Date: February 1, 2016
General Terms and Conditions of Sale Aruna Lighting Holding BV and its subsidiaries Aruna Horticulture Lighting BV, Aruna Lighting Facilities BV
1.1. The following definitions are used in these General Terms and Conditions:
Aruna Lighting: Aruna Lighting Holding BV, the private company with limited liability under Dutch Law (besloten vennootschap met beperkte aansprakelijkheid ) having its offices at Breda, The Netherlands, registered at the Chamber of Commerce, registration number 65111443, or one if its subsidiaries, Aruna Horticulture Lighting BV, CC reg. no 65133331 and Aruna Lighting Facilities BV, CC reg. no 65112644;
Customer: the legal entity that has purchased or is going to purchase Products;
Products: the products to be delivered by Aruna Lighting to Customer under the Agreement; Agreement: the written agreement between Aruna Lighting and Customer, including any purchase orders signed by both Parties;
Offer: a written proposal by Aruna Lighting to a Customer or third party containing the pricing and conditions for the sale of Products.
2.1. These General Terms and Conditions are applicable to any and all Agreements between Aruna Lighting and Customer and/or any Offer made by Aruna Lighting. The Customer’s general terms and conditions are not applicable to any Agreement or any Offer. A copy of the General Terms and Conditions is enclosed with the Agreement or Offer.
3.1. The prices to be paid by Customer for the Products shall be those agreed with Aruna Lighting in the Agreement.
3.2. If Customer fails to fulfill any of its payment obligations, Aruna Lighting may suspend performance and delivery. Any costs incurred by Aruna Lighting in accordance with such suspension (including storage costs) shall be payable by Customer upon submission of the invoices of Aruna Lighting. If Customer does not correct such failure in the manner and time satisfactory to Aruna Lighting, then Aruna Lighting may, at its option, terminate the Agreement in respect to the portion of the Products not delivered and work not yet performed. Customer shall pay Aruna Lighting its reasonable and proper termination charges in the event of such termination.
3.3. If Customer becomes bankrupt or insolvent, or if any proceeding is brought against Customer, voluntarily or involuntarily, under the bankruptcy laws or any insolvency laws, Aruna Lighting shall be entitled to terminate the Agreement with immediate effect. Customer shall pay Aruna Lighting the reasonable and proper termination charges in the event of such termination that will in any event include the costs made by Aruna Lighting in respect of the ordered and/or already forecasted Products, including any costs regarding third party commitments.
3.4. Any query or dispute by Customer relating to an invoice or products delivered must be initiated in writing within 10 working days from the delivery date. If such query or dispute is not initiated within that period of time, Customer expressly agrees to waive its right to such query or dispute.
3.5. If payment of an invoice is not made within the agreed period for payment as set out in the Agreement, Customer shall immediately owe interest to Aruna Lighting of 1.25% per (part of) 30 days from the date on which the invoice should have been paid.
3.6. Aruna Lighting reserves the right to deduct from any monies due or becoming due to Aruna Lighting from Customer monies owed by Aruna Lighting to the Customer in respect of Products supplied or services rendered by Customer to Aruna Lighting and any other sums owed by Aruna Lighting to Customer. For the purposes of this condition, Aruna Lighting shall be deemed to include any affiliate of Aruna Lighting.
3.7. Unless otherwise agreed upon and as a standard, payment terms must be made within 7 days of issuance of invoice, in two (2) terms:
- 30% upon ordering (down payment)
- 70% upon delivery of the goods
- At the moment the goods are delivered, the invoice shall be fully (100%) paid.
4.1. All taxes, customs duties, state fees, income taxes and other expenses or levies, including which any applicable recycling fees for Products shall be borne by the Customer.
4.2. Unless specifically agreed otherwise in the Agreement, export licenses will be arranged by the transporting company contracted by Aruna Lighting. However, Customer shall at all times be responsible for timely obtaining any required authorization, such as an export license, import license, or any other governmental authorization, even though any such authorization may be applied for by Aruna Lighting or the transporting company contracted by Aruna Lighting. The costs relating to these authorizations will be added to the total invoice amount. Customer and Aruna Lighting shall provide each other reasonable assistance in obtaining required authorizations. Aruna Lighting shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed and Customer shall not be relieved thereby of its obligations to pay Aruna Lighting for the Products.
5.1. Aruna Lighting shall deliver the Products to Customer Ex Works (latest version Incoterms) Aruna Lighting premises (either in The Netherlands or elsewhere, as designated by Aruna Lighting). Unless specifically agreed otherwise in the Agreement, the transporting company contracted by Aruna Lighting arranges delivery of the Products. Customer shall pay al transport and delivery costs and charges. Except for those obligations that are consistent with the Incoterms stated above, Aruna Lighting shall not be liable for any claim asserted by Customer with respect to the delivery. Partial deliveries are permitted.
5.2. Even if Aruna Lighting installs and/or assembles the Products sold to Customer, the risk in relation to the Products or components thereof shall pass at the moment Aruna Lighting makes them available to the Customer at Aruna Lighting’ business premises or at another agreed place.
5.3. The title to the Products will remain with Aruna Lighting and will only be transferred to Customer after Customer has paid the total purchase price for the Products delivered under the Agreement, provided that Customer will have met its obligations resulting from a breach of contract, if any, under such Agreement. The retention of title also applies in the event Customer has already delivered the Products to Customer’s customer whilst Customer has not yet fully paid the purchase price for the Products, and Customer will ensure that its customer is aware of such retention of title. Customer must insure the Products falling under the retention of title of Aruna Lighting adequately and for its own account against loss, theft and other damages for which insurance is normal in the country in which Aruna Lighting has its offices.
5.4. If and when it is necessary to dispatch Products in crates, cases, pallets, spillages or skips or other such packing, Customer will be charged for these costs. Customer will be credited in full on the return of the carriage in good condition, provided such return is made within 30 days after delivery of the Products at the premises of Customer. No charge is made for any standard form of packaging.
5.5. Where delivery is made to the Customer's premises, it shall be deemed that all Products have been delivered in full in undamaged and good condition unless Customer notifies Aruna Lighting in writing within 4 working days of delivery of any damage or shortage, setting out full details thereof. If any damage or shortage notified as aforesaid is the responsibility of Aruna Lighting, Aruna Lighting shall either repair or replace any damaged Products or provide Customer with additional Products to make up the shortage.
5.6. Order confirmations, delivery dates and other deadlines are estimates only and Aruna Lighting shall in not in any way be liable for damages or costs if those dates are missed.
- Force Majeure
6.1. Aruna Lighting shall not have any liability or be considered to be in breach or default of its obligations under the Agreement, to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to force majeure (including but not limited to inability, due to causes beyond the reasonable control of Aruna Lighting, to obtain necessary materials, necessary components or services) and/ or acts (or omissions) of Customer. Shortage of components or delays at the side of Aruna Lighting’ suppliers are considered events of force majeure.
6.2. Aruna Lighting shall notify Customer in the event of any such delay. The date of delivery or of performance shall be extended for such additional time as may be reasonably necessary to overcome the effect of the delay. Aruna Lighting shall notify Customer, as soon as practicable, of a revised estimated delivery date.
6.3. If delay excused by this article extends for more than one hundred twenty (120) days and the parties have not agreed upon a revised basis for delivery of the Products, then either party (except where delay is caused by Customer, in which event only Aruna Lighting), upon thirty (30) days written notice, may terminate the relevant purchase order or Agreement, whereupon Customer shall promptly pay Aruna Lighting any outstanding invoices.
7.1. Aruna Lighting warrants to Customer that at the time of delivery, the Products shall be free from defects in material, workmanship and title.
7.2. If any failure to meet the foregoing warranty appears within the Warranty Period (as defined in paragraph 7.3), Customer shall promptly notify Aruna Lighting thereof and make the Products available promptly for correction. Aruna Lighting shall thereupon correct any defect by, at its option, (i) repairing the defective Products or (ii) making available necessary replacement Products under the same shipment terms that was used in the case of the original shipment; or (iii) refund the price of the Products in question.
7.3. The foregoing warranties (except as to title) for each Product shall apply to defects which appear within twelve (12) months from delivery of the Product (the “Warranty Period”).
7.4. The supply of repaired or replacement Products by Aruna Lighting pursuant to Section 7.2 shall not extend the duration of the Warranty Period.
7.5. Aruna Lighting does not warrant the Products or any repaired or replacement Products (i) against normal wear and tear or (ii) which have been involved in an accident. The warranties and remedies set forth herein are further conditioned upon (i) the proper storage, installation, operation, and maintenance of the Products and (ii) repair or modification pursuant to Aruna Lighting’s instructions or approval. Aruna Lighting does not warrant any equipment or services of others designated by Customer.
7.6. The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory.
7.7. Under no circumstances does any claim under any guarantee mean that the Customer does not have to fulfill its payment obligations as set out in the Agreement.
- Indemnification Aruna Lighting
8.1. Aruna Lighting agrees to indemnify and hold Customer harmless from any rightful claim of any third party that the use by Customer of any Product infringes any U.S. patent that is issued before the date of the proposal of Aruna Lighting to Customer, or a national patent either resulting from the grant of a patent by the European Patent Office or granted nationally, upon termination of any opposition procedure. Customer is required to notify Aruna Lighting promptly of the receipt of any such claim, and does not in any way take a position that is adverse to Aruna Lighting regarding such claim. Furthermore, Customer is required to give Aruna Lighting all information, assistance and exclusive authority to settle and defend the claim. Aruna Lighting shall, at its own expense and option, either (i) settle or defend the claim or any suit or proceeding and pay all damages and costs awarded in it against Customer, or (ii) procure for Customer the right to continue using the Products, or (iii) modify the Products so that they become non- infringing, or (iv) replace the Products with non-infringing Products, or (v) remove the infringing Products and refund the price. If, in any suit arising from such a claim, the continued use of the Products for the purpose intended is forbidden by any court in the competent jurisdiction, Aruna Lighting shall at its option take one or more of the actions under (ii), (iii), (iv) or (v) above. The foregoing states the entire liability of Aruna Lighting for patent infringement of any Product.
8.2. Section 8.1 shall not apply to (i) any Product that is manufactured to Customer’s design or (ii) the use of any Product furnished under the Agreement in conjunction with any other apparatus or material not furnished by Aruna Lighting. As to any Product or use described in the preceding sentence, Aruna Lighting assumes no liability whatsoever for patent infringement.
8.3. With respect to any Product furnished under the Agreement that is not manufactured by Aruna Lighting, only the patent indemnity of the manufacturer, if any, shall apply.
- Limitation of Liability
9.1. The total liability of Aruna Lighting, on all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of or related to these General Terms and Conditions and/or the Agreement or its performance or breach, or from use of any Products shall not exceed the total price of the Agreement by which the Products giving rise to the claim were sold to Customer, with a maximum of 1 (one) million Euro in total. All liability of Aruna Lighting on all claims of any kind shall terminate upon expiration of the Warranty Period, provided that Customer may enforce a claim of such liability accruing during the Warranty Period by a timely commenced action.
9.2. In no event, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, shall Aruna Lighting or its subcontractors or suppliers be liable for loss of profit or revenues, loss of use of the Products or any associated equipment, cost of substitute Products or any associated equipment, or any special, consequential, incidental, indirect, speculative, punitive or exemplary damages, or claims of Customer’s customers for any of the foregoing damages, and Customer shall indemnify Aruna Lighting against all such claims of Customer’s customers. The above leaves Aruna Lighting obligations pursuant to the applicable product liability legislation towards consumers unaffected.
9.3. Customer is not entitled to alter or adapt the Products in any way without Aruna Lighting’s prior written consent. Aruna Lighting accepts no liability for any Products that have been altered or adapted in breach of this provision.
9.4. Without prejudice to what has been agreed upon regarding direct damage, Aruna Lighting’ liability for all other sorts of damage is limited to the amount to be paid out under its liability insurance for the event concerned.
10.1. Engineering changes requested by Aruna Lighting: Aruna Lighting reserves the right, in its sole discretion and without incurring any liability to Customer, to:
(a) alter the specifications or design of any Products or model;
(b) discontinue or limit the manufacture of any Product or model (with a 3 months advance notice);
(c) cancel or limit the deliveries of any such Product or model;
(d) discontinue or limit the development of any new product or model, whether or not such new product or model has been announced publicly;
(e) manufacture new product(s) or model having feature(s) which make any Product wholly or partially obsolete;
(f) substitute such altered products for the prior Products in filling orders, or
(g) change its method of distributing any product or line of product covered by this Agreement, change the division, department, or operation of the Aruna Lighting through which the Aruna Lighting is acting with respect to this Agreement.
10.2. Aruna Lighting shall use its best efforts to provide Customer with prompt notice of such decisions. Aruna Lighting and Customer shall then negotiate on the conditions pursuant to which any order(s) accepted by Aruna Lighting before such notice shall be filed. Aruna Lighting shall have no obligation to deliver any Product deleted or modified pursuant to the above paragraphs, which is ordered by Customer after the issuance of the aforementioned notice. In the event that the Customer has open tenders with customers, the Customer will inform Aruna Lighting of such and Aruna Lighting will use all of its reasonable efforts to supply the withdrawn, altered or superseded Products.
10.3. Customer changes: Customer may, by written change order, make mutually agreed changes in the Products order and the scheduled shipment date. If any such change results in an increase or decrease in the cost or time required for the performance of the work under the Agreement, there shall be an equitable adjustment in the Agreement price and the schedule shipment date. Aruna Lighting shall not be obligated to proceed with the changed or extra work until the price of such change and its effect on the scheduled shipment date have been agreed upon in a written change order.
10.4. Changes required by law: Customer shall immediately advise Aruna Lighting of the existence and content of any law, regulation, order or bylaw, which may affect the Products or the services provided hereunder. The price for the Product(s) or services affected by such law, regulation, order or bylaws will be adjusted by Aruna Lighting to reflect the added cost and expense incurred by Aruna Lighting as a result thereof. Any other provisions of this Terms and Conditions or the Agreement or the order affected by such change, including but not limited to the scheduled delivery date, will be modified accordingly.
10.5. The price will be equitably adjusted to reflect additional costs incurred by Aruna Lighting resulting from 10.2 and 10.3. Reasonable adjustments will be made to the delivery date, performance evaluation criteria and performance dates as may be appropriate to comply with the foregoing.
Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party (or of any member of the group of companies to which the other party belongs) which may have (or may in future) come to its knowledge. In addition, each of the parties shall use its reasonable endeavors to prevent the publication or disclosure of any confidential information concerning such matters.
12.1. Termination of the Agreement shall not relieve either party of any obligation arising out of work performed prior to termination.
12.2. Aruna Lighting may assign its rights and obligations regarding the Products and the receivables generated by the sale of the Products, in part or in whole, to one or more of its subsidiaries or affiliates without the consent of Customer. If and when applicable, Customer agrees to execute such documents as may be necessary to effect such assignment. Customer is not entitled to assign any or all of its rights or obligations under these General Terms and Conditions or the Agreement without the prior written consent of Aruna Lighting.
12.3. Any variation of these General Terms and Conditions and/or the Agreement is not valid unless and until it is in writing and has been signed by or on behalf of either party. If a provision of these General Terms and Conditions and/or the Agreement is or becomes invalid or nonbinding, either party shall remain bound to the remaining provisions. In that event, both parties shall replace the invalid or nonbinding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or nonbinding provision, given the contents and purpose of these General Terms and Conditions and/or the Agreement.
12.4. These General Terms and Conditions and the Agreement constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, undertakings or statements regarding such subject matter.
12.5. All descriptions, illustrations and other information regarding the weights and dimensions of the Products, as issued by Aruna Lighting in catalogues, price lists, advertising material etc. are general descriptions only and do not in any way give rise to any liability on the part of the Aruna Lighting. It is the policy of Aruna Lighting to develop and improve its products consistently and, hence, Aruna Lighting reserves the right to change all specifications without prior notification or public announcement.
12.6. All (intellectual) property rights relating to the Products, any drawings, descriptions and other information submitted by Aruna Lighting (including those contained on the Aruna Lighting’ internet site) shall remain the exclusive property of Aruna Lighting.
12.7. Aruna Lighting shall be allowed to process and store Customer’s business data as well as the Customer’s contact persons’ personal data and share such data with the affiliated companies of Aruna Lighting and/or any other company that may be hired by Aruna Lighting in relation to the execution of the Agreement.
12.8. A single or partial exercise of any right or remedy under this Agreement and/or the General Terms and Conditions by Aruna Lighting shall not preclude any other or further exercise of that right or remedy or the exercise of any other right or remedy. A waiver of any breach of this Agreement and/or the General Terms and Conditions by Aruna Lighting shall not be deemed to be a waiver of any subsequent breach.
12.9. The following articles shall survive termination or cancellation of, and completion of work under, any Agreement between Customer and Aruna Lighting regarding the Products: article 4 (Taxes), article 7 (Warranty), article 8 (Indemnification Aruna Lighting), article 9 (Limitation of Liability), article 11 (Confidentiality), article 12 (Miscellaneous) and article 13 (Governing law).
- Governing law
13.1. The Agreement and these General Terms and Conditions are exclusively governed by and shall be construed in accordance with the law of the Netherlands. The Vienna Sales Convention is not applicable to the Agreement and/or these General Terms and Conditions.
13.2. Any dispute arising out of or in connection with the Agreement and/or these General Terms and Conditions shall be submitted exclusively to the competent courts of Amsterdam, the Netherlands.