dust, dirt, corrosion or other external causes including salinity or pressure;
- resulting from acts of God;
- damages or defects which are caused by installation errors, improper use, use in violation of the issued manual, negligent or poor maintenance, as well as surface damages;
- by the use of spare parts not manufactured or sold by ADJ or by the connection or integration of other equipment or software not approved by ADJ unless the Buyer provides acceptable proof to ADJ that the defect or damage was not caused by the foregoing in this subsection;
- by modification of the product, repair of the goods or service done by anyone other than ADJ who has not applied for and been approved by ADJ unless the buyer provides proof to ADJ that the defect or damage was not caused by it.
- due to failure to treat products or spare parts in accordance with AD J's instructions. Due to failure to treat ADJ products and spare parts in a safe and reasonable manner. This can include but is not limited to storage, transportation and installation and includes shock absorption and protection from vibration, impact protection, ingress protection, protection from unfavorable environmental conditions, thermal insulation and strength. All approvals and certifications are related to a single product and not a group of products;
7.5. This limited warranty excludes parts prone to normal wear and tear including lamps, fuses, brushes, contact rings, zippers, lamp sockets and belts and natural degradation and color shift of the LED source over the course of normal product use; small deviations in the specified values of intensity and color that do not sway the functionality of the product. ADJ targets to maintain the highest binning levels for its components, but does not warrant that all variation for color and brightness may be calibrated out.
7.6. When a valid warranty claim is presented to ADJ, ADJ may fulfil its warranty obligations by sending the necessary replacement parts to the buyer free of charge if the buyer can reasonably be expected to be have the ability to repair the defect, if necessary with support from ADJ's Technical Support and Service department.
7.7. ADJ will assume liability vis-a-vis the Buyer for damage arising to or because of the goods during the warranty period, unless the damage results from the fact that the Buyer has used the goods contrary to the user instructions provided with them or otherwise makes a mistake in using them.
7.8. In all instances in which the warranty is invoked, the Buyer must submit a copy of the invoice.
7.9. For warranty service, send the produci only to ADJ. Return shipments without ADJ's prior approval will be rejected in each case. All shipping charges must be pre-paid. Only within the first 12 months of the warranty period and only inside the European Union, ADJ shall assume all responsibility and expense for freight and freight insurance, unless the warranty claim is not valid in ADJ's reasonable judgment.
7.10. Products which are inspected by ADJ at the Buyer's request and are found to be in order by it, the Buyer will be charged the actual costs incurred by ADJ for inspection and transport, with a minimum of 10% of the original net invoice amount for the item returned.
7.11. The warranty of ADJ under this article 7 is limited to the repair of the defective goods free of charge or the replacement of a part of the good, this at the discretion of ADJ; or if none of the foregoing remedies are commercially viable in ADJ's sole judgment, ADJ may opt instead to refund to the Buyer the net purchase price paid by the Buyer for the defective products or spare parts less reasonable depreciation of the value of such product or spare parts due to use or age, subject to the Buyer assigning to ADJ all property rights to such goods or spare parts. "Damage" will expressly include consequential damage as well. The manner of compensation will be at ADJ's discretion.
Article 8: Complaints
8.1. A claim or complaint with regard to the delivered goods by ADJ must be submitted to ADJ as soon as possible, but in any case within fourteen (14) days after discovery of the shortcoming or the shortcoming reasonably could have been discovered, on penalty of any legal claim lapsing.
8.2. Returned goods or products will not be accepted unless approval has been given in writing beforehand by ADJ. They must be sent carriage paid and properly packaged.
8.3. A claim or complaint as referred to in paragraph 1 of article 8 does not suspend the payment obligation of the Buyer.
Article 9: Rescission
9.1. The purchase agreement will be rescinded without court intervention after a written declaration in the event the Buyer is declared insolvent, requests a temporary suspension of payments, loses the power to dispose of its assets or portions thereof through an attachment, guardianship order or otherwise, unless the trustee, receiver or administrator acknowledges the obligations ensuing from this purchase agreement as a debt of the estate.
9.2. Upon rescission, the reciprocal claims will become immediately due and payable. The Buyer will be liable for the damage suffered by ADJ, consisting of, but not limited to lost profits and transport costs.
Article 10: Force majeure
10.1. Should ADJ prove unable to meet its obligations due to circumstances beyond its control and risk. ADJ is not liable to pay any compensation whatsoever. Such circumstances (force majeure) include, but are not limited to: war, threat of war, civil war, rioting, molestation, fire, water damage, flooding, labour strikes, factory occupations, lock-outs, import and export restrictions, acts of government, defects in machinery, interruptions in the supply of gas, water, or electricity, and the stagnation and/or interruption of supplies of third parties from whom ADJ has to obtain commodities, materials, or components for the execution of the agreement, and moreover all other causes beyond the control or liability of ADJ.
10.2. ADJ will also be entitled to invoke force majeure if the situation impeding further performance arises after ADJ should have fulfilled its obligation.
10.3. The deliveries and ADJ's other obligations will be suspended during the force majeure situation. If the period during which ADJ cannot fulfil the obligations because of this situation lasts longer than one month, both parties will be entitled to rescind the agreement, without there being an obligation to pay compensation in that case.
10.4. If, at the time the force majeure situation arises, ADJ has already partly fulfilled its obligations or can only partly fulfil its obligations, it will be entitled to separately invoice the portion already delivered or which can be delivered, and the Buyer must pay this invoice as if it concerned a separate agreement.
Article 11: Intellectual and industrial property rights
11.1. ADJ reserves all rights in relation to its intellectual products and goods that it uses, or has used, in connection with a quotation for, or the execution of an agreement.
11.2. The Buyer is expressly forbidden to reproduce, to publish, or to exploit those products and goods, such including designs, drawings, images, software, working methods, advice, other documentation, and other intellectual products of ADJ, this in the broadest sense of the term, with or without the involvement of third parties.
11.3. The intellectual and industrial property rights to all products, goods, data, and technical information supplied to the Buyer will remain vested in ADJ. ADJ has the exclusive right of publication, materialization, and reproduction of these products and goods, data, and information, and the Buyer only has a license to use it.
11.4. The license of the Buyer in relation to the use of the software developed and supplied by ADJ is not exclusive. The Buyer may only use this software in its own company or organisation, and only for the installation of the items for which the license was issued.
11.5. The license to use is non-transferable. The Buyer is not permitted to make the software and the data carriers on which it is saved available to third parties, or to allow a third party to use it, in any way whatsoever. The Buyer is not permitted to reproduce the software or to make copies of it. The Buyer shall not modify the software except in connection with the rectification of errors. The source code of the software and the technical information generated during the development of such shall not be made available to the Buyer unless otherwise is agreed upon.
Article 12: Payment
12.1. Payment by the Buyer must take place, without deduction, discount, or set-off, within the agreed deadlines, but in no case later than fifteen days after the invoice date. Payment must be
made in Dutch currency by transfer to a bank account to be designated by ADJ. ADJ and the Buyer can agree on payment to be made in a currency other than the Euro.
12.2. ADJ is entitled to invoice for part deliveries separately.
12.3. If the Buyer has not made its payment within the deadline, ADJ is entitled to deem the agreement to be dissolved without judicial intervention being required. In that case, the Buyer will be liable for the losses suffered by ADJ, including, but not limited to, loss of profits and the cost of the notice. In the event ADJ files for bankruptcy of the Buyer, the Buyer shall also be obliged to pay, in addition to the costs referred to in this paragraph, the costs of the bankruptcy petition.
12.4. All judicial and extrajudicial (debt collection) costs, that ADJ has to incur as a result of the non-performance by the Buyer of its payment obligations shall be for the expense and risk of the Buyer. This concerns the costs charged over the principal in accordance with the Decree on the Payment of Extrajudicial Debt Collection Costs of I July 2012 (Besluit voor vergoeding van buitengerechtelijke incassokosten van 1 juli 2012).
12.5. If ADJ is in the opinion the Buyer's financial position or the payment record gives it reason to do so, ADJ is entitled to demand that the Buyer immediately provides (additional) security in a form to be specified by ADJ. If the Buyer fails to provide the required security, ADJ will have the right, without prejudice to its other rights, to immediately suspend the further performance of the agreement forthwith, and all amounts owed to ADJ by the Buyer of whatever nature and for whatever reason shall become immediately due and payable.
12.6. A payment by the Buyer will first of all serve as payment for any costs owed, and thereafter as payment for any interest owed, and finally as payment for the invoices that have been the longest overdue, even if the other party has stated that the payment relates to a later invoice.
12.7. In the event of an agreement with two or more opposite contract parties, these opposite contract parties are jointly and severally liable for the payment of the invoice amount.
Article 13: Liability
13.1. ADJ will no longer be liable for defects after the date of delivery of the goods, unless the defects are attributable to ADJ and the Buyer has made a valid complaint pursuant to article 8 of these general conditions.
13.2. Insofar as ADJ is liable pursuant to that provided for in paragraph 1 of article 8, then it is only liable for the direct material damages incurred by the other party.
13.3. Indirect damages or consequential losses, such to include consequential damages, loss of production, loss of turnover of profits, depreciation in value, and loss of products, are not considered to be a direct material damage and ADJ is therefore not liable.
13.4. If a mistake is made because the Buyer has issued inaccurate or incomplete information or directions, ADJ is not liable for the damages resulting from it.
13.5. ADJ is only liable for compensation of other damages than those specified in this article if and insofar as the Buyer can prove that such are attributable to the willful misconduct or negligence of ADJ.
13.6. ADJ is not liable for any damages arising out of the agreement for which cover has been provided by the insurer of the Buyer. If and insofar as the Buyer has insured any risk associated with the agreement, it is obliged to claim any damages under that insurance and to indemnify ADJ against any redress of the insurer.
13.7. The amount of the damages to be compensated by ADJ shall be limited to the amount of the price charged for the execution of the agreement.
13.8. In no case, however, shall the damages amount to more than the total of the insurance excess limits/deductibles of ADJ and the amount which is payable for the case concerned according to the insurer of ADJ, up to a maximum of EUR 100,000.
13.9. All liability of ADJ will expire, unless otherwise agreed, after a period of 6 months has elapsed as of the date on which the agreement is ended by way of delivery, dissolution, or termination.
13.10. The right to make a claim in relation to a defect shall expire after one month has elapsed as of the date on which a written and reasoned notice of default has been issued.
13.11. The Buyer shall indemnify ADJ against all claims by third parties due to product liability as a result of a fault or defect in a product and or the fitting of it delivered by the Buyer to a third party, and which partly consisted of goods or products developed and/or delivered by ADJ, unless and insofar as the Buyer is able to prove that the damage was caused by these goods or products, and without prejudice to the provisions in paragraph 6 of this article.
13.12. The limitations of liability recorded in the previous paragraphs of this article also apply to benefit any of the third parties engaged by ADJ, who consequently can therefore directly invoke this limitation ofliability.
Article 14: Expiry date
To the extent not otherwise provided in these general terms and conditions, all claim rights, rights of action and other powers of the other party of whatever nature and for whatever reason against ADJ in connection with the supply of goods or products or the execution of work by ADJ shall always expire after one year from the moment the Buyer became aware, or could reasonably have been aware, of the existence of such rights and powers.
Article 15: Conversion; conflicting provisions
15.1. If any provision from these general terms and conditions should be wholly or partly void and/or invalid and/or unenforceable as a result of any statutory provision or regulation, court judgement or otherwise, but would be valid if it had more limited scope or intention, then such provision will apply with the most far-reaching or most extensively more limited scope or with which or within which it is valid.
15.2. In the event the applicable general conditions and the agreement contain conflicting provisions, the provisions included in the agreement will prevail.
Article 16: Applicable law and choice of forum
16.1. All agreements and contracts between the Buyer and ADJ, which these conditions are applicable to and all subsequent agreements, shall be governed by Dutch law with the exclusion of the Vienna Sales Convention.
16.2. All disputes associated with agreements and contracts between the Buyer and ADJ, which these conditions applicable are to and which do not fall within the competency of the subdistrict courts (kantonrechter), shall be exclusively settled by the competent court in the district where ADJ has its registered office.
A.D.J. Supply Europe B.V. | Junostraat 2 | 6468 EW Kerkrade | The Netherlands
Telephone: +31 (0)45 546 85 00 | Fax: +31 (0)45 546 85 99 | Web: www.adj.eu | E-mail: firstname.lastname@example.org