Article 1: General
All quotations of NDF Special Lighting Products B.V. (hereinafter referred to as NDF) are revocable, unless a period of validity is specified in the written quotation without prejudice to Article 10. Orders, agreements and arrangements are only binding on NDF if and in so far as they have been confirmed in writing by NDF.
Delivery times shall be deemed estimates only, unless agreed otherwise in writing.
Customer is prohibited to use or to deliver goods supplied by NDF contrary to Regulation 428/2009 EU ( dual use goods ). All consequences of ( a violation of ) the Regulation are at the expense and risk of customer and do not discharge customer from any obligation arising from this agreement. In this respect customer indemnifies NDF against any fines imposed by the legislative authorities.
Article 2: Prices
Unless expressly stated otherwise in price lists, quotations or order confirmations, the prices quoted by NDF are exclusive of Value Added Tax or other levies due in connection with the performance of the agreement. These prices are applicable for ex-works Roosendaal (Incoterms 2010) to an address within the Netherlands, it being understood that a surcharge may be due for supplies not exceeding a certain minimum order value as will be determined by NDF.
For quotations where the price is based on exchange rate of foreign currency others then the Euro, we apply following rule: If the difference in exchange rate is higher than 2% on the date of the invoice, these costs will be added.
Article 3: Risk and Delivery
The risk of the goods shall be for NDF account until these goods have been brought under actual control of the purchaser or person(s) authorised by the purchaser to accept such control. Damage to the goods caused in transit or shortages thereto shall be noted by the purchaser on the consignment note immediately upon receipt of the goods, with due regard to the applicable instructions or directives of NDF or the carrier. Other complaints of errors in the execution of orders shall be made in writing within eight days after receipt of the goods. If the purchaser fails to comply with the above, the purchaser will be liable for the risks. In all cases mentioned in this Article, NDF, having due regard to the above, shall at its own option and within a reasonable term, repair or have repaired such defects, make available the parts required or replace the defective goods in their entirety respectively take care of delivery of the missing goods.
Article 4: Payment
Payment shall be made without any deductions or compensation no later than thirty days from invoice date, unless stipulated otherwise. If payment has not been received in time, the purchaser will be considered to be in default. NDF will be entitled from that moment on, without prejudice to its other rights, and without serving notice of default, to charge the purchaser for all costs incurred in collecting the debt and in safeguarding its rights such as costs for attorneys as well as additional costs made by NDF undertakings such as amongst others, regarding administration, storage, legal advice. The statutory interests on the amounts due will be charged as well. Should the case arise NDF reserves the right to abstain from delivery until receipt of the related amounts due.
Article 5: Property
All goods (to be) supplied by NDF in accordance with any agreement remain the property of NDF until the amounts due for all these goods have been fully paid. If in accordance with this (these) agreement(s) NDF carries out activities to be paid by the purchaser, said property retention remains valid until the purchaser has fully paid for these activities as well. The same retention right is applicable for claims, which NDF might obtain from the purchaser because of his default in the performance of such agreement(s).
Prior to said transfer of property the purchaser shall not be entitled to process the goods, nor to bring the goods beyond his actual control, or to sell or otherwise dispose of or to mortgage or to grant to a third party any other right to the goods.
If the purchaser is in default with respect to payment or gives good reason to NDF to fear that he will come in default, the purchaser shall at his own costs return the pertaining goods to NDF. Following said return to NDF of the goods the purchaser will be credited to an amount equal to the purchase price valid for the purchaser on the day of return, however the amount to be credited shall never exceed the amount invoiced at the time of delivery. NDF is entitled to reduce the amount to be credited with a depreciation due to damage, obsolescence, lack of packing and other costs.
At all times the purchaser will give NDF or a third party authorized by NDF free access to the sites where the goods supplied and still owned by NDF are located.
Article 6: Guarantee
NDF guarantees that the goods made and supplied by NDF are manufactured of sound material and with good workmanship. It nevertheless any goods made and supplied by NDF show defects due to faulty materials or manufacture, NDF shall at its own costs repair or have repaired such defects, or make available the parts required for such repair or replace the defective goods in their entirety. Unless stipulated otherwise, the guarantee shall be valid during the first six months from delivery. Without prejudice to Article 8 all other liabilities are excluded. Subject always to receipt of a prior written demand by NDF to comply with its guarantee obligations in whole, in time or properly, the purchaser shall be entitled to terminate the pertaining agreement for the part in default, without any further liability on the part of NDF. Goods or parts thereof that have been replaced under this article shall become, free of charge, the property of NDF. NDF may require as a condition for performing its guarantee obligations, that the item subject to the guarantee shall be returned delivery duty paid to NDF or to an address specified by NDF or that an order be given for regular maintenance. For certain goods other guarantees may be applicable.
Article 7: Rights of third parties
1. NDF guarantees that the goods made and supplied by NDF do not as such infringe intellectual or industrial property or other rights of third parties. If nevertheless NDF acknowledges that a good delivered by NDF infringes such a right of third parties, or if it is so held in an irrevocable ruling by a Netherlands court of law in a legal action against NDF, NDF shall at Its own option, after consultation with the purchaser, replace the relevant goods with non-infringing goods or shall acquire a licence for the purchaser.
- The above remedy shall be the sole and exclusive remedy given by NDF to purchaser in case of aforesaid infringement. Only after having concluded that replacement of the goods or acquisition of a licence is not reasonably possible, or if NDF, subject always to receipt of a prior written demand by NDF to comply with its obligation, does not perform its obligation in time or properly, the purchaser shall be entitled to terminate the pertaining agreement for the part in default, without any further liability on the pan of NDF. In the latter case NDF will take back the relevant goods and refund the price paid therefore less such depreciation as considered usual.
- Where an order has to be executed on the basis of designs, drawings or other instructions given by or on behalf of the purchaser, the purchaser guarantees that no industrial or other rights of third parties are thereby infringed.
Article 8: Liability
1. NDF accepts liability for damage in consequence of personal injury and for material damage to installations and properties of the purchaser in so far as such damage:
a. has been caused by the performance of activities pursuant to the order or of maintenance or repair activities and is due to negligence on the part of persons used by NDF in the performance of such activities;
b. is demonstrated to be the direct consequence of a defect in the goods made and supplied by NDF in so far as these goods do not offer the safety as one may expect from such goods, all circumstances considered.
2. Damages paid by the purchaser to third parties as a consequence of circumstances as described under 1.a. and 1.b. will only be compensated by NDF to the purchaser if and in so far as the purchaser is statutory obliged to pay the damage. Compensation by the purchaser to third parties for any damage as mentioned in the previous sentence is subject to prior consent of NDF.
3. For the damages described under 8.1.and 8.2. NDF accepts no liability for amounts exceeding € 2.5 mln in total per occurrence, with a maximum of € 5.0 mln per year.
4. Where NDF provides advice it shall be liable for damage that is the direct consequence of a demonstrated deficiency in that advice, if and in so far as the deficiency ought to have been avoided in the given circumstances if normal professional skill and care had been used, up to an amount not exceeding the separate remuneration stipulated for that advice. NDF shall not be liable in other cases and for any other damage resulting from such advice.
5. NDF shall not be liable for any direct or indirect damage for which NDF has not explicitly accepted liability in these General Conditions of Sale. The purchaser shall hold NDF harmless against all claims for such damages from third parties.
Article 9: Property and use of quotations and documentation
All illustrations, drawings, data concerning weights, dimensions, colours etc. included in price lists and circulars are approximately only. All quotations, drawings, diagrams, designs, lists of materials etc. supplied by NDF and software which it makes available remain the property of NDF. Without NDF consent they may not be copied wholly or partially except one filing copy for purchaser’s own use and they may not be shown or placed at the disposal of any third party or made known in any other way, or utilised by the purchaser or made available for any other purpose than that for which they were supplied by NDF.
NDF will have all legal rights to the Intellectual Property unless specifically mentioned otherwise in this quotation or in the following agreement. The Intellectual Property is valid for the information (background) as given in a previous phase to this assignment as well as for the information (foreground) given during the execution of the assignment at NDF. This includes (but is not limited to) a.o. drawings, schedules, designs, bill of materials, firmware, software etc.
Article 10: Price Alterations
Unless expressly agreed otherwise, NDF reserves the right to change prices. The purchaser is entitled in such event to cancel orders already placed, but not yet executed, within eight days after receiving notice of these alterations, except where they are to his advantage. If, as a result of any government measure, taxes, levies or import duties are introduced or changed with the effect of increasing costs, NDF shall have the right to reflect these changes in its prices, even though it has been agreed that the price shall be fixed, without this leading to any cancellation of orders placed by the purchaser.
Article 11: Suspension and termination
In case of a failure by one of the both parties in the performance of the agreement, for which the party being in failure cannot be blamed, the performance of the relevant part of the agreement shall be suspended. A failure is not to be blamed for, if the failure is not due to the fault of the party being in failure (de facto or de jure). Parties shall inform each other in writing as soon as possible of such circumstances. If the suspension has lasted longer than three months or as soon as ft becomes evident that this will last at least three months, either party may terminate the relevant part of the agreement with immediate effect by registered letter and neither party shall be obliged to make good any damages.
In the event of partial performance by NDF the purchaser shall pay a proportional part of the total price.
Article 12: Cancellation
Should the purchaser fail to comply with any one of his obligations to NDF, or files a petition for a moratorium, or is declared bankrupt, NDF shall be entitled without serving notice of default, to cancel by means of a written statement, wholly or partially all contracts concluded with the relevant purchaser, without prejudice to its other legal rights.
Article 13: Deviations
Deviations from these General Conditions of Sale and/or from conditions stated in NDF price lists, catalogues, circulars etc. are valid only if confirmed in writing by NDF. Applicability of a reference to general (purchase) conditions of purchaser are expressly rejected by NDF.
Article 14: Applicable law and competent court
On these General Conditions of Sale and the agreements to which these conditions apply, the law of the Netherlands is applicable.
Only the civil court that has jurisdiction in the place of establishment of the contractor may take cognizance of disputes, unless this would be contrary to peremptory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction. The parties may agree a different form of dispute resolution such as arbitration or mediation.
Article 15: Miscellaneous
1. The Vienna Convention on Contracts for the International Sale of Goods ( C.I.G.S. ) is not applicable, nor is any other international regulation the exclusion of which is permissible.
2. In case of contradiction between the provisions of this English version of the General Conditions of Sale and those of the original Dutch version thereof, the latter provisions shall prevail.
1 June 2019