Article 1 General

1. These terms and conditions apply to every offer, quotation, and agreement between QC lightfactory b.v., hereinafter referred to as: "QC", and a Counterparty to which QC has declared these terms and conditions applicable, in so far as the parties have not expressly deviated from these terms and conditions in writing.
2. The present terms and conditions also apply to agreements with QC for the execution of which QC must engage third parties.
3. These general terms and conditions have also been drafted for the employees of QC and its management.
4. The applicability of any purchasing or other terms and conditions of the Counterparty is expressly rejected.
5. Should one or more provisions in these general terms and conditions at any time be wholly or partially void or be annulled, the remaining provisions of these general terms and conditions shall remain fully applicable. QC and the Counterparty shall then enter into consultation to agree on new provisions to replace the void or annulled provisions, taking into account the purpose and intent of the original provisions as much as possible.
6. If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must be made 'in the spirit' of these provisions.
7. If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
8. If QC does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that QC would in any way lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotations and Offers

1. All quotations and offers from QC are non-binding, unless a term for acceptance has been stated in the quotation. A quotation or offer lapses if the product to which the quotation or offer relates is no longer available in the meantime.
2. The content of QC's quotations and offers (including but not limited to drawings, designs, descriptions, specifications, and calculations) are carefully prepared and are as accurate as possible but are non-binding. An error or mistake can always be corrected by QC, even after acceptance of the quotation by the Counterparty.
3. The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping, and administration costs, unless stated otherwise in writing. If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, QC is not bound by it.
4. The agreement is then not concluded in accordance with this deviating acceptance, unless QC indicates otherwise in writing.
5. A composite price quotation does not oblige QC to perform a part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
6. Amendments to an agreement once concluded are only valid if and in so far as they have been agreed upon in writing or expressly confirmed by QC.

Article 3 Delivery Terms, Amendment, and Execution of the Agreement

1. If a term has been agreed or specified for the completion of certain work or the delivery of certain goods, this is never a strict deadline (fatal term). If a term is exceeded, the Counterparty must therefore give QC written notice of default. QC must be offered a reasonable period to still execute the agreement.
2. If QC requires information from the Counterparty for the execution of the agreement, the execution term will not commence until the Counterparty has provided this information correctly and completely to QC.
3. Delivery takes place ex works of QC. The Counterparty is obliged to take delivery of the goods the moment they are made available to him. If the Counterparty refuses to take delivery or is negligent in providing information or instructions necessary for the delivery, QC is entitled to store the goods at the expense and risk of the Counterparty, whereby QC will have fulfilled its obligation to deliver.
4. QC has the right to have work carried out by third parties.
5. QC is entitled to execute the agreement in different phases and to invoice the executed part separately.
6. If the agreement is executed in phases, QC may suspend the execution of those parts belonging to a subsequent phase until the Counterparty has approved the results of the preceding phase in writing.
7. If, during the execution of the agreement, it appears to be necessary for the proper execution thereof to amend or supplement it, the parties shall proceed to adjust the agreement in a timely manner and by mutual consultation. If the nature, scope, or content of the agreement is adjusted, whether or not at the request or instruction of the Counterparty, competent authorities, etc., and the agreement thereby changes in qualitative and/or quantitative terms, this may have consequences for the originally agreed price and the originally specified term of execution may be changed. The Counterparty accepts the possibility of amending the agreement, including the change in price and term of execution.
8. If the agreement is amended, including a supplement, QC is entitled to execute it only after approval has been given by the competent person within QC and the Counterparty has agreed to the price and other conditions specified for the execution, including the time at which the execution will take place. Failure or delay in executing the amended agreement does not constitute a breach of contract by QC and is not a ground for the Counterparty to terminate the agreement. Without being in default, QC may refuse a request to amend the agreement if this could have consequences in qualitative and/or quantitative terms, for example, for the work to be performed or the goods to be supplied in that context.
9. If the Counterparty should fail to properly comply with what he is obliged to do towards QC, the Counterparty is liable for all damages (including but not limited to costs and lost profit) incurred by QC directly or indirectly as a result.
10. If QC agrees a fixed price with the Counterparty, QC is nevertheless entitled at all times to increase this price without the Counterparty being entitled in that case to dissolve the agreement for that reason, if the price increase results from an authority or obligation under law or regulations or is caused by an increase in the price of raw materials, wages, etc., or on other grounds that were not reasonably foreseeable when entering into the agreement.
11. The Counterparty ensures that QC timely has all (technical) information necessary to enable QC to realise agreed work in accordance with the agreement. The Counterparty is responsible for the accuracy and completeness of this information.
12. The Counterparty ensures that QC timely has permits, exemptions, decisions, and approvals necessary for carrying out the work and/or the use of the goods to be installed by QC. QC will provide the necessary cooperation to the best of its ability in obtaining these.
13. The Counterparty ensures timely, free availability and free access to the site, the building, and the location on or in which the work must be performed, and for clean, safe, and healthy conditions. The Counterparty is responsible for the circumstances that limit, prevent, and/or impede the execution of the work by QC (including work by third parties engaged by the Counterparty).
14. The Counterparty ensures that QC can make free use of the necessary utility services at the locations where the Work is performed.

Article 4 Insurance

1. The Counterparty is obliged to take out and maintain a CAR insurance (Construction All Risks insurance) or equivalent customary insurance(s) in which QC (including subcontractors and auxiliary persons) is included as a co-insured if the work of QC serves to carry out the Counterparty's business, unless otherwise agreed in writing. Outside the working hours of QC, the Counterparty is responsible for all goods, such as materials, implements, or tools that have been brought onto the site, the building, and the location on or in which the work must be performed, regardless of who owns these goods.
2. The Counterparty ensures that these goods are adequately insured, including against theft, disablement, and/or destruction.
3. The Counterparty ensures that QC receives written proof of the existence, payment, and content of the insurances referred to in paragraph 1 as soon as possible.

Article 5 Suspension, Dissolution, and Premature Termination of the Agreement

1. QC is authorised to suspend the fulfillment of the obligations or to dissolve the agreement wholly or partially, if: a) the Counterparty fails to fulfill the obligations under the agreement fully, on time, or at all; b) after concluding the agreement, QC becomes aware of circumstances that give good reason to fear that the Counterparty will not fulfill the obligations; c) the Counterparty was requested to provide security for the fulfillment of its obligations under the agreement upon concluding the agreement, and this security is not provided or is insufficient; d) If, due to the delay on the part of the Counterparty, QC can no longer be reasonably required to fulfill the agreement under the originally agreed conditions, QC is entitled to dissolve the agreement.
2. Furthermore, QC is authorised to dissolve the agreement if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or if other circumstances arise that are of such a nature that the unaltered continuation of the agreement cannot reasonably be expected of QC.
3. If the agreement is dissolved, QC's claims against the Counterparty are immediately due and payable.
4. If QC suspends the fulfillment of the obligations, he retains his claims under the law and the agreement.
5. If QC proceeds to suspension or dissolution, it is in no way obliged to compensate for damages and costs arising therefrom in any way whatsoever. If the dissolution is attributable to the Counterparty, QC is entitled to compensation for the damage, including the costs, arising directly and indirectly therefrom.
6. If the Counterparty fails to fulfill its obligations arising from the agreement and this non-fulfillment justifies dissolution, QC is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or damages, while the Counterparty is obliged to pay compensation or damages due to non-performance.
7. If the agreement is terminated prematurely by QC, QC will arrange, in consultation with the Counterparty, for the transfer of work yet to be performed to third parties. This does not apply if the termination is attributable to the Counterparty. If the transfer of the work entails extra costs for QC, these will be charged to the Counterparty. The Counterparty is obliged to pay these costs within the term stated for this purpose, unless QC indicates otherwise.
8. In the event of liquidation, (application for) suspension of payment or bankruptcy, attachment - if and in so far as the attachment is not lifted within three months - at the expense of the Counterparty, the offering of a (private) creditor arrangement, debt restructuring, or any other circumstance whereby the Counterparty can no longer freely dispose of its assets, QC is free to dissolve the agreement immediately and with immediate effect wholly or partially or to cancel the order or agreement, without any obligation on its part to pay any compensation or damages. QC's claims against the Counterparty are immediately due and payable in that case.
9. If the Counterparty wholly or partially cancels a placed order, the goods ordered or prepared for it, increased by any transport and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the Counterparty.

Article 6 Force Majeure

1. QC is not obliged to fulfill any obligation towards the Counterparty if it is prevented from doing so as a result of a circumstance that is not due to its fault, and which is not for its account under the law, a legal act, or generally accepted practice.
2. With regard to QC, force majeure in these terms and conditions means any circumstance, both foreseeable and unforeseeable, as a result of which the fulfillment of the agreement by the Counterparty can no longer reasonably be required, including but not limited to: war, sabotage, insurrection, riot or other unrest, acts of a hostile state, transport disruptions, strikes, accidents, fire, technical defects, devaluation and inflation, as well as restrictive government measures such as sudden increases in import duties and excises and/or taxes, and delayed or non-delivery by the manufacturer. QC is also entitled to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after QC should have fulfilled its commitment.
3. QC can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without obligation to compensate the other party for damages.
4. In so far as QC has already partially fulfilled its obligations under the agreement or will be able to fulfill them at the time the force majeure commences, and independent value accrues to the fulfilled or to be fulfilled part, QC is entitled to invoice the already fulfilled or to be fulfilled part separately. The Counterparty is obliged to pay this invoice as if it were a separate agreement.

Article 7 Payment and Collection Costs

1. Payment must be made according to the agreed conditions, in a manner to be indicated by QC in the currency in which it has been invoiced, unless otherwise indicated by QC in writing. QC is entitled to invoice periodically.
2. If the Counterparty remains in default in the timely payment of an invoice, the Counterparty is legally in default. The Counterparty then owes interest of 1% per month, unless the statutory (commercial) interest rate is higher, in which case the statutory (commercial) interest rate is due. The interest on the due amount will be calculated from the moment the Counterparty is in default until the moment of payment of the full amount due.
3. QC has the right to have payments made by the Counterparty extend first to the reduction of costs, then to the reduction of accrued interest, and finally to the reduction of the principal sum and the current interest.
4. QC can, without thereby being in default, refuse an offer of payment if the Counterparty designates a different order for the allocation of the payment. QC can refuse full repayment of the principal sum if the accrued and current interest and collection costs are not also paid.
5. The Counterparty is never entitled to set off what he owes QC.
6. The Counterparty is also not entitled to suspend the payment of an invoice (in connection with an objection to the size of the invoice or for other reasons).
7. If the Counterparty is in default or in breach of the (timely) fulfillment of his obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Counterparty. These extrajudicial collection costs amount to at least 15% of what the Counterparty still owes QC, with a minimum of € 250,-. However, if QC has incurred higher collection costs that were reasonably necessary, the actually incurred costs will be considered.
8. The Counterparty shall provide - whether or not supplementary - security for the payment by the Counterparty of the fees owed to QC at QC's first request. If QC has well-founded fear that the Counterparty will not be able to meet its financial obligations towards QC and the Counterparty also does not provide security for this, QC is entitled to suspend the execution of the agreement, without prejudice to its statutory suspension rights.

Article 8 Retention of Title

1. All goods delivered by QC within the framework of the agreement remain the property of QC until all claims that QC has or will obtain against the Counterparty, on whatever basis, have been paid in full, including any additional interest and costs.
2. In the event that the Counterparty fails to fulfill any obligations under an agreement towards QC, in the event of attachment, offering of a (private) creditor arrangement, application for suspension of payment or bankruptcy, QC is entitled, without any notice of default being required, to take back the delivered goods and to dissolve the agreement out of court, without prejudice to QC's right to compensation.
3. If the Counterparty fails to fulfill its obligations towards QC or QC has good reason to fear that the Counterparty will fail to fulfill those obligations, QC is entitled to take back the goods delivered subject to retention of title. All costs to be incurred by QC in that context shall then be borne by the Counterparty.
4. Goods delivered by QC, which fall under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Counterparty is not authorised to pledge or encumber the goods subject to retention of title in any other way.
5. The Counterparty must always do everything that can reasonably be expected of him to safeguard QC's property rights.
6. If third parties levy attachment on the goods delivered subject to retention of title or wish to establish or assert rights thereon, the Counterparty is obliged to inform QC thereof immediately.
7. The Counterparty undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage, as well as against theft, and to provide the policy of this insurance to QC for inspection upon first request. In the event of a payment from the insurance, QC is entitled to these funds. To the extent necessary, the Counterparty undertakes towards QC in advance to cooperate with everything that may (appear to) be necessary or desirable in that context.
8. In the event that QC wishes to exercise its property rights indicated in this article, the Counterparty grants unconditional and irrevocable permission in advance to QC and third parties to be designated by QC to enter all those places where QC's property is located and to take back those goods.

Article 9 Guarantees, Examination and Complaints, Limitation Period

1. The goods to be delivered by QC comply with the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee mentioned in this article applies to goods intended for use within the Netherlands. In case of use outside the Netherlands, the Counterparty must verify whether the use thereof is suitable for use there and meets the conditions set for it. QC can in that case set different guarantee and other conditions regarding the goods to be delivered or work to be performed.
2. The guarantee mentioned in paragraph 1 of this article applies for a period of 2 years after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the guarantee provided by QC concerns a product that was manufactured by a third party, the guarantee is limited to that provided by the producer of the product, unless stated otherwise.
3. Any form of guarantee lapses if a defect has arisen as a result of or arises from improper or inappropriate use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Counterparty and/or by third parties when, without the written permission of QC, the Counterparty or third parties have made or attempted to make changes to the product, other items were attached thereto that should not be attached thereto, or if they were processed or treated in a manner other than prescribed. The Counterparty is also not entitled to a guarantee if the defect has arisen due to or is the result of circumstances over which QC has no influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
4. The Counterparty is obliged to examine the delivered goods (or have them examined) immediately at the moment they are made available to him or the relevant work has been performed. The Counterparty should thereby examine whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to QC in writing within seven days after delivery. Any non-visible defects must be reported to QC immediately, but in any case no later than fourteen days after their discovery, in writing. The report must contain a description of the defect that is as detailed as possible, so that QC is able to respond adequately. The Counterparty must give QC the opportunity to investigate a complaint (or have it investigated).
5. If the Counterparty complains in time, this does not suspend his payment obligation. In that case, the Counterparty also remains obliged to accept and pay for the other ordered goods.
6. If a defect is reported later, the Counterparty is no longer entitled to repair, replacement, or compensation.
7. If it is established that a product is defective and a complaint has been made in time, QC will, at QC's option, replace the defective product within a reasonable period after receiving it back or, if return is not reasonably possible, written notification of the defect by the Counterparty, or arrange for its repair, or pay substitute compensation to the Counterparty. In the event of replacement, the Counterparty is obliged to return the replaced product to QC and to transfer ownership thereof to QC, unless QC indicates otherwise.
8. If it is established that a complaint is unfounded, the costs arising therefrom, including the investigation costs, incurred by QC, shall be borne entirely by the Counterparty.
9. After the expiry of an expiry term from these general terms and conditions or the guarantee period, all costs for repair or replacement, including administration, shipping, and call-out costs, will be charged to the Counterparty.
10. Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against QC and the third parties involved by QC in the execution of an agreement is one year.

Article 10 Liability

1. If QC should be liable, this liability is limited to what is regulated in this provision.
2. QC is not liable for damage, of whatever nature, arising because QC has relied on incorrect and/or incomplete data provided by or on behalf of the Counterparty.
3. If QC should be liable for any damage, QC's liability is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates. QC's liability is in any case always limited to the amount of the payment by its insurer, if applicable.
4. QC is exclusively liable for direct damage.
5. Direct damage is exclusively understood to mean the reasonable costs incurred to determine the cause and scope of the damage, in so far as the determination relates to damage within the meaning of these terms and conditions, the possible reasonable costs incurred to make QC's faulty performance conform to the agreement, in so far as these can be attributed to QC, and reasonable costs incurred to prevent or limit damage, in so far as the Counterparty proves that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.
6. QC is never liable for indirect damage, including consequential damage, lost profit, missed savings, and damage due to business interruption.
7. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of QC's management.

Article 11 Transfer of Risk

1. The risk of loss, damage, or devaluation of the goods transfers to the Counterparty at the moment the goods are brought under the control of the Counterparty.

Article 12 Indemnification

1. The Counterparty indemnifies QC against any claims from third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than QC.
2. If QC should be addressed by third parties in this regard, the Counterparty is obliged to assist QC both out of court and in court and to immediately do everything that can be expected of him in that case. Should the Counterparty fail to take adequate measures, QC is entitled, without notice of default, to proceed to do so itself. All costs and damage incurred by QC and third parties as a result are entirely for the account and risk of the Counterparty.

Article 13 Intellectual Property

1. All intellectual and/or industrial property rights regarding the goods delivered or to be delivered by QC to the Counterparty rest exclusively with QC. The agreement therefore does not concern a transfer or license of a property right accruing to QC.
2. The Counterparty is obliged and only entitled to trade the goods purchased from QC, taking into account the (image) mark, the trade name, and the specifications under which the goods were delivered to the Counterparty. The Counterparty is not authorised or permitted to change the condition of the goods delivered by QC (including labeling, print, or instructions).
3. QC has the right to use the knowledge gained on its part through the execution of an agreement also for other purposes, in so far as strictly confidential information of the Counterparty is not brought to the attention of third parties.

Article 14 Applicable Law and Disputes

1. All legal relationships to which QC is a party are governed exclusively by Dutch law, even if an obligation is wholly or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The court in QC's place of business has exclusive jurisdiction to hear disputes, unless the law mandatorily dictates otherwise. Nevertheless, QC has the right to submit the dispute to the court with jurisdiction according to the law.
3. The parties will only appeal to the court after they have made every effort to settle a dispute by mutual consultation.

 

This English version of the General Terms and Conditions is a translation from the original Dutch text. In case that any ambiguity arises as a result of the translation, the original Dutch text shall prevail.