Conditions

01-07-2019

General terms and conditions of sale and delivery

Agrilight B.V.

Vlotlaan 463

NL-2681 TZ Monster

 

Article 1: Applicability

1.1. These general terms and conditions apply to all offers, agreements and deliveries pursuant thereto on the part of Agrilight B.V. (hereinafter ‘Agrilight’).

1.2. Any other general terms and conditions, including any that may be applied by the Client, do not apply.

1.3. Deviations from these general terms and conditions are only binding if and to the extent such has been expressly agreed in writing. The Client cannot derive any rights pertaining to future transactions from any deviations that have been agreed.

1.4. The provisions of the agreement prevail in the event of inconsistencies between the content of the agreement concluded between the Client and Agrilight and these general terms and conditions.

1.5. In these general terms and conditions, the term ‘in writing’ is defined as by letter or sent electronically.

1.6. In case these general terms and conditions have also been drawn up in a language other than the Dutch language, the Dutch text will always be decisive in case of differences.

1.7. Agrilight is entitled at any time to amend or supplement these terms and conditions.

Article 2: Offers and formation of the agreement

2.1. All offers are without obligation, even if the offer includes a term for acceptance.

2.2. If the Client provides Agrilight with data, drawings and the like, Agrilight will have the right to assume the correctness and completeness thereof and it will base its offer thereon.

2.3. If the Client does not accept Agrilight’s offer, Agrilight will have the right to charge to the Client all costs it has incurred to draw up its offer.

2.4. An agreement does not become binding for Agrilight until it has been confirmed in writing by Agrilight. This also applies to orders that have already been accepted by representatives or intermediaries on behalf of Agrilight and with respect to oral commitments made by representatives and intermediaries on behalf of Agrilight.

Article 3: Prices

3.1. The prices included in the price list are stated in euros and are Ex Works, Heeg, the Netherlands (Incoterms® 2010). Prices are exclusive of packaging, turnover tax, import duties and other taxes, levies and duties.

3.2. All prices quoted by Agrilight are based on cost-determining factors such as the current monetary circumstances, labour costs, the prices of raw and other materials, duties, taxes and other levies, subsidies and the like, which apply at the time the relevant agreement is concluded. If one or more of these cost factors increase after the agreement has been concluded, but before the relevant goods have been delivered, Agrilight will have the right to charge every reasonable price increase on to the Client.

3.3. Agrilight is obliged to invoice to the Client a waste fee in respect of certain goods delivered in the Netherlands, which fee Agrilight has to pay to the government. No waste fee will be charged if the goods are delivered outside the Netherlands.

3.4. For orders with a net order value the goods under 250 euros (excluding VAT, transport costs and other ancillary costs) Agrilight will charge the Client the administrative costs of 22.50 euros (excluding VAT).

 

Article 4: Intellectual property rights

4.1. Unless otherwise agreed in writing, Agrilight retains the copyrights and all intellectual property rights to the offers it has made, the lighting plans it has provided, images, drawings, test and other models, software and the like.

4.2. The rights to the data referred to in paragraph 1 of this article remain the property of Agrilight, irrespective of whether costs have been charged to the Client in connection with their creation. These data may not be copied, used or shown to third parties without the prior, express, written approval of Agrilight. However, the Client is allowed to show a lighting plan created by Agrilight for a specific customer to that customer. The Client owes Agrilight an immediately due and payable penalty of €25,000 for each violation of this provision. This penalty can be claimed in addition to the statutory compensation.

4.3. The Client will be obliged to return the data provided to it as referred to in paragraph 1 of this article upon first request within a term determined by Agrilight. In case this provision is violated, the Client owes Agrilight an immediately due and payable penalty of €1,000 per day. This penalty can be claimed in addition to the statutory compensation.

Article 5: Advice and information that is provided

5.1. The Client cannot derive any rights from advice and information obtained from Agrilight if these do not concern the assignment.

5.2. If the Client provides data, drawings and the like to Agrilight, Agrilight will have the right to assume their correctness and completeness when performing the agreement.

5.3. The Client indemnifies Agrilight against all third-party claims in connection with the use of the advice, drawings, calculations, designs, materials, samples, models and the like, provided by or on behalf of the Client.

 

Article 6: Delivery

6.1. Agrilight determines delivery periods by approximation and these can never be considered to be strict deadlines. Agrilight will not be in default as regards the delivery period until after the Client has given it written notice of default, which provided it in this connection with a reasonable term to deliver as yet and Agrilight has failed to comply in this connection.

6.2. When determining delivery periods, Agrilight assumes that it will be able to perform the assignment in the circumstances that are known to it at that time.

6.3. Delivery periods do not commence until the moment the applicable agreement has been concluded in accordance with article 2 and agreement has been reached concerning all commercial and technical details, all necessary data, definitive and approved drawings and the like are in Agrilight’s possession, Agrilight has received all or part of the advance payment and/or after credit insurance cover and/or a bank guarantee has been received and/or after an irrevocable, confirmed Letter of Credit has been accepted in writing by Agrilight and the necessary conditions for performance of the assignment have been satisfied.

6.4. In case of circumstances other than were known to Agrilight at the time it determined the delivery period, it will have the right to extend the delivery period by the time it needs to perform the assignment in these circumstances.

6.5. The Client will only have the right to dissolve the agreement in case the agreed delivery time is exceeded excessively (by more than 8 weeks), unless the fact that the delivery time is exceeded is caused by force majeure. However, the Client will never be entitled to any penalty or compensation.

6.6. Agrilight reserves the right, but it is not obliged to deliver the goods by means of partial deliveries, in which case the payment and other conditions described below will also apply to each partial delivery.

6.7. Failure to comply with any payment obligation or failure to comply on time on the part of the Client will suspend Agrilight’s obligation to deliver.

6.8. Deliveries made to Clients in the Netherlands involving an order amount of at least €2,500 take place on the basis of Delivered At Place, (DAP, Incoterms® 2010), unless otherwise agreed in writing. Deliveries to Clients in the Netherlands involving an order amount of less than €2,500 takes place on the basis of ‘Free Carrier’, Heeg, the Netherlands (FCA, Incoterms® 2010), unless otherwise agreed in writing. Deliveries made to Clients outside the Netherlands take place on the basis of Delivered At Place, (DAP, Incoterms® 2010), unless otherwise agreed in writing.

Article 7: Force majeure

7.1. Agrilight has the right to suspend compliance with its obligations arising from an agreement if it is temporarily prevented from complying with its contractual obligations towards the Client as a result of force majeure.

7.2. Force majeure is defined inter alia as circumstances that reasonably prevent delivery by Agrilight, which includes for example but is not limited to the circumstance that suppliers, Agrilight’s subcontractors or carriers engaged by Agrilight fail to comply with their obligations or fail to do so on time, the weather, machinery breakdowns, sanctions, embargoes, boycotts, earthquakes, fire, power and/or Internet failures, loss, theft or loss of tools or materials, roadblocks, strikes or work stoppages and import or trade restrictions.

7.3. Agrilight’s right to suspend will end if its temporary inability to comply has lasted for more than six months. The Client and Agrilight may terminate the agreement with immediate effect after this term has ended, but only with respect to that part of the obligations that have not yet been complied with.

7.4. In case of force majeure and performance is or becomes permanently impossible, both parties will have the right to terminate the agreement with immediate effect concerning that part of the obligations that have not yet been complied with.

7.5. The Parties are not entitled to compensation of the loss sustained or to be sustained as a result of the suspension or termination within the meaning of this article.

Article 8: Liability

8.1. With the exception of intent or gross negligence on the part of Agrilight and with the exception of statutory liability pursuant to mandatory statutory provisions, Agrilight will never be liable for any loss sustained by the Client. Liability for indirect losses, consequential losses, intangible losses or direct trading losses is also expressly excluded.

8.2. If and to the extent, despite the matters set out above, Agrilight is liable in any way on any basis whatsoever, such liability will be limited to an amount equal to the net invoice value of the relevant goods on the understanding that Agrilight will be liable at most and exclusively for an amount of at most € 500.000 per claim. A series of related events that cause damage are considered to be a single event/claim for the purpose of the implementation of this article.

8.3. Agrilight is not liable for damage to materials delivered by or on behalf of the Client as a result of processing that was not performed properly.

8.4. The Client indemnifies Agrilight against all third-party claims in connection with product liability as a result of a defect in a product that was delivered by the Client to a third party and that consisted in whole or in part of goods and/or materials delivered by Agrilight. The Client is obliged to compensate all losses sustained by Agrilight in this connection, including all of the costs related to conducting a defence.

8.5. Each claim for compensation prescribes if it has not been submitted to Agrilight in writing within a period of one (1) year after the goods were delivered.

Article 9: Obligation to complain

9.1. The Client is obliged to check the goods, including the packaging, that have been delivered for defects and/or damage immediately after receiving them. Any shortcomings, visible defects and/or damage in this connection must be stated by the Client on the transport document or the delivery note. Complaints must be submitted to Agrilight as soon as possible and in writing, but in any event within five (5) calendar days after receipt of the goods, while accurately stating the nature and cause for the complaints, failing which the Client will be deemed to have accepted the goods delivered. Taking the goods into use applies as acceptance. In the event it concerns a defect that is not visible, the Client will be obliged to submit complaints concerning the goods delivered by Agrilight within fourteen (14) calendar days after the defect or damage is determined, but in any event within the warranty period, to Agrilight in writing.

9.2. The Client is obliged to submit complaints concerning the invoice amount in writing to the contractor within the payment term subject to forfeiture of all rights. If the payment term is longer than thirty (30) days the Client will be obliged to complain within at most thirty (30) days after the invoice date.

9.3. Minor deviations in quality, colour, model, finishing etc. that are considered permissible in commerce or that cannot be avoided technically cannot constitute grounds for complaints.

9.4. A complaint does not give the Client the right to stop compliance with its payment and other obligations towards Agrilight or to invoke suspension or setoff.

 

Article 10: Failure to take possession of goods

10.1. The Client is obliged to take possession of the goods that are the subject of the agreement on the agreed date and at the agreed place.

10.2. The Client is obliged to render all cooperation that may reasonably be expected of it in order to enable Agrilight to make delivery.

10.3. Goods that are not taken possession of the by Client will be stored at the Client’s risk and expense.

10.4. In case the provisions of paragraph 1 and/or 2 of this article are violated, the Client will owe Agrilight a penalty of €250 per day subject to a maximum of €25,000. This penalty can be claimed in addition to the statutory compensation.

 

Article 11: Payment

11.1. Agrilight has the right at all times to stipulate full or partial payment in advance from the Client. As regards all other sales, payment of the invoice amount must be made without deduction, suspension, payment discount or setoff within at most 30 days after the invoice date by means of deposit or transfer into the bank or giro account that has been indicated on the invoice.

11.2. If the Client fails to comply with its payment obligation, it will be obliged to comply with Agrilight’s request for tendering in payment instead of the agreed sum of money.

11.3. The Client’s right to set off its claims against Agrilight or to suspend is excluded, unless Agrilight is declared bankrupt or statutory debt rescheduling applies to Agrilight.

11.4. Irrespective of whether Agrilight has delivered the agreed performance in full, everything the Client owes or will come to owe pursuant to the agreement will be immediately due and payable if:

  1. payment term is exceeded;
  2. bankruptcy or a moratorium has been applied for with respect to the Client;
  3. an attachment is levied against the assets or claims of the Client;
  4. the Client (company) is dissolved or liquidated;
  5. the Client (natural person) requests to be granted a statutory debt adjustment under the Debt Management (Natural Persons) Act, is placed under guardianship or has died.

11.5. If payment has not been made within the agreed payment term, the Client will be deemed to be in default without requiring notice of default or judicial intervention and the Client will owe Agrilight interest immediately. Interest amounts to 1.5 % per month, but will be equal to statutory commercial interest if this is higher. Part of a month is considered to a full month for the purpose of calculating interest.

11.6. Agrilight is obliged to set off its debts to the Client against claims of companies affiliated with Agrilight against the Client. Agrilight also has the right to set off its claims against the Client against debts of companies affiliated with Agrilight to the Client. Agrilight also has the right to set off its debts to the Client against the claims against companies affiliated with the Client. Affiliated companies include companies that belong to the same group within the meaning of Article 2:24b of the Dutch Civil Code as well as a participation within the meaning of Article 2:24c of the Dutch Civil Code.

11.7. If payment has not been made within the agreed payment term, the Client will owe Agrilight all extrajudicial costs subject to a minimum of €75. These costs are calculated on the basis of the following table (principal sum including interest):

on the first €3,000 15%

on the excess up to €6,000 10%

on the excess up to €15,000 8%

on the excess up to €60,000 5%

on the excess from €60,000 3%

The extrajudicial costs that are actually incurred are payable if these are higher than the amount that follows from the calculation above.

11.8. In the event Agrilight is successful in legal proceedings, all costs it has incurred in connection with such proceedings will be for the Client’s account.

 

Article 12: Payment security and retention of title (German customers are subject to a different regulation with regard to the retention of title, see Article 16) (voor Duitse klanten geldt een afwijkende regeling t.a.v. het eigendomsvoorbehoud, zie artikel 16)

12.1. Irrespective of the agreed payment conditions, the Client is required at Agrilight’s first request to provide security for payment that is considered sufficient by Agrilight upon or following conclusion of the agreement and prior to delivery. The Client will be in default immediately if it fails to comply with the above within the term set. In such cases, Agrilight will have the right to dissolve the agreement and recover its damage from the Client.

12.2. Agrilight will remain the owner of the goods that have been delivered as long as the Client:

  1. fails or will fail to comply with its obligations under this or other agreements;
  2. has failed to settle claims that arise from failure to comply with the abovementioned

agreements, such as losses, penalties, interest and costs.

12.3. The Client is not allowed to encumber or sell the goods delivered outside the normal conduct of its business for as long as the goods are subject to retention of title.

12.4. Agrilight will have the right to take back the goods that have been delivered after it has invoked its retention of title. The Client will render all cooperation in this connection.

12.5. Agrilight will have a right of pledge and right of retention to all goods it has or will have in its possession on any basis whatsoever and concerning all claims it has or may acquire against the Client towards any party that demands their surrender.

12.6. If the Client has complied with its obligations after Agrilight has delivered the goods in accordance with the agreement, retention of title will become effective again with respect to these goods if the Client fails to comply with its obligations arising from an agreement that was concluded later.

Article 13: Termination of the agreement

13.1 If the Client wishes to terminate the agreement without a failure on the part of Agrilight and Agrilight agrees thereto, the agreement will be terminated by mutual consent. In such cases, Agrilight will be entitled to compensation of all financial loss such as the losses sustained, lost profit and costs incurred.

13.2 Agrilight has the right to cancel an assignment if at the time of delivery the Client has not yet complied with its previous payment obligations towards Agrilight or towards other creditors. The Client cannot derive any rights from such cancellations and it will never be able to hold Agrilight liable in respect thereof.

Article 14: Suspension and dissolution

14.1 If the Client fails to comply with its obligations arising from the agreement that has been concluded or fails to comply with these obligations on time, if there are grounds for fearing that the Client will not comply with its obligations or will not comply with them on time or if the Client applies for a moratorium, submits a winding-up petition or dissolves its business, Agrilight will have the right to suspend or dissolve the relevant agreement without requiring notice of default or judicial intervention and Agrilight will not be obliged to pay any form of compensation.

14.2 Any claim on the part of Agrilight concerning part of the agreement that has already been performed or losses sustained as a result of suspension or dissolution, which will be deemed to include lost profit, will become immediately due and payable.

 

Article 15: Applicable law and competent court

15.1. These general terms and conditions and all offers made by Agrilight as well as all agreements between the Client and Agrilight are governed exclusively by Dutch law.

15.2. The Vienna Sales Convention (C.I.S.G.) does not apply nor does any other international regulation whose exclusion is permitted.

15.3. Only the Dutch civil courts with jurisdiction in the place where Agrilight has its place of business will hear disputes, such without prejudice to Agrilight’s right to submit the dispute to another competent court if it wishes to do so. Disputes between Agrilight and Clients established outside the EU will be settled definitively by means of arbitration performed by the International Chamber of Commerce (‘ICC’) in accordance with the Arbitration Regulations of the ICC by one or more arbiters appointed in accordance with these Regulations. The working language is Dutch or English. Arbitration will take place in The Hague in the Netherlands.

Effective date: 1 July 2019