GENERAL TERMS AND CONDITIONS OF SALE
LIGHTHOUSE HOLLAND BV
1. These “General Terms and Conditions of Sale” (“GTCS”) apply to all contracts of sale of goods between LIGHTHOUSE HOLLAND BV (“LIGHTHOUSE HOLLAND”) and the customer (“Customer”). No departure from the GTCS shall be binding on LIGHTHOUSE HOLLAND unless agreed in writing between LIGHTHOUSE HOLLAND and the Customer. LIGHTHOUSE HOLLAND and the Customer may also be referred to as “Party” or collectively as “Parties”.
2. LIGHTHOUSE HOLLAND is entitled to amend the GTCS at 30 calendar days’ notice (“Amendment Notice”) with effect for all goods delivered after the Amendment Notice. However, LIGHTHOUSE HOLLAND may change agreed payment terms and/or credit limits at any time for any reason without notice.
3. Any terms or conditions contained in or delivered with the Customer’s order or other document delivered or representation made or communication to LIGHTHOUSE HOLLAND shall not apply and the Customer waives any right which the Customer might have to rely on such terms or conditions.
QUOTATIONS, ORDERS AND ORDER ACKNOWLEDGEMENTS
4. Only a quotation in writing by email from LIGHTHOUSE HOLLAND (“Quotation”) is binding on LIGHTHOUSE HOLLAND. Quotations are open for acceptance in writing by email to LIGHTHOUSE HOLLAND by the Customer for 15 business days from the date of the Quotation unless otherwise stated in the Quotation.
5. Any order(s) placed by the Customer and any acceptance(s) of Quotation(s) by the Customer shall bind LIGHTHOUSE HOLLAND, provided the order(s) or acceptance(s) of Quotation(s) was/were placed in writing by email to LIGHTHOUSE HOLLAND or, in case of acceptance(s) of Quotation(s), by return-mail, and provided the order(s) or acceptance(s) of Quotation(s) was/were confirmed in writing by LIGHTHOUSE HOLLAND's Customer Management department within 15 business days from the date of receipt by LIGHTHOUSE HOLLAND of the order(s) or acceptance(s) of Quotation(s) (“Order Acknowledgment”).
6. If the terms and conditions related to delivery time, quantity, price, payment terms, delivery clause, delivery by installments or other matters stated in LIGHTHOUSE HOLLAND's Order Acknowledgment vary from the Customer’s order(s) or acceptance(s) of Quotation(s) and the Customer wants to reject these variations, the Customer must notify LIGHTHOUSE HOLLAND's Customer Management department in writing by email to that effect within 5 business days of the date of receipt of the Order Acknowledgment, failing which the Customer shall be deemed to have accepted the terms and conditions set out in the Order Acknowledgment, which shall constitute a binding commitment between the Parties.
DELIVERY. TRANSFER OF RISKS
7. Absent any delivery clause in the Order Acknowledgment to the contrary, delivery shall be deemed to have occurred ex works LIGHTHOUSE HOLLAND's warehouse. The Customer shall be ready for and accept delivery at the delivery date stated in the Order Acknowledgment or other communication from LIGHTHOUSE HOLLAND, failing which delivery is deemed to have occurred at the delivery date, stated in the Order Acknowledgment or other communication (“Customer Delayed Delivery”). In case of Customer Delayed Delivery the Customer is liable for payment, if applicable, of rent for the goods at LIGHTHOUSE HOLLAND warehouse and of any other costs or expense, incurred by LIGHTHOUSE HOLLAND, due to Customer Delayed Delivery, and LIGHTHOUSE HOLLAND reserves the right to sell the goods to a third party and claim damages for loss of profit and any costs in that respect. Incoterms 2000 apply to the GTCS.
8. Notwithstanding any agreed delivery clause, LIGHTHOUSE HOLLAND shall be free to select the carrier and mode of transportation.
9. If the goods are transported from LIGHTHOUSE HOLLAND's warehouse by or on behalf of LIGHTHOUSE HOLLAND, the Customer must, when the goods arrive at the destination, in order to get the goods released by the carrier sign the accompanying delivery note. If any goods are visibly damaged, the Customer must give details thereof on the delivery note and must file a claim with the carrier and with LIGHTHOUSE HOLLAND in writing via email to LIGHTHOUSE HOLLAND's Customer Management department within 24 hours, failing which the Customer shall be deemed to have waived any rights which the Customer might have in respect of the damaged goods.
10. The Customer must thoroughly examine all goods immediately upon delivery for the purpose of ascertaining whether the goods are defect or inconsistent with the data in the Order Acknowledgment (the “Examination”). The Customer shall be deemed to have accepted the goods in respect of inconsistency with the data in the Order Acknowledgment, which the Customer discovered or ought to have discovered during the Examination, if the Customer has not notified LIGHTHOUSE HOLLAND Customer Management department to the contrary in writing via email within 5 business days after the delivery time stated in the Order Acknowledgment.
11. Should LIGHTHOUSE HOLLAND not be able to deliver by the delivery time as stated in the Order Acknowledgment or other communication from LIGHTHOUSE HOLLAND , LIGHTHOUSE HOLLAND shall as soon as possible notify the Customer to that effect and at the same time state when delivery is expected to take place. If delivery is expected to take place more than, or has not taken place within, 14 business days after the delivery time stated in the Order Acknowledgment, and the delay is caused by circumstances for which LIGHTHOUSE HOLLAND is responsible, the Customer shall be entitled to reject the goods by notifying LIGHTHOUSE HOLLAND's Customer Management department to that effect in writing via email within 3 business days after receipt of LIGHTHOUSE HOLLAND's notification or the expiration of the 14 business days, whichever comes first, failing which notification by the Customer, the Customer shall be deemed to have waived the right to reject the goods. Except as stated in this Clause 11, the Customer is not entitled to raise any other claims in the event of delayed delivery, whether claims for damages based on negligent acts/omissions or otherwise.
WARRANTY. PRODUCT LIABILITY
12. Subject to the conditions of Clauses 13-19, LIGHTHOUSE HOLLAND warrants that finished goods will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 24 months from the delivery time as stated in the Order Acknowledgment and that spare parts will be free from defects in materials and workmanship under normal use of the spare parts in the industry for a period of three months from the delivery time stated in the Order Acknowledgment.
13. Any warranty claim by Customer based on any defect in finished goods or spare parts, which defect the Customer discovered or ought to have discovered during the Examination, shall be notified in writing via email to LIGHTHOUSE HOLLAND's Customer Management department within 10 business days after the delivery time stated in the Order Acknowledgment or, where the defect could not reasonably have been discovered during the Examination, within 7 business days after manifestation of the defect, failing which Customer shall be deemed to have accepted the finished goods or spare parts non-defective. Warranty claims notified by Customer to LIGHTHOUSE HOLLAND after the expiration of the warranty term as stated in Clause 12 are not accepted.
14. Where any valid warranty claim is notified to LIGHTHOUSE HOLLAND in accordance with the terms of Clause 13 and approved by LIGHTHOUSE HOLLAND's Customer Management department in writing (which approval shall not be unreasonably withheld), LIGHTHOUSE HOLLAND shall fulfill its warranty obligations as follows: (i) If Customer can be reasonably expected to be able to repair the defect, if necessary with support from LIGHTHOUSE HOLLAND' s Technical Support and Service department, LIGHTHOUSE HOLLAND may fulfill its warranty obligations by sending the necessary replacement parts to Customer free of charge; (ii) If Customer cannot be reasonably expected to be able to repair the defect, LIGHTHOUSE HOLLAND shall repair or replace the defective finished goods or spare parts, subject to the Customer signing to LIGHTHOUSE HOLLAND all property rights to such finished goods or spare parts; replacement goods or spare parts will be new, equivalent to new or re-conditioned; or (iii) If none of the foregoing remedies are commercially viable in LIGHTHOUSE HOLLAND sole judgment, LIGHTHOUSE HOLLAND may opt instead to refund to Customer the net purchase price paid by Customer for the defective finished goods or spare parts less reasonable depreciation of the value due to use or age, subject to the Customer signing to LIGHTHOUSE HOLLAND all property rights to such finished goods or spare parts. The Customer shall, within 10 business days of the defective finished goods or spare part being replaced, inquire at LIGHTHOUSE HOLLAND's Technical Support and Service department, if the Customer shall return to LIGHTHOUSE HOLLAND replaced defective finished goods or spare parts or destroy same and may not return such finished goods or spare parts to LIGHTHOUSE HOLLAND , unless LIGHTHOUSE HOLLAND's Technical Support and Service department has authorized the return in writing. LIGHTHOUSE HOLLAND shall assume all responsibility and expense for freight and freight insurance, unless the warranty claim is not valid in LIGHTHOUSE HOLLAND's reasonable judgment and Customer shall assume all responsibility and expense for dismantling, removal, re-installation and duties in connection with the foregoing. Repair or replacement under the warranties contained herein does not interrupt or extend the warranty term stated in Clause 12.
15. The warranties contained herein shall not extend to any finished goods or spare parts from which any serial number has been removed or which have been damaged or rendered defective (a) as a result of normal wear and tear, willful or accidental damage, negligence, misuse or abuse; (b) due to water or moisture, lightning, windstorm, abnormal voltage, harmonic distortion, dust, dirt, corrosion or other external causes; (c) by operation outside the specifications contained in the user documentation; (d) by the use of spare parts not manufactured or sold by LIGHTHOUSE HOLLAND or by the connection or integration of other equipment or software not approved by LIGHTHOUSE HOLLAND; (e) by modification, repair or service by anyone other than LIGHTHOUSE HOLLAND, who has not applied for and been approved by LIGHTHOUSE HOLLAND to do such modification, repair or service; (f) due to procedures, deviating from procedures specified by LIGHTHOUSE HOLLAND; or (g) due to failure to store, install, test, commission, maintain, operate or use finished goods and spare parts in a safe and reasonable manner and in accordance with LIGHTHOUSE HOLLAND instructions.
16. None of the warranties contained herein shall apply to finished goods or spare parts which are sold “as is”, as “second-hand”, as “used”, as “demo” or under similar qualifications.
17. None of the warranties contained herein shall apply, unless the total purchase price for the defective finished goods or spare parts has been paid by the due date for payment.
18. Customer shall have no other remedies in connection with defective finished goods or spare parts than the rights granted pursuant to Clauses 12-19. Except set forth in the express warranties contained herein, LIGHTHOUSE HOLLAND makes no conditions, warranties, representations, express or implied, in fact or in law, including, but not limited to, any warranties of satisfactory quality, merchantability or fitness for a particular purpose or any warranties arising out of usage or trade, all of which are expressly excluded to the fullest extent permissible by applicable law.
19. The warranties contained herein apply only to the original purchaser and are not assignable or transferable to any subsequent purchaser or end-user.
20. To the extent not contrary to applicable mandatory legislation, LIGHTHOUSE HOLLAND shall only be liable for damage to property and for personal injuries caused a consequence of defects in the finished goods or spare parts delivered (product liability) to the extent that it is documented that such defect arose due to LIGHTHOUSE HOLLAND negligent errors or omissions that could not have been prevented by the Examination or other examination by the Customer.
RETURN OF GOODS. CANCELLATION OF ORDERS
21. Goods may not be returned to LIGHTHOUSE HOLLAND, unless LIGHTHOUSE HOLLAND has authorized the return in writing. Where LIGHTHOUSE HOLLAND has authorized the return of goods, the Customer shall follow the guidelines for returns issued by LIGHTHOUSE HOLLAND from time to time.
22. Any order(s) placed by the Customer and any acceptance(s) of Quotation(s) by the Customer are binding on the Customer and cannot be canceled by the Customer unless LIGHTHOUSE HOLLAND agrees. LIGHTHOUSE HOLLAND therefore retains the right to charge the Customer in full for any and all order(s) placed and for any and all acceptance(s) of Quotation(s).
23. Unless otherwise stated in LIGHTHOUSE HOLLAND's Order Acknowledgment, all purchase prices exclude any sales, use, excise, value added or other taxes or duties, nor any shipping cost, imposed by any governmental authority. The rate of any taxes or duties will be that applying at the time of invoicing.
PAYMENT. PAYMENT DELAY
24. The purchase price specified in LIGHTHOUSE HOLLAND Order Acknowledgment is payable according to the payment terms as specified in the Order Acknowledgment. In the absence of payment terms in the Order Acknowledgment, delivery will only take place against simultaneous cash payment of the purchase price.
25. LIGHTHOUSE HOLLAND does not commit itself to send statements of account, but normally does so regularly. In the event that LIGHTHOUSE HOLLAND does not within 30 calendar days of the date of a statement of account receive an objection in writing against its balance, the statement of account shall be deemed to be conclusive evidence of the Customers acceptance of the statement of account.
26. In the event that the Customer should remain in arrears with payments to LIGHTHOUSE HOLLAND for any reason for 10 business days or more, LIGHTHOUSE HOLLAND shall be entitled to:
At the request of Customer, LIGHTHOUSE HOLLAND shall in writing inform the Customer of its decision to assert any of the above rights, but shall not be required to give any notice.
27. LIGHTHOUSE HOLLAND may use all funds received from the Customer towards payment of any part of any debt owing by the Customer at LIGHTHOUSE HOLLAND's sole discretion irrespective of any instructions to the contrary by the Customer.
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENTS
28. To the best of LIGHTHOUSE HOLLAND's knowledge, goods delivered by LIGHTHOUSE HOLLAND to the Customer do not infringe any third party intellectual property rights. However, LIGHTHOUSE HOLLAND does not make any warranty to that effect. Moreover, LIGHTHOUSE HOLLAND shall have no liability for any claim of infringement, which is bed on marketing, distribution or use of the goods other than authorized by LIGHTHOUSE HOLLAND and in a manner for which they were designed. In the event that goods or any part(s) thereof are held by a court of competent jurisdiction, not subject to appeal, to infringe a third party’s intellectual property right, proprietary right or contractual right, LIGHTHOUSE HOLLAND shall in its sole discretion (a) try to procure for the Customer and the Customers‘ customers the right to continue to use the goods; (b) try to modify the goods, or, where modification does not require any special knowledge, provide the Customer with parts or software enabling him to modify the goods at his own expense, to avoid infringement; or (c) recall the goods. If LIGHTHOUSE HOLLAND decides to recall the goods, LIGHTHOUSE HOLLAND shall, if the goods were delivered to the Customer within the immediately preceding one year period, refund the purchase price for the goods to the Customer less a reasonable depreciation due to age, use, and condition, subject to the Customer signing all property rights to such goods to LIGHTHOUSE HOLLAND . If the goods were delivered to the Customer before the immediately preceding one year period, LIGHTHOUSE HOLLAND shall not be obligated to make any refund.
29. The above constitutes LIGHTHOUSE HOLLAND's maximum liability in respect of Clause 28 herein, and the Customer shall limit his liability towards his customers accordingly.
LIMITATION OF LIABILITY
30. In no event shall LIGHTHOUSE HOLLAND be liable in tort, contract or otherwise (including negligence) to compensate the Customer for any business interruption, loss of (anticipated) profits, revenue, business, contracts or (anticipated) savings, costs of procurement of substitute goods or services or any other special, indirect or consequential loss or any punitive damages.
31. LIGHTHOUSE HOLLAND total liability under any cause of action shall not exceed the amounts received by LIGHTHOUSE HOLLAND from the Customer pursuant to the Order Acknowledgment giving rise to the liability. However, in regard specifically to LIGHTHOUSE HOLLAND's total liability for damages caused by defects in the goods delivered (Product Liability), such liability shall in no event - regardless of whether such damages are arising in contract, tort, negligence or otherwise – exceed the price initially paid for the product.
32. In the event that LIGHTHOUSE HOLLAND incurs liability towards a third party with respect to goods delivered or services provided to the Customer, including in respect of product liability and intellectual property rights infringement, the Customer is obliged to indemnify LIGHTHOUSE HOLLAND to the extent that LIGHTHOUSE HOLLAND's liability is limited under the provisions stipulated above.
33. The GTCS and all contracts of sale of goods, including but not limited to, any and all Order Acknowledgment, between LIGHTHOUSE HOLLAND and the Customer shall be exclusively governed by and construed in accordance with the laws of The Netherlands without application of that country's conflict of law principles (no renvoi). The Parties submit to the exclusive jurisdiction of Dutch courts except that LIGHTHOUSE HOLLAND - at its sole discretion - shall be entitled alternatively to institute legal proceedings against the Customer at courts having jurisdiction over the Customer's domicile. If a third party files a claim against one of the Parties for damages on product liability or intellectual property rights infringements, this Party shall immediately inform the other Party thereof. The Parties are mutually obliged to let themselves be summoned to appear before a court of justice / arbitration that hears such claim for damages. The mutual relationship between LIGHTHOUSE HOLLAND and the Customer shall however be resolved in accordance with the provisions of this Clause.
34. The invalidity, un-enforceability or illegality of any term, condition or stipulation in the GTCS shall not affect the validity, enforceability or legality of the remaining terms, conditions and stipulations of the GTCS.
35. Except provided herein, any required or permitted notices hereunder must be given in writing at the registered address of each Party, or to such other address either Party may notify to the other Party by written notice in the manner contemplated herein, by one of the following methods: hand delivery, registered mail, or facsimile.
36. Non-performance of either Party shall be excused to the extent that performance is rendered impossible by strike, lock-out, fire, severe weather, flood, earthquake, terrorism, war, acts of God, governmental acts, failure of suppliers or carriers for any reason or any other reasons beyond the reasonable control of the nonperforming party.
37. With reference to Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) and any applicable amendments thereto or substitutions thereof, all Customers who purchase electrical and electronic equipment from LIGHTHOUSE HOLLAND for distribution within the European Union are responsible for providing means of waste disposal and scrapping of such equipment in accordance with applicable national law.
© LIGHTHOUSE HOLLAND BV 2008, GTCS version effective per January 1,2008