Terms of Sale
TERMS AND CONDITIONS OF SALE
The Customer's attention is drawn in particular to the provisions of clause 13.
Account Address: the address provided by the Customer when setting up an account with the Supplier;
Business Day: a day other than a Saturday, Sunday or public holiday in the Netherlands;
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 18; the Conditions exclusively apply to business to business transactions;
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
Customer: the person or firm who purchases the Goods from the Supplier;
Force Majeure Event: an event or circumstance beyond a party's reasonable control;
Goods: the goods (or any part of them) set out in the Order;
Intellectual Property Rights: patents, registered designs, unregistered designs, trade marks and service marks, domain names, copyright, design right, database rights, moral rights, utility models, trade or business names, trade secrets and other proprietary knowledge and information, specifications, formulae, data, processes, methods, techniques, improvements, other technology and/or discoveries, know-how, materials, rights protecting goodwill and reputation, rights in inventions, computer programs, designs, rights in confidential information and any other intellectual or industrial property right of any nature whatsoever, whether registered or unregistered or applied for, and together with (i) all rights of action in relation to the infringement of and the right to apply for any of the above, from time to time existing anywhere in the world and (ii) anything which is capable of protection by any of the foregoing rights;
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form;
Specification: any specification for the Goods, including any related plans and drawings, agreed in writing by the Customer and the Supplier;
Supplier: Astro Lighting (Europe) B.V. , a private limited liability company, organized and existing under the laws of the Netherlands and registered with the Dutch trade register under number 83067248.
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
3. BASIS OF CONTRACT
3.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
3.3 The Order shall only be deemed to be accepted on the earlier of the Supplier:
(a) issuing a written acceptance of the Order; or
(b) doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
3.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3.5 Any samples, drawings, or advertising produced by the Supplier and any illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 3 months from its date of issue.
4.1 The Goods are described in the Supplier's catalogue and on the Supplier's website, as modified by any applicable Specification.
4.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of the Specification. This clause 4.2 shall survive termination of the Contract. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
5.1 The Supplier shall, by agreement with the Customer, either make the Goods available for collection by the Customer or deliver the Goods to the Account Address or other address agreed between the parties (Delivery Location).
5.2 Depending on the method of delivery agreed under clause 5.1, the Goods shall be deemed to have been delivered to the Customer when:
(a) the Supplier makes them available for collection to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer); or
(b) the Goods are delivered to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer) by the Supplier or the Supplier's agent or subcontractor at the Delivery Location.
5.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 If the Customer fails to take or accept delivery of the Goods, or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered, within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and may charge the Customer for all related costs and expenses (including insurance).
5.6 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.7 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
5.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.1 The Supplier warrants that on delivery, and for a period of 36 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification; and
(b) be free from material defects in design, material and workmanship.
6.2 The Customer agrees:
(a) to inspect the Goods on delivery;
(b) to notify the Supplier of any defect or damage which would be apparent upon a reasonable visual inspection within 5 days of delivery; and
(c) that in the absence of any notification as described in clause 6.2(b) the Customer is deemed to be satisfied as to the condition of the Goods which would be evident upon reasonable examination.
6.3 If the quantity of goods delivered is different from that which is detailed on the invoice or the delivery note, the Customer must notify the Supplier of such difference within 5 days of delivery failing which the Customer shall be deemed to have accepted the amount actually delivered as being in accordance with the Customer's Order.
6.4 Subject to clauses 6.2 and 6.5, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.5 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.4;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.6 The warranty set out in clause 6.1 shall not apply to any bulbs or components supplied by third parties that are incorporated in the Goods.
6.7 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.8 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or law or otherwise in any way (including without limitation title 1 of Book 7 of the Dutch Civil Code), whether as to quality, fitness for purpose or otherwise are excluded from the Contract to the fullest extent permitted by law. Save as provided in clause 7, any right of termination, in whole or part, of the Contract by the Customer is excluded.
6.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.10 As a part of a continuous product improvement and rationalisation programme, the Supplier reserves the right to discontinue products and remove them from sale. In these circumstances, if there is fault with a discontinued product and a warranty claim is made, at Supplier's discretion, the Customer will be provided with a free replacement of a product of a similar specification and price, or a full credit for the original purchase price.
6.11 In any event the Customer loses any right to bring any claim for failure to comply with the warranty set out in clause 6.1 if it does not give the Supplier notice thereof at the latest within the warranty period.
7. RIGHT TO CANCEL AND AMEND
7.1 Subject to clause 7.3, the Customer may cancel all or part of any Order, or amend an Order by adding Goods, at any time before the earlier of when (a) the Goods to which the Order relates leave the Supplier's warehouse and (b) the Supplier contracts with a carrier to deliver the relevant Goods to the Customer.
7.2 Any cancellation or amendment of an Order must be made in writing giving full details of the requested change. Any part cancellation or amendment of an Order may lead to a delay in delivery of up to 24 hours.
7.3 The Customer's right to cancel all or part of an Order does not apply to Goods made to the Customer's Specification or that have otherwise been personalised for the Customer.
8.1 Goods which are not faulty or defective can only be returned if ordered or delivered in error or if an authorised sample.
8.2 The Customer shall notify the Supplier of its request to return Goods within 10 Business Days of the delivery date by completing the Supplier's returns form, which can be requested from [email protected], unless otherwise agreed in writing by the Supplier.
8.3 A returns number will be issued for requests that meet the criteria specified in clauses 8.1 and 8.2.
8.4 The Goods must be returned within 10 Business Days of the issue of the returns number. If the Goods are not timely returned, the returns number will become invalid and the return may be rejected at the point of receipt by the Supplier.
8.5 Authorised returns will be subject to a 20% re-stocking fee, unless otherwise agreed in writing by the Supplier.
8.6 Authorised returns will only be accepted where the returned Goods:
(a) are in a clean, re-saleable condition;
(b) have not been used;
(c) have not been damaged or modified;
(d) are still in their original box with all contents included; and
(e) where there are no additional labels or any writing on the Goods or their packaging.
8.7 Final approval of the return of Goods is at the Supplier's sole discretion.
8.8 Where the Customer wishes to return Goods that do not comply with the warranty in clause 6.1 it should invoke the Supplier's complaints procedure by contacting [email protected]. A copy of the complaints procedure is available on request by contacting [email protected].
9. TITLE AND RISK
9.1 The risk in the Goods shall pass to the Customer on completion of delivery.
9.2 Title to the Goods shall not pass to the Customer until:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 9.4.
(c) Notwithstanding clause 9.2, title to the Goods shall pass to the Customer upon notification by the Supplier in writing.
9.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
9.4 Subject to clause 9.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier's agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
9.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
10. PRICE AND PAYMENT
10.1 The price of the Goods shall be the price set out in the Supplier's confirmation of an Order, or, if no price is quoted, the price set out in Supplier's published price list in force as at the date of delivery.
10.2 The Supplier may, by giving notice to the Customer at any time up to 14 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in, or imposition of new, taxes, tariffs or duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
10.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT) or any other applicable taxes, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid tax invoice;
(b) excludes the costs and charges of insurance and transport of the Goods, which shall be invoiced to the Customer;
(c) any tariffs or import duties on importation of the Goods into the Customer's territory.
10.4 The Supplier may invoice the Customer for the Goods on or at any time after the date the Order is despatched, or on such other date or dates as are specified in the Order.
10.5 The Customer shall pay the invoice in full and in cleared funds within 30 days of the end of the month in which the invoice was issued. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
10.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Dutch statutory commercial default interest rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Any unauthorised deductions by the Customer could result in the Customer's account being placed on hold. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11. INTELLECTUAL PROPERTY
11.1 The Supplier shall retain and own all Intellectual Property Rights in and to the Goods.
11.2 To the extent that the Goods are to be manufactured in accordance with modifications and/or improvements requested by the Customer, including in any Specification, (the acceptance of which are at the complete discretion of the Supplier), the Customer acknowledges that the Supplier shall own any Intellectual Property Rights in such modifications and improvements.
12.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 12.1(a) to clause 12.1(d) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
12.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
12.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13. LIMITATION OF LIABILITY
13.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud; or
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods in relation to which such liability has arisen.
14. DATA PROTECTION
14.1 Under the Contract the parties are controllers as defined in the General Data Protection Regulation ((EU) 2016/679, and each party shall, at its own expense, ensure that it complies with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications including, without limitation: the General Data Protection Regulation ((EU) 2016/679 (in Dutch: "AVG") and the General Data Protection Regulation (Implementation) Act (in Dutch: "UAVG").
(a) to enable the Supplier to fulfil its obligations under these Conditions;
(b) for the administration of the Customer's Order;
(c) for marketing and promotional purposes; and
(d) to obtain feedback from customers and administer customer surveys.
15. FORCE MAJEURE
15.1 The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks, the Supplier may terminate the Contract by giving a written notice to the Customer.
16. ASSIGNMENT AND OTHER DEALINGS
16.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer hereby grants in advance its approval to such assignment, transfer or whatsoever, within the meaning of Section 6:159 of the Dutch Civil Code.
16.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
17. ENTIRE AGREEMENT
17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
18.1 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
21.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by registered post, pre-paid first class post or other next Business Day delivery service, commercial courier, or email.
21.2 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22. THIRD PARTY RIGHTS
22.1 No one other than a party to the Contract shall have any right to enforce any of its terms, and no terms of these Conditions shall be deemed to be a third-party clause within the meaning of Section 6:253 of the Dutch Civil Code.
23. GOVERNING LAW
23.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with Dutch law. The United Nations Convention for the International Sale of Goods is hereby excluded from the Contract in its entirety.
24.1 Each party irrevocably agrees that the competent court of Amsterdam (the Netherlands) shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.