Terms and Conditions
Light & Living is a Wholesale concept of Lightmakers BV. The general terms and conditions of Lightmakers BV you can find here.
Terms and Conditions of Lightmakers B.V., having its registered office at 's-Gravendijckseweg 8, 2201 CZ Noordwijk, registered at the Chamber of Commerce under number 28105685 (hereinafter 'Lightmakers'), for transactions in the course of a profession or business, last amended on 25 August 2016 (hereinafter 'General Terms and Conditions').
1.1 These General Terms and Conditions apply to all legal relationships entered into between another party and Lightmakers.
1.2 A party that enters into a legal relationship with Lightmakers will be referred to in these General Terms and Conditions as the ‘other party’.
1.3 Lightmakers provides these General Terms and Conditions to the other party when the parties enter into their first agreement. The General Terms and Conditions are also available on the Lightmakers website, www.lightmakers.nl. The other party declares that it is familiar with these General Terms and Conditions, including for the purpose of subsequent transactions. If Lightmakers amends these General Terms and Conditions in future, it must provide a new copy thereof to the other party and publish the amended General Terms and Conditions on its website. If required, the other party may request Lightmakers to send it a copy of the General Terms and Conditions (including the old ones, if necessary). Lightmakers must comply with this reasonable request within a reasonable period.
1.4 Departures from these General Terms and Conditions are possible and valid only if and insofar as these departures have been agreed expressly and in writing. A departure from these General Terms and Conditions in an agreement that is not specifically tailored to the legal relationship (such as a general condition) is invalid.
1.5 If the other party uses general terms and conditions, these will be valid only to the extent there is no inconsistency with these General Terms and Conditions. These General Terms and Conditions will apply in case of inconsistency or a lack of clarity.
1.6 Any reference in these General Terms and Conditions to ‘in writing’ or ‘written’ includes communication by e-mail, fax, or any other form of communication that can be equated with this bearing in mind the state of the art and generally accepted views.
1.7 If and insofar as a provision or section of these General Terms and Conditions is inapplicable, invalid, or cannot otherwise be invoked, this does not affect the application and validity of the other provisions. Lightmakers and the other party hereby agree that provisions that cannot be invoked will be replaced by provisions that are permitted within legal restrictions and that approximate the purpose and meaning of the original provisions as closely as possible.
2.1 Agreements between Lightmakers and the other party are concluded by entering into a written agreement, by a telephonic instruction from the other party, and/or if Lightmakers commences with performance, insofar as the other party has made such statements that Lightmakers is justified in assuming an agreement has been concluded or if the other party has failed to make statements as a result of which it has not become clear that no agreement has been concluded.
2.2 Additions or amendments to these General Terms and Conditions will become binding only after written confirmation by Lightmakers. If Lightmakers does not agree to an addition or amendment, these General Terms and Conditions will remain fully in force in their unchanged form.
3 OFFERS AND/OR QUOTATIONS
3.1 All offers, quotations, price lists, delivery periods and other indications are without obligation, unless an indication contains an express period tailored to the legal relationship with the other party.
3.2 The prices applied by Lightmakers exclude VAT and other additional costs. Other additional costs may include – but are not limited to – transport costs and invoices from third parties that it hires. The additional costs, both fixed and potential, must be stated in the offer as far as possible.
3.3 Although samples, brochures, drawings, designs/models, colour specifications, measurements, weights, and other descriptions that are provided or displayed are as accurate as possible, they are only indicative. No rights may be derived from the above, unless Lightmakers and the other party expressly agree otherwise in a specific case.
3.4 The samples, brochures, drawings, designs/models, colour specifications, measurements, weights, and other descriptions referred to in Article 3.3 remain the property of Lightmakers at all times, unless Lightmakers and the other party expressly agree otherwise in writing. The aforementioned items must be returned to Lightmakers immediately on request. The items may not be (i) duplicated; (ii) made available to third parties for inspection; (iii) disposed of; or (iv) reproduced or distributed in any way without Lightmakers’ prior written consent.
3.5 If the government and/or trade unions make changes to salaries, employment conditions or social insurance, for example, between the date of entering into the agreement and its performance, Lightmakers will be entitled to pass on the increases to the other party. If Lightmakers and/or its suppliers issue a new price list between the above dates, Lightmakers will be entitled to charge the other party the prices listed therein.
3.6 Although Lightmakers exercises the utmost care in its offers, quotations, and agreements, it is possible that these could still contain a misprint or typographical error. Insofar as the error is an obvious clerical error, the other party cannot hold Lightmakers to it, even if an agreement has already been concluded. Insofar as the error is not immediately apparent, Lightmakers is entitled to remedy the error until entering into an agreement, notwithstanding the situation in which it has already made the other party an offer with a period tailored to that other party, in accordance with Article 3.1. Lightmakers must notify the other party of the error and make a corrected offer, or offer the option of terminating the agreement, insofar as the other party does not wish to proceed after the clerical error is corrected.
4 DELIVERY AND DELIVERY PERIODS
4.1 Unless agreed otherwise in writing beforehand or stipulated otherwise in these General Terms and Conditions, delivery periods that Lightmakers or the other party stipulate for goods can never be regarded as a strict deadline. If Lightmakers does not comply or does not punctually comply with its obligations under the agreement, it must, after having consulted with the other party as referred to in Article 5.4, be given a written notice of default by the other party.
4.2 If partial deliveries are made, each delivery or phase will be regarded as a separate transaction and Lightmakers may invoice each transaction at its own discretion.
4.3 Unless agreed otherwise in writing beforehand, risk in the goods passes to the other party at the time of delivery. For the purpose of this Article 4.3, the moment of presentation to the other party is regarded as the moment of delivery.
4.4 Unless agreed otherwise in writing beforehand, the goods will be transported (shipped) in Lightmakers' chosen manner. The transport will be at the expense and risk of the other party under the carriage paid delivery amount. The transport will be at the expense and risk of Lightmakers in excess of the carriage paid delivery amount. Lightmakers is not liable in either case for damage, of any nature and form, relating to the transport.
4.5 If it is or appears to be impossible to deliver the goods to the other party for a reason that lies within the other party's sphere of risk, Lightmakers reserves the right to store the goods (at its own premises or at a designated third party) at the other party's expense and risk. Lightmakers will notify the other party of the arranged storage as soon as is reasonably possible and, insofar as a strict deadline does not exist, also set a reasonable period within which the other party must enable Lightmakers to deliver the goods, which will be delivered at the other party's expense.
4.6 If the other party remains in default even after the end of the reasonable period stipulated in Article 4.5, it will be in default by the mere passing of 1 (one) month, calculated from the date of storage, and Lightmakers will be entitled to terminate the agreement, in whole or in part, in writing and with immediate effect, without any prior or further notice of default, without judicial intervention, and without being obliged to compensate damage, costs and interest.
4.7 The provisions of Article 4.5 and 4.6 do not release the other party from its obligations, including paying the price due and additional costs, including but not limited to costs for transport, storage, and administration on the side of Lightmakers. Notwithstanding the above, Lightmakers may, if the circumstances give cause thereto at its own discretion, make an all-inclusive proposal for compensation. The other party will then have to pay the amount that is reasonably determined in order to be released from its obligations, without being entitled to receive any item. The costs incurred and lost revenue of Lightmakers will be taken into account in determining the amount of the loss.
4.8 In addition to the provisions included in Article 8 below in relation to payment, Lightmakers is entitled, at its own discretion, and for the purpose of ensuring that the other party complies with its financial obligations, to require advance payment or security from the other party, before proceeding with delivery. Lightmakers may also rely on this Article 4.8 if Lightmakers and the other party have entered into earlier agreements to which these General Terms and Conditions apply.
5 PROGRESS WITH DELIVERY
5.1 Lightmakers cannot be obliged to start delivering the goods before it is in possession of the necessary information for that purpose and it has received the agreed payment(s), in accordance with Article 8 (insofar as applicable). Any delay in delivery that arises because of this provision is at the other party's expense and risk. Lightmakers will adjust the delivery date proportionally in such a case.
5.2 If delivery cannot be made normally, without interruption, or without additional costs due to one or more reasons beyond Lightmakers' control, Lightmakers will be entitled to recover the additional costs from the other party.
5.3 All expenses that Lightmakers incurs for the performance of the agreement at the other party's request are payable by the other party, unless the parties expressly agree otherwise in writing.
5.4 If the delivery by Lightmakers is delayed because of a situation for which it must bear the risk, Lightmakers must notify the other party thereof within a reasonable period. The parties hereby agree to then reasonably discuss a new delivery date. The provisions of Article 4.1 will apply insofar as the parties cannot reach consensus.
6 RECEIPT, COMPLAINTS AND RETURNS
6.1 The other party is obliged to inspect the goods immediately on receipt. If the other party finds visible defects, faults, imperfections and/or flaws, these must be noted on the waybill or packing slip and immediately communicated to Lightmakers; alternatively the other party must inform Lightmakers thereof within 24 hours of receipt of the goods, followed by immediate written confirmation thereof to Lightmakers.
6.2 Other complaints must be reported to Lightmakers, by registered letter and stating reasons, within eight calendar days of receipt of the goods, or within eight calendar days of the other party being reasonably able to discover the defect.
6.3 If the above complaints are not communicated to Lightmakers within the stipulated periods, the goods will be deemed to have been received in good condition.
6.4 The goods will be delivered in the packaging that Lightmakers has in stock. Minor variations from the stated measurements, weights, quantities or colours (of the item or its packaging), for example, do not count as a shortcoming on the part of Lightmakers.
6.5 Complaints cannot be made in respect of imperfections in natural products, if these imperfections relate to the nature and properties of the raw material(s) from which the item is produced.
6.6 Complaints do not suspend the other party’s payment obligations, until Lightmakers formally approves the complaint.
6.7 Lightmakers must be given the opportunity to investigate a complaint. If a return shipment proves to be necessary for investigating a complaint, this will be at Lightmakers’ expense and risk only if it has expressly agreed to this beforehand.
6.8 A return shipment must always be made in the manner stipulated by Lightmakers. In case of a return shipment, the item must be returned in its original packaging. Return shipments are at the expense and risk of the other party. If Lightmakers finds the complaint to be well-founded, it must bear the costs of the return shipment (on the understanding that the other party continues to bear the costs of the original shipment and that these costs are equal: Lightmakers will only bear the cost of one shipment in case of a justified complaint).
6.9 If the nature and/or composition of the goods change, if they are fully or partially processed or incorporated, become damaged, or are repackaged after delivery, the right to complain will cease to exist.
6.10 In case of justified complaints, Lightmakers must refund the payments that the other party has already made in respect of the goods and the return shipment, within a reasonable period, by returning any amount to the bank account from which the payment was made. In order to be reimbursed for the return shipment, the other party must send an invoice for the actual costs thereof together with proof of those costs. Any damage will be settled in accordance with the provisions of Article 7.
7 LIABILITY AND WARRANTY
7.1 Although Lightmakers fulfils its duties as may be expected of a company in its line of business, it does not accept any liability for damage or loss, including loss arising from death or injury, consequential loss, direct trading losses, loss of profits and/or business interruption loss, resulting from an act or omission of itself, its personnel, or third parties that it hires, except insofar as it, its board of directors, and/or its management staff has/have acted with gross negligence or wilful recklessness.
7.2 Notwithstanding the provisions of Article 7, the liability of Lightmakers - of whatever nature - is limited to the net price of the supplied goods or services under the relevant agreement.
7.3 Notwithstanding the provisions of Article 7.2, Lightmakers will never be obliged to pay compensation exceeding the amount for which it is actually insured at any time, insofar as the compensation is covered by its insurance.
7.4 Lightmakers warrants the normal quality and sound condition of the supplied goods. However, the actual lifespan of the goods cannot be guaranteed.
7.5 Insofar as the goods contain visible faults, imperfections and/or defects that must have already been present at the time of delivery, Lightmakers undertakes – completely at its discretion – to either repair those goods free of charge or replace them. The other party must inform Lightmakers as soon as possible of the fault, imperfection or defect.
7.6 If goods supplied by Lightmakers come with a manufacturer's warranty, this warranty will apply in the same way between the parties, provided this is permitted under the manufacturer’s original warranty.
7.7 The other party will forfeit its rights against Lightmakers, be liable for all damage that may arise at third parties, and indemnify Lightmakers against any third-party claims, if and insofar as:
7.7.1 the above damage arises due to incompetent use, and/or use that is contrary to the instructions and/or recommendations of Lightmakers, and/or incompetent storage (warehousing) of the supplied goods by the other party; or
7.7.2 the above damage arises due to faults, flaws and/or errors in data, materials, information carriers and/or similar items that are provided and/or prescribed by or on behalf of the other party to Lightmakers.
7.8 In all cases, the period within which Lightmakers can be held liable to compensate established damage or loss is limited to six months from the date on which the liability for compensation was established.
8 INVOICE AND PAYMENT
8.1 Unless agreed otherwise in writing beforehand, payment must be made prior to shipment or delivery, if it is the first time that Lightmakers and the other party are entering into an agreement to which these General Terms and Conditions apply. Payment must be made in accordance with Lightmakers’ payment instructions.
8.2 If Lightmakers has previously entered into agreements with the other party, to which these General Terms and Conditions apply, payment must be made within 30 calendar days of the invoice being sent, unless the parties have agreed in writing beforehand on another term. Lightmakers sends their invoices digitally by sending an email to the email address provided by the counterparty with the invoice attached as a PDF file. The counterparty is responsible for the correctness of the email address and shall inform Lightmakers of any changes.
8.3 The other party will be entitled to a 2% discount on the invoice amount if payment is made within eight calendar days of the invoice date. The discount may be calculated on the net total amount of the goods (excluding additional costs). The discount will apply only if Lightmakers has received the payment within eight calendar days of the invoice date. The other party must be able to prove punctual payment, if necessary. If the other party does not deduct the discount, Lightmakers will not credit the discount amount.
8.4 If the other party fails to comply with its payment obligations on time, Lightmakers will be entitled, without any need for a further notice of default or judicial intervention, to charge statutory commercial interest, from the 31st calendar day after the date of the invoice up to and including the date of payment in full.
8.5 If the other party fails to comply with its payment obligations on time, Lightmakers will be entitled to suspend the performance of its obligations towards the other party until payment is made or adequate security is provided for this purpose. The same applies before the date of default if Lightmakers reasonably suspects that there are reasons to doubt the other party’s creditworthiness.
8.6 Payments by the other party are firstly applied to settle all outstanding interest and costs and then to settle the longest outstanding invoices that are due and payable, unless the other party expressly states in writing at the time of payment that the payment is for a later invoice.
8.7 If the other party has, or it is foreseeable that it will acquire, one or more claims against Lightmakers, of whatever nature, it will waive its right to set off such claim(s) against the amounts that it owes to Lightmakers. This waiver of the right to set off will also apply if a provisional or final moratorium on the payment of debts is granted to the other party and/or the other party is declared insolvent.
8.8 Lightmakers may decide, at its own discretion, in case of circumstances as referred to in this Article 8, or in corresponding circumstances, to terminate the agreement, in whole or in part, combined or otherwise with a claim for compensation or additional compensation.
9 RESERVATION OF OWNERSHIP
9.1 Lightmakers reserves ownership of all goods that it has delivered and will deliver until the other party has complied with all its payment obligations towards Lightmakers arising from any agreement. These payment obligations include payment of the price for the goods, plus any amounts owing for work performed in relation to the delivery, as well as amounts owing for additional costs and, insofar as relevant, compensation for the failure of the other party to comply with its obligations.
9.2 The other party may only resell the goods subject to reservation of ownership in the normal course of business.
9.3 If Lightmakers relies on the reservation of ownership, the agreement entered into in relation to the goods will be considered terminated, notwithstanding Lightmakers’ right to claim compensation of damage, lost profits and additional costs (including interest). Lightmakers or a third party that it designates will be entitled to access the goods in order to take them back, if required, and the other party undertakes, if necessary, to cooperate fully and immediately with a request made by or on behalf of Lightmakers in order to facilitate this process.
9.4 The other party is obliged to notify Lightmakers as soon as is reasonably possible in writing if third parties enforce rights on the goods that are subject to a reservation of ownership under this Article 9 .
10 ENCUMBERING SUPPLIED GOODS
10.1 Having regard to Article 9 of these General Terms and Conditions, the other party agrees that until such time as it has fulfilled all its payment obligations to Lightmakers, it will not be entitled to give the supplied goods as security to third parties, establish a non-possessory pledge on these goods, and/or allow the goods to be stored under the actual control of one or more lenders. If the other party performs one of the above acts, it will be regarded as attributable breach on its side. Lightmakers may then immediately, and without being obliged to give any notice of default, suspend its obligations under the agreement, or terminate the agreement, notwithstanding its right to compensation of damage, lost profits and additional costs (including interest).
11 INSOLVENCY AND NO POWER OF DISPOSAL
11.1 Notwithstanding the other provisions of these General Terms and Conditions, the agreement between Lightmakers and the other party will be terminated, without the need for any notice of default or judicial intervention, as soon as the other party petitions for a provisional or final moratorium on the payment of debts or its own insolvency, is declared insolvent, if its assets are attached in execution, it is placed under guardianship or administration, or otherwise loses the power to dispose of or act in relation to all or part of its assets, unless the administrator or receiver/guardian recognises the obligations under the agreement as an estate debt.
12 FORCE MAJEURE
12.1 If Lightmakers is unable to comply with its obligations under an agreement with the other party and this is due to a non-attributable failure to perform on the side of Lightmakers and/or third parties that it has hired for the performance of third parties or suppliers, or if there is other serious cause on the side of Lightmakers, it will be entitled to terminate the agreement between the parties, or suspend its obligations towards the other party for a reasonable period that it will determine, without being obliged to pay any compensation. If the above situation arises when the agreement has only been partly performed, the other party will be bound by its obligations towards Lightmakers until that moment.
12.2 Circumstances that constitute a non-attributable failure to perform include war, riots, mobilisation, domestic and foreign disturbances, government measures, strikes and lock-outs by employees or threats of such circumstances; disruption of the currency exchange rates that applied at the time the agreement was concluded; weather conditions; operational failures due to fire, an accident, or other incidents and natural phenomena; all regardless of whether the failure to perform or failure to perform on time occurs at Lightmakers, its suppliers, or third parties that it has hired for the performance of the obligation.
13 SETTING ASIDE, CANCELLATION AND/OR TERMINATION
13.1 Unless provisions of mandatory law dictate otherwise, the other party waives its right to terminate or have the agreement with Lightmakers set aside.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 The goods that Lightmakers produces and sells, as well as its advertising and promotional descriptions and/or any other items (such as models/designs) may be given brand names and figurative trademarks. The other party must ascertain for certain whether this is the case.
14.2 The parties agree and stipulate that any contravention of prevailing trademark legislation with regard to the goods supplied by Lightmakers, or any other infringement of Lightmakers’ intellectual property rights, constitutes a serious breach by the other party that justifies the termination of the business relationship and the termination or setting aside of current agreements, notwithstanding the other party’s obligation to compensation of all damage arising from this breach.
15 APPLICABLE LAW AND COMPETENT COURT
15.1 Dutch law applies exclusively to the agreement concluded between Lightmakers and the other party. Any disputes arising from the agreement or that relate to it directly or indirectly in any way will be settled according to Dutch law.
15.2 Notwithstanding the provisions of Article 15.1, the property-law consequences of a reservation of ownership over goods that are destined for export will be governed by the legal system of the destination country of those goods if it is more favourable for Lightmakers than Dutch law.
15.3 Any disputes must be submitted exclusively to the competent Dutch judge of the Amsterdam District Court.
15.4 Lightmakers is entitled in relation to disputes arising from an agreement where the other party is established outside the Netherlands, to act in accordance with the provisions of Article 15.3 or, entirely at its own discretion, to submit the dispute to the competent court in the country where the other party is established.
15.5 The Convention on Contracts for the International Sale of Goods of 1980 (the Vienna Sales Convention) is expressly declared to be inapplicable.
16 MISCELLANEOUS AND FINAL PROVISIONS
16.1 These General Terms and Conditions will be referred to as the ‘General Terms and Conditions of 25 August 2016’.
16.2 Unless expressly agreed otherwise, earlier or subsequent amendments to these General Terms and Conditions do not extend to the transaction to which these General Terms and Conditions are declared applicable.