Atomis General Terms and Conditions
GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF ATOMIS, JADELAAN 33, 2132 XX HOOFDDORP
Article 1 GENERAL
1.1 These terms and conditions apply to all offers, quotations and all agreements for purchase, sale or execution of work between Atomis and the client/customer, insofar as these terms and conditions have not been explicitly deviated from by parties in writing.
1.2 The present terms and conditions also apply to agreements with Atomis, for the execution of which third parties must be involved by Atomis.
1.3 The applicability of any purchase or other terms and conditions of the client/customer is explicitly rejected.
1.4 If one or more provisions in these general terms and conditions are wholly or partially void or may be annulled at any time, the remainder of these general terms and conditions will remain fully applicable. Atomis and the client/customer will then consult in order to agree on new provisions to replace the void or annulled provisions, whereby the purpose and scope of the original provisions will be taken into account as much as possible.
1.5 If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation should take place ‘in the spirit’ of these provisions.
1.6 If a situation arises between parties that is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
1.7 If Atomis does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that Atomis would in any way lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.
Article 2 OFFERS AND AGREEMENTS
2.1 All offers and quotations from Atomis are without obligation, unless a period for acceptance has been set in the quotation. An offer or quotation will lapse if the product to which the offer or quotation relates is no longer available in the meantime.
2.2 Atomis cannot be held to its offers or quotations if the client/customer can reasonably understand that the offers or quotations, or a part thereof, contain an obvious mistake or error.
2.3 The prices stated in an offer or quotation are exclusive of disposal contributions, exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel, shipping and administration costs, unless stated otherwise.
2.4 If the acceptance (whether or not on subordinate points) deviates from the offer included in the quotation or offer, Atomis is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless Atomis indicates otherwise.
2.5 The agreement, under whatever name, will only be concluded after acceptance by Atomis of an order from the client/customer. This acceptance can be evident from the written confirmation from Atomis, as well as from the fact that Atomis is implementing the agreement.
Article 3 PRICE/PAYMENT
3.1 If Atomis agrees a fixed price with the client/customer, Atomis is nevertheless at all times entitled to increase this price without the client/customer being entitled to terminate the agreement for that reason, if the increase in the price arises from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etcetera, or on other grounds that could not reasonably have been foreseen when entering into the agreement.
3.2 If, after the agreement has been concluded, one or more of the price factors undergo a price increase other than as a result of a change to the agreement of more than 10% and takes place within three months after the conclusion of the agreement, only the client/customer who is entitled to invoke title 5 section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by means of a written statement, unless Atomis is then still prepared to execute the agreement on the basis of the originally agreed, or if the price increase arises from a power or an obligation resting on Atomis under the law or if it has been stipulated that the delivery will take place more than three months after the purchase.
3.3 All payments must be made to a bank account number to be designated by Atomis within 30 days of the delivery date, unless Atomis has stipulated otherwise.
3.4 If the customer/client does not pay within the agreed terms, he/she will be deemed to be legally in default and Atomis has the right, without any notice of default, to charge the customer/client for the entire amount due, the statutory commercial interest plus 2% on an annual basis from the due date, without prejudice to Atomis’s further rights. In the event of payment default by the customer/client, Atomis has the right to recover from the customer/client all costs incurred in the collection, including both judicial and extrajudicial collection costs.
3.5 If the client/customer is or remains negligent in fulfilling his/her payment obligations, Atomis is entitled to suspend any further deliveries.
3.6 The customer/client is not entitled to deduct any claims against Atomis from the amount owed by the client/customer to Atomis.
3.7 Objections to the amount of an invoice do not suspend the payment obligation. The client/customer who is not entitled to invoke section 6.5.3 (articles 231 up to and including 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
3.8 Everything that the client/customer owes is immediately due and payable if the client/customer does not meet his/her payment obligations, becomes bankrupt, invokes the WSNP (Debt Restructuring for Natural Persons Act), applies for or has requested provisional or definitive suspension of payment, is placed under guardianship, if an attachment is levied on his or her goods and/or claims and when he/she dies, enters into liquidation or is dissolved.
Article 4 DELIVERY
4.1 Delivery is free of charge within the Netherlands on an address to be specified by the client/customer unless otherwise agreed in advance. If the delivery concerns goods with a value of less than € 250,=, Atomis is entitled to charge the client/customer for freight and/or administration costs.
4.2 The delivery time starts at the time stated by Atomis on the order confirmation and is never a strict deadline.
4.3 The delivery time specified by Atomis is based on the working conditions prevailing at the time of the order confirmation and on the timely delivery of the materials ordered by Atomis that are required for the execution of the agreement. If, through no fault of Atomis, delays occur as a result of changes to the aforementioned working conditions or because materials ordered in time for the execution of the work are not delivered on time, the delivery time will be extended as necessary.
The delivery time will also be extended if a delay on the part of Atomis has arisen as a result of the client/customer not fulfilling any obligation arising from the agreement for the client/customer or cooperation to be required from the client/customer.
4.4 Except in the case of intent or gross negligence on the part of Atomis, exceeding the delivery time does not entitle the client/customer to full or partial termination of the agreement, or to compensation for any damage suffered by the client/customer.
4.5 If delivery cannot take place in the agreed manner due to causes that are not attributable to Atomis, Atomis is entitled to charge the costs that this entails to the client/customer.
4.6 Only extra costs in connection with the delivery that Atomis makes at the express request of the client/customer will be charged separately to the client/customer, unless otherwise agreed in writing.
4.7 If goods are ordered on demand, they will be kept available on demand for a maximum of 6 weeks after they have been delivered to Atomis. If the goods have not been purchased within this period, they will still be delivered and invoiced. The storage costs will be passed on to the client/customer.
4.8 If, during the execution of the agreement, it appears that it is necessary for a proper execution thereof to change or supplement it, the parties will proceed to adjust the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the client/customer, the competent authorities, etcetera, is changed and the agreement is thereby changed in a qualitative and / or quantitative respect, this may also have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. Atomis will provide a quotation for this as much as possible in advance. A change to the agreement may also change the originally specified term of execution. The client/customer accepts the possibility of changing the agreement, including the change in price and term of execution. 4.9 If the agreement is changed, including an addition, Atomis is only entitled to implement it after approval has been given by the person authorized within Atomis and the client/customer has agreed to the price and other conditions specified for the execution, including the time at which it will be implemented. Failure to implement the amended agreement, or failure to do so immediately, does not constitute a breach of contract on the part of Atomis and is also not a ground for the client/customer to terminate the agreement. Without being in default, Atomis may refuse a request to change the agreement if this could have qualitative and / or quantitative consequences for the goods to be delivered in that context.
Article 5 FORCE MAJEURE
5.1 Atomis is not obliged to fulfill any obligation towards the client/customer if it is prevented from doing so as a result of a circumstance that is not due to fault, and is not for its account either under the law, a legal act or generally accepted views.
5.2 Force majeure in these general terms and conditions means, in addition to what is understood in law and jurisprudence, all external causes, foreseen or unforeseen, over which Atomis cannot exert influence, but as a result of which Atomis is unable to fulfill its obligations, including strikes in the company of Atomis or of third parties. Atomis also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after Atomis should have fulfilled its obligation.
5.3 Insofar as Atomis has already partially fulfilled its obligations under the agreement at the time of the commencement of force majeure or will be able to fulfill them, and the fulfilled or to be fulfilled part has independent value, Atomis is entitled to invoice the already fulfilled or to be fulfilled part separately. The client/customer is obliged to pay this invoice as if there were a separate agreement.
Article 6 SUSPENSION AND TERMINATION
6.1 In the event of prevention of fulfillment of the agreement as a result of force majeure, Atomis is entitled to immediately either suspend the execution of the agreement in whole or in part, or to terminate the agreement in whole or in part, without Atomis being held to any compensation for damage and costs.
6.2 If the client/customer does not, not properly or not on time fulfill any obligation that arises for him/her from the agreement concluded with Atomis or from an agreement related thereto, or if there are good grounds to fear that the client/customer is not able or will not be able to fulfill his/her contractual obligations towards Atomis, the client/customer has been requested when concluding the agreement to provide security for the fulfillment of his obligations under the agreement and this security is not forthcoming or is insufficient, if due to the delay on the part of the client/customer Atomis can no longer be required to fulfill the agreement under the originally agreed conditions, as well as in the event of bankruptcy, the pronouncement of the WSNP, suspension of payment, cessation or full or partial transfer of the company of the client/customer, Atomis is entitled to, without notice of default, either suspend the execution of the agreement for a maximum of six months, or to terminate it in whole or in part.
6.3 If the agreement is terminated, the claims of Atomis against the client/customer are immediately due and payable. If Atomis suspends the fulfillment of the obligations, it retains its claims under the law and agreement.
6.4 If Atomis proceeds to suspension or termination, it is in no way obliged to compensate for damage and costs caused in any way whatsoever.
6.5 If the client/customer does not fulfill his/her obligations arising from the agreement and this non-fulfillment justifies termination, Atomis is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the client/customer, by virtue of breach of contract, is obliged to pay compensation or compensation.
6.6 If Atomis has well-founded reasons to doubt the willingness to pay and/or the financial soundness of the client/customer, it has the right, before delivering and/or performing work or continuing the work, to demand security for the fulfillment of all obligations of
- the client/customer under the agreement. If such
- security is refused by the client/customer, Atomis is free to
- regard the agreement as dissolved, without prejudice to the rights of Atomis
- to compensation for damage, costs and loss of profit.
Article 7 RETENTION OF TITLE
7.1 All goods delivered by Atomis in the context of the agreement remain the property of Atomis until the client/customer has properly fulfilled all obligations from the agreement(s) concluded with Atomis.
7.2 Goods delivered by Atomis, which are subject to retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The client/customer is not authorized to process, assemble, pledge or encumber the goods subject to retention of title in any other way.
7.3 The client/customer must always do everything that may reasonably be expected of him to safeguard Atomis’s property rights and to store them as recognizable property of Atomis by type and number.
7.4 If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the client/customer is obliged to inform Atomis immediately.
7.5 The client/customer undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to give the policy of this insurance to Atomis for inspection at its first request. In the event of any payment from the insurance, Atomis is entitled to these funds. Insofar as necessary, the client/customer undertakes in advance to Atomis to cooperate with everything that may (appear) to be necessary or desirable in that context.
7.6 In the event that Atomis wishes to exercise its property rights as referred to in this article, the client/customer gives Atomis and third parties to be designated by Atomis unconditional and irrevocable permission in advance to enter all those places where the properties of Atomis are located and to take back those goods.
Article 8 LIABILITY
8.1 Atomis is only liable for damage arising during or in connection with the performance of the agreement, if and to the extent that this damage is the result of intent and/or gross negligence by Atomis and/or its managerial subordinates. In such a case, Atomis will be liable for compensation up to a maximum of the amount of the purchase or delivery agreement agreed upon by the client/customer and Atomis. Atomis’s liability is in any case always limited to the amount of the payout from its insurer, where applicable.
8.2 Atomis is not liable for damage of any kind arising from Atomis having relied on incorrect and/or incomplete information provided by or on behalf of the client/customer.
8.3 Consequential damage, business damage and/or damage due to loss of income of the client/customer, missed savings and damage due to business stagnation, however arising, are not eligible for compensation by Atomis.
8.4 Atomis is not liable for damage and/or accidents resulting from incompetent and/or incorrect use and/or incompetent or incorrect application by the client/customer of the goods and/or items delivered and/or installed and/or produced by Atomis.
Article 9 WARRANTY
9.1 The items to be delivered by Atomis meet the usual requirements and standards that can reasonably be imposed on them at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty mentioned in this article applies to items intended for use within the Netherlands. For use outside the Netherlands, the client/customer must verify whether their use is suitable for use there and meets the conditions imposed thereon. In that case, Atomis may impose different warranty and other conditions regarding the items to be delivered or work to be performed.
9.2 Atomis provides warranty on the delivered indoor LED lighting fixtures in accordance with the Atomis warranty policy 2022, which can be consulted on the Atomis website. One (1) year warranty is provided on all other items.
9.3 The warranty does not cover any incidental costs arising in connection with the repair of defects (such as, but not limited to, installation and removal, transport of the defective and repaired or new product, disposal, travel costs, lifting equipment, scaffolding) and any consequential damage; these costs are at the buyer’s expense.
9.4 Any form of warranty is voided if a defect has arisen as a result of or stems from injudicious or improper use thereof, incorrect storage or maintenance thereof by the client/customer and/or by third parties when, without written permission from Atomis, the client/customer or third parties have made or attempted to make modifications to the item, other items have been attached to it that should not be attached to it, or if these have been processed or worked on in a manner other than prescribed. The client/customer is also not entitled to warranty if the defect has arisen from or is the result of circumstances over which Atomis cannot exercise influence, including weather conditions (such as, for example but not limited to, extreme rainfall or temperatures) etc.
Article 10 COMPLAINTS
10.1 The client/customer is obliged to (have) examine(d) the delivered goods immediately when the items are made available to them. The client/customer should examine whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements that the parties have agreed upon in this regard.
10.2 On penalty of forfeiture of all rights due to them regarding a defect in the performance of the agreement, the client/customer may only invoke such rights if they report visible defects to Atomis in writing within a reasonable time, within seven days after delivery. Any non-visible defects must be reported to Atomis in writing immediately, but in any case no later than fourteen days after their discovery, on penalty of forfeiture of all rights due to them. The report must contain as detailed a description of the defect as possible, so that Atomis is able to respond adequately. The client/customer must give Atomis the opportunity to (have) investigate(d) a complaint.
10.3 If the client/customer complains in a timely manner, this does not suspend their payment obligation. In that case, the client/customer also remains obliged to accept and pay for the other ordered items.
10.4 If a defect is reported later, the client/customer is no longer entitled to repair, replacement or compensation.
10.5 If it is established that an item is defective and a timely complaint has been made in this regard, Atomis will, within a reasonable period after return receipt thereof or, if return is not reasonably possible, written notification regarding the defect by the client/customer, at Atomis’s choice, replace or arrange for repair thereof or pay compensatory damages therefor to the client/customer. In case of replacement, the client/customer is obliged to return the replaced item to Atomis and transfer ownership thereof to Atomis, unless Atomis indicates otherwise.
10.6 If it is established that a complaint is unfounded, the costs incurred thereby, including the investigation costs incurred by Atomis, will be entirely at the expense of the client/customer.
10.7 After expiration of the warranty period, all costs for repair or replacement, including administrative, shipping and travel costs, will be charged to the client/customer.
10.8 Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Atomis and third parties involved by Atomis in the performance of an agreement is one year.
Article 11 INDEMNIFICATION
11.1 The client/customer indemnifies Atomis against any claims by third parties who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than Atomis.
11.2 If Atomis should be held liable by third parties on this basis, the client/customer is obliged to assist Atomis both out of court and in court and to promptly do everything that may be expected of them in that case. Should the client/customer fail to take adequate measures, Atomis is entitled, without notice of default, to proceed with such measures itself. All costs and damage incurred by Atomis and third parties as a result will be entirely at the expense and risk of the client/customer.
Article 12 APPLICABLE LAW
Dutch law always applies to agreements to be concluded by Atomis under these conditions, even if an obligation is performed wholly or partially abroad or if the party involved in the legal relationship has their domicile there. The applicability of the Vienna Sales Convention is excluded.
Article 13 COMPETENT COURT
All disputes that may arise between Atomis and the client/customer as a result of an agreement concluded by both parties or subsequent agreements will, subject to the authority of parties to seek a decision from the president of the district court, acting in summary proceedings, be submitted to the judgment of the ordinary court in the place of establishment of the district where Atomis is located.
