GENERAL TERMS AND CONDITIONS OF ELATION PROFESSIONAL B.V.
Version: April 1st, 2025
Definitions
In these general terms and conditions, the following expressions have the following meanings:
A) ELATION: the private company with limited liability Elation Professional B.V. registered in the commercial register of the Chamber of Commerce in Limburg under number 50048775.
B) Buyer: the opposite contract party as referred to in article 6:231, subsection c, of the Dutch Civil Code [BW], being the party to whom an offer is made by ELATION, or with whom an agreement is concluded by ELATION, or to whom goods or products are supplied, unless otherwise agreed in writing.
Article 1: Applicability
1.1. All offers, including electronic offers through ELATION’s website, will be made subject to these general terms and conditions being declared applicable, both to the offers and acceptance thereof, as well as to the agreement thus formed.
1.2. The agreement will be formed once acceptance of the offer has been received by ELATION. By accepting the offer, the Buyer thereby states that the Buyer agrees to the applicability of these general terms and conditions and that the Buyer waives the stated applicability of any general terms and conditions used by the Buyer.
1.3. If provisos or changes are made in the acceptance with respect to the offer, the agreement will only be formed if ELATION has informed the Buyer in writing that ELATION consents to these deviations from the offer.
1.4. General terms and conditions of the Buyer are expressly rejected. The applicability of any other terms and conditions—whether stated in the Buyer’s purchase order, correspondence, or elsewhere—is excluded, even if ELATION has not explicitly objected to such terms. Acceptance of goods or services by the Buyer shall be deemed as acceptance of these general terms and conditions only.
Article 2: Price
2.1. Unless otherwise indicated, the prices stated in the offer will be exclusive of value added tax in accordance with Dutch law [Btw].
2.2. After the payment period has lapsed, the Buyer will be in default without a notice of default being necessary and will owe due and payable interest of 1.25 % per month as from that time, until the date of payment in full. If the Buyer is liquidated, declared insolvent or granted a suspension of payments, the Buyer’s obligations will be immediately due and payable.
Article 3: Delivery
3.1. Unless it expressly appears otherwise on the invoice, the items purchased will be delivered ex works. Risk of loss of or damage to any consignment of the goods shall pass to the Buyer from the time the delivery leaves ELATION’s or any engaged third party’s premises, including if the goods are delivered “carriage paid”.
3.2. Unless expressly agreed otherwise, the agreed delivery date will be indicative and not be a fixed and final deadline. ELATION will be entitled to perform the agreement in parts. If ELATION is unable to provide delivery within the agreed delivery period, ELATION will inform the Buyer as soon as possible, and the delivery period will be extended by a maximum of four months. In this situation, however, ELATION will also be entitled to rescind the agreement through an extrajudicial declaration. In the latter case, ELATION will only be obliged to pay compensation if the failure to perform the agreement results from intentional acts/omissions or gross negligence by ELATION.
3.3. The agreement cannot be rescinded by the Buyer because of an overdue deadline.
Article 4: Quality and description
4.1. Unless the parties agree otherwise, ELATION will not warrant that the goods are suitable for the purpose for which the Buyer wishes to use them, not even if this purpose has been indicated by the Buyer to ELATION.
Article 5: Storage
5.1. If, for whatever reason, the Buyer is unable to take possession of the goods at the agreed time and they are ready for shipment, ELATION shall have the right to store and secure the goods for the expense and risk of the Buyer and take all reasonable measures to prevent them from deteriorating in quality until they are delivered to the Buyer. The payment obligations of the Buyer will remain in force unimpaired and will be increased by the extra costs that ELATION has had to incur.
5.2. The Buyer is obliged to pay ELATION for the storage costs in accordance with ELATION’s usual rates and, in the absence thereof, the normal rates in the industry, from the time that the goods are ready for transport until the actual pick up or delivery date.
Article 6: Transfer of ownership and risk
6.1. Subject to the provisions in paragraphs 2 and 4 of this article, ownership of and the risk for the goods will be transferred to the Buyer upon delivery.
6.2. If the Buyer has not paid the full amount of the purchase price and any additional costs or provide adequate security for this, ELATION will retain the title to the goods. In that case, ownership (both legal and equitable) of the goods shall remain with ELATION and will be transferred once the Buyer has fulfilled all its obligations vis-à-vis ELATION.
6.3. If ELATION has good reason to doubt the Buyer’s capacity to pay, ELATION will be entitled to postpone delivery of the goods until the Buyer has furnished security for payment. The Buyer will be liable for the damage suffered by ELATION because of this delay in delivery.
6.4. The Buyer will ensure that items to which ELATION retains title are not pledged and that no other right is created in respect of them. If and insofar as the Buyer does not or does not fully perform its obligations or there is a well-founded fear that it will not meet its obligations, ELATION will be entitled to repossess the goods delivered to which the retention of title applies from the Buyer or third parties (or to have these goods removed from them). The Buyer must fully cooperate in this regard, subject to a penalty of 10 % per day on the amount owed by it to ELATION. This penalty will be forthwith due and payable.
6.5. The Buyer undertakes that, at ELATION’s request, it will:
- insure the goods delivered subject to retention of title and keep these goods insured against fire, explosion, and water damage, as well as against theft, and make the policy and proof of payment of the premiums for this insurance available for inspection by ELATION;
- pledge to ELATION pursuant to Section 3:239, Dutch Civil Code [BW], all claims by the Buyer against insurers regarding the goods delivered subject to retention of title;
- pledge to ELATION pursuant to Section 3:239, Dutch Civil Code [BW], the claims which the Buyer acquires against its customers upon resale of the goods delivered by ELATION subject to retention of title;
- regard and label as ELATION’s property the goods delivered subject to retention of title;
- cooperates in other ways in all reasonable measures which ELATION wishes to take to protect its ownership rights regarding the items;
6.6. If third parties want to establish or enforce rights on the goods or products supplied under retention of title, then the Buyer must notify ELATION of such immediately.
Article 7: Limited Warranties
7.1. ELATION warrants to the Buyer that, under normal use, its goods and spare parts are free from material and manufacturing defects for the warranty periods specified below, commencing on the invoice date. This warranty applies exclusively to new ELATION-branded and/or ELATION-distributed products listed below and purchased from an authorized ELATION dealer. If the Buyer is an authorized ELATION reseller or distributor, the warranty period may instead begin on the date of purchase by the first end-user, provided that:
- the end-user purchase takes place within twelve (12) months from the date of ELATION’s original invoice to the reseller or distributor; and
- acceptable proof of end-user purchase, including the invoice and product serial number, is provided to ELATION upon request.
If these conditions are not met, the warranty period shall begin on the original invoice date from ELATION to the reseller or distributor.
The limited warranty covers exclusively manufacturing defects and defects in material. Any consequential damage is excluded. At no time will installation or re-installation of products or labor liability costs be assumed by ELATION.
|
PRODUCT / SERIES |
WARRANTY PERIOD |
COVERAGE |
|
Indoor Lighting Products |
2 Years (730 Days)9, 15 |
Manufacturing Defects – |
|
Materials and Workmanship17 |
||
|
Outdoor IP66/IP65 Rated Lighting Products |
2 Years (730 Days)9, 15 |
Manufacturing Defects – Materials and |
|
Workmanship17, 18 |
||
|
DMX and LED Pixel Driver Controller Products1 |
2 Years (730 Days)9, 15 |
Manufacturing Defects – Materials and Workmanship17 |
|
Obsidian Control Systems Products2 |
2 Years (730 Days)9, 15 |
Manufacturing Defects – Materials and Workmanship17 |
|
Magmatic Atmospheric Products3 |
2 Years (730 Days)9, 15 |
Manufacturing Defects – Materials and Workmanship17 |
|
Magmatic LED Lighting Products4 |
2 Years (730 Days)9, 15 |
Manufacturing Defects – Materials and Workmanship17, 18 |
|
Smarty Series Products5 |
2 Years (730 Days) or |
Manufacturing Defects – Materials and Workmanship17 |
|
Rated Lamp Life Hours11,15 |
||
|
Selected LED Series Products6 |
3 Years (1,095 Days)12, 16 |
Manufacturing Defects – Materials and Workmanship17, 20 |
|
5 Years (1,825 Days)13, 16 |
LED Engine17, 19, 21 |
|
|
KL Series22, 25 |
5 Years (1,825 Days)16, 26 |
Manufacturing Defects – Materials and Workmanship17,20, 27 |
|
Fuze Pendant, Fuze Pendant Compact, and Fuze Pendant HW, |
5 Years (1,825 Days) 16, 26 |
Manufacturing Defects – Materials and Workmanship17, 20, 27 |
|
“OPS”28-Optimized Versions of Product Series |
5 Years (1,825 Days)16, 26 |
Manufacturing Defects – Materials and Workmanship17, 20, 27 |
|
Rechargeable Batteries |
6 Months (180 Days)14, 15 |
Manufacturing Defects – Materials and Workmanship17 |
|
“B-Stock” or “Used Products”; |
6 Months (180 Days)24 |
Manufacturing Defects – Materials and |
|
Workmanship17, 18 |
||
|
Discharge Lamps7 and Product Accessories8 |
Not Applicable |
Not Applicable |
|
All Other Third-Party Products Distributed by ELATION |
Not Applicable |
Not Applicable |
|
Custom Designed / Special Order OEM Products |
Not Applicable |
Not Applicable |
|
Spare Parts |
3 Months (90 Days)23 |
Only Parts |
1. Elation Products: DMX lighting control, data distribution, dimmers, switch packs, LED pixel drivers, and control products.
2. Obsidian Control Systems Products: ONYX and NETRON series.
3. Magmatic Products: Bubble, fan, foam, faze, fog, haze, snow, liquid, and control products.
4. Magmatic UV LED Products: Indoor and outdoor-rated lighting products.
5. ELATION Smarty Hybrid and Smarty Max.
6. Elation Selected LED Series / Products: Artiste, Paragon, Fuze Profile, Fuze Spot, Fuze Wash FR, Fuze Wash 500 (WH), Fuze Max Profile, Fuze Max Spot, and Fuze Teatro.
7. Discharge Lamps: All discharge lamps except Philips MSD Platinum 200 FLEX (Smarty Hybrid) and Philips MSD Platinum 400L FLEX (Smarty Max).
8. All included and optional product accessories including but not limited to power/data/safety cables, clamps, rigging hardware, gel/frost filters/frames, barn doors, and cases.
9. 2 Years (730 Days) – Parts and labor.
10. First Year (Days 1-365): Parts and labor.
Second Year (Days 366-730): Labor only (parts not included).
11. 2 Years (730 Days) or Rated Lamp Hours: Smarty Hybrid: 2 Years or 6,000 Hours.
Smarty Max: 2 Years or 4,000 Hours. Lamp hours are calculated in real time using a smart algorithm that factors in full output and hibernation cycles. Typical entertainment usage (30% operation, 70% hibernation) is required to reach the stated lifespan, as defined by Philips.
12. 3 Years (1,095 Days) – Parts and labor
13. 5 Years (1,825 Days) – LED Engine (parts only, labor not included).
14. 6 Months (180 Days) – Battery / Rechargeable battery (parts only, labor not included).
15. Covers all products manufactured after October 1, 2015, subject to incident review and inspection by Elation.
16. Covers all qualified registered products sold after January 1, 2025, subject to incident review and inspection by Elation.
17. Professional Entertainment Use Only. Not for architectural/general lighting or continuous operation (>14h/day). Warranty applies only to professional entertainment use; excluded otherwise.
18. Marine, Coastal & Extreme Outdoor Environments: Pre-approval by Elation is required for installation and/or use. A special corrosion-resistant coating and sealing (at additional cost) must be applied beforehand. Use without approval may void the warranty. Written approval from Elation’s Technical Support Team is required before installation.
19. Covers LED engine failure only; excludes PCB boards, drivers, power supplies, and related components/sub-assemblies. Lumen degradation (L70) and color maintenance are not covered. LED Fan Kit maintenance (available at an additional cost) is required at specified intervals. Failure to replace it may void the warranty. LED engine reliability depends on factors including, but not limited to, environmental conditions, power/voltage stability, usage patterns (on-off cycling), control, dimming, and LED Fan Kit maintenance. These factors determine warranty eligibility.
20. The product warranty applies only to professional entertainment use and is valid only when sold, installed, and maintained by an authorized ELATION dealer
21. 5-year (1,825-day) warranty applies only to LED engines used in professional entertainment applications and/or temporary professional entertainment rental projects, provided the product is sold, installed, and maintained by an authorized ELATION dealer.
22. For all KL Series devices (KL SPOT IP Excluded) the 5-year limited warranty applies if:
A) The device is installed indoors, with a maximum operating time of 14 hours per day, or
B) The device is used outdoors for entertainment purposes only, with a maximum operating time of 14 hours per day and no permanent outdoor installation (device must be IP65/IP66 certified). For permanent outdoor installations, the warranty is limited to 2 years, with the 14-hour daily operating limit still applying (device must be IP65/IP66 certified).
23. 3 Months (90 Days) – Parts only (labor not included).
24. 6 Months (180 Days) – Parts and labor.
25. Excluding KL Spot IP. The KL Spot IP is not covered under the KL Series extended warranty.
26. 5 Years (1,825 Days) – Parts and labor.
27. Exclusions for LED Engine Warranty: Does not cover lumen degradation (L70) or color maintenance.
28. "OPS" (Outdoor Permanent Specification) is a classification for products designed for long-term outdoor installation.
7.2. To obtain warranty service, the Buyer must first request and receive a Return Materials Authorization (RMA) number from ELATION. It is the Buyer’s responsibility to provide acceptable proof of product purchase and serial number—such as a copy of the original invoice or an approved ELATION Extended Warranty Certificate (“EWC”)—along with any relevant maintenance records at the time warranty service is requested. Failure to provide such documentation may result in denial of warranty service. Products returned under warranty must:
- be returned without any accessories (e.g., power, data, and safety cables, brackets, clamps, rigging hardware, filters, barn doors, lenses, hoses, nozzles, mounting hardware, etc.);
- be properly packaged in the original packaging or suitable protective materials (e.g., double-boxing with foam) to ensure safe transport by ground or air freight;
- be freight prepaid and insured to ELATION in Kerkrade (The Netherlands) or to an authorized ELATION service center.
The RMA number must be clearly written on the outside of the package, and a brief written description of the issue, along with the RMA number, must be included inside the box. Shipments received without a clearly visible RMA number will be refused and returned to the sender at the Buyer’s expense. If the returned product is damaged due to inadequate packaging or during shipment, additional repair charges may apply and/or the warranty may be voided. If accessories (standard or optional) are shipped along with the product, ELATION and/or the ELATION Authorized Service Center shall not be held liable for their loss or damage, nor are they responsible for returning such accessories. If the warranty claim is approved, ELATION will cover the cost of return ground shipping to one designated location within the European Union. Within the first six (6) months of the warranty period—and only for shipments within the European Union—ELATION will additionally cover all outbound freight and freight insurance costs, provided the warranty claim is valid in ELATION’s reasonable judgement.
7.3. The warranty shall be void if the total purchase price of the defective goods or spare parts has not been paid in full by the due date.
7.4. This warranty shall be void in any of the following cases:
- The product serial number and/or product labels have been altered, removed, damaged, or rendered illegible;
- The product has been modified in any way that, in ELATION’s reasonable judgement after inspection, affects its reliability, safety, certifications, and/or performance ratings;
- The product has been repaired or serviced by anyone other than ELATION or an ELATION Authorized Service Center, unless prior written authorization was provided by ELATION;
- Damage is caused by the use of non-original parts not manufactured, sold, or recommended by ELATION, or through the integration of third-party equipment, accessories, or software not approved by ELATION;
- Installation, maintenance, or use of the product deviates from ELATION’s official guidelines or user manuals
- Damage results from intentional acts, accidents, negligence, misuse, abuse, or failure to operate the product in a safe and reasonable manner;
- Damage is caused by improper or negligent installation, maintenance, transport, shock, vibration, storage, or handling;
- The product is exposed to dust, dirt, fluids, or moisture beyond its specified ingress protection (IP) rating;
- The product is damaged due to abnormal voltage, harmonic distortion, corrosion, or extreme environmental conditions such as temperature, humidity, salinity, or pressure;
- The product is damaged by intense focused light sources (e.g. direct sunlight, moving head beams, or laser projection onto the exterior or lens);
- Damage results from force majeure events (“Acts of God”) or from using the product in a manner inconsistent with its intended purpose.
7.5. This warranty is not a service contract and does not cover any periodic maintenance, calibration, adjustment, testing, or cleaning of the product.
Furthermore, the warranty does not cover the following:
- Parts subject to normal wear and tear, including but not limited to: fuses, discharge lamps (except Philips MSD Platinum 200 FLEX™ used in the Smarty Hybrid and Philips MSD Platinum 400L FLEX™ used in the Smarty Max when operated as directed in the user manual), lamp sockets, seals, screws, belts, and LED fan kits;
- Organic light output degradation, up to 30% for LED engines and up to 50% for Philips Flex lamps over the product’s lifetime;
- Variations in light intensity or color output that do not affect the functional performance of the product during normal professional entertainment use.
During the applicable warranty period stated above, ELATION and/or an ELATION Authorized Service Centre will provide warranty service—covering defective parts replacement and absorbing the associated parts and labor costs—only in cases of manufacturing defects in materials or workmanship, as confirmed after incident review and product inspection by ELATION in Kerkrade (The Netherlands) or by an authorized service center. Return ground transportation costs for repaired warranty products will be covered by ELATION to a single designated delivery point within the European Union. ELATION reserves the right to use new, factory-refurbished, or certified pre-owned parts, subassemblies, modules, or components when repairing or replacing any product under warranty. The sole obligation of ELATION and/or its authorized service centers under this warranty is limited to repair or replacement of the defective product or part, at ELATION’s sole discretion. Under no circumstances shall ELATION and/or the ELATION Authorized Service Centre be held responsible for any de-installation or re-installation labor costs or associated liability. This warranty also does not include the provision of loaner or rental equipment while the product is being inspected or serviced. While ELATION strives to maintain the highest component binning standards, it does not warrant that all variations in brightness or color can be calibrated or eliminated.
7.6. ELATION reserves the right to make changes to product design and/or performance improvements at any time without prior notice and without any obligation to apply such changes retroactively to products previously manufactured or sold.
7.7. No warranty—whether express or implied—is provided for any product accessory supplied with the products described above. Except where prohibited by applicable law, all implied warranties made by ELATION in connection with the product, including but not limited to warranties of merchantability or fitness for a particular purpose, are limited in duration to the applicable warranty periods stated above. No express or implied warranties shall apply once those periods have expired. The Buyer’s sole remedy, and ELATION’s sole obligation, shall be limited to the repair or replacement of the defective product or part, as explicitly described in this warranty. Under no circumstances shall ELATION and/or any ELATION Authorized Service Centre be liable for any direct or indirect damages, including but not limited to consequential losses, arising from the use of—or the inability to use—the product.
7.8. If a valid warranty claim is submitted, ELATION may choose to fulfill its warranty obligation by supplying the necessary replacement parts to the Buyer free of charge—provided that:
- the Buyer can reasonably be expected to have the technical ability to perform the repair; and
- if needed, ELATION’s Technical Support and Service Department will provide remote assistance.
7.9. If a product is inspected by ELATION at the Buyer’s request and found to be free of defects, the Buyer shall be charged for all actual inspection and transport costs incurred by ELATION. In such cases, a minimum charge of 10% of the product’s original net invoice value will apply.
7.10. The warranty of ELATION under this article 7 is limited to the repair of the defective goods free of charge or the replacement of a part of the good, this at the discretion of ELATION; or if none of the foregoing remedies are commercially viable in ELATION’s sole judgment, ELATION may opt instead to refund to the Buyer the net purchase price paid by the Buyer for the defective products or spare parts less reasonable depreciation of the value of such product or spare parts due to use or age, subject to the Buyer assigning to ELATION all property rights to such goods or spare parts.
7.11. No employee, agent, sales representative, distributor, or dealer of ELATION is authorized to alter, modify, or extend the warranty terms for any ELATION product or service beyond what is expressly stated in this Article 7.
7.12. This warranty constitutes the sole applicable warranty for ELATION products and supersedes all prior written or electronic warranty terms and conditions published to date.
7.13. This is ELATION’s current Limited Warranty statement at the time of publication and is subject to change at any time without notice.
Article 8: Complaints
8.1. A claim or complaint regarding the delivered goods by ELATION must be submitted to ELATION as soon as possible, but in any case, within fourteen (14) days after discovery of the shortcoming or the shortcoming reasonably could have been discovered, on penalty of any legal claim lapsing.
8.2. Returned goods or products will not be accepted unless approval has been given in writing beforehand by ELATION. They must be sent carriage paid and properly packaged.
8.3. A claim or complaint as referred to in paragraph 1 of article 8 does not suspend the payment obligation of the Buyer.
8.4. Goods that are not subject to a valid warranty claim may only be returned with prior written authorization from ELATION. Such goods must be unused, in perfect condition, and returned in original or equivalent packaging. The return must be made freight prepaid. ELATION reserves the right to inspect returned goods and charge a restocking fee of €50 or 15% of the net invoice value (whichever is greater), plus any necessary repacking or refurbishing costs. Custom-made, modified, or special-order products, as well as products invoiced more than six (6) months prior to the return request, are not eligible for return.
Article 9: Rescission
9.1. The purchase agreement will be rescinded without court intervention after a written declaration in the event the Buyer is declared insolvent, requests a temporary suspension of payments, loses the power to dispose of its assets or portions thereof through an attachment, guardianship order or otherwise, unless the trustee, receiver or administrator acknowledges the obligations ensuing from this purchase agreement as a debt of the estate.
9.2. Upon rescission, the reciprocal claims will become immediately due and payable. The Buyer will be liable for the damage suffered by ELATION, consisting of, but not limited to lost profits and transport costs.
Article 10: Force majeure
10.1. Should ELATION prove unable to meet its obligations due to circumstances beyond its control and risk, ELATION is not liable to pay any compensation whatsoever. Such circumstances (force majeure) include, but are not limited to: war, threat of war, civil war, rioting, molestation, fire, water damage, flooding, labor strikes, factory occupations, lock-outs, import and export restrictions, acts of government, defects in machinery, interruptions in the supply of gas, water, or electricity, and the stagnation and/or interruption of supplies of third parties from whom ELATION has to obtain commodities, materials, or components for the execution of the agreement, and moreover all other causes beyond the control or liability of ELATION.
10.2. ELATION will also be entitled to invoke force majeure if the situation impeding further performance arises after ELATION should have fulfilled its obligation.
10.3. The deliveries and ELATION’s other obligations will be suspended during the force majeure situation. If the period during which ELATION cannot fulfil the obligations because of this situation lasts longer than one month, both parties will be entitled to rescind the agreement, without there being an obligation to pay compensation in that case.
10.4. If, at the time the force majeure situation arises, ELATION has already partly fulfilled its obligations or can only partly fulfil its obligations, it will be entitled to separately invoice the portion already delivered or which can be delivered, and the Buyer must pay this invoice as if it concerned a separate agreement.
Article 11: Intellectual and industrial property rights
11.1. ELATION reserves all rights in relation to its intellectual products and goods that it uses, or has used, in connection with a quotation for, or the execution of an agreement.
11.2. The Buyer is expressly forbidden to reproduce, to publish, or to exploit those products and goods, such including designs, drawings, images, software, working methods, advice, other documentation, and other intellectual products of ELATION, this in the broadest sense of the term, with or without the involvement of third parties.
11.3. The intellectual and industrial property rights to all products, goods, data, and technical information supplied to the Buyer will remain vested in ELATION. ELATION has the exclusive right of publication, materialization, and reproduction of these products and goods, data, and information, and the Buyer only has a license to use it.
11.4. The license of the Buyer in relation to the use of the software developed and supplied by ELATION is not exclusive. The Buyer may only use this software in its own company or organization, and only for the installation of the items for which the license was issued.
11.5. The license to use is non-transferable. The Buyer is not permitted to make the software and the data carriers on which it is saved available to third parties, or to allow a third party to use it, in any way whatsoever. The Buyer is not permitted to reproduce the software or to make copies of it. The Buyer shall not modify the software except in connection with the rectification of errors. The source code of the software and the technical information generated during the development of such shall not be made available to the Buyer unless otherwise is agreed upon.
Article 12: Payment
12.1. Payment by the Buyer must take place, without deduction, discount, or set-off, within the agreed deadlines, but in no case later than fifteen days after the invoice date unless otherwise agreed upon. Payment must be made in Dutch currency by transfer to a bank account to be designated by ELATION. ELATION and the Buyer can agree on payment to be made in a currency other than the Euro.
12.2. ELATION is entitled to invoice for part deliveries separately.
12.3. If the Buyer has not made its payment within the deadline, ELATION is entitled to deem the agreement to be rescinded without judicial intervention being required. In that case, the Buyer will be liable for the losses suffered by ELATION, including, but not limited to, loss of profits and the cost of the notice. In the event ELATION files for bankruptcy of the Buyer, the Buyer shall also be obliged to pay, in addition to the costs referred to in this paragraph, the costs of the bankruptcy petition.
12.4. All judicial and extrajudicial (debt collection) costs, that ELATION must incur as a result of the non-performance by the Buyer of its payment obligations shall be for the expense and risk of the Buyer. This concerns the costs charged over the principal in accordance with the Decree on the Payment of Extrajudicial Debt Collection Costs of 1 July 2012 (Besluit voor vergoeding van buitengerechtelijke incassokosten van 1 juli 2012).
12.5. If ELATION is in the opinion the Buyer’s financial position or the payment record gives it reason to do so, ELATION is entitled to demand that the Buyer immediately provides (additional) security in a form to be specified by ELATION. If the Buyer fails to provide the required security, ELATION will have the right, without prejudice to its other rights, to immediately suspend the further performance of the agreement forthwith, and all amounts owed to ELATION by the Buyer of whatever nature and for whatever reason shall become immediately due and payable.
12.6. A payment by the Buyer will first of all serve as payment for any costs owed, and thereafter as payment for any interest owed, and finally as payment for the invoices that have been the longest overdue, even if the other party has stated that the payment relates to a later invoice.
12.7. In the event of an agreement with two or more opposite contract parties, these opposite contract parties are jointly and severally liable for the payment of the invoice amount.
Article 13: Liability
13.1. ELATION will no longer be liable for defects after the date of delivery of the goods, unless the defects are attributable to ELATION and the Buyer has made a valid complaint pursuant to article 8 of these general conditions.
13.2. Insofar as ELATION is liable pursuant to that provided for in paragraph 1 of article 8, then it is only liable for the direct material damages incurred by the other party.
13.3. Indirect damages or consequential losses, such to include consequential damages, loss of production, loss of turnover of profits, depreciation in value, and loss of products, are not considered to be a direct material damage and ELATION is therefore not liable.
13.4. If a mistake is made because the Buyer has issued inaccurate or incomplete information or directions, ELATION is not liable for the damages resulting from it.
13.5. ELATION is only liable for compensation of other damages than those specified in this article if and insofar as the Buyer can prove that such are attributable to the wilful misconduct or negligence of ELATION.
13.6. ELATION is not liable for any damages arising out of the agreement for which cover has been provided by the insurer of the Buyer. If and insofar as the Buyer has insured any risk associated with the agreement, it is obliged to claim any damages under that insurance and to indemnify ELATION against any redress of the insurer.
13.7. The amount of the damages to be compensated by ELATION shall be limited to the amount of the price charged for the execution of the agreement.
13.8. In no case, however, shall the damages amount to more than the total of the insurance excess limits/deductibles of ELATION and the amount which is payable for the case concerned according to the insurer of ELATION, up to a maximum of EUR 100.000 (one hundred thousand euros).
13.9. All liability of ELATION will expire, unless otherwise agreed, after a period of 6 months has elapsed as of the date on which the agreement is ended by way of delivery, rescission, or termination.
13.10. The right to make a claim in relation to a defect shall expire after one month has elapsed as of the date on which a written and reasoned notice of default has been issued.
13.11. The Buyer shall indemnify ELATION against all claims by third parties due to product liability as a result of a fault or defect in a product and or the fitting of it delivered by the Buyer to a third party, and which partly consisted of goods or products developed and/or delivered by ELATION, unless and insofar as the Buyer is able to prove that the damage was caused by these goods or products, and without prejudice to the provisions in paragraph 6 of this article.
13.12. The limitations of liability recorded in the previous paragraphs of this article also apply to benefit any of the third parties engaged by ELATION, who consequently can therefore directly invoke this limitation of liability.
Article: 14 Combating corruption, bribery and money laundering
14.1. In connection with the agreement entered into, the Buyer, its officers, directors, employees, and owners agree to comply with all laws and regulations against corruption, bribery and money laundering (such as the Wwft and sanctions directives) applicable to the Buyer.
14.2. The Buyer undertakes not to:
(a) sell products to any Restricted Party or any party owned, controlled or used by Restricted Party, or otherwise for the benefit of any Restricted Party; or
(b) resell or supply products (directly or indirectly) to a Restricted Party or a party owned, controlled or used by Restricted Party, or otherwise for the benefit of a Restricted Party, and at the same time confirms that it is not itself a Restricted Party.
For purposes of this article, "Restricted Party" means any person, entity, company or country with which trade (or supply for its own use) is prohibited by an embargo, sanctions directives or other regulations to which it is subject.
14.3. If ELATION has reasonable grounds to believe that the Buyer is in breach of its obligations under this article, ELATION shall be entitled, without prejudice to its other rights, to terminate the agreement with immediate effect or to withhold any payments or services owed. In addition, the Buyer shall fully indemnify ELATION for any damages incurred by ELATION as a result of the breach.
Article 15: Expiry date
To the extent not otherwise provided in these general terms and conditions, all claim rights, rights of action and other powers of the other party of whatever nature and for whatever reason against ELATION in connection with the supply of goods or products or the execution of work by ELATION shall always expire after one year from the moment the Buyer became aware, or could reasonably have been aware, of the existence of such rights and powers.
Article 16: Conversion; conflicting provisions
16.1. If any provision from these general terms and conditions should be wholly or partly void and/or invalid and/or unenforceable because of any statutory provision or regulation, court judgement or otherwise, but would be valid if it had more limited scope or intention, then such provision will apply with the most far-reaching or most extensively more limited scope or with which or within which it is valid.
16.2. In the event the applicable general conditions and the agreement contain conflicting provisions, the provisions included in the agreement will prevail.
Article 17: Applicable law and choice of forum
17.1. All agreements and contracts between the Buyer and ELATION, which these conditions are applicable to and all subsequent agreements, shall be governed by Dutch law with the exclusion of the Vienna Sales Convention.
17.2. All disputes associated with agreements and contracts between the Buyer and ELATION, which these conditions applicable are to and which do not fall within the competency of the subdistrict courts (kantonrechter), shall be exclusively settled by the competent court in the district where ELATION has its registered office.
Elation Professional B.V. · Junostraat 2 · 6468 EW Kerkrade · The Netherlands
Telephone: +31 45 546 85 66 · Fax: +31 45 546 85 96 · Web: www.elationlighting.eu · E-Mail: info@elationlighting.eu