Article 1 – General
1.1 These general terms and conditions apply to all offers, tenders, confirmations of the assignment and deliveries of products and/or services by Rolight Theatertechniek B.V. with its registered office in Enschede (hereinafter referred to as: “Rolight”) and all agreements performed or to be performed which are concluded with Rolight.
1.2 In these general terms and conditions the “client” means each natural person or legal entity who/which enters into negotiation with Rolight and/or enters into agreements with regard to the goods and/or services to be delivered by Rolight.
1.3 In the general terms and conditions, “goods” also means all work and services related to the delivery of goods.
1.4 Insofar as not expressly agreed otherwise in writing, any general terms and conditions of the client do not apply and nor do they apply in addition to the present general terms and conditions.
1.5 If Rolight and the client have expressly agreed in writing that the general terms and conditions of the client will apply, this will not affect the applicability of these general terms and conditions, except insofar as the provisions of these general terms and conditions are obviously contrary to the general terms and conditions of the client. In that event, the general terms and conditions of the client will prevail to that extent.
1.6 Derogation from these general terms and conditions can only take place expressly in writing. If Rolight and the client agree derogation from or adjustment of these general terms and conditions, the derogation and/or adjustment will only apply to the agreement with regard to which the derogation and/or adjustment has been agreed and not to other or additional agreements.
Article 2 - Coming into effect of the agreement
2.1 All offers, tenders, confirmations of the assignment and statements of Rolight, employees of Rolight or statements made on behalf of Rolight are entirely without obligation. Rolight is in any event also entitled to withdraw its offer if the offer has not been accepted by the client in writing within 7 days from the making of this offer.
2.2 Rolight will only be bound if an agreement is concluded in writing between Rolight and the client and is signed by both parties, or as the case may be if Rolight has sent a confirmation of the assignment in writing to the client.
2.3 The confirmation of the assignment applies as a correct and complete representation of the agreement which is concluded between Rolight and the client.
2.4 If no agreement is concluded in writing and if also no confirmation of the assignment in writing is sent, parties will nevertheless be bound if Rolight has commenced with the performance of the agreement. In that case the invoice will be considered to be the confirmation of the assignment of the client and as the correct representation of the agreement between Rolight and the client.
2.5 Amendments of the agreement will only have effect if the amendments are agreed in writing between Rolight and the client.
Article 3 - Notifications, data and statements
3.1 The notifications, data in printed matter (including drawings and images) and statements made or provided by Rolight, in whatsoever form and of whatsoever nature, are without obligation and are never binding for Rolight, unless the contrary is expressly determined in the agreement.
Article 4 - Price
4.1 The offered and agreed prices are in Euros and excluding VAT, packaging and transport costs.
4.2 Rolight will be entitled to adjust the stated or agreed prices if the cost price of the elements on the basis of which the price is determined has increased. These elements are inter alia, but not limited to: raw materials, parts, electricity and gas, products that are acquired from third parties, salaries, social security costs and insurance premiums, by or on the part of (semi) public bodies, imposed charges (including import and transit duties) or other cost components (including currency changes) and charges.
Article 5 - Invoices and payments
5.1 Payments must take place within 30 days from the invoice date. If the client does not pay the invoice within the payment term the client will be in default by operation of law without the requirement of further notice of default. Rolight is entitled to GENERAL TERMS AND CONDITIONS OF ROLIGHT THEATERTECHNIEK B.V. 2/4 invoice separately for all partial deliveries. In the event that the client is in default of payment in a timely manner, the client will automatically owe from the first day of default the statutory commercial interest over the invoice amount pursuant to Section 119a Book 6 of the Civil Code. All judicial and extrajudicial costs which must be incurred by Rolight to enforce fulfilment of the payment obligations of the client will be at the expense of the client. The extrajudicial costs will hereby be recorded at 15% of the invoice amount, with a minimum amount of EURO 50. However, if the actual extrajudicial costs are more than 15% of the invoice amount, Rolight will be entitled to charge the actually incurred extrajudicial costs to the client.
5.2 The client will not be entitled to deduct any amount from the amount owed by the client, or to setoff the amount owed by the client against any counterclaim which the client might have or believes to have against Rolight, or as the case may be to suspend the client’s payment obligation wholly or in part.
5.3 Rolight will be entitled at any time to require an advance payment from the client, or as the case may be any form of security such as, but not limited to, rights of pledge and bank guarantees.
Article 6 – Delivery and delivery period
6.1 The delivery period commences on the day of the agreement, or the day when Rolight has all necessary documents, data, permits, exemptions, approvals, assignments etc. in its possession, or the day of receipt by Rolight of the advance payment and/or provision of security.
6.2 The client can collect the goods from the business location or warehouse of Rolight or from another location to be designated by Rolight, unless agreed otherwise.
6.3 The client hereby provides Rolight in advance with permission to deliver the goods delivered by Rolight in parts.
6.4 Agreed delivery periods will never be considered to be final deadlines, unless expressly agreed otherwise in writing. The exceeding of the delivery period will not give the client the right to compensation of damage on the part of the client, except for in the event of intention of gross negligence on the part of Rolight. In the event of exceeding the delivery period, or if it becomes clear that Rolight will exceed the delivery period, Rolight will inform the client in writing about the estimated period by which the delivery period will be extended.
6.5 If the client does not immediately collect the goods after they have been informed that these are available to the client, the storage thereof will be at the expense and risk of the client.
Article 7 – Transport
7.1 Transport costs are not included in the price unless agreed otherwise in writing. If Rolight arranges the transport of the goods, the transport will be at the expense and risk of the client as well as all owed freight costs, taxes and other levies, import duties and all other costs which are not included in the price.
7.2 The costs which are related to specific requirements of the client with regard to the transport of the goods will always be at the expense of the client.
Article 8 - Third Parties
8.1 Rolight will be entitled to provide assignments to third parties for the performance of the agreement between Rolight and the client.
Article 9 - Retention of title
9.1 All delivered goods remain exclusively the property of Rolight until the time when all claims of Rolight against the client with regard thereto are paid in full.
9.2 The client will not be entitled to encumber the delivered goods with rights of pledge, or to transfer or process the delivered goods unless this is necessary for usual business operations.
Article 10 - Guarantee
10.1 With due regard to the restrictions set out below, Rolight provides with regard to the goods delivered by Rolight a guarantee which, in the event of defects of which the client proves that they have arisen within six months from the delivery exclusively or as a direct result of inadequate manufacturing of the goods or use of inferior raw materials or materials, will replace the goods or parts concerned free of charge by Rolight with new goods or parts. The client will give Rolight the opportunity for this without calculation of any costs. Costs that arise because this has not, or not in a timely manner, been fulfilled will be at 3/4 the expense of the client. The costs of inspection by Rolight of alleged defects will be at the expense of the client if no defect for which the guarantee is provided appears to be present.
10.2 The Rolight guarantee does not apply if the defects are (also) the result of usual wear and tear, improper use and/or incorrect treatment, use and/or storage of the goods, or if the defects are wholly or in part the result of any government regulation concerning the quality of the materials used, or the properties of the delivered goods, or if Rolight has delivered used goods in consultation with the client.
10.3 In the event of sold and delivered goods with a manufacturer or importer or wholesale trader guarantee, the guarantee provisions of these third parties set out thereby will apply exclusively. Rolight never provides more guarantee than that which is provided to Rolight by its supplier for parts and/or goods from involved third parties.
10.4 In the event that the client provides Rolight with raw materials for the processing of goods, the guarantee will only be provided for the soundness of the execution of the assigned processing. This guarantee is limited to the re-processing of this processing and the provisions for this of article 10 of the general terms and conditions apply mutatis mutandis.
10.5 Rolight will never be obliged to fulfil its guarantee obligations insofar as the costs which ensue therefrom are more than the price agreed for the delivery of goods concerned.
10.6 Rolight will only be obliged to fulfil the guarantee obligations described in this article within the Netherlands, unless expressly agreed otherwise in writing.
Article 11 - Complaints
11.1 The client must inspect (have inspected) the goods immediately after delivery. The client will not return any goods without prior permission in writing from Rolight.
11.2 Complaints about the delivered goods must be reported to Rolight by the client in writing within fourteen days from delivery of the goods, stating any accompanying invoice number and order number. The nature of the defect must be sufficiently evident from the complaint in writing.
11.3 Complaints with regard to invoices must be reported to Rolight in writing within fourteen days from the invoice date.
11.4 If the client has not reported any complaints within the aforesaid periods, the delivered goods and the invoices will be regarded as accepted and approved. Complaints which are reported after the aforesaid periods will not be dealt with.
Article 12 - Liability
12.1 Rolight, its directors, employees and third parties which Rolight involves in the coming into effect or performance of the agreement will not be liable for any damage ensuing from or related to the agreement and the (manner of) performance thereof, which the contractor or any third party involved by the contractor might suffer, directly or indirectly, during the performance of the agreement, regardless of the cause.
12.2 Rolight will never be liable for indirect or consequential loss, including trading loss.
12.3 If Rolight, in spite of the aforesaid, still might be liable for any damage they can only be held liable insofar as this liability is covered by its insurance up to the amount of the payment made under this insurance. However, if in any case the insurance does not proceed with payment, Rolight will never be liable for more than the invoice amount for the agreement concerned.
12.4 The client hereby indemnifies Rolight against all possible claims by third parties for any damage for which Rolight has no liability toward the client, which damage is related to goods delivered by Rolight or services provided by Rolight.
12.5 The exclusions of liability included in articles 12.1 and 12.2 of these general terms and conditions do not apply insofar as the damage is the result of intention of gross negligence on the part of a director or directors of Rolight itself.
Article 13 - Termination
13.1 All claims that Rolight has, for whatever reason, against the client will be immediately due and payable if: I the client does not, not properly or not in a timely manner fulfil the obligations of the client under the agreement with Rolight or these general terms and conditions and still does not fulfil its obligations within seven days from the receipt of a written notice for this purpose; II the client has submitted an application for moratorium; III the client is declared insolvent or is dissolved; IV the client as a legal entity is wholly or in part taken over, dissolved or liquidated; V attachment is made on the property of the client. 4/4
13.2 The client will be immediately and automatically in default on the basis of these general terms and conditions in the aforesaid events. Rolight has the right in the aforesaid situations to terminate the agreements between the client and Rolight with immediate effect, without judicial intervention and without the requirement of notice of default.
13.3 Without prejudice to the provisions of the previous subclauses, Rolight will have the right to compensation from the client of all damage suffered, costs incurred, interest and suchlike on the part of Rolight which ensue from the setting aside or termination of the agreement.
Article 14 - Force majeure
14.1 Force majeure within the meaning of this article is taken to mean: circumstances which prevent the fulfilment (in a timely manner) of the obligations and which cannot be attributed to Rolight. The following will inter alia be included therein, but this is not limited to: changes in legislation and regulations, sickness of staff, environmental disasters, war, public order disruptions, breakdown of machines and/or disruptions in the supply of, and not being able to purchase, the required raw materials, semi-finished goods, equipment, fuel or transport, all this if these occur with regard to Rolight as well as with regard to suppliers.
14.2 If, through force majeure, Rolight is prevented from fulfilment of the obligations ensuing from the agreement, Rolight will have the right, without judicial intervention, to either suspend the performance of the agreement or to terminate the agreement wholly or in part.
14.3 Rolight will not be liable for compensation toward the client due to delay in the performance of the agreement or the non-performance of the agreement.
14.4 Rolight will take all measures reasonably possible to remove the cause of the force majeure.
14.5 If Rolight at the occurrence of force majeure has already partially fulfilled its obligations, or can only partially fulfil its obligations, it will be entitled to invoice separately for the delivery already made or the deliverable part.
Article 15 - Replacement
15.1 If a provision of these general terms and conditions would appear not to be valid, the other provisions will remain in full effect. Parties will then agree a new provision which will replace the invalid provision. The new provision must, having regard to the intention of parties and with regard to the effect and meaning, correspond as much as possible to the invalid provision.
Article 16 – Disputes and applicable law
16.1 Dutch (national) law applies exclusively to all agreements and legal relationships between Rolight and the client, with the exclusion of any uniform international law, or any treaty law, including any EC Regulation or EC Directive which would (could) be applicable pursuant to the applicable Dutch law.
16.2 If Rolight and the client cannot amicably settle disputes ensuing from or related to agreements or legal relationships between Rolight and the client, the disputes will be submitted to the court with competent jurisdiction of the Almelo District Court. However, Rolight will be entitled to submit a dispute to the court with competent jurisdiction of the district of the place of business of the client.
16.3 The provisions of the previous subclause do not affect the fact that Rolight and the client can decide in mutual consultation to have a dispute adjudicated through mediation or by means of arbitration or binding decision.
These general terms and conditions are filed with the Chamber of Commerce in Enschede.