General terms and conditions

GENERAL TERMS AND CONDITIONS OF DELIVERY OF NOXION B.V.

Dated: September 2016 

Article 1: Definitions  

  1. In these general terms and conditions ‘Noxion’ is to be understood as: the private limited liability company under Dutch law Noxion B.V., having its registered office and business office in (5708 HZ) Helmond at Schootese Dreef 27, ground floor.
  2. In these general terms and conditions the ‘Other Party’ is to be understood as: purchasers (being wholesalers) and/or a natural person or enterprise with whom Noxion B.V. and its partners do business, including representatives, agents, and therefore explicitly excluding consumers, of goods in the broadest sense, or the contracting party of Noxion.
  3. Product(s): all products and services of Noxion B.V.

Article 2: Applicability

  1. These general terms and conditions are applicable to all offers made by Noxion to the Other Party, to all agreements entered into by Noxion as well as to all possible resulting legal acts and obligations.
  2. The applicability of other general terms and conditions is herewith explicitly precluded in all cases, even if reference is made to such terms and conditions in a request addressed to Noxion to submit a quotation, in a confirmation of the offer sent to Noxion or otherwise.
  3. If any provision of these general terms and conditions is null and void or is annulled, the other provisions of these general terms and conditions shall remain in full force and Noxion shall consult the Other Party in order to agree new provisions as replacement of the provisions that are null and void or annulled, which shall as much as possible approximate the purpose and intention of the provisions that are null and void or annulled.
  4. These general terms and conditions are available in the Dutch, English, German, French, Spanish, and Italian language. In case of any dispute regarding the interpretation or language, the Dutch version shall prevail.

Article 3: Offers

  1. All offers made by Noxion are valid for fourteen (14) days and are non-binding, unless stated otherwise in writing.
  2. Acceptance of an offer shall be effected through written acceptance by the Other Party, for instance by registering and ordering through the user/login part of the web site of Noxion, in writing, or by e-mail.
  3. Noxion reserves the right to refuse orders or to withdraw offers without stating the grounds.
  4. All agreements shall be concluded by Noxion on the condition precedent that the Other Party shall prove sufficiently creditworthy for the financial fulfilment of the agreement- this at the exclusive discretion of Noxion.
  5. Noxion may investigate whether or not the Other Party can meet its payment obligations as well as investigate all facts and factors that are important for a responsible conclusion of an agreement. If based on this investigation Noxion has grounds for not signing the agreement (just like that), it shall be entitled to refuse an order or application, or to attach special conditions to the execution.

Article 4: Prices

  1. The submitted prices are in euro, or in another currency if specified in writing by Noxion. The Other Party shall bear the currency risk, if any, unless agreed otherwise in writing.
  2. Prices are exclusive of the applicable VAT rate and shall be payable inclusive of VAT, unless stated otherwise.
  3. Prices may be checked by logging into the web site of Noxion.
  4. For orders up to and including a total amount of € 500 exclusive of VAT the prices stated by or on behalf of Noxion are at all times exclusive of shipping and/or transport costs, unless explicitly stated otherwise in writing.
  5. For orders beyond a total amount of € 500 exclusive of VAT no shipping and/or transport costs shall be charged by Noxion.
  6. All prices in price lists and on quotations are exclusive of the following costs or amounts payable by the Other Party: taxes, levies, handling fees or duties, or other comparable charges, to Noxion or to the Other Party imposed by a(n) (tax) authority (other than result taxation imposed on Noxion) corresponding to the order of the Other Party.
  7. The prices and product configurations shall not be increased or adjusted by Noxion after signing the agreement, unless legal measures so prescribe or if interim price increases or changes to the product configurations are made by the parties that Noxion is dependent on, in which case the Other Party shall be authorized to dissolve the agreement by a written statement towards Noxion.

Article 5: Display and specification of goods

  1. The display of goods as well as any corresponding specifications, dimensions and data in the web site of Noxion are only valid in approximation. The ultimately delivered product to the Other Party may to a certain extent deviate in colour, dimension et cetera from such images or specifications. This does not mean that the product is not in conformity with the agreement.
  2. The Other Parties shall provide Noxion with all relevant information for the purpose of a correct execution of the agreement. Noxion shall rely on the completeness and correctness of the information provided.

Article 6: Invoicing and payment

  1. Unless agreed otherwise, payment of all invoices shall be due and payable fourteen (14) days after the invoice date without any set-off, postponement or deduction by the Other Party.
  2. Regardless of the agreed payment conditions, the Other Party undertakes, upon first request of Noxion, to provide security for its payments as deemed sufficient by Noxion. Failure of the Other Party to provide such security within the prescribed period shall immediately put the Other Party into default, in which case Noxion shall be entitled to dissolve the agreement and to recover its damage from the Other Party.
  3. Expiry of the payment deadline shall immediately put the Other Party into default, without requiring any further notice of default, in which case a late-payment interest shall be charged to the Other Party on the payable amount amounting to 1.5% per month, or the statutory commercial interest, whichever is higher. For the calculation of interest, part of a month shall qualify as a full month.
  4. If payment is not effected within the agreed term of payment, the Other Party shall bear all extrajudicial collection charges for the claim of Noxion, which are estimated at 15% of the unpaid invoice. Should the actually incurred extrajudicial costs be higher than resulting from the above, the actually incurred costs shall be payable.

Article 7: Delivery

  1. Noxion shall observe the greatest possible due care in the execution of orders. The specified delivery deadlines shall therefore apply in approximation and shall never qualify as final dates.
  2. Place of delivery is the address specified by the Other Party to Noxion. Unless agreed otherwise in writing, Noxion shall only deliver to physical addresses within Europe. Delivery orders to an address outside Europe shall not be carried out.
  3. Noxion is entitled to deliver in parts (partial deliveries) which it may invoice individually. The Other Party shall receive products during regular office hours. If this is not possible, the resulting costs (including storage costs, shipping/transport costs, or any other costs connected to the agreement) will be charged according to applicable local prices or possible standard fares, determined by Noxion.
  4. Noxion shall carry out accepted orders promptly after signing the agreement. The intended delivery deadline shall at all times be separately stated in the order. If delivery is delayed by more than the period stated in the order, the Other Party shall be notified as soon as possible after Noxion has been informed.
  5. The risk of loss or damage of products shall pass to Other Party upon delivery from the warehouse, even if Noxion has not yet transferred the ownership thereof. Furthermore, Noxion shall not be liable to a client or other party for loss or damage, including direct or indirect consequential damage or any other damage caused by delays in the delivery, irrespective of whether the aforementioned is consequential to negligence by Noxion B.V. or any other party, actions concerning fundamental shortcomings in the fulfilment of an agreement, strikes, or any other cause.
  6. The risk of the goods shall be borne by Noxion until they leave the warehouses of Noxion. As of the moment of transport the risk shall pass to the Other Party, unless explicitly agreed otherwise in writing.
  7. The ownership of a product or service shall pass to the client after the full purchase price has been received by Noxion B.V., under the condition that client is not otherwise in default with regard to the purchase agreement and these conditions.

Article 8: Liability

  1. Noxion emphasizes that an extensive quality control of its deliverable goods shall be carried out with the greatest care. Noxion shall be liable towards the Other Party for direct damage suffered by the Other Party only in case of gross negligence or wilful intent on the part of Noxion.
  2. Without prejudice to the aforementioned provisions, the liability of Noxion shall at all times be limited to the amount paid out in that case under the liability insurance taken out by Noxion, increased by the deductible.
  3. If for whatever reason no payment is made by the aforementioned insurance, the liability of Noxion shall at all times be limited to the amount of the invoices (exclusive of VAT) sent at that time by Noxion to the Other Party, in connection with the agreement concluded with the Other Party.
  4. The following does not qualify for compensation by Noxion:
    a. consequential damage, including but not limited to damage caused by business stagnation and loss of profit;
    b. damage caused by gross negligence or wilful intent on the part of the Other Party (or persons engaged by the Other Party or staff).
  5. The Other Party shall indemnify Noxion against all and any claims by third parties including but not limited to claims caused by a defect in a product (which for instance was delivered by the Other Party to a third party and which consisted (in part) of goods and/or materials delivered by Noxion).
  6. The Other Party shall indemnify Noxion, its current and future directors, managers, shareholders and staff against all and any claims, lawsuits, damage, liability, costs and expenses, including but not limited to reasonable legal fees, arising from the specific use by the Other Party of a product, including but not limited to product liability claims or legal disputes, unless such a legal dispute is exclusively related to the product itself and does not refer to the use of or combination with other goods, unauthorized maintenance, repair or alteration of a product by or on behalf of the Other Party or its contracting parties, or goods falling beyond the regular business activities of Noxion which had been explicitly applied for and/or designed by the Other Party.

Article 9: Warranty and complaints

  1. Noxion warrants that its delivered goods meet the statutory requirements of practicability, reliability and lifespan as these were reasonably intended by the parties to the agreement and result from normal use, as set forth in the warranty document in the web site of Noxion, which is applicable to the product concerned. The aforementioned warranty document states the specific warranty terms and conditions for the product concerned.
  2. The Other Party is held to inspect or assign an inspection of the delivered goods immediately upon arrival, though within a maximum of three (3) days from arrival. If the Other Party fails to notify thereof in time, Noxion is not obliged to compensate any additional charges, unless the Other Party bears all charges thereof.
  3. All rights alleged by the Other Party caused by Noxion’s failure to meet its obligations (including warranty) shall be notified to Noxion in writing, at the latest eight (8) days after the Other Party has established - or reasonably could have established - the defect, for lack of which the corresponding rights of the Other Party shall lapse. For the purpose hereof a contact form has been made available in the web site of Noxion.
  4. Complaints regarding invoices shall be submitted to Noxion in writing and with motivation within eight (8) days after the invoice date, for lack of which the corresponding rights of the Other Party shall lapse. For the purpose hereof a contact form has been made available in the web site of Noxion.
  5. The aforementioned complaints shall not suspend the payment obligations of the Other Party.
  6. If it has been established that the delivered goods are not in conformity with the agreement, Noxion shall replace the delivered goods free of charge, or reach written agreement with the Other Party regarding damage compensation.
  7. The Other Party cannot rely on the warranty referred to in paragraph 1 of this article if the delivered goods have been exposed to abnormal conditions, if the Other Party has not taken care of the delivered goods as a debtor who ensures the preservation thereof with due care, or if such goods have been treated in breach of the directions of Noxion and/or the directions for use, or if the Other Party has repaired and/or processed the delivered goods itself or has outsourced such repair and/or processing to third parties.

Article 10: Returning and cancellation

  1. The Other Party has the right to cancel the order within 24 hours after Noxion has accepted the order.
  2. If the Other Party wishes to return spare parts, it shall contact Noxion beforehand by using the contact form, which can be downloaded from the web site of Noxion.
  3. Returned goods shall only be handled if reported to Noxion within five (5) days after receipt of the goods.
  4. Goods especially ordered by Noxion for the Other Party or damaged and/or used by the Other Party cannot be returned and/or cancelled.
  5. In case of cancellation or return, the packaging of the goods must be original, undamaged, clean, unmarked, and unopened.
  6. If no warranty applies, or in case of wrong delivery, Noxion shall charge 20% of the net amount of the returned goods to the Other Party.
  7. Incurred transport costs cannot be credited, except for goods falling under the warranty referred to in article 9.
  8. In order to ensure that goods that need to be exchanged or that fall under the warranty shall be returned to the warehouse of Noxion well in time, such goods shall only be credited if returned by the Other Party before the deadline stated in article 10.3.
  9. Return applications for goods that do not meet the aforementioned terms shall not be handled.

Article 11: Force majeure

  1. Force majeure is to be understood as: any unforeseeable circumstance or circumstance beyond the control of the parties, which makes fulfilment of the agreement by the other party unfair to ask.
  2. The Other Party is not entitled to claim fulfilment and/or to (replacing or additional) damage compensation by Noxion in case of long-term force majeure on the part of Noxion.
  3. If in the opinion of Noxion the force majeure is of a temporary nature, Noxion shall be entitled to suspend the execution of the agreement until the circumstances causing the force majeure no longer occur.
  4. If in the opinion of Noxion the force majeure situation is of a permanent nature, or if the execution of the agreement has been suspended for more than three months, or if it is certain that the force majeure situation shall last for at least three months, either party may claim, by registered post, that the agreement be either adjusted to the circumstances or dissolved with immediate effect (if applicable: for the part concerned), without requiring the parties to pay any damages to each other.
  5. Noxion is at all times entitled to claim payment for the performances delivered for the execution of the agreement concerned before the force majeure situation occurred.
  6. The party who believes to be in force majeure shall notify the other party thereof immediately.

Article 12: Suspension and set-off

  1. Noxion is authorized to suspend its performance if the Other Party fails to fulfil its obligations towards Noxion or if Noxion has valid grounds to fear that the Other Party shall not fulfil its obligations.
  2. The Other Party is not entitled to postpone or suspend its work, deliveries, performances and other obligations towards Noxion or to discontinue or limit these otherwise.
  3. Neither shall the Other Party be authorized to set off any claim on Noxion against any claim(s) of Noxion on the Other Party at that moment.

Article 13: Retention of title

  1. After delivery, Noxion shall remain the owner of the delivered goods until the Other Party:
    a. has fulfilled all its obligations under the concluded agreements;
    b. has settled all claims arising from non-fulfilment of the aforementioned agreements, such as damage, penalties, interest and expenses.
  2. As long as the retention of title rests with delivered goods, the Other Party cannot sell or encumber such goods.
  3. Noxion is entitled to recall the delivered goods after it has laid claim on its retention of title. The Other Party shall give Noxion access to the location where such goods are located.

Article 14: Dissolution

If the Other Party:

-     is declared bankrupt, proceeds to assignment of an estate, files for administrative receivership, or if an attachment is made on the property of the Other Party in whole or in part; or
-     fails to fulfil the contractual obligations or the obligations by virtue of the law, or fails to fulfil these properly; or
-     has not paid an invoice amount in whole or in part within the prescribed term of payment or fails to meet the request of Noxion to prepayment or security for the payment;

Noxion shall be entitled, by the mere occurrence of one of the circumstances stated in this article, to dissolve the agreement in whole or in part by a written statement, without requiring any judicial intervention or notice of default, and shall also be entitled to fully claim any amount payable by the Other Party by virtue of the agreement concluded with Noxion immediately and without requiring any final notice or notice of default, without prejudice to the right of Noxion to compensation of all direct and indirect damage, including but not limited to loss of profit, and without prejudice to all other statutory rights falling to Noxion. 

Article 15: Intellectual property

  1. The intellectual property rights of Noxion concerning the goods and all other materials developed and/or used for or resulting from the preparation or execution of the agreement between Noxion and the Other Party shall exclusively fall to Noxion. The delivery of goods shall not lead to any transfer of the intellectual property rights.
  2. Noxion shall remain the owner of intellectual property rights, including copyrights on documentation, drawings, diagrams, lighting calculations, lighting plans, designs, or other documents associated with a quotation, order, or agreement. The information may not be fully or partly made public, imitated, copied, offered, or shown to third parties without prior written permission.
  3. The Other Party shall not multiply the goods howsoever without the prior written consent of Noxion.
  4. The Other Party shall not remove or change any signs of Noxion regarding copyrights, trademarks, trade names or other rights of intellectual property.
  5. The Other Party is liable for the damage suffered by Noxion today or in the future caused by a breach of its intellectual property rights.

Article 16: Miscellaneous provisions

  1. By concluding the agreement, the Other Party grants Noxion permission for automatic processing of personal data to be collected by Noxion.
  2. Noxion is at all times entitled to transfer the rights and obligations from the agreement or a part thereof to a third party.
  3. All changes in the agreement are subject to written agreement between the parties.

Article 17: Applicable law and choice of jurisdiction

  1. All offers and agreements of Noxion and resulting disputes shall be exclusively governed by exclusively Dutch law applicable.
  2. The Vienna Sales Convention (Convention on the International Sale of Goods) is not applicable, nor are any other international regulations that can be excluded.
  3. All and any disputes arising from or in connection with an offer or agreement of Noxion shall be brought exclusively before the District Court of Oost-Brabant, location Den Bosch.