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Conditions

General terms and conditions of sale and delivery of MacLean BV
 Filed with the Chamber of Commerce under Chamber of Commerce number: 18039063.

Article 1: Applicability

  1. The following general terms and conditions apply to all – including future – agreements under which MacLean BV, established and with registered offices at Minervum 7093, 4817 ZK Breda, registered with the Chamber of Commerce under number 18039063, hereinafter referred to as "seller", supplies goods and/or provides services and/or performs any performance under any title whatsoever, as well as to any statements and/or offers to be made in that context. The other party to the seller is hereinafter referred to as "buyer".
  2. These general terms and conditions may be invoked against the purchaser by any person engaged by the seller in connection with the performance of the agreement.
  3. Any general terms and conditions which the buyer presents to the seller at any time are expressly rejected.
  4. If any provision of these general terms and conditions is null and void or is annulled, the remainder of the general terms and conditions will remain in force as much as possible and the provision in question will be replaced without delay in consultation between the seller and the purchaser by a provision that approximates the purport of the original provision as closely as possible.
  5. Deviations from or additions to these general terms and conditions shall only apply if and to the extent that they are confirmed in writing by the seller to the buyer.
  6. Unless otherwise indicated, the messages referred to in these terms and conditions may be sent in writing, by e-mail or by fax.

Article 2: offer

  1. The seller's offers are non-binding and valid for 30 days from their date, unless otherwise stated. The seller has the right to revoke a non-binding offer, without incurring any compensation, up to and including the third business day after receipt of acceptance. If the seller fails to send a quote or order confirmation, the delivery note or, if this is not completed, the invoice will be deemed valid.
  2. The information included in this offer (such as prices, delivery times, sizes, dimensions, weights, content, composition, colors, technical data, descriptions, designs, models, images, etc.) is as accurate as possible, but is not binding and remains – to the extent relevant – the (intellectual) property of the seller. It is prohibited to use, copy, or make these documents available to third parties in any way whatsoever without the seller's written approval.
  3. If the buyer does not accept the offer, they are obliged to immediately return the information referred to in the previous paragraph to the seller and to pay the seller a reasonable fee for the work carried out by the seller.
  4. All offers and quotations from the seller in catalogs and other printed materials or otherwise are entirely non-binding, particularly with regard to prices, delivery times, sizes, dimensions, weights, content, composition, colors, technical data, descriptions, and images. This information is always provided as an approximation.
  5. Any changes and/or commitments made by the seller after the offer/quotation, whether made orally or in writing, constitute new offers, and the previous offer becomes invalid.
  6. When providing offers/quotations, the seller assumes that the agreement can be performed under normal circumstances and during normal working hours. Furthermore, the seller bases its offer/quotation on circumstances known to it at the time of making the offer/quotation.

Article 3: Agreement

  1. An agreement between seller and buyer is concluded at the moment the seller has received written acceptance of the seller's offer from the buyer or at the moment the seller has commenced the execution of the agreement.
  2. If, after the conclusion of the agreement, circumstances arise that affect the agreed price, the seller is entitled to invoice the buyer separately and additionally for these (price) changes.
  3. If the buyer's acceptance deviates from the seller's offer, even if the deviation is only minor, this is considered a new offer by the buyer and a rejection of the seller's original offer. If the buyer makes a (new) offer, the seller only considers it an acceptance if the seller accepts this offer in writing, or if the seller has commenced performance of the agreement.
  4. Any additional agreements, changes and/or commitments made after the agreement, whether verbal or written, by the seller's employees, representatives, salespeople or other intermediaries, are not binding unless confirmed in writing by the seller to the buyer.
  5. The seller always has the right to request sufficient security prior to concluding the agreement. Even after concluding the agreement, the seller has the right to do so if it reasonably suspects that the buyer will not fulfill its obligations. This is the case, in any event, if the buyer fails to fulfill any due obligation to the seller, despite notice of default. If the buyer, despite notice of default, fails to provide security, the seller has the right to terminate the agreement by written notice, suspend its (further) performance, or demand immediate payment of all amounts owed to the seller by the buyer.
  6. If the seller's buyer wishes to cancel a previously concluded agreement, and the seller agrees, this will always be on the condition that the buyer compensates the seller for any damages suffered or to be suffered. These damages will amount to at least 50% of the agreed price. The seller has the right to prove that it has suffered higher damages, in which case the buyer will be liable for those higher damages.
  7. The buyer and its personnel are obligated to maintain confidentiality towards third parties not involved in the performance of the agreement of all confidential information of the seller (including specific product information, manufacturing information, and other business information and know-how), in the broadest sense of the word, which has been made available to them by the seller or has come to their attention. If the buyer violates this confidentiality clause, the buyer will forfeit an immediately payable penalty of EUR 5,000, without prejudice to the seller's right to claim full damages.

Article 4: price

  1. The prices stated by the seller are net prices and are exclusive of sales tax, delivery costs, service charges and other government charges and/or third-party charges arising from the sale and/or delivery and/or performance of the agreement.
  2. The prices quoted by the seller are quoted in euros or another currency agreed upon in writing by the seller. Any exchange rate differences are at the buyer's risk, unless otherwise agreed in writing.
  3. The prices stated by the seller are based on the daily prices and specifications applicable at the time the agreement is concluded.
  4. The prices stated by the seller are based on the circumstances known to the seller when entering into the agreement.
  5. The prices stated by the seller are based on performance of the agreement under normal and customary circumstances.
  6. The seller reserves the right to charge the buyer a proportionate price increase if, after the conclusion of the agreement, an increase occurs in one or more price-determining factors, including labor costs, premiums, materials and exchange rate changes.
  7. The provisions of paragraph 4.6 of these general terms and conditions also apply if the changes referred to therein in the price-determining factors are the result of circumstances that could have been foreseen at the time the agreement was concluded.
  8. If the application of Article 4.6 leads to a price increase of 10% or more and the price increase is not legally required, the buyer has the right to terminate the agreement by registered letter within one week after the seller has notified the buyer of the agreed price increase. This right expires if the buyer does not terminate the agreement in the prescribed manner within one week. The seller may revoke the effect of this termination by subsequently honoring the agreement at the original price.
  9. If, after the conclusion of the agreement, circumstances arise that are attributable to the purchaser, as a result of which costs are incurred by the seller, the purchaser is obliged to pay these to the seller.

Article 5: Delivery risk

  1. Delivery times and/or completion dates stated are indicative only and never final, unless otherwise agreed in writing. If and to the extent a written deadline is agreed upon and the seller fails to meet this deadline, the seller will only be in default after the buyer gives the seller written notice of default and, in that regard, grants the seller a reasonable period to be determined in consultation with the seller, and the seller allows that period to lapse unused.
  2. The delivery times and/or completion dates specified are based on the (working) conditions applicable at the time the agreement is concluded and assume timely delivery of the materials and/or parts ordered by the seller for the performance of the agreement, failing which the delivery times and/or completion dates will be extended in consultation with the buyer by a period to be reasonably determined by the seller.
  3. Unless otherwise agreed in writing, transport/shipping for orders exceeding €250 will be at the seller's expense. For orders under €250, the seller will charge the buyer for transport and packaging costs. Actual delivery to the delivery address is at the buyer's risk. The seller deems the delivery address accessible by truck.
  4. The method of transport/shipment as well as the method of packaging of the goods shall be determined by the seller.
  5. The seller is entitled to make partial deliveries. In that case, the seller will specify the delivery times for each partial delivery.
  6. If the buyer refuses to accept the goods, the return freight, storage costs, and other expenses will be borne by the buyer. The seller is not obligated to insure the storage of these goods.
  7. The seller will inform its buyer as soon as possible of any (imminent) exceeding of a term.
  8. Unless proven otherwise, the goods are deemed to have been delivered in accordance with the information on the shipping documents, in terms of quantity, weight, type, and dimensions. Deviations and other defects immediately visible upon delivery must be noted immediately on the receipt to be given to the carrier and reported to the seller by registered letter within two business days of delivery. Failure to do so will render these deviations and defects null and void.
  9. The risk of the goods to be delivered passes to the buyer at the moment of delivery, regardless of what has been agreed between the seller and the buyer regarding costs of transport and insurance.
  10. The Purchaser is obliged to fully cooperate in the delivery and to ensure prompt unloading of the goods from the means of transport, whereby waiting times must be avoided.
  11. The seller's purchaser is obligated to provide the necessary cooperation for the performance of the agreement, including acceptance of the purchased item. If the seller's purchaser refuses to accept the item, they will be in default of payment from the moment of such refusal, and the seller will retain the item at the purchaser's expense and risk. The seller is not required to insure the item in question and may charge storage costs and similar expenses at its applicable rates.

Article 6: payment

  1. Unless otherwise agreed in writing, payment by the buyer must be made within 30 days of the invoice date. This period is considered a strict deadline; after expiry of this period, the buyer is automatically in default without further notice of default being required. Offsetting against claims the buyer may have against the seller is excluded.
  2. In the event of non-payment within the period referred to in Article 6.1, contractual interest shall be due, equal to an interest rate of 1.5% per month or the statutory interest if this is higher, whereby a part of a month shall be counted as a full month, commencing on the first day after the expiry of the payment term referred to in Article 6.1.
  3. In the event of non-payment within the period specified in Article 6.1, the buyer will owe collection costs. The extrajudicial collection costs are set at 15% of the amount due, with a minimum of €150.
  4. If the seller is proven right in legal proceedings, in addition to the extrajudicial collection costs, all costs incurred by the seller in connection with these proceedings (including legal fees and internal costs) will be borne by the buyer.
  5. Payments made by the purchaser always serve to settle all interest and costs owed and subsequently to settle claims under the agreement that have been outstanding for the longest period, even if the purchaser states that the payment relates to a different claim.
  6. The purchaser is not entitled to refuse or suspend fulfillment of its payment obligation on the grounds of alleged defects in the item or for any other reasons whatsoever.
  7. In the event of liquidation, insolvency, application for bankruptcy or suspension of payment by the buyer, the seller's claims, on whatever grounds, are immediately due and payable by the buyer.
  8. At all times the seller has the right to demand security from the buyer, in any form whatsoever, for the fulfillment of all its obligations under the agreement.

Article 7: Suspension

The seller is authorized to suspend its performance (including future partial deliveries) if the buyer fails to fulfill one or more of its obligations or if the seller becomes aware of circumstances that give it good reason to fear that the buyer will not fulfill its obligation, except for any deviating mandatory legal provisions. Furthermore, in that case, the seller is authorized to unilaterally amend the agreed payment terms.

Article 8: Warranty

  1. Seller grants no further or other warranty on the goods sold by it than the warranty granted by the manufacturer of the goods.
  2. In the event of defects in an item, no warranty will apply if these defects are the result of normal wear and tear, incorrect operation or improper treatment, misuse, use contrary to the instructions given by the seller, carelessness, accident, failure to comply with maintenance instructions and/or normal maintenance care or if the item has been repaired or modified without the prior written consent of the seller or if it has been used for purposes other than normal purposes.
  3. Transport costs incurred in connection with the warranty claim will be borne by the purchaser.
  4. For RetroFix LED products, the warranty period stated in the separately supplied warranty certificates applies.
  5. Unless otherwise agreed in writing, any (installation) costs associated with removing and/or replacing defective RetroFix LED products and/or installing new LED products will always be borne by the purchaser.

Article 9: Complaints

  1. The Purchaser is obliged to inspect the item as soon as it has been received by the Purchaser and to determine whether the item is sound and in accordance with the provisions of the agreement, or whether the work has been carried out in accordance with the provisions of the agreement.
  2. Any complaints regarding the goods delivered by the seller, the work performed, or invoice amounts must be submitted to the seller in writing within five business days of receipt of the goods, completion of the work, or receipt of the invoice, respectively, accurately stating the facts to which the complaint pertains. Goods collected from the seller's warehouse must be inspected by the buyer upon receipt for any external defects, shortages, etc., and these must be reported to the seller immediately.
  3. If the applicable warranty described in Article 8 is found to be justified, the seller will assist the purchaser in invoking the purchaser's rights against the manufacturer.
  4. Return of sold items to the seller, for any reason whatsoever, will only take place after prior written approval, accompanied by shipping or other instructions, from the seller.
    Minor or industry-standard deviations and differences in quality, quantity, size or finish, as well as differences in the execution of the work, cannot constitute grounds for complaints.
  5. Complaints regarding a specific item or work do not affect the buyer's obligations with regard to other items, parts and/or work of the agreement.
  6. Complaints do not suspend payment obligations.

Article 10: Retention of title, pledge and retention

  1. Goods delivered and/or to be delivered by the seller remain the property of the seller until the buyer has paid to the seller for goods delivered or to be delivered under the agreement as well as for claims arising from failure to fulfil such agreement.
  2. The purchaser is not permitted to alienate, pledge or grant any other right to the goods delivered under retention of title to a third party.
  3. The buyer is obliged to store goods delivered under retention of title with due care and as identifiable property of the seller.
  4. If the buyer fails to fulfil its payment obligations to the seller or if the seller has good reason to fear that the buyer will fail to fulfil its obligations, the seller is entitled to take back the goods delivered under retention of title.
  5. The seller is not obliged to indemnify the purchaser against any liability as the holder of the goods.
  6. The purchaser indemnifies the seller against all claims that third parties may have against the seller and that can be related to the retention of title made.
  7. In the event that the seller wishes to exercise its ownership rights as indicated in this article, the buyer hereby grants unconditional and irrevocable permission in advance to the seller and to third parties designated by the seller to enter all places where the seller's property is located and to take back such items.
  8. The seller and buyer agree that a right of pledge is established in favor of the seller on movable—non-registered—items that the seller acquires from the buyer, as security for the claims the seller has or will have against the buyer, for whatever reason. The right of pledge is established without further formality the moment the seller acquires possession of the item in question.
  9. The seller has the right to exercise any right of retention to which it is entitled for the payment of all amounts owed to it by the buyer on any grounds whatsoever.

Article 11: Force Majeure

  1. In the event that force majeure delays or prevents the performance of the agreement, both the seller and the purchaser are entitled to terminate the agreement in writing, without this giving the purchaser any claim to damages, except to the extent that the seller would enjoy a benefit as a result of this termination that the seller would not have had if the agreement had been properly fulfilled.
  2. Force majeure on the part of the seller includes any circumstance arising beyond the seller's control that prevents the normal performance of the agreement. Such circumstances constituting force majeure include, in any case: loss, damage, and/or delay during and due to transport, extreme staff absence due to illness, customs actions/measures, internet/computer outages, fire, and serious disruptions in the seller's business or at the seller's suppliers.

Article 12: Liability

  1. Without prejudice to Article (8) of these general terms and conditions, the seller shall never be liable for direct or indirect damage, unless there is intent or gross negligence on the part of the seller.
  2. If the seller is liable for any damage contrary to Article 12.1, the seller's liability is always limited to direct damage to property or persons and never extends to any business damage or other consequential/indirect damage, including loss of income.
  3. In the event that the seller, contrary to the provisions of Article 12.1, is liable for damage, the seller's liability is further limited to the price for which the buyer purchased the item that caused the damage, or to the amount paid by the buyer for the agreement.
  4. In the event that a judicial decision which has become final and binding considers the provisions of subsection 14.3 to be unreasonably onerous, the seller's liability shall be limited to the damages and to a maximum of the amounts for which the seller is insured and to which the insurer actually pays out, or would reasonably have been insured, given the prevailing practice in the industry.

Article 13: Indemnification

The purchaser indemnifies the seller against any damage suffered by a third party as a result of the use of products supplied by the seller to the purchaser.

Article 14: Dissolution

  1. If the purchaser fails to fulfil any payment obligation arising from any agreement concluded with the seller, or fails to fulfil it in a timely or proper manner, despite notices stating a reasonable period, as well as in the event of suspension of payment, bankruptcy, placement under guardianship or liquidation of the purchaser's company, the seller is entitled to terminate the agreement or part thereof without judicial intervention.
  2. Upon termination, existing claims between the parties become immediately due and payable. The buyer is liable for any damages incurred by the seller, including interest, lost profits, and transportation costs.

Article 15: Disputes and applicable law

  1. Dutch law applies to all agreements to which these conditions apply in whole or in part.
    The provisions of the Vienna Sales Convention shall not apply, nor shall any future international regulation regarding the sale of movable property, the application of which may be excluded by the parties.
  2. All disputes arising from offers made by the seller and agreements concluded by the seller, regardless of their name, will in the first instance be submitted exclusively to the Zeeland-West-Brabant District Court, Breda location, without prejudice to the seller's right to bring legal proceedings against its buyer before an otherwise competent judicial body, all without prejudice to the right of appeal and cassation.