Terms and Conditions Nightlife Productions B.V.
Disclaimer: Dutch law applies to these terms & conditions. In case of differences between the Dutch (original) text of these terms and conditions and translations of this version in other languages, the Dutch version prevails.
Article 1: Applicability
1.1. These terms and conditions are applicable to and are part of all orders, requests, bids, offers, partial deliveries, rentals, continued deliveries, agreements and all other legal actions and/or legal contracts in which Nightlife Productions B.V. in Arnhem, hereafter supplier, acts as a producer, owner and/or vendor and supplier of products and services, in the broadest sense of the word, towards her counterparty, hereafter customer, and all other agreements that stem from that.
1.2. Amendments to these conditions are only valid if explicitly and extramurally communicated to the supplier and if the supplier accepts these amendments explicitly and extramurally.
1.3. Exceptions or complements to these terms and conditions are only valid if and to the extent to which these are explicitly and extramurally accepted by (an authorized representative of) the supplier.
1.4. A customer with whom the terms and conditions are contracted agrees with the applicability of these terms on later agreements between her and the supplier.
1.5. In case of differences between the Dutch original text of these terms and conditions and translations of this version in other languages, the Dutch version applies between the parties.
1.6. In case a term of this terms and conditions and/or a term of an agreement between supplier and customer for whatever reason are void or voidable, the other terms of these terms and conditions and/or of the agreement remain in place. Parties are required to replace the void or voidable term through a legal condition that is as best as possible in accordance to the parties intentions.
1.7. In case of conflicts between the provisions in these terms and conditions and the provisions of an agreement, the agreement prevails over these terms and conditions.
Article 2: Offers
2.1. All offers are non-committal, unless it includes a term for acceptance by the customer. In case the offer includes a non-committal offer and this is accepted, the supplier always holds the right to revoke the offer within four working days free of form and without any given reason. The agreement is established if the offer is not revoked within four working days.
2.2. All specifications in an offer are approximations.
2.3. Oral and/or telephonic agreements with personnel and/or representatives of the supplier are only valid if they are extramurally confirmed by the supplier.
2.4. The supplier has the right to alter prices of existing agreements, if:
a. these alterations are due to a change in the exchange rates of foreign currencies;
b. After setting the agreement, prices of the products that the supplier does not produce itself, wages, salaries or other government charges, levying of charges, freight and insurance premiums change.
2.5. In the case intended in section 4, the customer does not have the right to end the agreement wholly or partially.
2.6. The supplier always holds the right, before supply or continuation of the supply, to ask the customer to provide the supplier with sufficient security of fulfillment of her obligations towards the supplier, in lack of thereof the supplier holds the right to end the agreement or to deem it dissolved for the future.
2.7. In case of section 4, the supplier is authorized to deny supply in case she can reasonably assume that the customer will not honor the agreement after the alterations.
2.8. An offer is valid no more than thirty days after the date of offer.
2.9. Unless otherwise indicated, all prices are exclusive of B.T.W. (taxation) charges.
Article 3: Supply
3.1. The agreed delivery time starts or is considered to start after the supplier receives all necessary data and any advance payments and/or securities needed to carry out the agreement.
3.2. Agreed delivery times can never be considered fatal deadlines by the customer. Exceeding a term will never give the customer the right to charge compensation for complementary or substitute damage, direct or indirect damage or any form of damage, to failure to comply or suspension of any of the agreed, or any other from the agreement stemming obligation. In case of timely delivery, the supplier must be explicitly and extramurally informed of defaults, in which a reasonable term has to be set in which the supplier has to honor the agreement.
3.3. In case of the described in section 2, the customer does not have the right to terminate the agreement wholly or partially, except in the case of intent or gross negligence on the side of the supplier.
3.4. The goods are considered to be delivered as soon as they are received and accepted by the customer on the agreed location.
3.5. Acceptance takes place through the customer’s signature on the packing slip.
3.6. Delivery of the goods happens Ex Works (ex-factory) according to the most recent version of the Incoterms of the International Chambre of Commerce (ICC). The transportation of the goods is done in on the account and risk of the customer. The transportation method is determined by the supplier. The supplier will package the goods in accordance to her valid usual standards on the account of the customer. One can extramurally divert from this section.
3.7. Unless explicitly, extramurally differently agreed, the costs of installation of the supplied goods are not included in the price. These are calculated separately according to the supplier’s assembly prices and terms to the customer.
3.8. The customer ensures that the supplier’s serviceman can carry out his activities as soon as he arrives on the installation site.
3.9. All potentially added activities are on the account of the customer and will not be carried out and/or supplied by the supplier without separate charged prices.
3.10. All provisions, whether or not by the supplier to customer provided data and drawings created and/or affected, for the placing of the installed appliances and/or the correct operation of these appliances are, in case these are carried out by third parties, on the account and risk of the customer. The supplier is in no way liable for the performance of such.
3.11. Unabated the provisions in this article the supplier has the right to refuse the installation for the delivered goods in case the made provisions, in the eyes of the supplier, are not carried out in accordance to the supplier’s demands, without payment of any compensation to the customer.
3.12. Where in this terms and conditions is referred to delivery also means partial delivery.
Article 4: Retention of Title
4.1. All delivered goods and all to be delivered goods remain exclusively the supplier’s property, until all claims that the supplier holds on the customer are satisfied, among which at least the claims as mentioned in Article 3:92 section 2 of the Burgerlijk Wetboek (i.e. Dutch Civil Law) are completely satisfied.
4.2. In case third parties confiscate the under the retention of title included goods or want to establish or exercise rights on those goods, the customer is required to inform the supplier immediately.
4.3. Customer is obliged make identifiable the goods on which the supplier holds a retention of title and store them separately of other goods held by the customer.
4.4. Customer is not authorized to sell, treat, process or encumber a right in rem goods, other than the normal course of business, goods that fall under the retention of title.
4.5. Customer is liable towards the supplier for all damage done to the goods before the in section 1 determined transfer of ownership.
Article 5: Payment
5.1. Payment takes place in the agreed currency, unless explicitly, extramurally agreed otherwise, without any deduction, discount and/or settlement from any party.
5.2. Payment takes place within 30 days after the invoice date, unless explicitly, extramurally agreed otherwise. The supplier always has the right to claim a whole or partial prepayment.
5.3. As soon as the customer knows or reasonably should know that she cannot honor, cannot honor timely or cannot honor soundly her obligations, she immediately informs the supplier extramurally, noting the conditions that led to this failure to honor the agreement.
5.4. In case payment does not happen within fourteen days after the invoice date or within another agreed payment term, the customer is in default without notice and without judicial intervention. From that moment, all outstanding claims are claimable directly and without notice.
5.5. In case of section 4, the customer owes the supplier an interest of 1.5% per month over the invoiced amount, starting on the expiration date of the invoice, while, in case the supplier is forced to relinquish the claim, the customer is obliged to pay for all judicial costs, for which the extrajudicial costs are set at least 10% of the principal amount.
5.6. In case of section 4, the supplier is authorized to claim compensation for the damage caused by the delay.
5.7. In case of section 4, the supplier is authorized to suspend all her duties towards the customer.
5.8. In case of section 4, the supplier has the right to store the delivered and unpaid goods on account and risk of the customer on a location of her choice.
5.9. In case of section 4, the supplier holds the right to dissolve the agreement at once.
5.10. Every payment by the customer in the first place serves to satisfy the costs, the interest and after that the claimable invoices that are open longest, even though the customer notes that the payment is meant for another invoice.
5.11. Customer is not authorized to settle and/or suspend any payment.
5.12. Customer is not authorized to carry over her rights and/or obligations towards the supplier to any third party without explicit extramural approval of the supplier.
Article 6: Guarantee (carry-in)
6.1. Taking into account the following limitations, the supplier guarantees reliability and good quality of the delivered appliances during a warranty period of six months (exclusively on the basis of carry-in), starting on the moment of delivery, unless explicitly, extramurally agreed otherwise.
6.2. For goods or parts of goods that the supplier does not produce itself, the supplier only gives guarantee in case and to the extent to which that supplier in its turn gives guarantee to the supplier. In this case, the supplier informs the customer at delivery of the goods and/or services of the terms of guarantee of the third party supplier and the warranty period within which guarantees can be claimed.
6.3. The obligation that stems from the above mentioned in section 1 only applies to the supplier in case the customer shows that the unreliability or deficiency arose during the in section 1 mentioned warranty period and is solely a result of the unreliability or bad quality of the used materials, the manufacture or the execution.
6.4. Customer sends the goods back to the supplier on her own account and risk.
6.5. Outside the warranty falls deficiencies that arise in or are wholly or partially caused by:
a. the non-observance of operating and maintenance instructions or other than the intended normal use;
b. normal wear and tear;
c. installations or repairs by third parties, including the customer;
d. the use of any government prescription regarding the nature or quality of the used materials;
e. in consultation with the customer employed used materials or goods;
f. materials or goods that the customer provided to supplier for processing;
g. by the customer included third party raw materials to the extent that the third party did not offer warranty to the customer;
h. the use of raw materials not supplied by the supplier for appliances and machines.
6.6. If the warranty, like mentioned in this article, is applicable, the supplier is required to replace or repair the deficiency in accordance to her own judgment.
6.7. The (salary) costs of the repairs that come from the described above will always be on the account of the customer, also during the warranty period.
6.8. Replacement does not go further than sending a new copy for free.
6.9. If the supplier by means of satisfying her warranty obligations replaces goods or parts, these replaced goods/parts are owned by the supplier.
6.10. Notwithstanding the repair or replacement, the original warranty period remains valid.
6.11. In case of by the supplier executed replacement or repair activities or other services, only warranty will be given on the reliability and execution of the instructed activities for a period of six months, unless explicitly and extramurally agreed otherwise. This guarantee includes the sole obligation of the supplier to perform again in case of deficiencies, the concerned activities insofar deficient.
6.12. The allegedly failure to comply to her warranty obligations by the supplier does not free the customer of her obligations that she holds based on any agreement between her and the supplier.
Article 7: Rental
7.1. Supplier can offer goods for rent to the customer during an agreed rental period. The rented is supplied by the supplier in a fair state of maintenance to the customer.
7.2. During the rental period, the customer is responsible for a reliable functioning of the rented and the customer will maintain the rented on her own account. Customer is not authorized to rent out the rented or to supply it to third parties in any way.
7.3. During the rental period, the customer is liable for any damage to the rented and the customer will insure the rented on her account and keep it insured against damage.
7.4. Any form of damage, caused by the deficiencies of the rented, to installations and/or property of personnel of the customer will be on the customer’s account and charge.
7.5. Customer does not hold the supplier liable for all forms of damage of third parties that are caused by deficiencies in the rented.
7.6. Any form of theft or loss of the rented is on the account and risk of the customer.
7.7. Customer gives the supplier unlimited access to all buildings and property of the customer where the rented is located, for the purpose of inspecting the rented.
7.8. The rented is solely used by the customer for the goal for which the rented was supplied.
7.9. Regarding the rented, article 10 is applicable correspondingly.
Article 8: Liability
8.1. Supplier is not liable for damage done by the supplier or by the persons or tools used by the supplier during the execution of the agreement towards the customer and/or third parties, unless there is a case of intent or gross negligence on the side of the supplier.
8.2. Supplier is never liable towards the customer for consequential damage, trading losses, third-party damage, loss of clientele, damage to name and/or goodwill and/or lost profits.
8.3. Supplier is not liable for damage experienced by the customer and/or third parties that are directly or indirectly caused by the product.
8.4. The maximally possible liability of the supplier is restricted to the invoice value of the goods. Regardless of the agreed, the potential liability of the supplier is in all cases limited to the amount to which the supplier any liability insurances provide coverage for the relevant damages and only to the extent to which the supplier actually proceeds to payment. For all the excess, the supplier cannot be held liable.
8.5. All claims towards the supplier, except those that are recognized by the supplier, expire after 12 months after the appearance of that claim, unless legally encountered by the customer.
8.6. Supplier is not liable for damage to or loss of goods of the customer and/or third parties that are trusted with preparation or execution of an agreement unless in the case of intent or gross negligence on the side of the supplier.
8.7. Customer does not hold the supplier, her customers and the by her requested helpers liable for claims of third parties for compensation for damage to the customer based on liability.
8.8. Advice given by the supplier regarding quality, execution, sizes etc. are given to the best of knowledge, so the customer cannot claim any compensation for damage resulting from well-intended advice from the supplier. A given advice does not free the customer in any way from any obligation and/or responsibility.
Article 9: Force Majeure
9.1. In cases of force majeure, the supplier is authorized to end the agreement partially or wholly without a notice of default, or to suspend the obligations with the duration of the force majeure, without giving the customer right to compensation of damages by the supplier.
9.2. Force majeure means any circumstances independent from the supplier’s will, even if this could have been foreseen during the time of agreement, that obstructs or temporarily obstructs the fulfillment of the agreements. In every case, force majeure means: failure of delivery, untimely delivery or unsound delivery by third-party suppliers (including suppliers of gas, energy and water) to the supplier, illness of personnel of the supplier or her suppliers, deficiencies in devices and means of transportation, fire at the supplier or her suppliers, theft at the supplier or her suppliers, strikes and/or uproar at the supplier or her suppliers, traffic barriers, transportation issues at the supplier or her suppliers, government measures that make the execution of the agreement difficult or more difficult that was reasonably foreseeable during the time of the agreement, war or other disturbances, and weather conditions.
9.3. In case that the force majeure has a duration longer than two months, the customer has the right to dissolve the agreement for the non-executed part. Costs made or costs still to be made by the supplier are covered by the customer.
Article 10: inspection and complaints
10.1. In case the delivered goods/services do not meet the requirements of the agreement, the customer has the right to demand a sound compliance to the agreement of the supplier according to the conditions stated in this article below.
10.2. Customer is required to inspect and examine the goods/services immediately after reception. Potential complaints regarding visible deficiencies have to be reported to the supplier within eight days after accepting the delivery, failing to do so deprives the customer from any claims towards the supplier.
10.3. Hidden deficiencies, subject to forfeiture of any claim of the customer towards the supplier, need to be complained within eight days after their discovery or within eight days after it reasonably should have been discovered, but always within three months after delivery.
10.4. About (possible) deficiencies, the customer must complain extramurally with the supplier. The complaint must be reasonably motivated. The customer must give the supplier the opportunity to inspect the complaint. Customer must give the supplier all cooperation to do so. If the complaint is not sufficiently motivated, the customer has tried to fix the possible deficiencies herself, or the supplier is not given the chance to inspect the complaint, or if inspection is no longer possible, every claim from the customer to the supplier becomes void.
10.5. If, after inspection of the complaint by the supplier the complaint by the customer is deemed unfounded or is rejected, which is completely to the discretion of the supplier and for which the supplier is not required to give further motivation for her decision, the customer has to fully compensate all inspection costs that the supplier incurred regarding the customer’s complaint upon first request.
10.6. There is no right of complaint if the goods are processed or delivered.
10.7. Deficiencies of a part of the delivery does not give right to refuse the entire delivery.
10.8. The supplier is free to judge toc choose between either replacement or repair of the deficient good or goods in the case of an identified and by the supplier recognized deficiency.
10.9. Returns of the delivered goods are only allowed if extramural permission is given by the supplier.
10.10. The right to complaint does not give the customer the right to suspend her payment obligation.
Article 11: Termination
11.1. In case the customer does not meet one or multiple of her obligations stemming from the agreement, the law, customs or the requirements of reasonableness and justice corresponding to article 248 section 1 book 6 BW, is declared in a state of bankruptcy, requests suspension of payment, proceeds to liquation of her affairs, her capital is wholly or partially confiscated or otherwise deemed insolvable by the supplier, the supplier has the right to terminate the agreement without notice of default.
11.2. Customer is only entitled to terminate the agreement in those cases regulated in these terms and conditions.
Article 12: Industrial Property
12.1. All drawings, images, product assemblies, sizes, computer programs, weight specifications provided to the customer by the supplier as well as any other by the supplier to the customer provided information products and goods, remain property of the supplier, expressly subject to copyrights, design rights and patents.
12.2. Except in case of prior explicit, extramural permission by the supplier, it is prohibited for the customer to copy these documents and/or goods, or make them available or provide insight to third parties.
12.3. If the supplier designs and/or assemblies a unique product for the customer, the design will always remain the property of the supplier.
12.4. The delivery of a service or good cannot be regarded as an explicit or implicit license to use, duplication, or release of the intellectual or industrial property to third parties.
12.5. Customer warns the supplier in case third parties infringe or threat to infringe on the intellectual or industrial property.
Article 13: Acquisition of personnel and confidentiality.
13.1. Customer will keep all information and/or data that she received in the context of (the execution of) the agreement confidential and will not make it known to third parties without extramural permission from the supplier, unless making information known happens under legal obligation or court order. The terms “information” and “data” should be interpreted in the broadest sense of the word.
13.2. The customer is not allowed to hire personnel (or third party individuals deployed by the supplier) from the supplier involved in any part of the execution of the agreement, or to negotiate employment, unless in consultation and after extramural permission by the supplier.
13.3. Customer will not communicate the approach, processes, methods, specifications and the like to third parties without permission of the supplier.
13.4. Customer is obliged towards the supplier to impose obligations as described in the previous sections of this article on those who (including employees of the customer) are tasked with the execution of any part of the agreement on behalf of the customer, and the customer guarantees that this/these person(s) honor these obligations.
13.5. In case of offense of the obligations mentioned in this article by the customer, without requisites of reminder or notice of default, forfeits with a immediately payable penalty not susceptible to settlement of 50,000 euros per occurrence to the supplier, which does not influence the customer’s obligation of compensation for losses or damages.
13.6. Every (intend) to negotiate, whether or not by the same person, is a separate offense.
13.7. Every communication, independent of whether the same message is given multiple times to the same party, is a separate offense.
Article 14: Disputes
14.1. Disputes stemming from or in relation to any contract between the supplier and customer, will be submitted to the competent court in Arnhem.
14.2. On all contracts between the supplier and customer solely the Dutch law is applicable. The applicability of the CISG (Convention on the International Sale of Goods 1980) is excluded.