General Terms and Conditions of ADJ Supply Europe B.V.

Definitions

In these general terms and conditions, the following expressions have the following meanings:

A) ADJ: the private company with limited liability ADJ Supply Europe B.V. registered in the commercial register of the Chamber of Commerce in Limburg under number 14070646;

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 ADJ, or with whom an agreement is concluded by ADJ, or to whom goods or products are supplied.

Article 1: Applicability

1.1. All offers, including electronic offers through ADJ’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 ADJ. 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 ADJ has informed the Buyer in writing that ADJ consents to these deviations from the offer.

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 “free carrier”. Risk of loss of or damage to any consignment of the goods shall pass to the Buyer from the time the delivery leaves ADJ’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. ADJ will be entitled to perform the agreement in parts. If ADJ is unable to provide delivery within the agreed delivery period, ADJ 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, ADJ will also be entitled to rescind the agreement through an extrajudicial declaration. In the latter case, ADJ will only be obliged to pay compensation if the failure to perform the agreement results from intentional acts/omissions or gross negligence by ADJ.

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, ADJ 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 ADJ.

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, ADJ 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 ADJ has had to incur.

5.2. The Buyer is obliged to pay ADJ for the storage costs in accordance with ADJ’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. As long as the Buyer has not paid the full amount of the purchase price and any additional costs or provide adequate security for this, ADJ will retain the title to the goods. In that case, ownership (both legal and equitable) of the goods shall remain with ADJ and will be transferred once the Buyer has fulfilled all its obligations vis-à-vis ADJ.

6.3. If ADJ has good reason to doubt the Buyer’s capacity to pay, ADJ 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 ADJ because of this delay in delivery.

6.4. The Buyer will ensure that items to which ADJ 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, ADJ 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 ADJ. This penalty will be forthwith due and payable.

6.5. The Buyer undertakes that, at ADJ’s request, it will:

a. insures 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 ADJ;

b. pledge to ADJ 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;

c. pledge to ADJ 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 ADJ subject to retention of title;

d. regard and label as ADJ’s property the goods delivered subject to retention of title;

e. cooperates in other ways in all reasonable measures which ADJ 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 ADJ of such immediately.

Article 7: Limited Warranties

7.1. ADJ states to the Buyer that ADJ goods and spare parts, under normal use, are free from defects in material and manufacturing for the periods stated below, calculated from the invoice date. This warranty applies exclusively to new ADJ branded and/or distributed products listed below, purchased from an authorized ADJ dealer:

1) ADJ and Eliminator branded DMX lighting control, data distribution, dimmers, switchpacks, and LED pixel driver and control products.

2) All ADJ, Eliminator and Startec by ADJ products

3) Bubble, Fan, Foam, Faze, Fog, Haze, Snow, Liquid, and control products.

4) All electrical Avante and American Audio Products

5) All ADJ, Eliminator, Accu Stand, Accu Case, branded products

6) 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.

7) All discharge lamps

11) 12 months (365 days) part and labor

12) 6 Months (180 Days) parts and labor.

13) 2 Years (730 Days) parts and labor.

14) 6 Months (180 Days) Rechargeable Battery part only. (labor not included)

15) 3 Months Parts only. (labor not included)

17) Professional entertainment specific use only. Continuous and/or extended duty (>14 hours per day) applications not applicable.

18) Marine/coastal and/or extreme outdoor environment installation and/or use must be 

preapproved by ADJ, and a special corrosion-resistant coating and sealing process (available at an additional cost) is required to be applied to the fixture before installation and/ or use. Such installation and/or use without ADJ preapproval may void warranty.

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 ADJ.

7.2. To obtain warranty service, a Return Materials Authorization (RMA) number must first be obtained from ADJ. It is the Buyer’s responsibility to provide product proof of purchase and serial number by acceptable evidence such as an invoice copy or an approved ADJ Extended Warranty Certificate (“EWC”) and any relevant maintenance records at the time warranty service is sought. 

If the Buyer is a commercial ADJ authorized reseller or distributor, then the warranty period begins on the date of purchase by the first-time end user. A copy of that invoice including Serial number must then be provided to ADJ as acceptable proof

Failure to provide acceptable evidence of product proof of purchase or EWC and any relevant maintenance records may be cause for denial of warranty service. Products returned for warranty service must be without any accessories (i.e., power, data, and safety cables, brackets, clamps, rigging hardware, frost filters, gel frames, barn doors, lens, hoses, nozzles, rack mounting hardware, etc.), must be boxed using the original and/or suitable packaging materials (double-box and foam) that provides ample product protection for ground and/or air freight transit, and must be shipped freight pre-paid and insured to ADJ in Kerkrade (The Netherlands) or an ADJ Authorized Service Center. The RMA number must be clearly written on the outside of the return box, and a brief description of the problem and the RMA number must be documented and included in the box. Products returned for warranty service without an RMA number clearly marked on the outside of the package will be refused and returned to the shipper at the Buyer’s expense. Products returned for warranty service, which are received damaged due to inadequate and/or improper packaging and/or due to damage caused by shipping carrier, may incur additional repair charges before warranty service begins and/or may void this warranty. If any product accessories (included and/or optional) are shipped with the product, ADJ and/or the ADJ Authorized Service Centre shall have no liability whatsoever for the loss and/or damage to any such accessories, nor the safe return thereof. If the requested warranty repairs or service (including parts replacement) are within the terms of this warranty, ADJ will pay return ground transportation shipping charges to a single designated point within the European Union. Only within the first 6 months of the warranty period and only inside the European Union, ADJ shall assume all responsibility and expense for freight and freight insurance, unless the warranty claim is not valid in ADJ’s reasonable judgement.

7.3. None of the warranties are valid if the total purchase price of the defective goods or spare parts has not been paid by the due date.

7.4. This warranty is void; if the product serial number and/or product labels have been altered, removed, damaged and/or rendered defective; if the product is modified in any manner which ADJ concludes after inspection, affects the reliability, safety, product certifications and/or ratings of the product; if the product has been repaired and/or serviced by anyone other than ADJ and/or an ADJ Authorized Service Center, unless prior written authorization was issued to the Buyer/owner by ADJ; if the product damage is as a result of the use of parts not manufactured, sold, or recommended by ADJ and/or in connection with the integration of any third party equipment, accessory, and software not sold, distributed, or approved by ADJ, if the product is damaged due to not following installation, maintenance, and user guidelines and/or is used in violation of said guidelines in the product instruction/user/service manuals; if the product damage is as a result of willful and/or accidental damage, negligence, misuse, abuse, and/or failure to use product in a safe and reasonable manner; if product is damaged due to improper and/or negligent installation, maintenance, transportation, shock, vibration, storage, and handling; if the product is exposed to and/or damaged by dust/dirt and/or fluid/moisture ingress exceeding the product’s ingress protection (“IP”) rating, abnormal voltage, harmonic distortion, corrosion, extreme atmospheric and environmental temperatures, humidity, and/or thermal conditions including salinity and pressure, light beams from direct sunlight, moving head lighting fixtures, or any other intense focused light or laser sources focused directly towards the exterior housing and/or penetrate the front lens, if product damage is as a result of an act of God or due to the use of the product in a manner it was not intended for.

7.5. This warranty is not a service contract and does not cover any periodic fixture maintenance, calibration, adjustment, testing, and cleaning. This warranty does not cover or include parts prone to wear and tear including but not limited to fuses, discharge lamps, lamp sockets, seals, screws, LED fan kits, and does not cover organic light output degradation (up to 30 % for LED during product lifetime) and/or variances in specified values of intensity and color which does not affect the functionality of the product over the course of normal professional entertainment use. During the specific warranty periods stated above, ADJ and/or an ADJ Authorized Service Centre will provide warranty service including defective parts replacement and will absorb parts and labor costs at its expense as per the defined coverage for each product/series listed above, including return ground transportation shipping charges for warranty serviced products to a single designated point within the European Union, only if due to reason of manufacturing defects in materials and workmanship as found after incident review and product inspection at ADJ in Kerkrade (The Netherlands) or at an ADJ Authorized Service Centre. ADJ reserves the right to use new, factory repaired or certified pre-owned parts, sub- assemblies, modules, and components in the repair or replacement of any product covered by this warranty. The sole responsibility of ADJ and/or the ADJ Authorized Service Centre under this warranty shall be limited to the repair of the product or replacement thereof, including parts at the sole discretion of ADJ. At no time will ADJ and/or the ADJ Professional Authorized Service Centre assume or be responsible for any de-installation or installation labor and/or liability costs of products covered by this warranty. This warranty does not include loaner/rental product while warranty product is being inspected and/or serviced. ADJ targets to maintain the highest binning levels for its components but does not warrant that all variation for color and brightness may be calibrated out.

7.6. ADJ reserves the right to make product design modifications and/or performance improvements without prior notice and without any obligation to include these changes in any products theretofore manufactured.

7.7. No warranty, whether expressed or implied, is given or made with respect to any product accessory supplied with the products described above. Except to the extent prohibited by applicable law, all implied warranties made by ADJ in connection with this product, including warranties of merchantability or fitness, are limited in duration to the warranty periods set forth above. No warranties, whether expressed or implied, including warranties of merchantability or fitness, shall apply to this product after said periods have expired. The Buyer and ADJ’s sole remedy shall be such repair or replacement as is expressly provided above; and under no circumstances shall ADJ and/or the ADJ Authorized Service Centre be liable for any loss and/or damage direct and/or consequential, arising out of the use of, and/or the inability to use, this product.

7.8. When a valid warranty claim is presented to ADJ, ADJ may fulfil its warranty obligations by sending the necessary replacement parts to the Buyer free of charge if the buyer can reasonably be expected to have the ability to repair the defect, if necessary, with (remote) support from ADJ’s Technical Support and Service department.

7.9. Products which are inspected by ADJ at the Buyer’s request and are found to be in order the Buyer will be charged the actual costs incurred by ADJ for inspection and transport, with a minimum of 10 % of the original net invoice amount for the item returned.

7.10. The warranty of ADJ 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 ADJ; or if none of the foregoing remedies are commercially viable in ADJ’s sole judgment, ADJ 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 ADJ all property rights to such goods or spare parts.

7.11. No employee, agent, sales representative, distributor, or dealer of ADJ products has authority to change, modify, or promise any warranty terms on any ADJ products and/or services beyond the warranty terms set forth above.

7.12. This warranty is the only warranty applicable to ADJ products and supersedes all other prior written or electronic descriptions of warranty terms and conditions heretofore published.

7.13. This is ADJ’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 ADJ must be submitted to ADJ 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 ADJ. 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.

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 ADJ, consisting of, but not limited to lost profits and transport costs.

Article 10: Force majeure

10.1. Should ADJ prove unable to meet its obligations due to circumstances beyond its control and risk, ADJ 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 ADJ has to obtain commodities, materials, or components for the execution of the agreement, and moreover all other causes beyond the control or liability of ADJ.

10.2. ADJ will also be entitled to invoke force majeure if the situation impeding further performance arises after ADJ should have fulfilled its obligation.

10.3. The deliveries and ADJ’s other obligations will be suspended during the force majeure situation. If the period during which ADJ 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, ADJ 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. ADJ 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 ADJ, 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 ADJ. ADJ 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 ADJ 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 ADJ. ADJ and the Buyer can agree on payment to be made in a currency other than the Euro.

12.2. ADJ is entitled to invoice for part deliveries separately.

12.3. If the Buyer has not made its payment within the deadline, ADJ 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 ADJ, including, but not limited to, loss of profits and the cost of the notice. In the event ADJ 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 ADJ 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 ADJ is in the opinion the Buyer’s financial position or the payment record gives it reason to do so, ADJ is entitled to demand that the Buyer immediately provides (additional) security in a form to be specified by ADJ. If the Buyer fails to provide the required security, ADJ 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 ADJ 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. ADJ will no longer be liable for defects after the date of delivery of the goods, unless the defects are attributable to ADJ and the Buyer has made a valid complaint pursuant to article 8 of these general conditions.

13.2. Insofar as ADJ 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 ADJ is therefore not liable.

13.4. If a mistake is made because the Buyer has issued inaccurate or incomplete information or directions, ADJ is not liable for the damages resulting from it.

13.5. ADJ 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 willful misconduct or negligence of ADJ.

13.6. ADJ 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 ADJ against any redress of the insurer.

13.7. The amount of the damages to be compensated by ADJ 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 ADJ and the amount which is payable for the case concerned according to the insurer of ADJ, up to a maximum of EUR 100.000 (one hundred thousand euros).

13.9. All liability of ADJ 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 ADJ 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 ADJ, 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 ADJ, 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 ADJ has reasonable grounds to believe that the Buyer is in breach of its obligations under this article, ADJ 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 ADJ for any damages incurred by ADJ 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 ADJ in connection with the supply of goods or products or the execution of work by ADJ 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 as a result 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 ADJ, 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 ADJ, 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 ADJ has its registered office.

A.D.J. Supply Europe B.V. | Junostraat 2 | 6468 EW Kerkrade | The Netherlands

Telephone: +31 (0)45 546 85 00 | Fax: +31 (0)45 546 85 99 | Web: www.adj.eu | E-mail: info@adj.eu